family law womens coparcenary rights emerging trends and issues

8/4/2019 Family Law Womens Coparcenary Rights Emerging Trends and Issues

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FAMILY LAW- WOMENS COPARCENARY RIGHTS: EMERGING TRENDS AND

ISSUES


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TABLE OF CASES

1.Commissioner Of Income Tax v. Seth Govindam Sugar Mills, AIR 1966 SC 24.

2.Controller of Estate Duty v.Alladi Kuppusamy, (1977) 3 SCC 385.

3.Eramma v. Veerupana, (1967) 1 SCJ 746.

4.Gurapad Khandappa Magdum v.Hirabai Khandappa Magdum, AIR 1978 SC 1239.

5.Jaganathan Pillai v.Kunjithapadam Pillai, AIR 1987 SC 1493.

6.Keshav Nandan Sahay v.Bank of Bihar, AIR 1977 Pat. 185.

7.Kishta Bai v.Ratna Bai, (1979) I Andh L.T. 250 c.f. Sharma, Vijay,Protection to Women inMatrimonial Home (New Delhi, Deep & Deep Publishing, 1994)

8.Krishna Rao v. State of Andhra Pradesh, AIR 1987 AP 239.

9.Kunhikoman v. State of Kerala, AIR 1962 SC 723 c.f. Sivaramayya, B., Coparcenary Rights toDaughters: Constitutional and Interpretative Issues, (1997) 3 SCC (J) 25.

10.Mangal Singh v. Smt. Rattno, (1968) 1 SCJ 487.

11.Padminibai v.Arvind Purandhar Murabatte, AIR 1989 Kar. 120.

12.Parappa v.Nagappa, AIR 1954 Mad. 576.

13.Rangubai v.Laxman Lalji Patil, AIR 1966 Bom. 169.

14.Rathnasabapathy Pillai v. Saraswathi Ammal, (1953) 2 MLJ 459.

15.Savita Samvedi v. Union of India, (1996) 2 SCC 380.

16.Shiramabai v.Kalgonda Bhimgonda, AIR 1964 Bom. 263.

17.Shivappa v. Yellawa, AIR 1954 Bom. 47 c.f. Sharma, Vijay,Protection to Women in Matrimonial Home(New Delhi, Deep & Deep Publishing, 1994)

18.State of Maharashtra v.Narayan Rao, AIR 1985 SC 716.

19.Subba Rao v.Krishna Prasad, AIR 1954 Mad. 227.


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.

TABLE OF STATUTES

1. Hindu Adoption and Maintenance Act, 1956

2. Hindu Succession Act, 1956

3. Hindu Succession (Andhra Pradesh) Amendment Act , 1985

4. Hindu Succession (Karnataka) Amendment Act , 1994

5. Hindu Succession (Maharashtra) Amendment Act , 1994

6. Hindu Succession (Tamil Nadu) Amendment Act , 1989

7. Hindu Womens Right To Property Act, 1937.

8. Kerala Joint Family System (Abolition) Act, 1976.


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TABLE OF CONTENTS

1. INTRODUCTION.5

2. RESEARCH METHODOLOGY.7

3. WIDOWS RIGHTS TO PROPERTYSHIFTING DIMENSIONS..9

3.1. LEGALCONSEQUENCES OF THE HINDU WOMENS RIGHT TO PROPERTY ACT, 1937.3.2 THE WIDOW AND THE HINDU SUCCESSION ACT, 1956.

Scheme/Purpose of the Hindu Succession Act, 1956

Widow as Coparcener/Karta?

Share of the Widow in coparcenary property in the background ofGurupads case

Conversion of Widows Limited Estate into Absolute Property

4. DAUGHTERS RIGHT TO PROPERTY AND THE SOUTHERN AMENDMENTS --ACritical Understanding20

4.1. THE PITH AND SUBSTANCE OF THEANDHRA MODEL

4.2. EFFECT ON THE TRADITIONAL JOINT FAMILY AND ON ITS FUNDAMENTALS

4.3. QUESTIONABLE DISTINCTIONS IN THE AMENDMENTS

5. CONCLUSION: .......25

6. BIBLIOGRAPHY.....27


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2. INTRODUCTION

Feminist movements have questioned male-stream thinking in ways that have struck atdiscriminatory status quo in politics, society as well as the economic sphere. This project is

connected with the legal dimensions of the changes in the economic sphere of those changes and

specifically in the area of womens property rights. Such changes have not been easy and haveincluded debates that have challenged the very basis of feminism itself. The gender equality v.

gender difference or formal equality v. substantive equality debates in feminist theory are

examples of contentious issues that have struck at the attempts of the law to change the legalstatus of women. For example, would merely giving daughters the same coparcenary rights as

her brothers take into account that at some level the needs of men and women may be different,

as the difference side believes? Or would giving a widow the same quantum of coparcenary

property as her sons (formal equality) make her life any better than in the past (substantiveequality)?

The constitution of India some argue provides a comprehensive framework for providing for

legislation that can bring tangible improvements in the status of women. However it has beenargued that the interpretation of the constitution by the higher courts have vastly reduced its

efficacy by giving undue importance to so-called religious personal laws which in the guise ofprotecting religious minorities allows for judicially acknowledged discrimination of women. A

secular constitution in a religious society has not been able to rise to the challenges that a

dominant male hegemony has attempted to create by purporting to protect a higher value-religion. Consequently an issue that is directed at reform of laws that discriminate against

gains political currency and becomes too emotive to touch, let alone reform. The Uniform Civil

Code which despite being mandated by the constitution is unlikely to get fructified, at least in the

near future, on account of such politicization.

The judiciary has not been able to innovate in the face of such hurdles for womens rights. Forexample, in an interpretation of the Equal Protection Clause of the constitution the difficultymay be visible. The Supreme Court of the US will sometimes review discriminatory systems on

the basis of active review (and hold the systems unconstitutional by looking at their substance

not their purported object) in the cases of vital matters of civil rights such as womens rights. InIndia however, the paradigm of reviewing discriminatory systems is termed restrained review

which assesses levels of formal equality (as opposed to a requirement of substantive equality)

thereby allowing several discriminatory systems to get through judicial review.

Now to turn to the evolution of womens property rights before the Hindu Womans Right to

Property Act, 1937. The concept ofstridhan or womens property originated in the vedic age

and undergone significant variation in various commentaries and after adjudication by Britishcourts. In general the stridhana of a woman denotes a species of property over which she has

absolute control; and she forms the stock of descent in respect to such property. In other words

such property devolves on her heirs, although th variations between different schools of HinduLaw may not always provide for this.

The British courts recognized three types ofstridhan thefirstbeing gifts from kindred that isfrom male relatives of her natal family. Thesecondtype consists of property acquired in lieu of


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maintenance and the thirdtype consists of property acquired by adverse possession. The share

of a woman on partition is notstridhana and she would not be its absolute owner.

The second type of womens property is that where she has limited or qualified interest and such

property got fructified in the Hindu Womens Right to Property Act, 1937(discussed below).

Such womens estate had the primary feature of only providing for limited power of disposal(usually only for legal necessity). Also such estate was only for the benefit of the widow in her

lifetime and reverted to the heirs of the last full owner.

Thus this historical background allows for a full fledged discussion of the coparcenary rights of

women right from the Hindu Womens Right to Property Act, 1937 right down to the

recommendations of the Law Commission in 2000.

RESEARCH METHODOLOGY

AIMS & OBJECTIVES

TO UNDERSTAND THE MANNER IN WHICH WOMEN HAVE ACQUIRED COPARCENARY

RIGHTS--BOTH FORMALLY AND IN SUBSTANCE

TO EXAMINE THE ENACTMENTS THAT HAVE PROCEEDED WITH GRANTING OF THESE RIGHTS

AND THE METHOD FOLLOWED IN EACH ENACTMENT

TO CRITICALLY EXAMINE THE ISSUES THE ENACTMENTS RAISE AND PUT THEM IN THE

WIDER CONTEXT OF WOMENS PROPERTY RIGHTS

SCOPE & LIMITATIONS

THE TOPIC CAN POTENTIALLY COVER THE ENTIRE FIELD OF WOMENS PROPERTY RIGHTS

BUT THE ATTEMPT HAS BEEN MADE TO EXAMINE ONLY THOSE ASPECTS WHICH HAVE AMATERIAL CONNECTION WITH COPARCENERY RIGHTS WHICH HAVE BEEN GIVEN A

SUFFICIENTLY LIBERAL INTERPRETATION.

SOME ASPECTS SUCH AS THE ISSUE OF DWELLING HOUSES, WHICH MAY HAVE SOME

RELATIONSHIP WITH COPARCENERY RIGHTS, HAVE BEEN IGNORED FOR TWO REASONS.THE FIRST BEING KEEPING THE PROJECT CONCISE. SECONDLY, EXAMINING GENERAL

PRINCIPLES CAN HELP TO ANALYZE TOPICS NOT DIRECTLY DEALT WITH.

STRIDHANA AND OTHER HISTORICAL ASPECTS HAVE BEEN SUBORDINATED TO MORE

CONTEMPORARY ASPECTS


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STYLE OF WRITING

THE STYLE FOLLOWED IS A COMBINATION OF THE DESCRIPTIVE AND ANAYTICAL

METHODS. USUALLY A CERTAIN ASPECT OF THE LAW IS DESCRIBED AND THEN

ANALYTICAL UNDERSTOOD.

MODE OF CITATION

A UNIFORM MODE OF CITATION HAS BEEN FOLLOWED THROUGHOUT THE PROJECT

SOURCES OF DATA

SECONDARY SOURCES OF DATA SUCH AS CASE REPORTS, COMMENTARIES, ELECTRONIC

SOURCES HAVE BEEN USED. SOME ANALYSIS ALSO FOLLOWS FROM DISCUSSIONS

CONDUCTED AT THE NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALOREFOR THEFAMILY LAW-II COURSE IN THE FIRST WEEK OF DECEMBER 2001.

RESEARCH QUESTIONS

WHAT HAS BEEN THE IMPACT, IN DIFFERENT SPHERES, OF THE VARIOUS ENACTMENTS

DIRECTED AT REFORM OF WOMENS PROPERTY RIGHTS?

WHAT HAVE BEEN THE CONSEQUENCES, POSITIVE AND NEGATIVE, ARISING FROM THESE

ENACTMENTS?

WHAT HAS BEEN THE JUDICIARYS INTERPRETATION ON THESE MEASURES AND ITS

RATIONALE FOR THE SAME? WHAT HAS BEEN THE RESULTING EFFECT OF THESE

INTERPRETATIONS?

WHAT HAS BEEN THE UNDERLYING BASIS FOR THE SOUTHERN AMENDMENTS IN THE

SPHERE OF DAUGHTERS COPARCENARY RIGHTS? DO THE AMENDMENTS STAND UP TOTHE SCRUTINY OF BOTH POSITIVE & NORMATIVE PRINCIPLES OF LAW?

CHAPTERIZATION

THE CHAPTER TITLED WIDOWS RIGHTS TO PROPERTYSHIFTING DIMENSIONS ATTEMPTS

TO LOOK AT TWO ENACTMENTS THE HINDU WOMANS RIGHT TO PROPERTY ACT, 1937 &

HINDU SUCCESSION ACT, 1956 FROM THE VIEWPOINT OF THE WIDOW. AN ANALYSIS OF

THE STATUTES AND CASE LAW ALLOWS AN UNDERSTANDING OF THE POSITION OF

COPARCENARY RIGHTS OF THE WIDOW AND THE ISSUES THAT ARISE THEREFROM.

THE CHAPTER TITLED DAUGHTERS RIGHT TO PROPERTY AND THE SOUTHERN

AMENDMENTS --ACritical Understanding LOOKS AT THE AMENDMENTS IN THE SOUTHERNSTATES THAT HAVE GIVEN COPARCENARY RIGHTS TO DAUGHTERS. A NUMBER OF

CONTENTIOUS AND UNRESOLVED ISSUES ARE IDENTIFIED AND ANALYSED.


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3. WIDOWS RIGHTS TO PROPERTYSHIFTING DIMENSIONS

3.1 Legal Consequences of theHindu Womens Right to Property Act, 1937.

The Act of 1937 was the result of discontent expressed by sections of society against the

unsatisfactory position of the legal status of property rights of women even after a number of previous enactments. The Bill espoused the cause of equality and purported to change the

status of women but whether real changes were in fact effected will be shortly examined

especially from the operative sections of the Act.

S.3 (1) of the Actdeals with separate property of the intestate and provides that a widow would

inherit along with male issue all his separate property as if Mitakshara law governed them. IfDayabhaga law governed the family the widow and the male issue would inherit equally all the

intestates property. This provision was equally applicable to three types of widows (a)

intestates widows (b) widow of intestates son (c) widow of predeceased of predeceased sonand made them heirs along with other usual male heirs such as son, grandson etc.

The enactment of S.3 (2) of the Act modifies the operation of customary law with respect toMitakshara joint family property and grants the widow the same share (interest) that her husband

enjoyed. Importantly it overruled the previous rule, which gave her any right in her husbands

right (property) only on the default of male issue. In other words her share in a coparcenary was

simply by virtue of marriage into the joint family. This section was however inapplicable inrespect to Agricultural land depriving the widow of a significant source of property. Also S.3 (3)

of the Act gave the important right to claim partition to the women independent of the male

issues.

The Act had far-reaching positive consequences for the property rights of the women firstly it

allows for inheritance of intestates separate property by his widow along with male heirs andsecondly in a move towards equality the Act equates the shares of the widow and the male heirs.

Thirdly, the Act also abrogates the rule of survivorship and makes the undivided interest of the

intestate pass to his widow even when he has male issue. Fourthly, in a further blow against

survivorship the Act allows the widow to claim for partition independent of the male heirs.

While the above positive effects seem to provide for radical new changes they have to be

understood in light of the negative consequences the Act had either by providing for maintenanceofstatus quo or the creation of legal fictions such as womens limited estate. The operation of

S.3 (4) of the Actwhittled down drastically the property rights granted to the widow under S.3

(2) and S.3 (3) by defining the nature of the womens estate as a limited estate. Under thislimited estate she can (a) alienate her interest in the coparcenary for legal necessity and (b)

only enjoy the property in her lifetime.

The Act also never purported to make the Widow a coparcener although the defacto quantum of

her interest in the coparcenary property equaled that of a (male) coparcener. In several respects

the rights that were vested in the deceased coparcener would be vested in the widow (although

not all) and she would act in the capacity of his representative. In Rathnasabapathy Pillai v.Saraswathi Ammalthe question that arose for determination was the extent of the representative


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powers that the widow possessed of her husband. Under Hindu law of the period, a gift of

coparcenary property even if consented to by all the coparceners is not recognized as valid.

However, in this case the gift of the property involved all members of the coparcenary and thegift did not in any way affect the interests of any of the coparceners (there were no minors or

children in the womb) and the court held that it could not be invalidated in toto. Could a wife of

the deceased challenge this transaction by all coparceners (by way of gift) as violative of herrights? The Court held she could not because she was not a coparcener even after the enactment

of the 1937 Act. The Act does not modify the status of the women and she remains a part of the

family and only holds the interest of her husband in the coparcenary. The Court clarified themeaning of interest within S.3 (2) of the Act, saying that it cannot mean all the rights, titles

and interest which her husband had, nor was she entitled to the right of action that her husband

would have had had he been alive. Her interest was only the quantum of interest that her

husband was entitled to in the joint family property.

It is important now to examine the property rights granted to the women in the background of its

effects on the joint family. The question of whether the property taken by the widow survives to

the husbands coparceners or devolves to the heirs of the last male owner was determined in anumber of cases. This question is of importance because it further helps in understanding the

nature of the widows interest i.e. does it retain the character of joint family property or become

separate property?

Initially judicial opinion on the matter was divergent with the Madras High Court in Subba Rao

v.Krishna Prasadholding that the right conferred by the Act was personal to the widow and theproperty does not devolve onto the daughter of the intestate as his heir. The reasoning of the

Court was primarily based on its understanding that the widow does not take her husbands

property as his heir and the Act is in fact based on the principle that the widow is the survivinghalf of her deceased husband. The right of the widow put the survivorship rights of the other

coparceners in abeyance and on the death of the widow those rights would be revived. It was felt

that if on the death of the widow the estate devolved on the heirs of the husband it would be insubstance substituting the Dayabhaga rule of succession in place of Mitakshara survivorship; for

this there was no place in the statute. The High Court in Parappa v. Nagappa further clarified

the position especially when the wife claimed for partition. The court affirming the principleslaid down in Subba Raobelieved that in case no partition was claimed by the widow the rights of

the other members of the joint family would be worked out on the basis that the husband died on

the date the widow passed away. In case she asked for partition during her lifetime on her death

the succession would be traced on the basis that it was the husbands separate property.If therewere no severance the property would devolve by survivorship to other members of the joint

Hindu family.

The Supreme Court in Controller of Estate Duty v. Alladi Kuppusamy finally the stated the

position of law affirming the decision inParappa, adjudicating in the background of a dispute on

estate duty payable on undefined coparcenary property. The court held that by virtue of the Actthe widow (a) possessed of coparcenary interest despite not being a coparcener (b) was a

member of the joint family of her deceased husband (c) her interest ceases on her death and

passes back to the coparcenary pool. Thus the extinguishment of her interest in the coparcenary

property and the passing of that interest back to the coparcenary means that it is liable for estate


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duty under a method followed for joint family property.

The Act clearly provided for much needed changes in Hindu joint family law in that it providedfor a defacto coparcenary share (quantum) which was independent of the claims of dejure

coparceners and allowed the widow to sever her links with the family by claiming for partition.

However her interest was only a limited estate that allowed for alienation only in case of legalnecessity. Also some High Courts read disabilities into the Act and prevented the widow from

claiming her interest, the most notable disability being unchastity of the widow. Her interest

was only for her personal benefit and was extinguished on her death. In case of there being nopartition there was no question of the property devolving to her heirs nor even to her husbands

heirs but reverted back to the joint family. Even in case of partition her interest would not

devolve to her heirs but to that of her husband.

3.2 The Widow and the Hindu Succession Act, 1956.

3.2.1 Scheme/Purpose of the Hindu Succession Act, 1956

From the point of view of the widow and female heirs in general the Act attempted to combat the

inequality that was prevalent in the law that operated before the enactment of the Act.The scheme of the Act is to:

a)Establish a semblance of equality between male and female with respect to the right to

property and this was to achieved by converting the limited womens estate into an absoluteone.

b)The Act recognized heirs other than the widow of the deceased intestate coparcener such as

daughters, widows of predeceased sons etc.c)The Act provided for simultaneous succession among similarly placed heirs within classes

mentioned within the Act.

d)The Act without disrupting the Mitakshara coparcenary it to be modified where there exists afemale heir, so as not to exclude her.

However the 174th Law Commission while reviewing the Act has taken a more critical linecommenting that the Act had the consequence of:

a)retaining the Mitakshara Coparcenary when theRau Committee had argued for the abolishment

of the Hindu Joint familyb)codifying inequality between male and females in the family by retaining only the Male as a

coparcener

c)Allowing a coparcener to will away his interest in the coparcenary, which would have thepossible (positive!) effect of destroying the joint family as well as possibly denying the

female any share in the males coparcenary interest

d)Virtually abolishing the Marumakattayam andAliyasantana systems of joint families that werebased on matriarchal principles thereby negatively affecting the interests of those women

previously benefiting through these systems.

e)Codifying unequal provisions related to dwelling houses thereby denying a significant

source of interest for the females.


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Now the above points will be discussed in greater detail.

The Act itself does not attempt any destruction of the joint family system but only modifies

certain essential sub-systems so as to make it more equitable. The concept of survivorship that

once regulated all aspects related to devolution of coparcenary property gets modified. Now therule of survivorship would operate only if (a) the deceased has not left a female relativementioned in Class I of the schedule and (b) the deceased has not made a testamentary

disposition of his undivided share in the coparcenary.

3.2.2 Widow as Coparcener/Karta?

The Hindu Succession Act, 1956 offers no definition of a coparcener nor of a joint Hindu

family. However, Mulla offers definitions, saying that a joint Hindu family consists of all

persons descended from a common ancestor, and includes their wives and unmarried

daughters. A Hindu coparcenary is a much narrower body than the joint family. It includes only

those persons who acquire by birth an interest in the joint or coparcenary property and only

males within three generations in an broken male descent i.e. excluding all females from beingcoparceners. While females are members of the Joint Hindu Family they cannot be coparceners

and do not have the customary (law) rights accorded to coparceners. Support for this positionmay be further drawn from S.6 of the Hindu Succession Act where the use of male Hindu

while delineating the Devolution of interest coparcenary property (and thereby restricting the

absolute operation of the rule of survivorship) may be impliedly read to exclude females from

the coparcenary. The concept of right by birth whereby male issues born to coparcenersautomatically acquire a share in the coparcenary is inapplicable in respect of females.

It follows from the above that a female cannot be a karta under traditional Hindu Joint familylaw. In Commissioner of Income Tax v. Seth Govindam Sugar Mills the issue that arose for

determination was whether a partnership conducted by kartas of two families came to end on the

death of one karta it continued with the widow of the deceased karta acting as the new karta .

The court held that the partnership came to end since the widow could not act as karta for

coparcenership was essential to becoming a karta and as explained above a female could not

become a coparcener under traditional Mitakshara Law.

3.2.3 Share of the Widow in coparcenary property in the background of

Gurupads case

The 1937 Act had made the quantum of the widows share equal to that of her husband with a

number of limitations notably the personalized nature of the interest and it being a limited

estate. The 1956 Act except for S.6 makes no direct mention of its applicability to generalcoparcenary property thereby making unclear as regards the operation of uncodified law with

respect to coparcenary property. This question was to be answered in a number of cases that had

to adjudicate upon the rights of widows in respect of coparcenary property, in the background ofcodified law (found in the Act) and uncodified law (not provided for in the Act).

The Court had to contend with a new legal fiction that the 1956 Act created namely notional

partition which was to help compute the share of the deceased by assuming a partition occurred


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before his death. The Bombay High Court in Shiramabai v. Kalgonda Bhimgonda had to

determine the share of the widow on the death of her husband. This case is important because it

highlights reasoning of the Court which not only illogical and contrary to later decisions but alsohighly detrimental to the rights of the widow and female heirs in general. The issues that were

addressed included (a) scope of the notional partition vis--vis actual partition (b) share of

widow in coparcenary property (c) applicability of previous laws that provided for maintenanceand allocations for marriage expenses of widow and daughters respectively, in light of S.4 of the

1956 Act.

The Court begun with the correct presumption of the need to assume an actual partition in

respect of the coparcenary properties and hence 1/3 was to go to the widow from the coparcenary

properties. However instead of continuing with this line of reasoning the court held that 1/3rd

share which would go to the mother on actual partition she will not get, as there is not partition

during the lifetime of the father, nor does the section so provide and it will remain with the

son. Thereby holding that the wife and daughters will only get shares from the separate

property of the deceased, which Patel J. worked out as 1/3. The reasoning is patently fallacious

because firstly an actual partition is assumed dividing the coparcenary shares into three equalshares (for the deceased, the son and the widow). Each of these shares would then become

separate property of the deceased, the coparcenary property of the son and the share of the wiferespectively. Instead of this happening the judge gave 2/3rd of the coparcenary to the son because

in his view there was no statutory provision that would give the wife her 1/3rd share in the

coparcenary. The 1/3rd share of the deceased would be distributed among all the heirs equally.

With respect to the previous law the that provided for a limited estate for the widow as well as

providing for the marriage expenses of the daughter, the court held it abrogated by the Act

because now they were entitled to succeed to a share in the interest the deceased had inthe coparcenary. The decision was vastly disadvantageous to the widow and daughter the former

a share in the coparcenary as well as denying her and the daughters additional benefits that had

previously accrued to them. In fact this decision with regard to the quantum of the widows share

would be less than even that granted by 1937 Act where her share was that of the husband.

InRangubai v.Laxman Lalji Patil, Patel J. overruled his own judgment in Shiramabai. The courtheld that all logical consequences should flow from notional/actual partition and that the courts

should first determine the extent of the property available for partition. The next step would be to

set aside from coparcenary property the share of the widow to which she is entitled to in her own

right. The share of the deceased in the coparcenary would be equally divided among all the heirs.Also the judge awarded a decree that provided for maintenance/ marriage expenses of the

daughters. Thus the position of law afterRangubai was that as a result of notional partition the

shares of persons other the deceased coparcener become fixed as if partition had taken placeduring the lifetime of the coparcener and the share of the widow equals that of the son.

The position of law in India was firmly stated by the apex court in Gurapad Khandappa

Magdum v. Hirabai Khandappa Magdum, which further expanded the scope of notional

partition. The court felt that once an assumption of partition occurring before the death of the

coparcener is made is it is irrevocable and all logical consequences that flow from a real partition

have to be worked out. The assumptions made at the time of the notional partition must be used


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at every stage of the process of determining the shares of all the heirs. As a general principle the

court laid out that the heir will get his/her share in the interest which the deceased had in the

coparcenary property at the time of his death in addition which he/she received or must be

deemed to have received in the notional partition.

Formula:

(a) Share of each (alive coparcener, deceased coparcener or widow in coparcenary property) =

1 (Number of Alive Coparceners + Number of Widows + Deceased coparcener)

= 1 (2+1+1) =1/4

(b) Share of each of the heirs in the interest of the deceased coparcener =

Share of deceased coparcener in coparcenary property x [1 Number of heirs]

= 1/4 x 1/6= 1/24

Thus afterGurupad the widows share would be (a)+(b) =(1/4 + 1/24)= 7/24. The unfortunate

consequence of this decision would have been that even when partition was not contemplated bythe widow (when she just claimed for a share in the deceased coparcenary interest through

notional partition) it would be assumed that actual partition had occurred and she would get hershare in the coparcenary.

It is humbly submitted that the principle that is evolved in Gurupads case

(i.e. giving the widow an equal share in the coparcenary) should not be understood as arising

from either, an expansive interpretation of notional partition or being a logical consequence of

partition. This possibly erroneous view might possibly be inferred from the case itself. In fact thedecision is correct because it draws from principles of devolution of coparcenary property to a

widow following a partition. The 1956 Act itself is silent on the finer aspect of devolution of

coparcenary as well as the consequences that flow from a real partition. More over, the sectionthat deals with notional partition clearly establishes that any legal fictions created, are only forthe purposes of the current section i.e. Devolution of interest of coparcenary property of the

deceased (i.e. his separate property) not devolution of shares coparcenary property itself. This

argument it is humbly submitted proves the point that the decision of the court with respect to thewidows share in the coparcenary property cannot be said to draw support from the Act itself but

from uncodified principles dated before the enactment of the 1956 Act.

It is humbly submitted that the decision is correct. The judges reasoning draws from uncodified /

unrepealed principles of Hindu law that have no place in the Act itself (i.e. with respect to

coparcenary property) because the Act itself predominantly deals with separate property. Such

uncodified/unrepealed law, unless expressly provided for in the 1956 Act, has the force of law.Under different regional schools of Hindu law such as the Bombay school the effects as

mentioned by the court do find a place i.e. (a) right of wife to claim partition after the death of

her husband (b) her share in the coparcenary equals that of other coparceners. The only areawhere the Supreme Court might have extended the scope of the law operating within these

regional schools would be in assuming that the partition (from which the widow gains her

coparcenary share) happened before the death of the coparcener. In other words in order tobenefit the widow, the court assumed that there had been partition between the father and the


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sons even if there hadnt really been one. This is perhaps where the confusion as regards the use

of notional partition might have occurred because the former assumption is to determine the

shares in the coparcenary property while the latter is for determining the share in the interest ofthe deceased.

Therefore, if it is proved that indeed the Supreme Court reasoning draws not from statutory lawbut from the law of the regional schools, then the principle which the court enunciated (with

respect to the right of the widow in coparcenary property) is open to variation depending on thecustomary laws of each school. For example, the Madras school of Mitakshara does not give thewife a right in the coparcenary property after a partition, therefore will Gurupads decision be

valid in these areas?

Decisions in this regard have not been uniform especially with the Andhra Pradesh High Courtwhere the Madras school operates. In Kishta Bai v. Ratna Bai the court held that the Gurupad

case had no application on the ground that the Madras school did not give the wife/widow the

right in coparcenary property after a partition either before or after the 1956 Act. However in

Krishna Rao v. State of Andhra Pradesh the High Court overruled the previous case on accountthat S.4 of the act obliterates any law including customary law contrary to any provisions inthe Hindu Succession Act, 1956. As explained above the customary law in question has notbe expressly provided for nor repealed by the Act and therefore does in fact operate. It is humbly

submitted that the reasoning of the court although well intentioned does not stand up to the testof positive law. Hence it is humbly submitted that Gurupad case which has done so much to give

widows a quantum of coparcenary property equal to that of a coparcener has no universaloperation in all schools of Mitakshara such as in the Madras school. Therefore the only way to

remove discriminatory meted out to two widows inter se who inherit under two different schools

is intervention by Parliament.

In State of Maharashtra v. Narayan Rao the Supreme Court reaffirmed the basic principles inGurupadbut cautioned against the expansive scope that Gurupad gave to partition (where ineffect notional partition was equated to real partition). The Court held that while the right of a

female heir to the interest she inherits in the joint family property gets fixed on the date of the

death of a male member under S.6 of the Act but she cannot be treated as having ceased to be amember of the joint family. In other words the Court felt that while a legal fiction should be

carried to its logical end it should not be carried beyond that so as to create an absurdity. It was

felt that if the scope of partition were not restricted it would lead to consequences not

contemplated by the legislature. Now the Gurupad case has applicability only when a widowwho (under S.6 of the 1956 Act) inherits an interest in the coparcenary property files a suit for

partition expressing her willingness to go out of the family. She then in addition to the interest in

the coparcenary also gets a share in the coparcenary property itself.

3.2.4 Conversion of Widows Limited Estate into Absolute Property

Under the old Hindu law among all the properties that the widow was in possession of, only her

stridhan was absolute property and in other inherited properties she was entitled to only a life-

estate with limited powers of alienation, if any and this position further continued under the 1937


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Act. However the framers of the 1956 intended to make major changes in the area of the nature

of the womens estate and this is reflected in S.14 of the 1956 Act. The section has the effect offirstly removing any disability in either statutory or customary law with respect to power ofalienation, title etc with respect to womens property after the enactment of the Act. Secondly the

enactment retrospectively acts and converts any right, which the women might have had in any

estate, and converts her into an absolute owner. Thirdly the action of the section is on bothimmovable and immovable property.Fourthly, the mode of acquisition of a right in the property

(except in case of a gifts/wills etc that specifically creates a restricted estate) is not relevant for

the operation of the section. In this regard the reasoning of the judiciary is to be examinedespecially with respect to how the courts have determined which properties held by the women

would be benefited by the section 14 and converted to absolute estates.

Section 14 applies only when a woman has title as well as de jurepossession of the property atthe time of the commencement of the Act. The Courts have usually interpreted the section,

especially possessed liberally so as to give maximum effect to the section and thereby

benefit the widow. For example, in Mangal Singh v. Smt. Rattno the nature of the right that a

widow possessed over some lands that were currently in actual possession of some collaterals (ofthe deceased husband) was to be determined. The court drew attention to the fact that section 14

of the Act spoke about any property possessed by a Hindu female instead of anyproperty in possession of a Hindu female. The former would refer to instances when there is

constructive possession while the latter would refer to actual possession. The court took this

to be a deliberate move on part of the legislature and the widow was given absolute property

rights over property in which she had de jurepossession despite lacking de factopossession.

The scope of the section has been tempered by decisions such as Eramma v. Veerupana where in

1936 after the death of a coparcener one among three widows (before the final decree) occupiedher husbands property. It was held that S.14 could not aid her because at the time she got

possession she had no vestige of ownership and had no position higher than a trespasser. In

general, however, landmark cases such as Jaganathan Pillai v. Kunjithapadam Pillai haveattempted to enlarge the property of the widow by following a liberal interpretation of the

section. The facts of the case were that a widow who had transferred property prior to the

commencement of the Act, the property having limited ownership, came into possession of thesame upon retransfer of the property. After commencement of the Act the Supreme Court held

that she becomes absolute owner of the property. The judgement also contained significant

judicial dicta, which was quite favorable to the property rights of females in general.


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3. DAUGHTERS RIGHT TO PROPERTY AND THE SOUTHERN

AMENDMENTSA Critical Understanding

3.1 The Approach of the Southern Amendments

It will be noticed that reform in the area of property rights for women and daughters in particularfollow two broad approaches. The firstbeing a reformation of the personal law as it stands i.e.

reform the hitherto discriminatory law that devolve property upon males by virtue of birth and

give women similar rights. This approach is liable to the general criticism that it purports toretain customary-personal laws but tamper with their fundamental principles, which is primarily

directed towards giving only males property rights. The second approach is more direct,

removing all customary-personal laws, which are inherently discriminatory against women onthe ground that they cannot fruitfully be reformed. Both approaches have been attempted in India

with varied results and consequences for the rights of women.

The second more direct approach was attempted in Kerala in 1976 with theKerala Joint Family

System (Abolition) Act, 1976 which followed the broad recommendations of the Hindu LawCommittee (Rau Committee) and abolished the right of birth under both Mitakshara and

Marumakattayam Law. The Act itself creates consequences that have proved to have bothpositive and negative consequences for the rights of women.

Firstly, the Act has operation only in Kerala where the existence of matrilineal successionsystems such the Marumakattayam Law also got abolished. While in general right by birth as a

principle has been discriminatory against women, in Kerala for instance this may not have been

the case and the legislation adversely affected women who were benefiting by a right by birth

principle in favor of women. Secondly, the Act is prospective in nature, abolishing devolution ofproperty by birth, after its enactment, thereby not benefiting women who were previously denied

property on account of this principle. Thirdly, the Act lays down that members of the Mitaksharacoparcenary will hold the ancestral property as tenants-in-common the Act comes into operationas if a partition had taken place and each of them holding it separately. The property rights of

women may be defeated if the male coparceners dispose the property by testament or by

alienation and the act makes no effort to prevent such a manner of defeating the property rightsof the woman.Fourthly, the Act does not confer any rights to daughters in existing coparcenary

properties.

The second approach of reform was attempted by the Andhra Pradesh legislature in 1985 where

it attempted to reform the customary Hindu Law by making the Daughter a coparcener and

giving her the same rights as other (previously only male) coparceners. The Andhra Modelhas

been replicated in Tamil Nadu, Karnataka & Maharashtra. This model will be examined ingreater detail below.

3.2 The Pith and Substance of theAndhra Model


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Under S.29-A of the Andhra Act the Daughter becomes a coparcener by birth and has all the

rights and liabilities as male coparceners i.e. the devolution of coparcenary property to the

daughter would be in the same manner as to the sons. S.29-B provides that coparcenary propertywould devolve by survivorship on the daughters. The effect of S.29-C is an example of the

special rights that would now accrue on the daughter, as she would now be entitled to the right

of preemption in case of certain coparcenary property. Under the Act the new rights andliabilities arise only if (a) a prior partition had not taken place (b) the daughter had not

previously married.

Prima Facie it appears all seems well in terms of the technical and substantive aspects of the

Andhra model, whether this early assumption is correct remains to be examined. The technical

aspect will now be examined in this sub-section.

The State Acts that create the Andhra model are titled Amendment to the Hindu Succession

Act, 1956 i.e. it wishes to modify the law which is dealt with in the latter Act. Under S.4 (1)(a)-(b) of the HSA it is clear that the Act does not codify the entire the Hindu Law related to

devolution of property but is the Code only to those areas where specific provisions have been

made. The HSA does not deal with the intricacies devolution of coparcenary property at all (even

S.6 HSA creates only an exception for devolution by survivorship in respect of interest incoparcenary of the intestate) and therefore devolution (by birth) of coparcenary property is

covered by (uncodified) customary Hindu Law. Thus the Amendments give survivorship rights

to the daughter (with succession rights already given by S.6 of the HSA) i.e. the Amendment

purports to amend a part of the law that is not even dealt with in the Act itself.

This fundamental error is carried further (either to tide over colorable nature of the amendmentor because of pure error) in titling the material section of the Andhra, Tamil Nadu &

Maharashtra as Succession by Survivorship which it is submitted is an oxymoron! In the

scheme of the HSA devolution of interest of the intestate in coparcenary is titled succession(obstructed heritage) while devolution of coparcenary property (as explained earlier, is in thedomain of customary Hindu Law) is termed survivorship (unobstructed heritage). This error

while appearing hyper technical illustrates a conceptual confusion, which may not be overcome

by simply changing the marginal heading of the section because of the fundamental conceptualflaws pointed out in the previous paragraphs.

3.3 Effect on the Traditional Joint Family and on its Fundamentals

As explained earlier the Acts make the daughter a full coparcener and this makes her a member

of her natal family and marriage to another family does not alter this position. In other words sheis a member of two families, her natal family and her husbands family-- a position of law

hitherto unknown. The Supreme Court in the past has struck down definitions of family that areartificial because they dont exist in actual practice or because they violate fundamental rules of

legal construction. In Kunhikoman v. State of Kerala a definition of family that includedhusband, wife, unmarried children or such of them as they exist was struck down as

unconstitutional and artificial as they did not exist in actual practice nor in any established

system of law. It remains to be seen if such a modification to the meaning of the family that theamendments have in fact been effected will be sustained, if challenged.


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The woman as a karta within traditional Hindu law has not been accepted in practice nor in

theories of Hindu Law. Such an exclusion is based on the logic that only a coparcener can be akarta since women cannot be a coparcener they also cannot be a karta and such logic issupported by the opinion of the Supreme Court. The amendments however attempt to create

exactly the contrary position making a daughter a karta and thereby technically allowing her to

become a karta of the joint family. As Prof. Sivaramayya has argued this fiction of law couldlead to practical difficulties if a coparcener leaves a daughter from a first marriage and a wife

and children from a second marriage. Potentially the first daughter could claim kartaship over

the second wifes family (as well as well as manage the affairs of their family) despite being amember of another family (after marriage)-practically a very difficult situation.

The doctrine ofpious obligation has posed difficulties in the context of codified law and more so

in the context of women. It has been held that the moral obligation to pay of the debts ofdeceased relatives that arises in the case of male coparceners does not apply to the widow. In

Keshav Nandan Sahay v.Bank of Biharthe court held that the sons were liable for pre-partition

debts incurred by their deceased father with respect to some bank loans while the widow was

not. The court felt that on partition between the coparcener and his sons the widow is allotted ashare in her own right and not as a mere representative of her husband. This position of her

differentiates her from her sons as regards their pious obligations.

In the High Court of Karnataka (where the new amendments operate) took the same view, albeit

before the enactment of the amendments. In Padminibai v. Arvind Purandhar Murabatte the

court felt that because a wife not being a person entitled to a share in the Mitakshara coparcenaryby birth is not bound by the doctrine of pious obligation.

Now applying this reasoning of the Karnataka High Court to a post-amendment scenario-- will

the daughter be liable for pious obligation? Following from the reasoning of the Karnataka High

Court, the wife was excluded from pious obligation simply because she did not have a right by

birth in the coparcenary. Therefore if a daughter acquires a share in the Mitakshara coparcenaryby birth it must follow that she will now be liable.This will have to be adjudicated upon by the

courts to achieve certainty in the matter.

Other aspects of Mitakshara Law such as reunion also pose problems because firstly they are

regulated by uncodified Hindu Law andsecondly a reunion is only possible between father-sons,

brothers, nephews-paternal uncles totally excluding women. Again as argued above, if the

daughter (or sister or niece) becomes eligible to participate in reunion as coparceners then it willamount to tampering with uncodified law something, which the amendment to a partial code

cannot effect.

3.4 Questionable Distinctions in the Amendments

In S.29-A of the Andhra Act the daughter becomes a coparcener by birth therefore does thissection apply to only natural born daughters or also to daughters by adoption? Should birth be

strictly interpreted so as to exclude the latter? The second questionable distinction is found in

S.29-A (iv) where the coparcenary rights are said to accrue only to daughters who remained

unmarried at the time of enactment of the amendment. Should marital status be taken as a


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seems to go against accepting a differentiation where the ground is marital status. The opinion of

the Supreme Court will reinforce the submission that marital status as a ground of

differentiation cannot have a rational nexus to the object of granting coparcenary rights todaughters in general.

CONCLUSION

The reforms that have been completed in the area of womens coparcenary rights have produced

mixed results. As is clearly evident the method followed has been reform by retention i.e.amend statutes without fundamentally affecting them (legislatures attempts) or creative

interpretation of codified / uncodified law without abrogating the discriminatory laws. The

notable methodological exception in all these reforms has been the Kerala approach that used thereform by abolitionmethod totally abrogating joint family law.

As has been shown throughout the project the reform by retention has had a number of flaws.

In fact this method has been criticized from its very inception as the famous words of Hon.

Pataskar (said in the context of coparcenary reforms for daughters) illustrate that this methodmight create positions of law in a joint family unknown to law and unworkable inpractice.

The position of Hindu coparcenary law is very uncertain because of selective codification which

leaves important aspects of the law (including the entire principle of survivorship with respect tocoparcenary property) in the realm of customary law of the regional schools. Although the

Supreme Court has to some extent used this uncertainty to bring much needed coparcenary rights

to widows (the Gurupad case being a prime example) without the formal equality of

coparcenership for women. For example, the Gurupad case makes in several respects the widowa defacto coparcener (including quantum of coparcenary property) without the de jure status.

There are however limits to creative interpretation. In the context of widows coparcenary rightsas been shown in the preceding pages there exists a situation which cannot be rectified by even by determined judicial interpretation (unless it is highly creative!). This relates to the non-

application ofGurupads ratio to widows governed by the Madras school of Mitakshara wherein

customary law dictates that widows do not get a share of the coparcenary on partition. Thus thereis a situation where two widows governed by two different schools receive discriminatory

treatment inter se- this unacceptable constitutional position cannot be rectified except by

legislation.

Under the southern amendments designed to benefit daughters there arise several flaws which

are very fundamental. The amendments purport to amend a part of the Hindu Succession Act,

1956 which the latter does not even attempt to codify i.e. the law related to devolution ofcoparcenary property by principles of survivorship. Therefore it is not clear what

status/legitimacy the amendments actually have and if challenged they could be totally struck

down. As illustrated earlier there arise serious constitutional questions related to certaindistinction in treatment that the Acts give to certain classes such as those based on birth or

marital status. Also the interface between the amendments and uncodified law is difficult to

understand such as that related to reunion or pious obligation etc.


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The biggest drawback of the southern amendments will be their effect on the rights of the widow

v. the newly created rights of the daughter. From the formula on page 15-16 it is evident that any

addition to the number of coparcener or widows will decrease the share of all in coparcenaryshares. This will also reduce the shares of all the heirs in the coparcenary interest of the

deceased. Now the southern amendments make the daughter a coparcener thus this will reduce

the coparcenary share that would be given to the widow. The widow will also lose in her share ofthe coparcenary interest of the deceased. For widows governed by the Madras school the effect

will be the greatestthey were only getting as a heir (no share in the coparcenary property) and

now the daughters will further deprive them of further shares. Thus it leads to a curious situation

where instead of widows and daughters joining forces for womens rights their individual

successes as widows/daughters will deprive the other of some part of their property!!

Clearly it is evident that the reform by retention method is proving to create situationsunknown to law and unworkable in practice. There is no doubt that the property rights of

women leave much to be desired and urgent reform is the need of the hour but the manner of

change must not create more difficulties than existed before.

It is submitted that the Kerala model of reform by abolition needs greater examination and

possible use. While the short-term effects of abolishing the joint family might prove to bedisadvantageous (such as denying rights to women before the operation of the Act or the

abolition of the matrilineal system) in the long run it will be advantageous by providing

certainty. The rights of the widow would not have to depend on the vagaries of customary law

and a creative interpretation of the same by the courts but would have rights independent of thesame. The local customary schools should have no effect in creating discrimination (such as the

Madras school) and would bring a uniform civil code closer by codifying the law for Hindus.

The position of the woman (whether widow or daughter!) would be vastly improved withouthaving to tinker with a system, which is fundamentally male-oriented.

.

BIBLIOGRAPHY

ARTICLES:


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1.Cossman, Brenda & Kapur, Ratna, Women, Familial Ideology and the Constitution-Challenging Equality Rights inFeminist Terrain in Legal Domains-Interdisciplinary Essays

on Women and Law in India (Kapur, Ratna ed.,New Delhi: Sage Publications, 1996).

2.Bhattacharjee, A.M., Personal Law and the Constitution as inNational Convention onUniform Civil Code for All Indians (Menon, Madhava N.R. ed.,New Delhi: Bar Council of

India, 1986)

3.Developments in the Law--Equal Protection, 82 HARV. L. REV. 1065(1969)

4.Davis, Kirsten K., Equal Protection For Women In India And Canada: An Examination And

Comparison Of Sex Equality Provisions In The Indian And Canadian Constitutions,13Ariz. J. Int'l & Comp. Law 31.

5.Mallik, Sumit, Coparcenary Rights of Female Hindus, 9 Stud. Adv. 154 (1997).

6.Mathew, Susan P. & Guruswamy, Menaka, Hindu Widows Property Rights: A Saga of

Deprivation as in The Lawyers (Jaising, Indira ed., 7th vol., April 1994)

7.Sivaramayya, B., The Hindu Succession (Andhra Pradesh Amendment) Act, 1985: A move in

the wrong direction, 30J.I.L.I. 166 (1988)

8.Sivaramayya, B., Coparcenary Rights to Daughters: Constitutional and Interpretative Issues,

(1997) 3 SCC (J) 25.

9.Tilak, Balgangadhar A.K., Position of Hindu Widow under Madras School of Mitakshara

after the passing of the Hindu Succession Act of 1956, AIR 1994 Jour 53.

BOOKS:

1.Mayne,Hindu Law and Usage (Kuppuswami, Alladi edited, 14thed.,New Delhi: Bharat LawHouse, 1996)

2.Mulla, D.F.,Principles of Hindu Law (Desai, S.A. edited, Vols. 1 & 2, 17thed.,New Delhi:

Butterworths, 2000)

3.Sharma, Vijay,Protection to Women in Matrimonial Home (New Delhi, Deep & Deep

Publishing, 1994)

OTHERS:

1.Law Commission of India: 175th Report,Property Rights of Women: Proposed Reforms under

the Hindu Law (Jeevan Reddy, B.P., Chairman, New Delhi: Government of India, 2000),

http://www.nic.in/lawcom/kerala.html (as visited on 3 Dec 2001)


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