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Published : April 30, 2011 | Author : pallavi ghorpade
Category : family law | Total Views : 12165 | Rating :

  
pallavi ghorpade
Pallavi Prithviraj Ghorpade II NLC email: pallavighorpade@legalserviceindia.com
 

Should Women Be Given Coparcenary Rights?

Since time immemorial the framing of all property laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. Prior to the Hindu Succession Act, 1956 shastric and customary laws that varied from region to region governed Hindus and sometimes it varied in the same region on a caste basis resulting in diversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri ia and Mn Keralitakshara in other parts of India with slight variations The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex. Earlier, woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son.In this paper we have analysed the discrimination against women under Hindu Succession Act, 1956. The paper begins with a study of devolution of property in various traditional schools. It then proceeds to analyse the position of women in the Constitution of India. The focus of this paper is on the concept of coparcenary and the inherent discrimination meted on the women by depriving them proprietary rights in the Hindu Succession Act, 1956. Finally, we have analysed the new notion of coparcenary under various State amendments and the pros and cons of these amendments in the light of right to equality guaranteed under the Constitution of India.

TRADITIONAL POSITION
The entire concept of coparcenary originates in the Classical Hindu law, so it becomes imperative to understand the position under these traditional schools before we proceed further -

THE DAYABHAGA SCHOOL
The Dayabhaga school is followed in primarily in West Bengal, Tripura and parts of Orissa. According to this school neither son nor daughter gets by birth or by survivorship a right in the family property, though joint family and joint property is recognised in this school. 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. In this school neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father's life time. However, on his death, they inherit as tenants-in-common. It is a remarkable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers. But, since this ownership arises only on the extinction of the father's ownership none can compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent. Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him and manage the property on behalf of the other members in the Dayabhaga School.

THE MITAKSHARA SCHOOL
The Mitakshara law, is followed extensively in India. According to this school, a son by birth acquires a right and interest in the joint family property. But, the interest in the property is restricted to three generations of male lineal descendants, which includes son, grandsons and the great grandson. These three constitute a class of coparceners, based on birth in the family. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. For example, if a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. But, no female is recognised as a member of the coparcenary in Mitakshara law.We find many variations of this school in different parts of India. According to the Bengal, Benares and Mithila sub- schools of Mitakshara recognise five female relations— widow, daughter, mother, paternal grandmother, and paternal great-grand mother as being entitled to inherit namely[1]. The Madras sub-school recognised the heritable capacity of a larger number of females including the son’s daughter, daughter's daughter and the sister’s heirs who are expressly named as heirs in Hindu Law of Inheritance (Amendment) Act, 1929[2]. The son's daughter and the daughter's daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to women, recognises a number of other female heirs, including a half sister, father’s sister and women married into the family such as stepmother, son's widow, brother’s widow and also many other females classified as bandhus.

THE MARUMAKKATTAYAM SCHOOL
This system prevailed in Kerala wherein the family was joint a household consisted of the mother and her children with joint rights in property. The lineage was traced through the female line i.e. matrilineal. Daughters and their children were thus an integral part of the household and of the property ownership as the family was matrilineal.

Thus we find that in a patrilineal system being followed in most parts of India. As a result of this there has existed discrimination on women although the Indian Constitution has tried to minimise this prejudice and also has provided for protective discrimination to women.

THE POSITION OF WOMEN UNDER THE CONSTITUTION OF INDIA.
The framers of the Indian Constitution have taken special care to ensure that the State took positive steps to give women equal status with men. Articles 14, 15(2), (3) and Article 16 of the Constitution of India, attempt not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. Also Part IV of the Constitution which contains the Directive Principles of State Policy interalia provides that the State shall endeavour to ensure equality among individuals[3].

Notwithstanding these Constitutional mandates and directives, a woman is still neglected and the rights of the women is blatantly disregarded by some of the provisions of personal laws like the inherent discrimination and inequality in the Mitakshara coparcenary under Section 6 of the Hindu Succession Act, 1956. But, to say that coparcenary rights under Mitakshara system violates Article 14 raises an important question- Does “laws in force” in Article 13(1) of the Constitution include personal laws? The Apex Court has yet to give a definitive view on this point. But in State of Bombay v Narsu Appa Mali[4] the Bombay High Court took the view that the term “laws in force” includes only laws passed or made by legislature or other competent authority and does not include personal laws. But in the Supreme Court in Sant Ram v Labh Singh[5] and in Shri Krishna Singh v Mathura Ahir[6] has accepted the contrary. But, Seervai is of the opinion that-

“we have seen that there is no difference between the expression ‘existing law’ and the ‘law in force’ and consequently, personal law would be ‘existing law’ and ‘law in force’. This consideration is strengthened by the consideration that custom, usage, and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them”[7]

THE CONCEPT OF COPARCENARY AND JOINT PROPERTY

In the Hindu system, ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners. Coparcenary can be defined as a narrower body of persons within a joint family and consisting of father, son, son's son and son's son's son. Ancestral property continues to be governed by a wholly partrilineal regime like the Mitakshara school, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. Since a woman cannot be a coparcener, she is not entitled to a share in the ancestral property by birth. But a son's share in the property would increase in case the father dies interstate would be in addition to the share he has on birth. This is a blatant discrimination against women.

PARLIAMENTARY DEBATE ON THE ADOPTION OF MITAKSHARA COPARCENARY SYSTEM
The provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N.Rau Committee and piloted by Dr.Ambedkar, was for abolishing the Mitakshara coparcenary with its concept of survivorship and the son's right by birth in a joint family property and substituting it with the principle of inheritance by succession. These proposals met with a storm of conservative opposition. The extent of opposition within the government itself can be gauged from the fact that the then Law Minister Mr. Biswas, on the floor of the house, expressed himself against daughters inheriting property from their natal families. Sita Ram S Jajoo from Madhya Bharat, identified the reason for the opposition accurately, when he stated: "Here we feel the pinch because it touches our pockets. We male members of this house are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this house."[8] However, the majority prevailed when the Bill was finally passed in 1956. When Dr.Ambedkar was questioned as to how the provisions relating to coparcenary was retained in spite of strong opposition he said: "It was not acompromise. My enemies combined with my enthusiastic supporters thought that they might damn the Bill by making it appear worse than it was [9]

By the retention of the Mitakshara coparcenary without including females it meant that females cannot inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Thus the law by excluding the daughters from participating in coparcenary ownership not only contributed to an inequity against females but has led to oppression and negation of their right to equality and appears to be a mockery of the fundamental rights guaranteed by the Constitution.[10]

PREJUDICE OF SECTION 6 OF THE HINDU SUCCESSION ACT, 1956.

Section 6 of the Hindu Succession Act[11] deals with devolution of interest in the coparcenary property. Section 6 contemplates the existence of coparcenary property and more than one coparcener for the application of the rule of devolution by survivorship. The head note of the section reads "Devolution of interest in coparcenary property". The language of the main provision to the effect that "his interest in the property shall devolve by survivorship upon the surviving members" indicates that the devolution by survivorship is with reference to the deceased coparceners interest alone; this coupled with the notional partition contemplated in Explanation 1 in this section for the ascertainment of the interest of the deceased coparcener in a Mitakshara coparcenary property indicates that there is no disruptionof the entire coparcenary. It follows that the other coparceners, would continue to be joint in respect of the other coparcenary property till a partition is effected. The main provision of this section deals with the devolution of the interest of a coparcener dying interstate by the rule of survivorship and the proviso speaks of the interest of the deceased in the Mitakshara coparcenary property.

Now, in order to ascertain what is the interest of the deceased coparcener, one necessarily needs to keep in mind the two Explanations under the proviso. These two Explanations give the necessary assistance for ascertaining the interest of the deceased coparcener in the Mitakshara coparcenary property. Explanation I provides for ascertaining the interest on the basis of a notional partition by applying a fiction as if the partition had taken place immediately before the death of the deceased coparcener. Explanation II lays down that a person who has separated himself from the coparcenary before the death of the deceased or any of the heirs of such divided coparcener is not entitled to claim on intestacy a share in the interest referred to in the section.

Section 6 dealing with the devolution of the interest of a male Hindu in coparcenary property and while recognising the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left him surviving a female relative specified in Class I of Schedule I, or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or interstate succession under this Act and not by survivorship. The rule of survivorship comes into operation only:- (1) where the deceased does not leave him surviving a female relative specified in Class I, or a male relative specified in that Class who claims through such female relative and , (ii) when the deceased has not made a testamentary disposition of his undivided share in the coparcenary property. Thus, under the proviso if a female relative in class I of the schedule or a male relative in that class claiming through such female relative survives the deceased, then only would the question of claiming his interest by succession arise.

The proviso to section 6 of Hindu Succession Act, 1956 contains a gender bias. It has been provided therein that the interest of the deceased in the Mitakshara Coparcenary shall devolve by interstate succession if the deceased had left surviving a female relative specified in class I of the Schedule or a male relative" specified in that class, who claims through such female relative.

In order to appreciate the gender bias it is necessary to see the devolution of interest under Section 8 Hindu Succession Act, 1956. The property of a male Hindu dying intestate devolves according to Section 8 of the Hindu Succession Act, 1956 , firstly, upon the heirs being the relatives specified in class I of the Schedule. However, there are only four primary heirs in the Schedule to class I, namely, mother, widow, son and daughter. The remaining eight represent one or another person who would have been a primary heir if he or she had not died before the propositus. The principle of representation goes up to two degrees in the male line of descent; but in the female line of descent it goes only upto one degree. Accordingly, the son's son's son and son's son's daughter get a share but a daughter's daughter's son and daughter's daughter's daughter do not get anything. A further infirmity is that widows of a pre-deceased son and grandson are class I heirs, but the husbands of a deceased daughter or grand-daughter are not heirs[12].

The retention of the Mitakshara coparcenary without including females in it meant that females cannot inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Only when one of the coparceners dies, a female gets a share of his share as an heir to the deceased. Thus the law by excluding the daughters from participating in coparcenary ownership not only contributed to an inequity against females but has led to oppressionand negation of their right to equality[13]

NEW COPARCENARY UNDER STATE ACTS
The concept of the Mitakshara coparcenary property retained under Section 6 of the Hindu Succession Act has not been amended ever since its enactment. But, five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka [14]have taken cognisance of the situation an have made necessary amendments. 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 family. In fact, the Kerala Act has abolished the Joint Hindu family system altogether including the Mitakshara, Marumakkattayam, Aliyasantana and Nambudri systems. In Kerala the joint tenants has been replaced by tenants in common. 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 languageThe State enactments in these four states provide that—

(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.

In Kerala Section 4 (i)[15] of the Kerala Joint Family System (Abolition) Act, lays down that all the members of a Mitakshara Coparcenary will hold the property as tenants in common on the day the Act comes into force as if a partition had taken place and each holding his or her share separately. But the major criticism against the Kerala model is that if the Joint family was abolished today in the other states then a deemed partition would take place and women not being coparceners would get nothing more. Whereas if they are made coparceners, then they become equal sharers.

WOMEN AS KARTA
The law commission has rightly observed that although the Hindu Succession (State Amendment) Acts have conferred upon the daughter of a coparcener status but there is still a reluctance to making her a Karta. This is because of the general male view 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[16]

If women can act as coparcenaries then they must also be given the powers of Karta. The shastra is clear that in the absence of senior member a junior member (if he has reached the age of legal competence) may incur debts for the needs of the family, and in the absence of a male member a female member may do so[17]. The Sanskritic texts empower women to act as Karta in instances like when the husband is away or missing or the son is yet to attain majority.

“the manager (or householder, actual or eventual )is liable to accept (or admit) all alienations made for the purposes of the family by a pupil, apprentice, slave, wife, agent or bailiff”[18]

Bhavasvamin says that this verse does not authorise the representatives of the absent manager to incur debt which he has himself specifically forbidden, even if they are for maintenance. The inference is that any alienations for the maintenance or even for les necessary purposes (provided they are for the family’s benefit) will be binding upon the manager (when he returns or appears on the scene by simply coming of age, as the case may be) because in his absence the implied authority rests with his formally authorised representative or, failing one such , with his fellow members of the family who, though not coparcenaries, are able to transact business in such emergencies”[19]

Further various text provide that -

“a debt contracted by his wife never binds the husband, except that incurred in a time of distress: expenses for the benefit of he family fall upon the males”[20]

“A debt incurred for the purposes of the family by the slaves, the wife, the mother, the pupil, other son, even without the masters consent, when he has gone abroad should be paid (by him). Thus says Bhrigu”[21]

“The husband should pay a debt contracted by his wife and the son should pay a debt contracted by his mother. If it is contracted for the sake of the husband(by the wife or the mother) when he (the husband or the son) goes abroad after telling her”[22]

“whatever is incurred for the sake of the family by an uncle, brother, son, wife, slave, pupil or the dependant, that must be paid by the householder”.[23]

These texts go to prove that the ‘women in defacto is independent; as soon as her husband returns or her son attains majority she becomes dependant, but meanwhile the responsibility rests with her, and the powers should be obviously be allowed to her accordingly’[24]. It is ridiculous to contend that a lady may be fit to be a High Court Judge she is not entitled to exercise within her own family the discretion that a manager can exercise[25]

JUDICIAL INTERPRETATIONS
There are conflicting opinions of the various High Courts on the question of women coparcenary and thus a Karta. The matter for the first time came up before a full Judge Bench of the Nagpur High Court in Kesheo v Jagannath[26] where it was held that “any adult member may be the manager of the joint family, and in case of a need a step mother could bind her step son, who was a minor, by alienation of the joint hindu family property in whatever character she purported to act”. The next case that dealt with this problem was Hanooman Prasad’s Case[27] where the powers of the widow mother as a manager of the property of her minor son was discussed. The Court in this case held that “the test of the lady’s act was not who she was or in what capacity she purported to act? But whether the act was necessary or the minor’s interest as understood by law”.

The same view was followed in Pandurang Dohke v Pandurang Garle[28], where the widowed mother passed a promissory note for necessity, as a guardian of her two minor sons. She was a defacto manager and was held to have the managerial powers and the sons could not repudiate the debt.

The view of female being the manager of the Joint hindu family was further strengthened when the Woman’s Right to Property Act, 1937 was passed, which made the widow the owner of the coparcenary interest.

But the Madras High Court in- Seethabai v Narasimha[29] gave a contrary decision. In this case the widows claimed that they were the undivided members of the coparcenary by virtue of the operation of the Act of 1937, they objected to the appointment of the guardian for the property of the minor sons. The Court appointed one widow, as the guardian of one minor and a stranger was appointed as the guardian of the other. None of the widows, it was held could be the manager. It was held that to be a manager one must be a pukka coparcener, a male with a birth right and not a mere statutory interest. This decision took a step back and adversely affected the position of women. The similar strand of thought was followed in Mayuri Padhano v Lokananidhi Lingaraj[30] where it was held that a mother, when the husband is alive, cannot be a manager. She might indeed act as a guardian of her son, if her husband was dead and perhaps act as a defacto guardian. But as a manager she had no power whatsoever. The principle that a woman could be a manager was decisively rejected. The High Court of Patna has asserted the same view in Sheogulam v Kishan Choudhuri[31], it was denied that a mother of a minor son, during the long absence of her husband might act as a ‘Karta’ and incur debts for family purposes and further that such loans would not be binding up on the family. The matter finally came up before the Hon’ble Supreme Court in Commissioner of I.T. v Seth Govindram Sugar Mills [32], where it upheld the view taken by the Madras High Court and has overruled the decision of Nagpur High Court as they felt that it was contrary to the established rules in the dharmashashtras.

PROBLEM OF GIVING COPARCENARY RIGHTS TO WOMEN
Giving coparcenary rights to women would entail some complications which cannot be sidelined

1. 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[33]. 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"[34]

“It needs mention, that though alien to Hindu patriarchal notions, under some of the customary laws in Nigeria, an eldest daughter even after her marriage has a right to be head of her natal joint family. Even in India, mothers have acted as guardian of their minor sons, and defacto managers of the joint families on the husband’s death. Though her position as defacto manager is recognised the dejure conferment of the right has eluded her”[35].

2. 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. In Samvedi v.Union of India[36] Mr.Justice Punchhi held " 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....."[37]

3. Further it has been suggested 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 Hindu Succession Act should be deleted”[38]. Section 23[39] provides that on the death of a Hindu interstate, 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. The law commission has also felt the need for special protection of a widow's right to reside in the dwelling house that the family dwelling house should not be alienated without the widow's consent or without providing her an alternative accommodation after she has agreed to the sale of the dwelling house.

4. Further, the need is for an all India legislation since if the Joint Family property is in two states, one which is governed by the Amending Act and the other not so governed, it may result in two Karta, one a daughter and the other a son. Difficulties pertaining to territorial application of Amending Act and the Lex Situs principle will also arise.[40]

“Since the subject matter of the laws of succession fall in Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution. Therefore, Parliament as well as the State Legislatures are competent to enact laws in this area. In case another State brings some third model of legislation in this field, there is a likelihood of having still more diversity in the law. This would result in the Directive Principles of State Policy not being adhered to which require the State to endeavour to secure a uniform civil code throughout the territory of India. Accordingly, there is need to have a central law enacted by Parliament under Article 246 of the Constitution. In such a situation the law made by these five states would stand repealed to the extent of repugnancy, unless expressly repealed”.[41]

CONCLUSIONS AND SUGGESTIONS
The retaining of coparcenary is patently unfair and discriminatory as it violates the provisions of Article 14 of the Indian Constitution. Andhra Pardesh, Kerala, Karnataka, Tamil Nadu have taken a step in the right direction. But, the infirmities in these State acts must be corrected to make them effective.

1. The adoption of the Kerala Model would prima facie appear 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 abolished 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 Hindu Succession Act, 1956. To overcome this the Law Commission of India has rightly suggested 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.

2. But to make them coparceners in the true spirit it would be necessary as the Law Commission of India has suggested to abrogate the doctrine of pious obligation and the deletion of S23 of the Hindu Succession Act, 1956.

3. Also, we are of the opinion that a express provision be inserted in all the State Acts conferring on women the status of Karta. If this is not done then it would again violate Article 14.

4. Further the distinction between married and unmarried daughters be done away with from the State acts in light of the Hon’ble Supreme Court decision on Savita Samvedi v Union of India.[42]

5. Finally Section 6 of the Hindu Succession Act, 1956 must be abolished, if not it might create technical problems in dispensing justice and cause miscarriage of justice..
_________________________________

1 Mlla, Principles of Hindu Law 17th ed by S.A. Desai, p. 168. (1998)
2 Ibd.
3 Arcle 38(2) – The State shall strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only among individuals but also amongst groups of people residing in different or engaged in different vocations.
4 AIR 152 Bom 84.
5 AIR 165 SC 314.
6 (11) 3 SCC 689.
7 Sevai, H.M, Constitutional Law of India 4th edn., p 677 (1991).
8 The Cotituent Assembly of India (Legislative) Debates Vol.VI 1949 Part II.
9 Id
10 Law Coission of India 174th report on ‘Property Rights of Women: Proposed Reforms under the Hindu Law’, May 2000.
11 Sectn 6 of the Hindu Succession Act -"When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara Coparcenary property shall devolve by testamentary or interstate succession, as the case may be, under this Act and not by survivorship.

Exanation 1. - For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Exanation 2. -- Nothing contained in the proviso to his section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

12 Mmood, Dr.Tahir, Hindu Law, 2nd ed p.57. 1986
13 Law Coission of India 174th report on ‘Property Rights of Women: Proposed Reforms under the Hindu Law’, May 2000.
14 The Kera 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

15 The Kela Joint Family System (Abolition) Act, 1975- S (4) Joint tenancy to be replaced by tenancy in common --

(1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof;

Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, if the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, & any such right can be enforced if this Act had not been passed. (2) All members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day of this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as i.e. each one of the members is holding his or her share separately as full owner thereof

16 Law Coission of India report on ‘Property Rights of Women: Proposed Reforms under the Hindu Law’, May 2000.
17 Derret, J Dcan, “May a Hindu Women be the Manager of a Joint Family at Mitakshara Law”, Bom. L.R.., J., p. 42.
18 Jolly, Transtion of the Shorter Naradasmriti, ch III, 13 (London 1876).
19 Id t 17.
20 II. 15 Nadiya-Manu-samhita.
21 Kataana, sloka 545 in Kane’s edition, Bombay 1933.
22 Id at sloka 578.
23 Drma –Kosha, p. 708.
24 Deet, J Duncan, “May a Hindu Women be the Manager of a Joint Family at Mitakshara Law”, Bom. L.R.., J., p. 42.
25 Derrett, J Duncan, ‘A critique of Modern Hindu Law’, 1st edn., NM Tripathi Pvt Ltd, Bombay (1970).
26 [16] AIR Nag. 81
27 Hooman Prasad Pandey V. Musumoot Baboee (1856)
28 [17] AIR Nag. 178
29 A 1945 Mad. 306
30 [16] AIR Ori. 1.
31 [11] AIR Pat. 212.
32 AR 1966 SC 24.
33 B.Saramayya, "Coparcenary Rights to Daughters; Constitutional and interpretational Issues," (1997) 3 SCC (J), P.25.
34 Lok Sha Debates p.8014(1955).
35 Id 15.
36 JT (16) 1 p.680
37 Id.
38 Law Cmission of India 174th report on ‘Property Rights of Women: Proposed Reforms under the Hindu Law’, May 2000.
39 Secn 23 Special Provision respecting dwelling places— where a Hindu interstate has left surviving him both male and female heirs specified in Class I of the schedule and his or her property includes a dwelling- house wholly occupied by the members of his or her family, then, notwithstanding anything contained in the Act, the right of any such female heir to claim partition of the dwelling- house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right o residence therein;

provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling- house only if she is married or ahs been deserted by or has separated from her husband or is a widow.

40 Id
41 Law Cossion of India 174th report on ‘Property Rights of Women: Proposed Reforms under the Hindu Law’, May 2000.
42 Id at 7.

Authors contact info - articles The  author can be reached at: pallavighorpade@legalserviceindia.com




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Article Comments

Posted by kuntal Acharjya on January 25, 2012
I want information about the House Property Act, where any divorcee
women now dead is denied from her right in the property belonging to her
maternal house

Posted by SIVA KUMAR SAMPATH on January 04, 2012
Ref: An Article in THE HINDU dated 24-07-2011 by HONOURABLE JUDGE DR. JUSTICE AR LAKSHMANAN endorsing in principle, the views elicited by another article in THE HINDU

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