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Report No. 174

Chapter V

Conclusions and Recommendations

5.1 Conclusions - To suggest suitable reforms to any law, it is necessary to know the existing provisions of the law and the mischief sought to be remedied. In the previous chapters provisions of section 6 of HSA and the various inequities emerging therefrom have been discussed. In this chapter the conclusions of our study are enumerated and thereafter we have made some suggestions.

5.2 Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. Mitakshara Law also recognises inheritance by succession but only to property separately owned by an individual male or female. (Para 1.3.3)

5.3 Dayabhaga school neither accords right by birth nor by survivorship though a Joint family and its coparcenary is recognised. It lays down only one mode of succession and the same rules of inheritance apply whether the family is divided or undivided and whether the property is ancestral or self-acquired. Sons and daughters become coparceners only on the death of the father and get equal rights in the family property. (Para 1.3.4)

5.4 The framers of the Indian Constitution took note of the adverse and discriminary position of women in society and took special care as per articles 14,15(2)and (3) to prevent discrimination against women. Part IV of the Constitution through the Directive Principles of State Policy further provides that the State shall endeavour to ensure equality between man and woman.(para 1.5)

5.5 Despite the Constitution guaranteeing equality to women there are still many discriminatory aspects in the law of succession against a Hindu woman under the Mitakshara system of Joint family as per section 6 of the HSA as only males are recognised as coparceners. (Para 2.4)

5.6 The States of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka have amended the provisions of HSA effecting changes in the Mitakshara coparcenary of the Hindu undivided family. These four states have declared the daugher to be coparcener. The state of Kerala, however, has totally ablished the right by birth and put an end to the Joint Hindu Family instead of tinkering with the coparcenery. The consequence of this de-recognition of the members of the family, irrespective of their sex, who are governed by Mitakshara Law is that they become tenants in common of the joint family property and become full owners of their share.(paras 3.2 & 3.3.1)

5.7 Recommendations - As a first reaction the Law Commission was inclined to recommend the adoption of the Kerala Model in toto as it had abolished the right by birth of males in the Mitakshara coparcenary and brought an end to the Joint Hindu Family. This appeared to be fair to women as they did not have any right by birth; but on further examination it became clear that if the joint Hindu family is abolshed as on date and there are only male coparceners, then only they would hold as tenants in common and women would not get anything more than what they are already entitled to by inheritance under section 6 of HSA.

So the Commission is of the view that it would be better to first make daughters coparceners like sons so that they would be entitled to and get their shares on partition or on the death of the male coparcener and hold thereafter as tenants in common. We recommend accordingly.

5.7.1 The Andhra Model does not do full justice to daughters as it denies a daughter, married before the Act came into force, the right to become a coparcener. Obviously, this was based on the assumption that daughters go out of the family on marriage and thereby cease to be full members of the family. The Commission wanted to do away with this distinction between married and unmarried daughters, but after a great deal of deliberation and agonizing, it decided, that it should be retained as a married daughter has already received gifts at the time of marriage which though not commensurate with the son's share is often quite substantial.

Keeping this in mind the distinction between daughters already married before the commencment of the Act and those married thereafter appears to be reasonable and further would prevent heart-burning and tension in the family. A daughter who is married after the commencement of the Act will have already become a coparcener and entitled to her share in the ancestral property so she may not receive any substantial family gifts at the time of her marriage. Hopefully, this will result in the death of the evil dowry system.

5.7.2 The Kerala Act abrogated the doctrine of pious obligation of the son whereas the Andhra Model and others which conferred coparcenary rights on unmarried daughters are silent in this regard except that the daughter as a coparcener is bound by the common liabilities and presumably can become a karta in the Joint family. We recommend the abrogation of the doctrine of pious obligation and that the daughter be a coparcener in the full sense.

5.7.3 Consequently, as above indicated, we have recommended a combination of the Andhra and Kerala Models. We are of the view that this synthesis is in keeping with justice, equity and family harmony.

5.7.4 We are also of the view that Section 23 of HSA which places restrictions on the daughter to claim partition of the dwelling house should be deleted altogether. We recommend accordingly.

5.7.5 As noticed earlier quite often fathers will away their property so that the daughter does not get a share even in his self-acquired property. Apart from this, quite often persons will away their property to people who are not relatives, thus totally depriving the children and legal heirs who have a legitimate expectation. Consequently, there has been a strong demand for placing a restriction on the right of testamentary disposition. But after due deliberation the Commission is not inclined to the placing of any restrictions on the right of a Hindu deceased to will away property.

5.8 Accordingly, we have drafted a Bill called the Hindu Succession (Amendment) Bill, 2000 so that the recommendations made by us are hopefully implemented with speed by the government. This Bill has been annexed as Appendix 'A'

Justice B.P. Jeevan Reddy (Retd)
Chairman
Ms Justice Leila Seth, (Retd)
Dr.N.M.Ghatate
member
Mr.T.K. Vishwanathan
Member - Secretary

DATED: 4.5.2000



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