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Report No. 174

Annexure II

Analysis of The Questionnaire of Law Commission

The Law Commission's questionnaire is divided into three parts. Part I deals with information about the respondent; part II elicits respondent views on issues relating to various aspects and impact of coparcenary and lastly part II invites comments from the respondents. The respondents were asked to answer in yes and no and were given several choices. Sixty Seven respondents had replied to the questionnaire. 30 respondents were mainly from the Department of Law and rest were either advocates, sociologists or NGOs etc.

The responses are indicated below:

1. Mitakshara Joint Family to be retained or not?

Out of the 67 respondents, 49 opposed its retention and 17 favoured it and one did not reply (vide Q.1).

2. Reasons favouring retention of Mitakshara Coparcenary

(The respondents favouring retention have done so mainly for the reason that it protects the financially weaker members and gives better rights to males as per parts(b) and (a) of Q.2.

3. Reasons negativating the retention of Mitakshara Joint Family

(The respondents were asked to give any of the following grounds as per Q.3 in case they chose to negative the retention of Mitakshara System - (a) the changes would affect harmony in the Family; (b) that legislative changes have already eroded the utility of the coparcenary system; (c) that it would have a detrimental effect on the running of family business; (d) that idle members of a joint family prosper at the expense of the hard working members and (e) that coparcenary system discriminates against women.

33 respondents preferred part(e); 21 part(b); 12 part(a); 8 part(d) and 29 favoured more than one part.

4. Steps to be taken to remove gender discrimination

The Law Commission suggested two alternative choices in Q.4 to remove gender discrimination.

(The majority that is, 35 respondents, favoured part(b) which stated that Mitakshara Coparcenary should be retained but the gender bias to remove by conferring upon daughters the right to become a coparcener like a son; 22 respondents favoured part(a), that is, to abolish the coparcenary right by birth.

5. Daughter becoming a Karta in the Joint Family.

33 respondents preferring the daughter to become Karta in the Joint Family of Mitakshara Joint Family is retained; 10 respondents negativated it and 8 did not reply as per Q.5.

It may be noted that this question is directly relevant to Q.No.1, where only 17 respondents favoured the retention of Mitakshara system whereas it may be seen that 33 respondents have preferred the daughter becoming Karta in the Joint Family if Joint Family is retained.

(Several choices are listed in Q.6 for negativating the daughters becoming a Karta such as - (a) women are incapable of managing properties or agriculture; (b) they are incapaable of running a business; (c) once married they move away from their families; and (d) they are susceptible to the influences of the husband or his family; (e) other reasons. 11 respondents opted for part(c); 5 for part(d) and 13 did not reply to this question.

6. Conferring equal rights upon married & unmarried daughters.

36 replies favoured the view that married daughters should have equal rights in coparcenary property as per Clause(b); 14 opted for Clause (a) by limiting this right in favour of unmarried daughters at the time of passing or enforcing of the enactment and 8 respondents did not reply as per Q.7.

7. From what period should the Act (when passed) be applicable?

21 respondents did not reply; 10 favoured choice in part (a) that is to give retrospective effect from 10 to 15 years prior to the passing of the Act; 15 for part(b) for providing protection to buyers of property in good faith; 12 respondents were in favour of part(c) for not affecting the vested rights and 11 opted for part(a) of Q.8.

8. Should coparcenary right be confered on the mother of the coparcenary by the proposed legislation?

51 out of 67 respondents answered in the affirmative; 5 in the negative and 11 did not respond to Q.9.

9. The Commission vide Q.10 pointed out that there may be attempts to defeat the provisions of the proposed legislation by effecting partitions or by sales. Should such transactions be declared invalid before the enactment of the proposed legislation?

The respondents were asked to choose between yes or no. The majority, that is, 58 respondents answered the question in the affirmative; and 7 were against it; and 9 did not reply.

10. On the question of preference of abolition of special rules discriminating against daughters for devolution of agricultural interests. The majority that is, 54 respondents answered Q.11 in the affirmative and only 7 were against it, 6 did not reply.

11. Dwelling House

43 respondents preferred amendment of law to provide that partition can be sought by the female heirs also even if there was only one ancestral home, as in part(a) of Q.13. On the issue whether married daughters be given a right of residence in the dwelling house. 39 respondents expressed themselves in favour of this cause of action and 24 were against it. Further, 27 respondents favoured the deletion of section 23 of HSA altogether and 26 opted for course of action mentioned in part(b), namely making section 23 inapplicable to dwelling house belonging to Hindu female intestates in respect to Q.14 and others did not reply.

(The majority of the respondents, that is, 61 have expressed themselves in favour of special protection to widow's right to reside in the dwelling house as per Q.15. ; 26 respondents have opted for the course of action in part (b) of Q.16 by declaring that family dwelling house cannot be alienated without widow's consent or without providing an alternative accommodation to her after she had agreed to the sale of the dwelling house; 29 respondents opted for part(a), to confer `Homestead' rights on the wife/widow like in U.S.A., Canada , and few have not replied to the question.

12. Inheritance Certificate on death of an individual by all heirs indicating their share in the property

In answer to Q. No. 17, the majority of the respondents that is 55 favoured the taking of an inheritance certificate by all heirs. Question of authority to be conferred, upon the issue of `Inheritance Certificate'

50 respondents stated that `District Munsif's Courts' should alone be conferred the authority to issue such Inheritance Certificates and in response to Q.18, all the 49 respondents have favoured the establishment of `Itinerary Courts' for achieving the said purpose as per Q.19.

13. Model to follow for bringing the proposed legislation

(a) Kerala Model, 1976

(b) Andhra Model, 1986

(c) To amend and recast Section 6 of HSA

(d) To omit Section 6 altogether and add an explanation to Section 8.

(The Commission solicited opinions on the important question as to which model should be followed if it were to recommend a new legislation for the purpose of conferring rights on daughters. Out of 67 respondents 23 respondents favoured the Andhra Pradesh model; 22 respondents favoured the Kerala Model; 6 respondents favoured the recasting of Section 6 of HSA as per part(c) and 7 favoured part(d) for omitting section 6 altogether as per Q.20. 14. Placing restriction on the Right of Testamentary disposition

44 respondents favoured imposing restrictions on the right of testamentary disposition but only 21 stated to limit it to one half of the share and 22 to 1/3; and 19 respondnets did not favour imposing restrictions on such a right vide Q.21.

The last question invited the comments from the respondents

Any other comments

1. Only 35 respondents made general comments in response to Q.22. Their general view was that the concept of Hindu Mitakshara was not acceptable because it discriminated between males and females. If females were made part of Mitakshara Coparcenary, it would reduce gender inequality to a considerable extent. For this purpose, Section 6 of the HSA should be amended by Parliament and so amended should be implemented uniformly throughout India.

2. Stpes must be take to protect the interests of a wife/widow.

3. Restrictions on testamentary disposition should be imposed at least to the extent of half of the property.

4. A few respondents also suggested the formulation of a Uniform Civil Code.

One of the respondents asked the Commission to make an empirical study of the issue and not to lightly decide to discard the existing system of Hindu Joint Family/HUF which was based on mutual love, affection and compassion and family as a means of fulfilling physical and economic needs. According to this respondent, there was no gender bias against females under section 6 of the HSA. In fact, female inherits from the fathers's family as well as husbands family under Sections 6 and 14 of HSA. She inherited from two families in four capacities. Compared to this, the male inherited only from one family and in one capacity i.e. as a son (or grandson or great grandson). Thus the bias is in favour of the female.

Property Rights of Women - Proposed Reforms under the Hindu Law Back

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