No. 100 27

THE Hindu Succession Act, 1956(HSA) is an uneasy compromise be-tween the conservatives who wantedto retain the Mitakshara coparcenaryand its discrimination against daugh-ters, and the progressives who wantedto abolish the Mitakshara coparcenaryaltogether. In essence, the Act retainedthe Mitakshara coparcenary. But sincelast two decades, five southern Statestook steps to enact remedial legisla-tions to correct the discriminationagainst daughters. This article consid-ers in brief some of the ramifications ofthese legislations.

BackgroundPatrilineal Hindu law is divided into

two schools, the Dayabhaga andMitakshra. Dayabhaga prevails inWest Bengal, Assam, Tripura and inmost parts of Orissa whereasMitakshara is followed in the rest ofIndia. Mitakshara law is again dividedinto Benaras, Mithila, Mayukha(Bombay) and Dravidia (Southern)sub-schools.

One of the important differencesbetween the two schools is that underthe Dayabhaga, the father is regardedas the absolute owner of his propertywhether it is self-acquired or inheritedfrom his ancestors. Mitakshara lawdraws a distinction between ancestralproperty (referred to as joint familyproperty or coparcenary property) andseparate (e.g. property inherited frommother) and self-acquired properties.In the case of ancestral properties, ason has a right to that property equalto that of his father by the very fact ofhis birth. The term son includespater-nal grandsons and paternalgreat-grandsons who are referred to ascoparceners. An important category ofancestral property is propertyinher-ited from one’s father, paternalgrand-father and paternal great-grandfather. The other categories are : i) Shareob-tained at a partition (ii) accretionsto joint properties and self-acquisi-

tions thrown into common stock. Thepoint that deserves attention is thatunder traditional Hindu law, a daugh-ter is not entitled to property rights bybirth in such ancestral properties. Inthe case of separate or self-acquiredproperty, the father is an absoluteowner under the Mitakshara law.

By succession we mean the pass-ing of property from one person (A) toanother person (B) on the death of theformer (A). Succession is of two types,testamentary and intestate. If a personexecutes a valid will as to whom theproperty should go on his death andhis property is passed on accordingly,it is referred to as testamentary suc-cession. If there is no valid will and theproperty of a deceased person passesto his heirs as provided by law, it iscalled intestate succession.

Intestate SuccessionAccording to Section 8 of the HSA,

where a male Hindu governed byDayabhaga law dies leaving property

or where a male Hindu governed byMitakshara law dies leaving hissepa-rate or self-acquired property,Class I heirs will inherit his propertyand hi their absence class II heirs ofthe Schedule. The Class I heirs suc-ceed simultaneously, that is, together,and they are twelve in number. Of thesemother, widow, son and daughter areprimary heirs and the remaining are thenear heirs of a predeceased son or pa-ternal grandson, or son and daughterof predeceased daughter.

Diagrammatically put:

Of Daughters, Sons & WidowsDiscrimination in Inheritance Laws

Dr. B. Sivaramayya

LAW

PRE-DECEASED SON

5 Widow 6 Son 7 Daughter

PRE-DECEASED DAUGHTER

8 Son 9 Daughter

PRE-DECEASED SON OF A PRE-DECEASED SON

10 Widow 11 Son 12 Daughter

28 MANUSHI

Thus if the value of the proper-tiesis Rs 1,00,000 and if the properties arethe separate or self-acquired proper-ties of a deceased governed byMitakshra law, or he is governed bythe Dayabhaga law, the near heirs aremother, widow, son and daughter, theyshare equally each getting Rs 25,000.There is no inequality between a son adaughter but as pointed out earlier, thede-ceased could have disinherited anyor all of them by executing a will.

Ancestral PropertiesThe crux of discrimination and

in-equality in the law lies in the reten-tion of the Mitakshara coparcenary andits right by birth. The Hindu LawCommit-tee (popularly known as theRau com-mittee) recommended theabolition of Mitakshara coparcenaryand the con-version into theDayabhaga coparcenary, but Parlia-ment did not accept the recommenda-tion. Instead it enacted that the shareof the deceased father alone will beshared. That is, if the deceased leavesa female heir men-tioned in Class I ofthe schedule or male heir claimingthrough such female heir (like a pre-deceased daughter’s son) then the in-terest of the deceased in the coparce-nary will devolve according to Section8 (Section 6). The Section fur-ther laysdown that to determine the interest ofthe deceased we must as-sume that apartition of the property had takenplace immediately before his death.Thus, while a son retains his interestby virtue of right by birth, and takes ashare in the father’s interest, thedaughter is enabled to take a share inher father’s interest only.

For example, if the value of thean-cestral properties in Rs. 1 lakh andthe family consists of father, son anddaughter, the share of the father’san-cestral properties, if the partition

takes place (referred to as notional par-tition) is Rs 50,000. This share valuedat Rs 50,000 becomes divisible betweenthe son and the daughter on the deathof the father.

Here it may be noticed that whilethe son gets Rs 75,000 the daughtergets Rs 25,000 only. For the sake ofcompetition, the divergence that isin-troduced by the uncodified Hindulaw of partition must be mentioned.Ac-cording to Mitakshara law in theNorth, whenever a partition takes placebe-tween father and son, the wife ofthe father should be given a share equalto that of a son. It needs to beempha-sized that a female member can-not de-mand partition. However, in theDravidia (Southern) School ofMitakshara law (prevailing in AndhraPradesh, Tamil Nadu and the regioncomprising the erstwhile Mysore state)this rule is not followed. Before theamending acts in the Southern states,the position in the North and South

can be illustrated by the followingex-amples:

‘I am Ragini. Our family consists ofmy father Mahesh, my mother Uma andmy brother Suresh. We belong to UttarPradesh. My father died leavingan-cestral properties worth 1.2 lakhs(and that does not include agricul-turalland).* What will be my share? Firstwe must ascertain the share of Maheshin the coparcenary prop-erties. For thispurpose we must assume partition hadtaken place im-mediately before hisdeath (notional partition). Under suchpartition in the North, Mahesh, Sureshand Uma are entitled to one share each.Therefore the share of Mahesh will beRs 40,000 and this becomes di-visibleamong the three class I heirs with Uma,Suresh and Ragini each get-ting Rs13,333.33 according to the HS A. SoRagini’s share will be only Rs 13,333.33whereas Suresh will be get-ting Rs40,000 under partition and Rs 13,333.33under the HSA. The share of Uma willalso be the same. *

hi the same fact situation, if Ragini’sfamily belonged to Tamil Nadu. Whatwould have been the share of Ragini?On the death of Mahesh, under thenotional partition the property wouldhave been divided between Maheshand Suresh, as under the Dravidiaschool the allotment of shares tofe-male members at a partition had be-come obsolete. Therefore, the share ofMahesh, Rs. 60,000 would be dividedbetween Uma, Ragini and Sureshun-der the HSA with each getting Rs.20,000 (of course this is an addi-tion tothe coparcenary interest oi Suresh, thatis, Rs. 60,000).

If we compare Uma’s share undaHSA in the North and the South dia

While a son retains hisinterest by virtue of right

by birth, and tats,es a sharein the father’s interest, thedaughter is enabled to take

a share in her father’sinterest only.

* The devolution of tenures is governed theUP Zamindari Abolition and Land ReformsAct, 1951. In the South agricultural land willalso devolve according to HSA.

No. 100 29

grams (2) and (3), her shareis reduce in the North onthe assumption tha shewould be allotted a shareunder notional partition.

Female ShareThe contradiction that

may arise i the North is:While a widow’s shai un-der HSA is reduced on theas-sumption that she willbe allotted a share at a par-tition, the actual partitionwill not take place if thereis only one son; or even ifthere be no more than one,they may postpone parti-tion indefinitely.

To meet this anomalythe Supreme Court inGurupad v HiraBai(A..LR.1978 S.C. 1239) held thatunder a notional par-titionshe would not only be entitled to thesuccessional share but also to theshare allottable un-der the notionalpar-tition. The effect of this decisionis to convert a notional partition intoan actual partition. Later it was clari-fied in State of Maharashtra v NarayanRao (A.I.R. 1985 S.C. 716) that this re-sult of automatic partition will ensueonly if a suit for partition is filed by afemale member expressing her willing-ness to go out of the family but nototherwise.

Inadequacies of HSAThe HSA at best is a half-hearted

measure to improve the position ofwomen. Apart from the inherentdis-crimination against daughters aris-ing out of the retention of Mitaksharacoparcenary, there are ways by whichthe policy and purpose of the Actstands defeated. Notable among themare:

Unrestrained power to willawayproperty to whoever a manchooses;.

The general exemption granted infavour of laws of the ScheduledTribes (This has been upheld asvalid by the Supreme Court inMadhu Kishwar v. State of BiharA.I.R. 1996 S.C. 1864)The non-applicability of the Act tolaws providing for devolution oftenures section 3(2) of HSA, e.g.Uttar Pradesh.Denial of right of a female heir toobtain the partition of the dwellinghouse of the family and thegen-eral denial of right of residence(subject to some exceptions) of amarried daughter.Of these I will consider the implica-

tions of the first one here.

Right to WillThe law of testamentary

succession applicable toHindus, Christians andParsees confers unre-strained power of testation.Thereby the law enables aperson to will away all hisproperty inviolation of themoral claims of the familymembers. This freedom oftestation, a legacy of En-glish law in India, is ananomaly according to stan-dards of comparative juris-prudence. Under Continen-tal laws like the French andGerman laws, a person candispose of only onehalf ofhis property under his will.Muslim law limits a

Muslim’s power to execute a will to one-third of his property, after deductionof debts and funeral expenses. Thesalutary principle of imposing restric-tions on testation has not beenadopted in the laws of succession ofnon-Muslims.

A male Hindu can now exercise thepower of testation not only with re-spect to properties governed by theDayabhaga law but also with respectto his undivided coparcenary interestunder it.

There is reason to believe thatamong Hindus the will making poweris resorted to deprive daughters of theirrights. Even during the debates on theHindu Succession Bill some membersvoiced the fear that daughters wouldbe deprived of their rights by execut-ing wills.

However Honourable Minister forLaw brushed them away stating ‘I be-lieve that a normal father will never doany such thing. . .’

The law enables a personto mil away all hispropertyin violation of the moral

claims of the familymembers.

30 MANUSHI

State LegislationsKerala was the first state to launch

an attack on the right by birth and thediscrimination inherent in it, byenact-ing The Kerala Joint Family Sys-tem (Abolition) Act 1976. Section 3 ofthe Act says “no right to claim anyinter-est in any property of an ances-tor dur-ing his or her lifetime which isfounded on the mere fact that the claim-ant was born in the family of the an-cestor shall be recognized in anycourt”. The leg-islation is an overkill,because it not only abolished the rightby birth vested in males underMitakshara law, but also the right bybirth vested in females under theMarumakkattayam law. The Act followsthe language of the draft Hindu CodeBill closely.

The Andhra Pradesh legislation in1985 adopted a different approach inan attempt to put an end todiscrimina-tion inherent in theMitakshara coparcenary. It confersright by birth on daughterswho are not married on thedate when the Act came intoforce. It may be mentionedthat during the debates on theHindu Succession Bill, Hon.Pataskar, the then Minister ofLaw, said that such a step “isunknown to law and unwork-able in practice.” The AndhraPradesh approach wasfol-lowed by Tamil Nadu(1989), Maharashtra (1994)and Karnataka (1994). Barringessential charges, the text ofthe amending Acts are same,while Karnataka effected mar-ginal changes only.

The preambles of the Actssay:

“Whereas the Constitu-tion of India has proclaimedequality before law as a Fun-

damental Right; and whereas the ex-clusion of daughter from participationin coparcenary owner-ship merely byreason of her sex is con-trary thereto:”

An interesting aspect of thepreamble(s) is that these legislaturesare clearly of the view that Mitakshararight by birth violates equality beforethe law, while the judiciary is yet topronounce its view of the constitu-tional validity of Mitakshara coparce-

nary. Other states which have not en-acted similar amendments, seeminglyhold that exclusion of a daughter fromcoparcenary is not violative of theConstitution. Thus, it will be difficultto say that the traditional Mitaksharacoparcenary is valid now.

But the question is: Is confermentof coparcenary rights on a daughteras envisaged by these legislations thebest way to end discrimination?

Section 29A states that “in a jointfamily governed by the MitaksharaLaw a daughter of a coparcener shallby birth become a coparcener in herown right in the same manner as a son”and it further adds that “she will havethe same rights in the coparcenaryproperty as she would have if she hadbeen a son”.

Thus the language is wide and inthe states where the amending Actsare in force a daughter-coparcener canbecome a karta (Manager) of the jointfamily. An anomaly in this context

should be pointed out. TheSupreme Court in Commis-sioner of Income Tax v. G.S.Mills approved the statementthat “coparcenership is a nec-essary qualification for manag-ership of a joint Hindu family”and held that a female membertherefore cannot be a karta.The amending Acts remove thebar as regards daughter-coparceners becoming manag-ers of joint Hindu families, buta widow or mother cannot be akarta even if her children areminors as she is not a coparce-ner, but can only be a guard-ian. Clauses (iv) of section 29A(cl iv of 6a of the KarnatakaAct) lays down that “nothingin this chapter shall apply to adaughter married before thedate of commencement of ... the

Under Continental lawslike the French and

German laws, a person candispose of only one-half ofhis property under his will.

Muslim law limits aMuslim’s power to executea will to one-third of his

property, after deduction ofdebts and funeral expenses.

No. 100 31

Act.” Clause V makes it clear that par-titions already made shall not be gov-erned by the provisions.

One can only surmise the reasonsbehind the exclusion of a marrieddaughter from the scope of the Act(once the unmarried daughter gets theshare she will not lose it by hersubse-quent marriage). The patriarchalnotion that a married daughter belongsto an-other family, or the practice ofgiving dowry and sometimes propertyat the time of marriage may account forthe practice of excluding daughters.But the amounts daughters receive are,relatively speaking, smaller in value ascompared to the coparcenary interestin property. In my view the distinctionbetween a married and an unmarrieddaughter is not a reasonableclassifi-cation and is liable to be struckdown being ultra vires of the Consti-tution.

In the States governed by theDravidia School like Andhra Pradesh,Tamil Nadu and Karnataka (omittingthat portion of north Karnataka whichwas under the Bombay Province),the widow’s share becomes muchless than that of a son or daugh-ter. This is un-fortunate as it goesagainst the con-cept of marriageas equal partnership of the hus-band and wife.

To take illustration, let us sayI am Ragini the unmarried daugh-ter of Mahesh and Uma. I have abrother Suresh and our family be-longs to Tamil Nadu/AndhraPradesh/ Karnataka (other thanNorth-ern Karnataka). What willbe my share in coparcenary prop-erties worth Rs. 1.2 lakhs on thedeath of my father in 1996?

Here under the notional parti-tion we must allot shares toMahesh, Suresh and Ragini as shealso becomes a coparcener under

the relevant state amendment. Thuseach will be getting Rs 40,000.

The share of Mahesh will becomedivisible among his class I heirs,namely Uma, Ragini and Suresh. Sureshand Ragini will be getting Rs 40,000 +Rs, 13,333.33, that is. Rs 53,333.33,while Uma will be getting Rs 13,333.33.Here Uma will be getting a lesser amongwhereas formerly she was getting Rs20,000.

Therefore, while a son and daugh-ter will each get Rs 53,333.33 the widowwill get only Rs 13,333.33, even if thisamount could be defeated by Maheshexecuting a will of his interest of Rs40,0007- (He cannot, of course, deprivethe son and daughter of their right bybirth).

But in Maharashtra and northernKarnataka the position will bediffer-ent. The rule of allotting a shareto father’s wife at a partition betweenfather and son exists. Therefore, on thedeath of Mahesh, under notional par-tition shares will have to be allotted toMahesh, Uma, Ragini and Suresh, eachgetting Rs 30,000. Mahesh’s share ofRs 30,000 will become distributableamong Uma, Suresh and Ragini andtheir shares will become Rs. 30,000 +Rs 10,000 that is, Rs 40,000.

In the Northern states like UttarPradesh, Bihar and Madhya Pradeshwhere the HSA without amendmentsis in force the position will be asindi-cated in (2).

Here daughter’s share os much lessas compared to a son or a widow and

the daughter’s share may be af-fected if her father executes a willwith respect to his interest of Rs.40,0007- disinheriting her.

On the other hand the eleva-tion of daughter as a coparcenerwill erode the share of a widowon the in-testacy with respect toancestral property in the statesgoverned by the Dravidiasubschool. In favour of theAndhra Pradesh approach (co-parcenary rights to daughters),it is said: “Even while it discrimi-nates against her, she is well-taken care of, she is safe in herrights as a daughter, the depen-dence of widows on husband’sproperty is largely due to the factthat they do not inherit fromfather’s.”

The patriarchal notion thata married daughter belongs

to another family, or thepractice of giving dowry

and sometimes property atthe time of marriage may

account for the practice ofexcluding daughters. But

the amounts daughtersreceive are smaller in value

as compared to thecoparcenary interest in

property.

32 MANUSHI

The force of the above view is notdenied especially as a daughter is nolonger bound by the restriction im-posed on her to seek partition of adwelling house under section 23 of theHSA. But granting coparcenary rightsto daughters is a weak and inadequateright. First the important category ofproperty which is regarded asances-tral, that is, property inheritedfrom fa-ther, paternal grandfather orpaternal great grandfather, under HSAceased to be ancestral after the deci-sion of the Supreme Court in Commis-sioner of Wealth Tax, Kanpur v.Chander Sen (A.I.R. 1986 S.C. 1753).Second, con-ferment of right by bothdoes not af-ford relief to women gov-erned by the Dayabhaga law. Third, themeasure preserves the different schooland sub-schools of Hindu law and thusaffects the desirable goal of unifica-tion of Hindu law.

The correct approach would be toabolish the right by birth underMitakshara law (as Kerala has done)and impose restrictions on the powerto will away property similar to thosethat prevail under Muslim law andCon-tinental legal systems. Since thewill has become a key instrument fordisin-heriting female heirs, if such re-strictions are imposed by the IndianSuccession Act 1925, governing thetestamentary succession, it will protectthe rights of succession of female heirsnot only of all schools of Hindu lawbut also under the Christian and Parsilaws.

Dr. Sivaramayya is a retired profes-sor of law, Delhi University

The GoalPerchedon dilapidated ventilatorsof silenceWords twitternon-stopdiscardingpuffed feathersfromuttered dropsLike stale habitsthey gyratein the air’s embraceSweating togetherin a pure dropMeltingpouringgreasingscoringthe long awaited goalCreatures one and all.

Shama Shukla

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