Report No. 174
Chapter - III
Coparcenary: Relevance and Alternatives
3.1 - It is apparent from the study of the previous chapter t0hat discrimination against a woman is writ large in relation to property rights. Social justice demands that a woman should be treated equally both in the economic and the social sphere. The exclusion of daughters from participating in coparcenary property ownership merely by reason of their sex is unjust. Improving their economic condition and social status by giving equal rights by birth is a long felt social need. Undoubtedly a radical reform of the Mitakshara law of coparcenary is needed to provide equal distribution of property not only with respect to the separate or self-acquired property of the deceased male but also in respect of his undivided interest in the coparcenary property.
3.2 The New Coparcenary under State Acts : (ANDHRA MODEL) The idea of making a woman a coparcener was suggested as early as 1945 in written statements submitted to the Hindu Law Committee by a number of individuals and groups; and again in 1956, when the Hindu Succession Bill was being finally debated prior to its enactment an amendment was moved to make a daughter and her children members of the Hindu coparcenary in the same way as a son or his children. But this progressive idea was finally rejected and the Mitakshara Joint family was retained.
3.2.1 The concept of the Mitakshara coparcenary property retained under section 6 of the HSA has not been amended ever since its enactment. Though, it is a matter of some satisfaction that five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka1 have taken cognisance of the fact that a woman needs to be treated equally both in the economic and the social spheres. As per the law of four of these states, (Kerala excluded), in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son.
Kerala, however, has gone one step further and abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere fact that he or she was born in the famly. In fact, it has abolished the Joint Hindu family system altogether including the Mitakshara, Marumakkattayam, Aliyasantana and Nambudri systems. Thus enacting that joint tenants be replaced by tenants in common.
1. The Kerala Joint Family System (Abolition) Act, 1975 The Hindu Succession (Andhra Pradesh Amendment) Act. 1986 The Hindu Succession (Tamil Nadu Amendment) Act. 1989 The Hindu Succession (Maharashtra Amendment) Act. 1994 The Hindu Succession (Karnataka Amendment) Act. 1994 For text of these Acts, See Annexure - IV
3.2.2 The approach of the Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka state legislatures is, strikingly different from that of Kerala and these states instead of abolishing the right by birth strengthened it, while broadly removing the gender discrimination inherent in Mitakshara Coparcenary. The broad features of the legislations are more or less couched in the same language in each of these Acts. The amending Acts of Andhra Pradesh, Tamil Nadu and Maharashtra add three sections namely, 29A, 29B and 29C but Karnataka numbers them as Sections 6A, 6B and 6C of the Act.
3.2.3 These state enactments provide equal rights to a daughter in the coparcenary property and contain a nonobstante clause. In these four states;
(a) the daughter of a coparcener in a Joint Hindu Family governed by Mitakshara law, shall become a coparcener by birth in her own right in the same manner as the son and have similar rights in the coparcenary property and be subject to similar liabilities and disabilities;
(b) On partition of a joint Hindu family of the coparcenary property, she will be allotted a share equal to that of a son. The share of the predeceased son or a predeceased daughter on such partition would be allotted to the surviving children of such predeceased son or predeceased daughter, if alive at the time of the partition.
(c) This property shall be held by her with the incidents of coparcenary ownership and shall be regarded as property capable of being disposed of by her by will or other testamentary disposition.
(d) The state enactments are prospective in nature and do not apply to a daughter who is married prior to, or to a partition which has been effected before the commencement of the Act.
3.2.4 However, these four Hindu Succession (Amendment) Acts have been criticised as they have given rise to various difficulties in their working and application. These four amending Acts, have considerably altered the concept of the Mitakshara Joint family and coparcenary by elevating a daughter to the position of a coparcener. Once a daughter becomes a coparcener she naturally continues to be a member of the natal joint family and after marriage she will also be a member of her marital Joint family.1
3.2.5 In this connection, it is relevant to notice the observations of Mr.Pataskar made while participating in the parliamentary debate at the time the Hindu Succession Bill, 1955 was moved. He said:
"To retain the Mitakshara Joint Family and at the same time put a daughter on the same footing as a son with respect to the right by birth, right of survivorship and the right to claim partition at any time, will be to provide for a joint family unknown to the law and unworkable in practice"2
1. B.Sivaramayya, "Coparcenary Rights to Daughters; Constitutional and interpretational Issues," (1997) 3 SCC (J), P.25
2. Lok Sabha Debates p.8014(1955)
3.2.6 It was noticed that in the State of Tamil Nadu, many properties were partitioned between the coparceners before the Tamil Nadu (Hindu Succession Amendment) Act, 1989 came into force with a view to defeat the daughter's right to become a coparcener. These were by and large "fraudulent partitions" which were pre-dated so that no coparcenary property was available to the daughter. This malpractice has to be checked thoroughly otherwise the very objective of the Act, which is to remove discrimination inherent in the Mitakshara coparcenary against daughters, stands defeated.
Therefore, though the Tamil Nadu Act received the President's assent on 15.1.1990 and was published in the official gazette only on 18.1.1990, the Act provides that partitions effected contrary to the Act after 25.3.89 will be deemed to be void. The Law Commission's questionnaire elicited public opinion in this regard and found that the majority were of the view that such transactions made just before the enactment of the proposed legislation should be declared invalid.
3.2.7 Another infirmity of these state enactments is that they exclude the right of a daughter who was married prior to the commencement of the Act, from the coparcenary property, though, the right is available to a daughter who is married after the coming into force of the said amendment acts. As a result a married daughter continues to have her interest in the joint property of her paternal family, if her marriage has taken place subsequent to the enactment while the daughter who got married before the enforcement of the law gets no right at all in the joint property of her parental family. Such a discrimination appears to be unfair and illegal. A recent Supreme Court decisions lends support to this view. In Savita Samvedi v. Union of India 1996 JT (1) 680it was held that the distinction between a married and an unmarried daughter may be unconstitutional. The observations made by Mr.Justice Punchhi are relevant;
"The eligibility of a married daughter must be placed on par with an unmarried daughter (for she must have been once in that state), so as to claim the benefit."1
3.2.8 The majority of the replies to the Law Commission's questionnaire are also of the view that equal rights should be conferred on married and unmarried daughters. This is also the view with regard to the dwelling house.2
1. 1996 JT 683-684 Para 7
2. Infra, Chapter IV, Para 4.7
3.2.9 It is further felt that once a daughter is made a coparcener on the same footing as a son then her right as a coparcener should be real in spirit and content. In that event section 23 of the HSA should be deleted. Section 23 provides that on the death of a Hindu intestate, in case of a dwelling house wholly occupied by members of the joint family, a female heir is not entitled to demand partition unless the male heirs choose to do so; it further curtails the right of residence of a daughter unless she is unmarried or has been deserted by or has separated from her husband or is a widow. Section 23 of HSA needs to be deleted altogether and there is great support for this from various sections of society while replying to the questionnaire.
3.2.1 0 There is also a need for special protection of a widow's right to reside in the dwelling house. The family dwelling house should not be alienated without the widow's consent or without providing her an alternative accomodation after she has agreed to the sale of the dwelling house.
3.2.1 1 The HSA of 1956 give daughters as well as the widow of a deceased coparcener a share in the interest of the deceased male coparcenar. However, the four Hindu Succession (State Amendment) Acts i.e. Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have conferred equal coparcenary rights on sons and dauthters; thus preserving the right by birth and extending it to daughters also in the Mitakshara Coparcenary. This has the indirect effect of reducing the widow's successional share. This is because if the number of coparcenars increase then the interest of the husband will decrease.
3.2.1 2 The HSA of 1956 dithered in not abolishing the very concept of coparcenary which the Act should have done. But the Hindu Succession (State Amendment) Acts have confered upon the daughter of a coparcener, the right to become a coparcener like a son which may affect the brother-sister relationship. It further appears that even where daughters have been made coparceners there is still a reluctance to making her a Karta as the general male view is that she is incapable of managing the properties or running the business and is generally susceptible to the influence of her husband and his family, if married. This seems to be patently unfair as women are proving themselves equal to any task and if women are influenced by their husbands and their families, men are no less influenced by their wives and their families.