This Article is written by Sai Vivek Rao Beerelly (currently in 2nd Year of BBA LLB at Symbiosis Law School Hyderabad)
INTRODUCTION
Property is an everlasting representation of status that determines a person’s or a family’s social standing and respect. People in India are already preoccupied with the idea of owning real estate. When one considers the number of land ownership disputes waiting in India’s judicial system, this truth becomes clear. Cases involving property can go on for years in our courts as unpleasant chains of litigation are initiated by land ownership issues, adding to the pressure on our courts. The Hindu Succession Act, which was adopted in 1956 with the goal of codifying the existing law relating to intestate succession, governs intestate succession among Hindus in India. “The Act pertains to anybody who is a Hindu by faith, including Buddhists, Jains, and Sikhs, as well as anyone who is not a Muslim, Christian, Parsi, or Jew”[1]. The Act, however, has no extraterritorial effect, meaning that it only applies to property located within India. It changed Hindu succession law and granted women rights that had previously been unknown in connection to their property. It did not, however, interfere with the particular rights of Hindu “Mitakshara” coparcenary members, save to give guidelines for the devolution of a deceased male’s interest in certain instances. The Act establishes a standard and comprehensive inheritance system that applies to those who are controlled by the Mitakshara and Dayabhaga schools, among others. This Act does not apply in the case of a testamentary disposition, and the deceased’s succession is handled by the Indian Succession Act, 1925. The Act’s Section 6 addresses the devolution of a male Hindu’s stake in coparcenary property and recognises the rule of devolution by survivorship among the coparcenary’s members. To eliminate gender discrimination in Hindu Mitakshara Coparcenary property, the amending act of 2005 granted equal rights to the daughter and son. The daughter has been appointed as a coparcener, with the authority to partition the estate. Sections 8–13 provide standard succession laws for males, but section 14 declares a female Hindu’s property to be her absolute property. In the event of females, sections 15–16 implement general succession provisions. Sections 17 through 30 deal with general testamentary succession provisions. It is a self-contained code with overriding power and the ability to make fundamental and radical changes.
SURVIVORSHIP
The possessions of the household decentralized through survivorship in the inventive Mitakshara coparcenary set-up, i.e., a coparcener’s interest in the possessions did not terminate in the direction of happening on his or her demise, nevertheless was moved to the enduring coparceners. In the case of “State Bank of India v. Ghamandi Ram”[2], the supreme law court of India apprehended that “the Mitakshara coparcenary entails certain incidents, such as (i) the property, in which the male issue of a coparcener acquires an interest by birth; and (ii) the joint property devolves by survivorship, and not by succession.”
The very leading case of coparcenary and survivorship was found in the above mentioned instance and it stands as one of the utmost noteworthy structures of the concept. The attention that a coparcener remains permitted towards the time of his or her biological stands is never established. Rather, the level of curiosity fluctuates in tandem with the number of deliveries and demises in the household. The demise of a current coparcener will pique the attention of the surviving coparcenary members. The birth of a new member in a coparcenary, on the other hand, will lessen the benefits of current associates as the number of persons with attention in the possessions produces.
The Hindu Succession Performance of 1956, Segment 6, delivers for the decentralisation of an individual’s attention in coparcenary possessions uncertainty he or she deceases unrepresented, that remains, deprived of manufacture a will afore demise. Proceeding to the Act’s 2005 revision, menfolk and womenfolk stood not measured to obligate equivalent privileges beneath Hindu individual regulation. The regulation stated that if an individual deceased unrepresented, departure only masculine successors, the coparcenary property would pass to his sons, grandsons, and great-grandsons by survivorship. Individual male successors up to three cohorts from the dead coparcener were included in the devolution and inheritance process. In a word, this is what the principle of survivorship means.
Womenfolk stood deprived of the precise to receive possessions by means of a consequence of the doctrine of survivorship because they were not deemed coparceners in the first place. As a result, there existed a significant and troubling gap in the legislation, which discriminated harshly between male and female heirs. Even the departed coparcener’s companion was not encompassed in the possessions devolution because she was not a coparcener in her husband’s joint household. This was the turning event that led to the 2005 amendment.
Initially, the applicable part of this precise segment recited by means of trails: “Devolution of interest in coparcenary property. – When a male Hindu dies after commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act”[3]
HINDU JOINT FAMILY
In Hindu jurisprudence, a Hindu Joint Family (HJF) is the most basic and fundamental entity. The ‘family’ has traditionally been regarded as one of society’s most important organisations under Hindu law. The Dharmasastras state that the family should be given the utmost priority in an individual’s life and work because all other institutions are dependent on it. Only by taking care of family responsibilities can one live a meaningful and fulfilling life. As a result, a Hindu gives a very special place for the family.
A Hindu Joint Family is made up of a group of relatives who are tangled together by kinship and marriage ties. Hindu Joint family is defined as “A larger body made up of a group of people, both male and female, who are linked by a sapindaship bond formed via birth, marriage, or adoption. It comprises of a common ancestor, his lineal male descendants up to any generation, including widows, unmarried daughters, wives, and adopted children, as well as widows, unmarried daughters, wives, and adopted children.”[4] Any Hindu Joint Family is assumed to be united in three basic aspects of life: food, worship, and inheritance. Until and unless the contrary is proven, this presumption is considered genuine.
In the case of “Adiveppa v. Bhimappa”[5], the Supreme Court held that “The legal presumption that every Hindu Joint Family is joint in food, worship, and the estate is a fundamental tenet of Hindu law. Such presumption continues to operate in the family in the absence of any proof of division. The burden of proof is on the member who, after recognising jointness, advances his claim that some properties are his own.”
COPARCENARY
The concept of coparcenary has laid down the foundation for Hindu Joint Family. Daya, or coparcenary property, is in the form of property on which a person can assert a claim based on their relationship with the owner, according to Vijnaneshwara. In today’s world, this concept has evolved into a full-fledged doctrine under which a person obtains a certain interest in his or her family’s property merely by being born into it. It is critical to recognise that coparcenary is a relatively limited branch of a Hindu Joint Family’s larger structure. The coparcenary prepares not to contain all of a combined people’s associates. The subject remains partial to the number of people who partake stood identified as having birthright attention in the coparcenary stuff. Starting with the last proprietor of the property, this spreads to four cohorts of ancestry.
“Coparcenary property refers to and encompasses the following types of assets:
i. Property acquired with the help of joint family property or jointly by two or more coparceners as joint family property;
ii. In Hindu law, what is considered ancestral property;
iii. That which is owned individually by a coparcener but afterwards willingly thrown into the coparcenary’s common stock.”[6]
Rendering to the Mitakshara way of thinking, there is no singular responsibility for, relatively the aforementioned stands physical in nature. No solitary individual claims the possessions, yet the whole assemblage of coparceners practices responsibility for property together. Hence, there appears survivorship. Survivorship is established as in curiosity in the possessions is reverted to the overcomers of the last container of the possessions column his demise which suggests that the concentration not ever stops to happen, moderately the aforementioned stands just conceded on.
The quintessence of a coparcenary beneath the Mitakshara School of Hindu regulation remains a local area of attention and solidarity of ownership. Nonetheless, beneath the Dayabhaga way of thinking, the idea is altogether unique. At this time, nobody procures attention in the possessions through natal, yet the precise emerges on the passing of the dad. Hence, there stands no survivorship in the possessions beneath Dayabhaga.
COPARCENARY / HINDU UNDIVIDED FAMILY PROPERTY AND DEVOLUTION OF INTEREST
Mitakshara recognises two kinds of property devolution, survivorship and succession, which are prevalent in most states except West Bengal. The regulation of survivorship practical to combined domestic (coparcenary) possessions; succession instructions applied to absolute severalty property. Dayabhaga only recognises one type of devolution: succession. Even in the situation of shared family property, the aforementioned does not distinguish the regulation of survivorship. The aim for this stands that, although apiece associate of a Mitakshara coparcenary partakes solitary complete attention in the joint possessions, a participant of a Dayabhaga combined household grasps his portion in quasi-severalty, which resources that the aforementioned badges on his demise towards his successors by means of if he stood unconditionally detained thereof, somewhat than to the enduring coparceners by means of beneath Mitakshara law. Under Mitakshara law, the core of a coparcenary is ownership unity. The coparcenary possessions go towards the complete figure of coparceners. Conferring to the Mitakshara regulation, no distinct member of an entire household can establish of the joint and whole possessions, that he, that specific individual, partakes a distinct segment, that is, one-third or one-fourth, although the household remnants exclusive. His concentration remains a recurring one, proficient of existence discriminating through household demises and tapering through household deliveries. Solitary on the foundation of a divider prepares improvement the factual to a precise portion. Mitakshara regulation made it illegal for a woman to be a coparcener. Where there is a division between her husband and her children, the wife is entitled to an equal share, not as her husband’s coparcener.
If a Hindu dies after September 9, 2005, his interest in the property will pass through testamentary or intestate succession, and the coparcenary property will be divided as if a partition had occurred. There is now a fictitious partition and division. The property would be split among the heirs of the deceased coparcener, with the daughter sharing an equal share with the son and the share of the pre-deceased son or a pre-deceased daughter going to the surviving child of such heirs. To avoid the repercussions, it has been established that partitions created before to December 20, 2004, by registered partition deed or effected by a court decision alone will be considered lawful.
In the case of “GurupadMagdum v. H.K.Magdum”[7]the Supreme Court of India held that “What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the shares of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages…. All the consequences that flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased”. According to the aforementioned judgement, the fiction and notional partition does not have to cause a total breakdown of the joint family, nor does it mean that the coparcenary ceases to exist even if the deceased was survived by two coparceners. The notional split, it is argued, does not have to cause the joint family to be completely disrupted. It would also result at the end of the coparcenary.
In the case of “State of Maharashtra vs. Narayan Rao Sham Rao”[8] The Supreme Court carefully considered the above decision in Gurupad’s case and stated that Gurupad’s case must be treated as an authority (only) for the position that when a female member inherits an interest in joint family property u/s. 6 of the Act, she is entitled to both the interest she has inherited and the share that would have been notionally allotted to her as stated when she files a suit for partition expressing her willingness to leave the family. It stood likewise brought up that a lawful fabrication ought to, as a rule, be taken to the subject obvious end result to accomplish the objectives for which it was sanctioned, however not past that. There is no question that a female beneficiary’s all in all correct to the interest acquired in the family property is fixed on the date of the demise of a male part under Section 6 of the Act, however, she can’t be treated as having stopped to be an individual from the family without her assent, as this would bring about peculiar outcomes that Parliament couldn’t have expected when it ordered that arrangement. In this resulting Supreme Court judgment, it was likewise expressed that the choice for Gurupad’s situation should be viewed as power (alone) for Explanation 1 to Piece 6 of the Performance.
Apart from discrimination of gender, considering a daughter the same as a son, making her a coparcener with the same rights and responsibilities as a son, is a positive step toward women’s empowerment and equality after 50 years. Both Son and Daughter are born from the same parents and same womb, so why do we need to discriminate and consider son over the daughter? Now a daughter gets receive her interest in her father’s coparcenary property as well as a stake in her husband’s family’s partition as wife. Double share is worthy as and now she can be herself a coparcener. There could be doubt that whether a women can be kartha/ manager of the family? In my opinion, as daughter is also a coparcener and if she is able to manage and do her work properly than she can be kartha or manager of the family, there is a belief that only the elder son of the family can be kartha/ manager of the family. Honourable Rajasthan High Court in case of “MaharanaBhagwat Singh of Mewar accepted younger son ShreejiShriArvind Singh of Mewar as a Manager instead of ShriMahendra Singh of Mewar.”[9] Nevertheless, the women cannot be karta of her partner’s household. The subject displays that an offspring will be offspring whether she is married or not. It has been observed that some people persuading and pressuring the sisters in the direction of announcement their attention in their errand, which is unprincipled and should be avoided and assessed. Ladies’ lawful gains must be deposited in their accounts.
SUCCESSION OF PROPERTY
Succession of Property of Male
The property of a male Hindu passing on intestate for example without a Will should decline upon his recipients as demonstrated in the course I of the Plan; on the off chance that none, by then upon the recipients showed in Class II of the Plan and inside the nonattendance of the said beneficiaries, by then upon the agnates of the died taking everything into account assuming there is no agnate, by then upon the cognates. Recipients determined in Course I of the Plan should take simultaneously and similarly. The property is scattered according to rules in segment 10. All ladies together would take one offer; youngsters and little girls and mother each should take one offer and the beneficiaries of each predeceased kid or each predeceased girl should take between them one offer. Main beneficiaries indicated in any one segment as in Lesson II of the Schedule would have ascend to share. Agnates and Cognates will get according to section 12 with calculation of degress as indicated in section13. Property had or procured by a female Hindu would be held by her as a full proprietor, with all powers to trade, gift, hamper or give.
In case of “C.W.T. vs. ChanderSen and Others”[10]the honourable utmost law court afterwards considering introduction and its over-riding consequence on Hindu Regulation observed that “it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son’s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8he takes it as karta of his own undivided family. It also stated it would be difficult to hold today the property which devolved on a Hindu u/s. 8 of the Hindu Succession Act would be HUF in his hand vis-à-vis his own son.”[11]
Succession of Property of Women
The possessions of a female Hindu passing on unrepresented should deteriorate as requested in section 15 and in comprehension with the standards set out in section 16. Initially, upon the children’s girls, offspring of pre-perished child or girl and the spouse.Besides, on the beneficiaries of the spouse; thirdly, upon the mother and father of the female; fourthly, upon the main successors to the dad, and in conclusion, upon the beneficiaries of the mother. Regardless, any property obtained by a female from her dad or mom may decline upon the recipients of her dad, in the event that inside the nonappearance of any youngster or young lady or offspring of any pre-perished kid or young lady or their kids figuratively speaking.
Any property got to the female from her parents in law or spouse will stand moved upon the main beneficiaries of the husband without child or little girl or posterity of any predeceased child or little girl. These exemptions are pertinent just on the property acquired from her parents in law, spouse, mother, father, and not from others or self-got property. The object is to return to the successors to the equivalent from whom procured. The successors to a female Hindu are appropriated in the accompanying request: first, among the main beneficiaries indicated hereinbefore in one section all the while in inclination to any succeeding passage; second, on account of a pre-expired child or girl to their perished child or little girl living at the applicable time. Different standards would be essential.
CONCLUSION
Subsequently, the Hindu Sequence (Amendment) Act, 2005, remained approved through Parliament, the doctrine of Hindu regulation survivorship remained to offer a concluding farewell and was suppressed with the heap of ancient laws. At least in terms of property interest, womenfolk remained lastly positioned on an equal footing with males. Daughters of coparceners were also awarded the status of coparceners, which began at birth and gave them a status similar to that of a child. The repeal of the policy of survivorship was a watershed milestone in Indian permissible history.
Making daughters as the coparceners is a noble gesture, but it is only a band-aid on a long-running wound. To keep up with the times, Hindu law must develop to eliminate the concept of right by birth, which causes more issues than it answers. The remedy lies in getting rid of the entire notion of the coparcenary and having a more comprehensive rule dealing to intestate succession among Hindus in India, as the B.R. Rau Committee had advised before at the time of the development of the Hindu Code legislations.
[1]Hindu Succession Act, 1956, §2.
[2]State Bank of India v. Ghamandi Ram, AIR 1330, 1969 SCR (3) 51.
[3] Hindu Succession Act, 1956, §6
[4]RiwikTyagi, All you need you need to know about doctrine of survivorship, lawcirca.com, (November 09, 2021), https://lawcirca.com/the-doctrine-of-survivorship/
[5]Adiveppa v. Bhimappa, AIR 2017 SC 4465.
[6]Ibid
[7]GurupadMagdum v. H.K.Magdum, AIR 1978 SC 1239 : (1981) 129-ITR-440 (S.C.).
[8] State of Maharashtra vs. Narayan Rao Sham Rao, AIR 1985 SC 716 : (1987) 163-ITR-31 (SC)
[9] BOMBAY CHARTERED ACCOUNTANT JOURNAL DECEMBER 2018, 310 (2018) 50-B BCAJ
[10] C.W.T. vs. ChanderSen and Others, AIR 1986 S.C. 1753 : (1986) 161-ITR-370 (S.C.),
[11]Supra