How, in what manner, and to what extent Mitakshara Coparcenary has been affected/modified by the Hindu Succession (Amendment) Act, 2005?

Question: How, in what manner, and to what extent Mitakshara Coparcenary has been affected/modified by the Hindu Succession (Amendment) Act, 2005? [HJS 2006]

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Answer

Mitakshara is a commentary on Yajnavalkya Smriti by Vijananeshwara as told by his Guru Visvarupa. Under Mitakshara, the basis for the law of inheritance is the principle of propinquity, that is nearness in blood relationship or consanguinity, which means that one who is nearer in blood relationship succeeds. This is purely a secular principle and means that children should inherit equally as they are equally nearer to the deceased parent. It nevertheless admits two exceptions, namely the exclusion of females and the preference for agnates over cognates. With respect to the joint family under Mitakshara, the son, grandson, and great-grandson have a right by birth in the joint family property.

Under the Mitakshara system, the doctrine of survivorship applies and on the death of a coparcener, his share is taken by surviving coparceners. But with the introduction of the Hindu Succession (Amendment) Bill in Parliament on 20th December, 2004 which was passed by the Rajya Sabha on 16th August 2005 and the Lok Sabha on 29 August 2005, respectively there were a huge set of changes that occurred. The Bill was based upon the recommendations of the 174th Report of the Law Commission on "Property Rights of Women - Proposed Reforms under Hindu Law", its aim was to remove gender inequalities under the act as it stood before the amendment. The Bill received President's assent on 5th September 2005, and it came into force on 9th September 2005.

Changes brought by the Act

The changes brought by the Act in the Mitakshara coparcenary system are as follows:

1. Introduction of Daughters as Coparceners

One of the major changes brought in by the amendment is that in a Hindu joint family, the exclusive prerogative of males to be coparceners has been changed altogether and the right by birth in the coparcener property has been conferred in favour of the daughters as well. This radical change has fundamentally altered the character of a Mitakshara coparcenary. Section 6 of the Hindu Succession ( Amendment) Act 2005 brings the discrimination against the daughter to an end, as her rights and liabilities are the same as that of a son which implies that the daughters are now capable of acquiring an interest in the coparcenary property, demand a partition of the same and dispose of it through a testamentary disposition. In other words, all the prerogative and uniqueness of a son's position in the family is available to a daughter as well.

In K Krishnamoorthy v. J Surya Bai, AIR 2018 (NOC) 156 (Mad.), it was held that under Section 6 for the devolution of coparcenary property in a suit for partition, where the parties themselves admit that the property was ancestral, daughters are entitled to an equal right as that of the son as coparceners in the joint family property.

2. Abolition of Doctrine of survivorship in case of male coparceners

Section 6(3) of the Hindu Succession (Amendment) states that the interest of a coparcener in the joint family property devolves on his death by testamentary or intestate succession under the Hindu Succession Act and not by survivorship. There shall be a deemed division of the property to which such coparcener is entitled as if a partition had taken place.

3. Non-enforcement of Pious Obligation

The doctrine of pious obligation is peculiar to Hindu law. The new provision Section 6(4) of the Hindu Succession (Amendment) Act states that after the commencement of the amendment no court shall recognize the right of a creditor to proceed against the son, grandson, great grand-son of a debtor, for debts contracted by the father, grand-father or great grand-father solely on the ground of pious obligation. The doctrine thus stands abrogated to the extent that the specified heirs are not liable to satisfy such debts solely on grounds of pious obligation.

4. Eligibility of female coparceners to make a testamentary disposition

Section 30 of the Hindu Succession Amendment Act 2005, specifically provides for the substitution of the words "disposed of by him or her'' in place of "disposed of by him". Permissibility of testamentary disposition of undivided share would have defeated the application of the doctrine of survivorship and, therefore such disposition was void. The Hindu Succession Act 1956 for the first time provided competency to an undivided coparcener to make a valid bequest of his share in Mitakshara coparcenary and the present Act extends this competency to a female coparcener as well.

5. Devolution of coparcenary interest held by a Female

The substance of Sections 6(3) (b) and (c) states that if a female coparcener dies without seeking partition, then a partition would take place, and her share will be allotted to her surviving children and the husband, even if alive, will not get any share.

Important case laws

Lokmani v. Mahadevamma, SLP (C) No. 6840 of 2016

In this case, the High Court stated that Section 6 of the amended HSA is given retrospective effect as when the daughters were denied right in the coparcenary property, pending proceedings and appeals are to be now decided as per the amended provisions and inequality has been removed. The High Court also stated that the oral partition and unregistered partition deeds are removed from the definition of 'partition' mentioned in the amendment Section 6(5) of HSA.

Prakash v. Phulwati, (2016) 2 SCC 36

In this case, the Supreme Court held that the Amendment Act was prospective in nature. Hence, from the passing date of the Amendment Act, the daughters would be coparceners and have an equal share same as that of sons in a joint Hindu family property.

Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1

On 11-8-2020, the Supreme Court of India passed a landmark judgment in Vineeta Sharma v. Rakesh Sharma, stating that the Hindu Succession (Amendment) Act, 2005 will have a retrospective effect. The 2005 Amendment amended Section 6 of the Act in order to align with the constitutional belief of gender equality. Under the amendment, the daughter of the coparcener shall by birth become a coparcener in her own right in the same manner as the son. The Vineeta Sharma case settled the matter in question – whether the 2005 Amendment had deemed the daughter to have the same right as a son in the coparcenary property irrespective of the father being alive before the Amendment.

The judgment was decided by a three-Judge Bench composed of Arun Mishra, M. R. Shah, and S. Abdul Nazeer, JJ. and was authored by Arun Mishra, J. It stated that as the right of being a coparcener is by birth for a son and so is it for a daughter post the 2005 Amendment, and even if the father was not alive on 9-9-2005, it does not obstruct a daughter's right from claiming her share in the coparcenary property.

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