The Hindu Succession Act, 1956 was enacted to amend and codify laws relating to intestate or unwilled succession among people belonging to religious groups such as Hindus, Buddhists, Jains, and Sikhs. Enacted on 17 June, 1956, this Act lays down a uniform and comprehensive system consolidating both inheritance and succession and combines all the aspects of Hindu succession and brings them within its scope.

Background of the Act
Before sanctioning of the Hindu Succession Act, 1956, the people of Hindu Community were covered under Shastric and Customary law, varying from region to region. Dayabhaga school of law was pervasive in Bengal and the nearby areas, whereas on the other hand Mitakshara school of law was pervasive in the rest of India. Under the Mitakshara School of Hindu Law, women in a joint Hindu family had no right of inheritance to property and were merely conferred the right of maintenance or sustenance.

In a Hindu Joint Family, the properties of the family were held as a coparcenary property with only the male members of the family, who were conferred the right to the property by virtue of birth and such interest in the coparcenary property kept varying depending upon the death or birth of a male member. The property of a male coparcener passed by survivorship rule, on his death in the Mitakshara School of Hindu Law. No female was regarded as a member of the coparcenary though, she was a member of the Hindu Joint family.

The Hindu Law of Inheritance, 1929 was the earliest piece of legislation, bringing women into the scheme of inheritance. It conferred inheritance rights on three female heirs : son's daughter, daughter's daughter and sister, which created limited restriction on the rule of survivorship in practice earlier.

The Constitution of India came into force on 26 January 1950 which incorporated Articles 14, 15(2) & 15(3) along with 16 which removed discrimination against women and made equal treatment of women as a part of the fundamental rights. To achieve this objective, the Parliament enacted the Hindu Succession Act, 1956.

A small Hindu law Committee known as Rau Committee was constituted by the Government with B.N Rau, a judge of Calcutta High Court as its Chairman and three other lawyers as its members which toured the country and gathered evidence from representative bodies and leaders of the Communities in the country. The Committee was accompanied by the assistance of leading lawyers and jurists.

The Committee advocated a Hindu Code, which was a blend of the finest elements of the various schools of Hindu law prevalent in the Country. The Code recognized the equality of status of men and women before the law with appropriate obligations and rights. The Principal act however, did not provide any rights to the daughters in terms of the partition of the property or any rights to demand partition of the property or even claim a share in the coparcenary property.

The only conferred right was to get a share in the father's share in the coparcenary property and the same would arise only on the death of her ancestor (coparcener). Though the Act claimed to be enacted to amend and codify the intestate laws among Hindus and gave rights of testamentary disposition to Hindu males in respect of his properties including his coparcenary share, Section 6 of the Act retained substantially the Rule of survivorship.

This Section also provided that the right of the male Hindu at the time of his death in the coparcenary property would devolve by survivorship but the proviso provided that if the deceased coparcener has any female relatives specified in Class I of the Schedule to the Act, then the property will devolve by succession. Here is where the question on gender inequality comes into the picture.

Post the Enactment of the Hindu Succession Act, 1956
The Hindu Succession Act, applied to Mitakshara and Dayabhaga schools, along with persons in certain parts of Southern India, who were previously governed by the Marukkatayam, Aliyasantana and Nambudri systems of Hindu Law in India. When the Act came into force, it provided for the devolution of interest in coparcenary property under Section 6 which pronounced that at the death of a male Hindu, who had an interest in a Mitakshara coparcenary property, his interest would devolve by survivorship and not according to rules of succession laid down in the Act. The two systems of inheritance to the separate or self-acquired property of a male dying intestate, prevailing under Mitakshara and Dayabhaga Schools before the passing of the Act was abolished and a uniform system was introduced under Section 8 of the Act.

Prior to the passing of the Act, the Mitakshara School recognized three classes of heirs namely Gotraja Sapindas, Samanodakas and Bandhus. Similarly, three classes of heirs, viz. Sapindas, Sakulyas and Bahndus were recognised by the Dayabhaga school. The Act abolished these classifications and divided the heirs into four classes, Heirs of Class I, Heirs of Class II, Agnates and Cognates.

The Hindu women's limited estate was abolished by the Act, and Section 14 stated that any property possessed by a Hindu woman, howsoever acquired, was to be held by her as her absolute property, and she was given full power to deal with it and dispose of it by will as she wished. Under the uncodified law earlier, succession to stridhan varied according to a woman being married or unmarried and if married, then according to the form of marriage. It also varied according to the source of stridhan.

Further, the rules of descent of different schools also varied. All of this was abolished and Section 15 of the Act laid down a uniform scheme of succession of property of female Hindus who died intestate after the commencement of the Act. Apart from other positive changes that the Act made, the most important change was that the mode of succession was made plain and simple and several doubts cast by conflicting opinions of the Privy Council and the various High Courts were removed.

Irrespective of all the changes made and the procedures and systems being made uniform, the Act was still lacking equality with reference to male and female heirs and their rights especially because of Section 6 of the Act which incorporated the Survivorship rule and did not recognize females as coparceners . This meant that even the codified law did not address the conventional discrimination against women.

Although few colonial-era laws recognised and thereby conferred some limited rights of inheritance on the daughters in respect of intestate, non-coparcenary property in the Hindu Law of Inheritance (Amendment) Act, 1929 and on the widows, whose right to succeed to husband's property was equated to that of the son in the Hindu Women's Rights to Property Act, 1937 yet women were denied coparcenary status.

Survivorship Rules
A Hindu joint family consists of lineal descendants of a common ancestor. In other words, a male head and his descendants, including their wives and unmarried daughters. A coparcenary is a smaller unit of the family jointly owning a property. A coparcenary comprises propositus, i.e a person at the top of a line of descent, and his three lineal descendants : sons, grandsons and great-grandsons. Coparcenary property is named thus because the co-ownership is marked by unity of possession, title and interest.

Section 6 of the Act made provision of devolution of interest in a coparcenary property of a person who died intestate. The law stated that in case of a person dying intestate leaving only male heirs, the coparcenary property was to be devolved according to his male heirs viz. sons, grandsons and great-grandsons. Such devolution was to be inherited by only male heirs that were not more than three degrees to the coparcener.

This was defined as the survivorship rule. It was absolutely rare for a family to be complete without a female heir but in instances where this occurred, the law had no effect. Therefore, the said property of the coparcener was to be divided equally among the male heirs and in terms of survivorship and females especially the wife of coparcener was not entitled to any share in the devolution of the property. Simply, the section regarded the males as coparceners but daughters and female heirs were not regarded as coparceners. This formed the basis of the Amendment of 2005.

Why was an Amendment needed?
As per the Law Commission Report, coparcenary constituted a narrower body of persons within a joint family and consisted of father, son, son's son and son's son's son. The ancestral property continued to be governed by a wholly patrilineal arrangement, where the property descended through the male line only because it was only the male members of a Joint Hindu Family who had an interest by birth in the coparcenary property, in contradiction with the absolute or separate property of an individual coparcener, which devolved upon surviving coparceners in the family, according to the rule of devolution by survivorship.

Since a woman was not entitled to be a coparcener, she was not conferred the right to a share in the ancestral property by birth. Section 6 of the Act, although did not interfere with the special rights of those who are members of a Mitakshara coparcenary yet without abolishing joint family property, recognised the right upon death of a coparcener, of certain members of his preferential heirs to claim an interest in the property that would have been allotted to such coparcener if a partition of the joint family property had in fact taken place immediately before his death.

Thus Section 6 of the Act, in the process of recognising the rule of devolution by survivorship among the coparceners, made an exception to this rule in the proviso. According to the proviso, if the deceased left a surviving female relative specified in Class I of the Schedule I or a male relative specified in that Class who could claim through such a female relation, the interest of a deceased in Mitakshara coparcenary property would devolve by testamentary of intestate succession under the Act and not as survivorship.

Thus non-inclusion of women as coparceners in the joint family property under the Mitakshara system as reflected in section 6 of the Act relating to devolution of interest in coparcenary property, had been under criticism for being violative of the equal rights of women guaranteed under the Constitution in relation to property rights. This meant that the females could not inherit ancestral property like the males could. If a joint family got divided, each male coparcener was entitled to his share and females, nothing.

Only when one of the coparceners would die, a female would get a share of his interest as an heir to the deceased. Further as per the proviso to section 6 of the Act, the interest of the deceased male in the mitakshara coparcenary devolved by intestate succession firstly upon the heirs specified in Class I of Schedule I. Under this Schedule there existed only four primary heirs, namely son, daughter, widow and mother.

For the remaining eight, the principle of representation would go up to two degrees in the male line of descent. But in the female line of descent, it would go only upto one degree. Thus the son's son's son and the son's son's daughter would be entitled to a share but a daughter's daughter's son and daughter's daughter's daughter would not.

Again as per section 23 of the Act married daughter was denied the right to residence in the parental home unless widowed, deserted or separated from her husband and female heir was disentitled to ask for partition in respect of dwelling house wholly occupied by members of joint family until the male heirs chose to divide their respective shares therein. These provisions were identified as major sources of disabilities thrust by law on women.

Another controversy was the establishment of the right to will the property. A man had full testamentary power over his property including his interest in the coparcenary. On the whole the Hindu Succession Act gave a weapon to a man to deprive a woman of the rights she earlier had under certain schools of Hindu Law. The legal right of Hindus to bequeath property by way of will was conferred by the Indian Succession Act, 1925.

The Amendment of 2005
On September 9, 2005, the Hindu Succession Act, 1956 was amended. Earlier, once a daughter was married, she ceased to be part of her father's Hindu undivided Family or the Joint Hindu Family. According to Hindu Succession Amendment Act, 2005, every daughter, married or unmarried, was to be considered as a member of her father's Hindu Undivided Family and could even be appointed as 'karta' (who manages) of his Hindu Undivided Family property. The amendment granted daughters the same rights, duties, liabilities and disabilities that were earlier limited to sons.

A coparcenary could earlier comprise a son, a father, a grandfather, and a great grandfather however the amendment recognised the women of the family as coparcener. Under the coparcenary, the coparceners acquire a right over such a property by birth. The coparceners' interest and share in the property fluctuates on the basis of the number of members according to the birth and death of such members in the coparcenary.

Both ancestral and self-acquired property can be regarded as a coparcenary property. However, in case of ancestral property, it is equally shared by all members of the coparcenary, whereas in case of a self-acquired property, the person is free to manage the property according to his own will. According to the law, a coparcener could file a suit demanding partition of the coparcenary property but not a member. Thus, the daughter, as a coparcener, could now demand the partition of her father's property.

Thus to point out, the act amended:
The provision which excluded daughters from coparcenary property
The amended provisions of section 6(1) provide that the daughter is conferred with certain rights. Section 6(1)(a) makes a daughter a coparcener “in her own right" and "in the same manner as the son.", by birth. Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son".

The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the manner similar with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application i.e they confer benefits based on the antecedent event, and the Mitakshara coparcenary law would be considered to include a reference to a daughter as well as a coparcener.

At the same time, the legislature provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.

Daughter of a coparcener shall by birth become a coparcener in the same manner as the son:
Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter, grand­daughter, or great granddaughter, as the case may be, is equally bound to follow the pious obligation under the Hindu Law to discharge any such debt. The proviso saves the right of the creditor with respect to the debt contracted before the commencement of Amendment Act, 2005. The provisions contained in section 6(4) also make it clear that provisions of section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act.

Coparcener property shall be allotted to the daughter as is allotted to sons if a Hindu dies

A daughter is entitled to demand a partition of the Hindu Undivided Family
The proviso to section 6(1) and section 6(5) saves any partition effected before 20.12.2004. However, Explanation to section 6(5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. Other forms of partition have not been recognised under the definition of 'partition' in the Explanation.

A daughter is also entitled to dispose of her share in the coparcenary property at her own will.

If a female coparcener passes away before partition, then the heirs of such a coparcener would be eligible for allotment assuming that a partition had taken place immediately before her death.
The confusion arose and continued regarding the interpretation of Section 6 of the Hindu Succession Act.

The confusion was over the issue of whether the amended section of the Hindu Succession Act demanded the father to be alive on or after the date of the enforcement of the Amended Act for it to be applicable to the females. The question was that if the father was dead before such commencement, i.e before 9th September 2005, will a daughter still be regarded as a coparcener to his property in such cases. Two cases created an era of confusion on the interpretation of Section 6 of the Hindu Succession (Amendment) Act 2005.

Prakash v. Phulavati [1]
In the case of Prakash and others v. Phulavati (2016), the bench of the Apex court comprising Anil Dave J. and A.K Goyal J. opined that “The rights of coparceners under amendment act 2005 are applicable to living daughters of living coparceners as on 9th September 2005, irrespective of the birth date of daughters.” It meant that if a coparcener (father) passed away prior to September 9, 2005, then in such cases the living daughter of the coparcener would have no right in the coparcenary property.

Whilst the correctness of this view was debatable, it ensured certainty in proceedings before the courts. If a daughter made a claim for partition of joint family property, her father ought to be alive as of September 9, 2005; if not, she was not entitled to any share in the coparcenary property.

The apex court drew the distinction between the Section 6 of Hindu Succession Act and the Amendment Act and said that even after the act expressly not mentioning the retrospective application, it would not be appropriate to consider it as social legislation and apply it retrospectively. Section 6 is not retrospective in operation, and applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, September 9th 2005.

The provision contained in the Explanation to section 6(5) provided for the requirement of partition for substituted section 6, to be a registered one or by a decree of a court, and can have no application to a statutory notional partition on the opening of succession as provided in the unamended Section 6.

The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. This judgement gave a picture to the interpretation of Section 6 of the Act. The Controversy rose further after the famous judgement in Danamma v. Amar.

Danamma v. Amar [2]
The Supreme Court in this case held that if the father passed away prior to date September 9, 2005 (the date on which amendment came) and a prior suit is pending for partition by a male coparcener, the female coparceners will be entitled to a share (Although same was not entitled in Phulavati's case). Danamma's case was peculiar. The father (male coparcener) passed away in 2001 and thereafter one of the sons initiated proceedings for partition of joint family property in the year 2002. The son claimed that the daughters were not entitled to a share in the joint family because according to the precedent, the daughter was not entitled to the same if the father passed away prior to coming into force of the Amendment Act 2005.

The Trial Court and the High Court accepted the contention and relying on the precedent concluded that the daughters were not entitled to a share in joint family property. This conclusion was in consonance with Phulavati's case. The decision was then challenged before the Supreme Court. The Supreme Court considered Phulavati's case and agreed with the findings, yet applied a different principle to grant relief to the daughters.

The Supreme Court applied the principle that partition is not complete with passing of a preliminary decree and attains finality only with the passing of the final decree. The Supreme Court held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amendment Act.

While holding so, the Supreme Court relied on Ganduri Koteshwaramma & Anr. v Chakiri Yanadi & Anr[3] , where the Court held that as per the amended Section 6 of the Hindu Succession Act, the daughter's rights in a coparcenary property are not lost merely because a preliminary decree has been passed in a suit for partition. In doing so, the Supreme Court lost sight of possibly the most important finding in Phulavati's case, which is that it is only female coparceners whose father was alive as of 09.09.2005 who are entitled to the benefit of the Amendment Act.

The amended provisions of Section 6 confer full rights upon the daughter coparcener. Any coparcener can claim a partition in the coparcenary property and it includes the daughters. The father, in the said case, died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener's father was not alive when the amended section 6 came into force, still the daughters, sons and the widow were directed to have 1/5th share apiece.

These two judgements had confused the Courts as well as the people governed by the Law in question. This Confusion was finally cleared in Vineeta Sharma v. Rakesh Sharma & Ors.

The Landmark Judgement of Vineeta Sharma v. Rakesh Sharma & Ors[4]
The Court was to verify the correct interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 in view of the conflicting verdicts rendered in: Prakash v. Phulavati, and Danamma v. Amar.

In Vineeta Sharma v. Rakesh Sharma & Ors one of the questions, for instance, was that:

• Since daughters were declared coparceners in 2005, for the first time, can a daughter assert those rights even in cases where a partition had already taken place prior to 2005?
• Would the result be any different, if that partition was merely an oral one?
• Would such an oral partition be sufficient to deprive the daughter of her rights?
• Also, there were doubts as to whether it was necessary for the father of a daughter to be alive in 2005 (when the amendment came in) for the daughter to be able to successfully seek her share and assert her rights as a coparcener?
• Or could she seek a partition even if her father had passed away before 2005?

The Vineeta Sharma verdict operates on the premise that the intent of Section 6 of the Act as amended by the 2005 amendment, was to neither confer its benefits to female successors prospectively nor for that matter retrospectively, but it was to confer benefits retroactively.

A legislation applies retroactively when it prescribes benefits conditional upon an eligibility, that may arise even prior to the passing of such legislation. While explaining the concept of retroactive application vis-à-vis the 2005 amendment, it was held that the 2005 amendment makes available to female successors, the benefit of succession on par with that of her male counterparts based on an antecedent event, i.e., her birth.

Furthermore, the court also remained cognizant that under the Act, a distinction must be drawn between the right to claim a share versus the extent of the share that can be claimed. A coparcener's right to claim a share in the coparcenary property remains stable although the specific share available to the coparcener fluctuates with births and deaths in the family and becomes determined only at the time of partition.

Thus the court held that the notional partition under the proviso to the unamended Section 6 of the Act only affects the extent of share that can be claimed by a coparcener but does not affect the right to claim a share in the first place.

In the Prakash v. Phulavati case, the court had held that the notional partition prescribed by the proviso to Section 6 of the unamended Act leads to severance of coparcenary property in the event of the predecessor coparcener's demise prior to the 2005 amendment and therefore no coparcenary property is left available to be partitioned at the hands of the daughter claiming under the 2005 amendment.

However, in the Vineeta Sharma case, the Apex Court concluded that the notional partition prescribed by the said proviso to Section 6 is intended only affect the computation of the share of the deceased coparcener when he was survived by a female heir (as specified in Class I of the Schedule to the Act) or by a male relative of such female heir and such notional partition does not finally determine the rights and liabilities of the male and female successors itself, which can only be undertaken either through a registered partition deed or through a decree of partition drawn by court.

Contrary to the assumption of the Apex Court in the Prakash v. Phulavati verdict, in the Vineeta Sharma judgement, the Apex Court has held that in view of the express language of Section 6 (1) (a), the requirement for a female successor to claim coparcenary rights is not at all dependant on the predecessor coparcener being alive as on the date the 2005 amendment comes into force.10

The intention of Section 6 of the Amended Act is to elevate the nature of the female successor's right to succession from that of obstructed heritage to unobstructed heritage, which the court had not considered in the Prakash v. Phulavati case.

The Apex Court finally concluded that the verdict in the Prakash v. Phulavati, did not interpret the law correctly and that the 2005 amendment act was applicable retroactively, thus laying to rest an enduring controversy regarding the date of conferment of the benefits of the 2005 amendment.

Conclusion
While the Vineeta Sharma verdict is indeed laudable for achieving the noble and necessary objective of gender equality and gender justice, the fact that the controversy took close to 15 years to be finally settled reflects the long journey towards justice.

During this time, not only have several women (who are entitled to claim under Section 6 of the Amended Act) been left without the fruits of their share in the coparcenary property and therefore subjected to significant financial distress, but there are also several persons who may have very well acted upon the law established by Prakash v. Phulavati verdict and created third party interests in coparcenary property after it was partitioned in accordance with earlier Section 6 of the unamended Act.

The patriarchal law that was prevailing prior to 2005 traced its origins to the age-old belief that women would belong to another family by marriage, and were not deserving of family property. By upholding the rights of daughters to be as equal as sons, the court has extended women the respect and right due to them.

This judgement has however left all the third party interests vulnerable to litigation while at the same time, provided justice belatedly to the women who are the intended beneficiaries of this law. By granting women equal right in the property of a Hindu Undivided family with retrospective effect, the Supreme Court has removed the last vestiges of gender discrimination in coparcenary rights under the Hindu Succession Act that had lingered on despite a change in law.

While the end effect of this latest verdict is no doubt an excellent development and progress in the right direction, it also highlights the debilitating impact on the financial security of women by such belated outcomes and on the real estate economy, if real estate transactions are frequently subject to such fluctuations in law.

One hopes that in the days to come, the Indian judiciary not only continues to incline in favour of progressive values in keeping with its rich traditions, it does so with speed and at the same time provides predictability and clarity for investments in all areas including real estate.

End Notes:

1. (2016) 2 SCC 36
2. (2018) 3 SCC 343
3. (2011) 9 SCC 788
4. Civil Appeal No. 32601 of 2018
   
   Award Winning Article Is Written By: Ms.Shrija Verma
   
   

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