FAMILY LAW- WOMEN’S COPARCENARY RIGHTS: EMERGING TRENDS AND ISSUES
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 in Matrimonial 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 to Daughters: 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 Women’s Right To Property Act, 1937. 8. Kerala Joint Family System (Abolition) Act, 1976.
TABLE OF CONTENTS 1. INTRODUCTION………………………………………………………………….5 2. RESEARCH METHODOLOGY………………………………………………….7 3. WIDOW’S RIGHTS TO PROPERTY…SHIFTING DIMENSIONS…………..9 3.1. LEGAL CONSEQUENCES OF THE HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937. 3.2 THE WIDOW AND THE HINDU SUCCESSION ACT, 1956.
0* 1* 2* 3*
Scheme/Purpose of the Hindu Succession Act, 1956 Widow as Coparcener/Karta? Share of the Widow in coparcenary property in the background of Gurupad’s case Conversion of Widow’s ‘Limited Estate’ into ‘Absolute Property’
4. DAUGHTER’S RIGHT TO PROPERTY AND THE SOUTHERN AMENDMENTS -- A Critical Understanding ……………………………………20 4.1. THE PITH AND SUBSTANCE OF THE ANDHRA 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
2. INTRODUCTION Feminist movements have questioned ‘male-stream’ thinking in ways that have struck at discriminatory 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 women’s property rights. Such changes have not been easy and have included 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 legal status 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 (substantive equality)? 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 been argued 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 of protecting 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 women’s rights. For example, in an interpretation of the ‘Equal Protection Clause’ of the constitution the difficulty may 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 women’s rights. In India 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 women’s property rights before the Hindu Woman’s Right to Property Act, 1937. The concept of stridhan or ‘women’s property’ originated in the vedic age and undergone significant variation in various commentaries and after adjudication by British courts. 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 Hindu Law may not always provide for this. The British courts recognized three types of stridhan the first being ‘gifts from kindred’ that is from male relatives of her natal family. The second type consists of ‘property acquired in lieu of maintenance’ and the third type consists of ‘property acquired by adverse possession’. The share of a woman on partition is not stridhana and she would not be its absolute owner. The second type of women’s property is that where she has limited or qualified interest and such property got fructified in the Hindu Women’s Right to Property Act, 1937 (discussed below). Such ‘women’s 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 Women’s Right to Property Act, 1937 right down to the recommendations of the Law Commission in 2000.
RESEARCH METHODOLOGY 4* AIMS & OBJECTIVES 5* TO UNDERSTAND THE MANNER IN WHICH WOMEN HAVE ACQUIRED COPARCENARY RIGHTS--BOTH FORMALLY AND IN SUBSTANCE
6* TO EXAMINE THE ENACTMENTS THAT HAVE PROCEEDED WITH GRANTING OF THESE RIGHTS AND THE METHOD FOLLOWED IN EACH ENACTMENT
7* TO CRITICALLY EXAMINE THE ISSUES THE ENACTMENTS RAISE AND PUT THEM IN THE WIDER CONTEXT OF WOMEN’S PROPERTY RIGHTS
8* SCOPE & LIMITATIONS 9* THE TOPIC CAN POTENTIALLY COVER THE ENTIRE FIELD OF WOMEN’S PROPERTY RIGHTS BUT THE ATTEMPT HAS BEEN MADE TO EXAMINE ONLY THOSE ASPECTS WHICH HAVE A MATERIAL CONNECTION WITH COPARCENERY RIGHTS WHICH HAVE BEEN GIVEN A SUFFICIENTLY LIBERAL INTERPRETATION. 10* 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. 11* STRIDHANA AND OTHER HISTORICAL ASPECTS HAVE BEEN SUBORDINATED TO MORE CONTEMPORARY ASPECTS
12*
STYLE OF WRITING 13*
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.
14*
MODE OF CITATION 15*
A UNIFORM MODE OF CITATION HAS BEEN FOLLOWED THROUGHOUT THE PROJECT
16*
SOURCES OF DATA 17*
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, BANGALORE FOR THE FAMILY LAW-II COURSE IN THE FIRST WEEK OF DECEMBER 2001.
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RESEARCH QUESTIONS 19*
WHAT HAS BEEN THE IMPACT, IN DIFFERENT SPHERES, OF THE VARIOUS ENACTMENTS DIRECTED AT REFORM OF WOMEN’S PROPERTY RIGHTS? 20* WHAT HAVE BEEN THE CONSEQUENCES, POSITIVE AND NEGATIVE, ARISING FROM THESE ENACTMENTS? 21* WHAT HAS BEEN THE JUDICIARY’S INTERPRETATION ON THESE MEASURES AND ITS RATIONALE FOR THE SAME? WHAT HAS BEEN THE RESULTING EFFECT OF THESE INTERPRETATIONS? 22* WHAT HAS BEEN THE UNDERLYING BASIS FOR THE SOUTHERN AMENDMENTS IN THE SPHERE OF DAUGHTERS’ COPARCENARY RIGHTS? DO THE AMENDMENTS STAND UP TO THE SCRUTINY OF BOTH POSITIVE & NORMATIVE PRINCIPLES OF LAW?
23*
CHAPTERIZATION 24*
THE CHAPTER TITLED “WIDOW’S RIGHTS TO PROPERTY…SHIFTING 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. 25* THE CHAPTER TITLED “DAUGHTER’S RIGHT TO PROPERTY AND THE SOUTHERN AMENDMENTS -- A Critical Understanding” LOOKS AT THE AMENDMENTS IN THE SOUTHERN STATES THAT HAVE GIVEN COPARCENARY RIGHTS TO DAUGHTERS. A NUMBER OF CONTENTIOUS AND UNRESOLVED ISSUES ARE IDENTIFIED AND ANALYSED.
3. WIDOW’S RIGHTS TO PROPERTY…SHIFTING DIMENSIONS 3.1 Legal Consequences of the Hindu Women’s 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 Act deals 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. If Dayabhaga law governed the family the widow and the male issue would inherit equally all the intestate’s property. This provision was equally applicable to three types of widows (a) intestate’s widow’s (b) widow of intestate’s son (c) widow of predeceased of predeceased son and 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 to Mitakshara 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 husband’s 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 in respect 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 intestate’s separate property by his widow along with male heirs and secondly 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 maintenance of status quo or the creation of legal fictions such as “women’s limited estate”. The operation of S.3 (4) of the Act whittled down drastically the property rights granted to the widow under S.3 (2) and S.3 (3) by defining the nature of the women’s estate as a “limited estate”. Under this “limited 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 Ammal the question that arose for determination was the extent of the ‘representative 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 the gift 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 her rights? 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 the meaning 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 husband’s coparceners or devolves to the heirs of the last male owner was determined in a number of cases. This question is of importance because it further helps in understanding the nature of the widow’s 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 Prasad holding that the right conferred by the Act was personal to the widow and the property 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 husband’s property as his heir and the Act is in fact based on the principle that the “widow is the surviving half 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 in substance 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 principles laid down in Subba Rao believed 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 husband’s separate property.If there were 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 in Parappa, adjudicating in the background of a dispute on estate duty payable on ‘undefined’ coparcenary property. The court held that by virtue of the Act the 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 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 provided for 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 legal necessity. 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 no partition there was no question of the property devolving to her heirs nor even to her husband’s 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 women’s estate’ into an absolute one. (a) The Act recognized heirs other than the widow of the deceased intestate coparcener such as daughters, widows of predeceased sons etc. (a) The Act provided for simultaneous succession among similarly placed heirs within classes mentioned within the Act. (a) The Act without disrupting the Mitakshara coparcenary it to be modified where there exists a female heir, so as not to exclude her. However the 174th Law Commission while reviewing the Act has taken a more critical line commenting that the Act had the consequence of: (a) retaining the Mitakshara Coparcenary when the Rau Committee had argued for the abolishment of the Hindu Joint family (a) codifying inequality between male and females in the family by retaining only the Male as a coparcener (a) Allowing a coparcener to will away his interest in the coparcenary, which would have the possible (positive!) effect of destroying the joint family as well as possibly denying the female any share in the male’s coparcenary interest (a) Virtually abolishing the Marumakattayam and Aliyasantana systems of joint families that were based on matriarchal principles thereby negatively affecting the interests of those women previously benefiting through these systems.
(a) Codifying unequal provisions related to “dwelling houses” thereby denying a significant source of ‘interest’ for the females. 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 the rule of survivorship would operate only if (a) the deceased has not left a female relative mentioned 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 being coparceners. 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 position may 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 coparceners automatically 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 family law. 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 Gurupad’s case The 1937 Act had made the quantum of the widow’s 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 general coparcenary 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 widow’s in respect of coparcenary property, in the background of codified 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 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 also highly 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-à-vis actual partition (b) share of widow in coparcenary property (c) applicability of previous laws that provided for maintenance and 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 equal shares (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 wife respectively. 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 1/3 rd 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 in the 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 widow’s share would be less than even that granted by 1937 Act where her share was that of the husband. In Rangubai v. Laxman Lalji Patil, Patel J. overruled his own judgment in Shiramabai. The court held 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
after Rangubai was that as a result of notional partition the shares of persons other the deceased coparcener become fixed as if partition had taken place during 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 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 after Gurupad the widow’s 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 by the 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 her share in the coparcenary. It is humbly submitted that the principle that is evolved in Gurupad’s 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 the decision 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 section that deals with notional partition clearly establishes that any legal fictions created, are only for the 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 the widow’s 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 area where 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 to benefit the widow, the court assumed that there had been partition between the father and the sons even if there hadn’t 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 of the deceased. Therefore, if it is proved that indeed the Supreme Court reasoning draws not from statutory law but 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 the customary laws of each school. For example, the Madras school of Mitakshara does not give the wife a right in the coparcenary property after a partition, therefore will Gurupad’s decision be valid in these areas? Decisions in this regard have not been uniform especially with the Andhra Pradesh High Court where 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 account that “…S.4 of the act obliterates any law including customary law contrary to any provisions in the Hindu Succession Act, 1956….” As explained above the customary law in question has not be 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 test of positive law. Hence it is humbly submitted that Gurupad case which has done so much to give widow’s a quantum of coparcenary property equal to that of a coparcener has no universal operation 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 in Gurupad but cautioned against the expansive scope that Gurupad gave to partition (where in effect 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 a member 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 widow who (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 Widow’s ‘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 Act. However the framers of the 1956 intended to make major changes in the area of the nature of the women’s estate and this is reflected in S.14 of the 1956 Act. The section has the effect of firstly removing any disability in either statutory or customary law with respect to power of alienation, title etc with respect to women’s 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 both immovable 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 examined especially 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 jure possession of the property at the 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 (of the 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 “…any property 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 jure possession despite lacking de facto possession. 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) occupied her husband’s 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 have attempted 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 the same 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.
3. DAUGHTER’S RIGHT TO PROPERTY AND THE SOUTHERN AMENDMENTS…A 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 particular follow two broad approaches. The first being 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 to retain 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 on the 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 the Kerala Joint Family System (Abolition) Act, 1976 which followed the broad recommendations of the Hindu Law Committee (Rau Committee) and abolished the right of birth under both Mitakshara and Marumakattayam Law. The Act itself creates consequences that have proved to have both positive and negative consequences for the rights of women. Firstly, the Act has operation only in Kerala where the existence of matrilineal succession systems 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 of property 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 Mitakshara coparcenary will hold the ancestral property as tenants-in-common the Act comes into operation as 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 rights of 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 Model has been replicated in Tamil Nadu, Karnataka & Maharashtra. This model will be examined in greater detail below. 3.2 The Pith and Substance of the Andhra Model
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 property would devolve by survivorship on the daughters. The effect of S.29C 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 and liabilities’ 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 in coparcenary 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 amendment or 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 the domain 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 conceptual flaws 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 she is a member of two families, her natal family and her husband’s family-a position of law hitherto unknown. The Supreme Court in the past has struck down definitions of ‘family’ that are artificial because they don’t exist in actual practice or because they violate fundamental rules of legal construction. In Kunhikoman v. State of Kerala a definition of family that included ‘husband, 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 the amendments have in fact been effected will be sustained, if challenged. 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 a karta’ since women cannot be a coparcener they also cannot be a karta and such logic is supported 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 could lead 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 wife’s family (as well as well as manage the affairs of their family) despite being a member of another family (after marriage)-practically a very difficult situation. The doctrine of pious 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 of deceased relatives that arises in the case of male coparceners does not apply to the widow. In Keshav Nandan Sahay v. Bank of Bihar the 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 a share 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 coparcenary by 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 coparcenary by 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 and secondly 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 will amount 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 this section 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 legitimate basis of classification that could exclude some daughters from the rights that the amendments create for other ‘classes’ of daughters? In Indian constitutional law, exceptions to the “Equality and Equal protection Clause (Art.14)” are analyzed with the Doctrine of Reasonable Classification. The doctrine which is a juristic tool allows for certain exceptions to a strict rule of equality if two conditions are satisfied namely (a) the classes created have been based on some intelligible differentia (b) the classification bears a rational nexus to the object of the classification. The distinction relating to “birth” will be considered first. It seems that there is an intelligible differentia between a ‘natural born’ and ‘adopted’ daughter with the reading of the section providing that “birth” might have to be strictly construed. However it is on the second condition of rational nexus that the distinction seems untenable. From the reading of the preamble to the Andhra Act it is clear that it was enacted because “…exclusion of the daughter from participation in coparcenary ownership by reason of her sex…” is contrary to Art.14 (equality clause) of the constitution. The emphasis seems to be directed at removing discrimination ‘by reason of sex’. Does differentiation by “birth” have a rational nexus with the object of the Act, which is removing discrimination on the basis of sex? It is humbly submitted that the answer is no. Further support for this argument can be drawn from S.12 of the Hindu Adoption and Maintenance Act, 1956 which severs for the adoptive child (from the date of adoption) all legal links with his natal family and associates him with only his adopted family. However Prof. Sivaramayya disagrees arguing that the section does not intend to give coparcenary rights to an adoptive daughter because of the emphasis on “by birth”. Without going into the substance of his argument, it may be questioned on the count that one must not assume that the opinion of the legislature must in all cases be given effect if it results in some absurdity or clear injustice. Judicial review of a number legislative acts have proceeded on the ground of ensuring some higher values, either intended by the legislature (but not reflected in wording of the enactment itself) or contrary to the opinion of the legislature itself. The second questionable distinction arises with the use of marital status to exclude daughters married before the commencement of the Act from its operation. It has been argued the reason for this distinction might have been the sociological fact that dowry is given to the daughter at the time of marriage and this would constitute her share. This justification for the differentiation, it is submitted, would be against public policy
especially when there are a number of legal prohibitions against the custom of dowry. While this distinction in the context of the amendment has not been adjudicated, in other fact situations, marital status as a ground for differentiation has been held unconstitutional. In Savita Samvedi v. Union of India restrictions was placed on the right of a railway employee to nominate a married daughter for certain benefits that the railway was giving to its employees. A married daughter under the railway rules was eligible only if there was no son or the son was not in a position to take care of his parents. The court held that this distinction was unconstitutional because it suffered from the twin vices of gender discrimination between sons/daughters as well as between daughters inter se (on the ground of marriage). Thus the trend of the Apex court 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 to daughters in general.
CONCLUSION The reforms that have been completed in the area of women’s 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 the ‘reform by abolition’ method 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 method might create positions of law in a joint family “…unknown to law and unworkable in practice….” 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 to coparcenary 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 widow a defacto coparcener (including quantum of coparcenary property) without the de jure status. There are however limits to creative interpretation. In the context of widow’s coparcenary rights as 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 of Gurupad’s 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 there is 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 of coparcenary 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 certain distinction 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. 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 coparcenary shares. 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 of the coparcenary interest of the deceased. For widows governed by the Madras school the effect will be the greatest…they 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 ‘women’s 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 situations ‘unknown 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 be disadvantageous (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 the same. 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 without having to tinker with a system, which is fundamentally male-oriented.
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BIBLIOGRAPHY ARTICLES: 1. Cossman, Brenda & Kapur, Ratna, “Women, Familial Ideology and the ConstitutionChallenging Equality Rights” in Feminist 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 in National Convention on Uniform 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”, 13 Ariz. 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 Widow’s 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”, 30 J.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, 14th ed., New Delhi: Bharat Law House, 1996) 2. Mulla, D.F., Principles of Hindu Law (Desai, S.A. edited, Vols. 1 & 2, 17th ed., 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)