Daughter’s right in coparcenary

Since the passing of the Hindu Succession Act, 1956 (‘the Act’), one issue which was constantly agitated by the liberals was regarding the right of a daughter or a married daughter in coparcenary property of a Hindu Undivided Family. Some of the States which took the lead in liberalisation, passed State amendments to the Act, whereby an unmarried daughter married after the specified date was given a right in coparcenary property. Kerala, Karnataka and Maharashtra were some such States.

However, the agitation of the liberals still continued. As a result, the Act was amended by the Hindu Succession (Amendment) Act, 2005 (‘the Amending Act’) which came into force from 9th September 2005. The Amending Act substituted S. 6 of the Act. The provision of S. 6 of the Act, so far as it relates to this article, is quoted below :

“6. Devolution of interest in coparcenary property. — (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, —

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener :

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) to (4) x x x

(5) Nothing contained in this Section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. — x x x”

Mayne’s ‘Hindu Law and Usage’ describes the scope of the Amending Act as under :

‘The Hindu Succession (Amendment) Act, 2005 has substituted S. 6, w.e.f. 9-9-2005. With effect from this date, the devolution of interest in the coparcenary property shall be governed by this Section. In a Mitakshara joint Hindu family, the daughter of a coparcener shall (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.’

(See 16th Edition, 2008 at page 1175).

Even after passing of the Amending Act and substitution of S. 6, a number of questions were raised in the legal circles as to whether the Amending Act was prospective or retrospective and whether a daughter born before coming into force of the Amending Act i.e., 9th September 2005 was entitled to benefit under the newly incorporated S. 6 of the Act. There were divergent views and conflicting arguments.

Fortunately, these issues have now come up before our Courts and we now have the benefit of some judicial pronouncements on the effect of the new S. 6 of the Act.

In Pravat Chandra Pattnaik and Others vs. Sarat Chandra Pattnaik and Another, (AIR 2008 Orissa 133), the Orissa High Court had occasion to consider the effect of the Amending Act and the new S. 6 of the Act. It was a case relating to partition of Hindu Mitakshara coparcenary property. After decision by the lower Court, an appeal was preferred to the High Court.

The Court held that the Amending Act was enacted to remove the discrimination contained in S. 6 of the Act by giving equal rights and liabilities to the daughters in the Hindu Mitakshara Coparcenary property as the sons have. The Amending Act came into force with effect from 9-9-2005 and the statutory provisions create new right. The provisions are not expressly made retrospective by the Legislature. Thus, the Act itself is very clear and there is no ambiguity in its provisions. The law is well settled that where the statute’s meaning is clear and explicit, words cannot be interpolated. The words used in provisions are not bearing more than one meaning. The amended Act shall be read with the intention of the Legislature to come to a reasonable conclusion. Thus, looking into the substance of the provisions and on conjoint reading, Ss.(1) and (5) of S. 6 of the Act are clear and one can come to a conclusion that the Act is prospective. It creates substantive right in favour of the daughter. The daughter got a right of coparcener from the date when the amended Act came into force i.e., 9-9-2005.

The Court also did not accept the contention that only the daughters, who are born after 2005, will be treated as coparceners. The Court held that if the provision of the Act is read with the intention of the legislation, the irresistible conclusion is that S. 6 (as amended) rather gives a right to the daughter as coparcener, from the year 2005, whenever they may have been born. The daughters are entitled to a share equal with the son as a coparcener.

The same issue also arose before the High Court of Karnataka in Sugalabai v. Gundappa A. Maradi and Others [ILR 2007 KAR 4790; 2008 (2) Kar LJ 406]. The Court was considering appeals where pending the appeals the Amending Act was passed by the Parliament. The Court held that as soon as the Amending Act was brought into force, the daughter of a coparcener becomes, by birth, a coparcener in her own right in the same manner as the son. Since the change in the law had already come into effect during the pendency of the appeals, it is the changed law that will have to be made applicable to the case. The daughter, therefore, by birth becomes a coparcener and that there is nothing in the Amending Act to indicate that the same will be applicable in respect of a daughter born on and after the commencement of the Amending Act.

In coming to the conclusion, the Court referred to the following principles of interpretation of statutes as laid down by the Apex Court :

(1) Statutory provisions which create or take away substantive rights are ordinarily prospective. They can be retrospective if made so expressly or by necessary implication and the retrospective operation must be limited only to the extent to which it has been so made either expressly or by necessary implication.

(2) The intention of the Legislature has to be gathered from the words used by it, giving them their plain, normal, grammatical meaning.

(3) If any provision of a legislation, the purpose of which is to benefit a particular class of persons is ambiguous so that it is capable of two meanings, the meaning which preserves the benefits should be adopted.

(4) If the strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation which will give effect to the purpose will be put on the words, if necessary, even by modification of the language used.

The Court also applied the principles stated in American Jurisprudence (2nd Edition, Vol. 73, Page 434, Part 366) quoted with approval by the Supreme Court in S. R. Bommai v. Union of India, (AIR 1994 SC 1980).

“While it has been held that it is the duty of the Courts to interpret a statute as they find it without reference to whether its provisions are expedient or inexpedient, it has also been recognised that where a statute is ambiguous and subject to more than one interpretation, the expediency of one construction or the other is properly considered. Indeed, where the arguments are nicely balanced, expediency may trip the scales in favour of a particular construction. It is not the function of a Court in the interpretation of statutes, to vindicate the wisdom of the law. The mere fact that the statute leads to unwise results is not sufficient to justify the Court in rejecting the plain meaning of unambiguous words or in giving to a statute a meaning of which its language is not susceptible, or in restricting the scope of a statute. By the same token an omission or failure to prove for contingencies, which it may seem wise to have provided for specifically, does not justify any judicial addition to the language of the statute. To the contrary, it is the duty of the Courts to interpret a statute as they find it without reference to whether its provisions are wise or unwise, necessary or unnecessary, appropriate or inappropriate, or well or ill conceived.”

One additional issue was raised before the Court in this case as to whether there was a conflict between the Amending Act and the provisions of the Hindu Succession (Karnataka Amendment) Act, 1994. The Court held that “When there is a conflict between the State law and the subsequent law made by the Parliament on an Entry in Concurrent List, it is the law made by the Parliament that will prevail over the State Law even though the State law was passed after obtaining assent of the President and it is not necessary that law made by the Parliament should expressly repeal a State law.”

It is submitted that, in view of the aforesaid decisions of the Orissa and the Karnataka High Courts, the issue is presently settled and that the daughter of a coparcener becomes, by birth, a coparcener in her own right in the same manner as the son, irrespective of whether she was born before or after the Amending Act came into force.

Author/s : M. L. Bhakta, Advocate & Solicitor