Article on ” Daughter and Law” by CS. R. Venkitachalam , Chairman , Bizsolindia Services Pvt Ltd. ( September 2020)

“Law is an ass. But the implementers and interpreters are not, as this case shows. Justice was no doubt delayed to the daughters; but let us be happy that it was not denied to them in the end.”

 

The Supreme Court in a landmark judgment recently decreed that the rights of daughters are on par with sons in a Hindu Undivided Family (HUF). The apex court, in a manner of speaking, helped the women in an act that sounds unlawful like breaking the glass ceiling. Here is a primer cum explainer on what this judgment of the Supreme Court means to the society in general and the good daughters in particular.

Background: Let us begin at the beginning. Patriarchal underpinning in the society in India is a well-known fact. It is more discernible in the family settings. One classic example of this is the joint family system among the Hindus. The Hindu joint family and the patriarchal practices associated with it are centuries old. The joint family units of Hindus popularly known as HUFs have always been run by practices spanning ages having the effect of law, albeit informally. What unites a joint family is faith and food and holding of joint property is incidental. Except in small parts of India like in the North – East, these joint families are governed by the Mitakshara School of law. After Independence the government felt the need to codify them to ensure seamless inheritance of the properties of such families by subsequent generations. Thus was born the Hindu Succession Act of 1956.

Act of 1956: The Mitakshara philosophy is founded on the principle or belief that the family remains united in perpetuity and its properties are owned and managed by the male members of the undivided family. Those members of the family who own the family’s property are collectively known as coparceners, a unique construct found only in the joint Hindu family setup. A joint Hindu family may consist of both men and women who are related to each other but the status of these members are not the same. Normally a joint family would consist of a Karta.

consist of a Karta who is more often than not the patriarch of the family with other coparceners and members. However, in this setup some are more equal than others. Those who belong to the coparcenary are those who are the male descendants of a common ancestor (known as propositus) and his sons, grandsons and great grandsons. They have what is known as sapinda relationship based on their right to offer spiritual ministrations (pinda pradhan) to the same ancestor after his death as per Hindu customs. They are the backbone of the Hindu family architecture. They were the ones who were entitled to inherit the family properties to the exclusion of all others but with the condition that they will hold it as an indivisible pool known as the hotchpot. They, however, have the right to go their separate ways by demanding partition. Likewise, the self-acquired property of a coparcener can be bequeathed by him through a Will and in its absence would pass on as per this Act and it does not become part of the family asset. All others in the family including those female members like the coparcener’s mother or daughter/s had no right to family property buthad a right to maintenance. The coparceners co-owned the property with the underlying principle of “unity of title, unity of possession and unity of interest”. As a corollary, in the event of the death of a coparcener his interest would get merged automatically with the rest of the coparceners. Similarly, when a new boy is born to a coparcener he would automatically inherit his share that in turn goes to reduce the notional share of others. The newly codified Act in 1956 by and large preserved this position except in the case of the death of a coparcener who left behind a close female relative like his wife or daughter who would inherit the dead coparcener’s property through succession and not by survivorship. If it is not complicated enough here is one more. The jury is out now to decide if the daughter’s children are entitled to a share in the coparcenary property.

Amendment Act of 2005: With the society evolving, the government felt the need to address the injustice of denying coparcenary status to women. That required amendments in the Hindu Succession Act. That was the genesis of the Hindu Succession (Amendment) Act of 2005 which came into force from 9th September 2005. By making suitable changes in the then existing Act the government legislated that daughters of coparceners will also be considered as coparceners and will also have the same rights as the sons in the coparcenary properties. The amending Act also made a provision in the Act to prevent possible complications where properties that may have already devolved when the Bill was introduced in the Parliament on 20th December 2004 through partitions, successions and the like. Despite the noble intentions of the government the amending Act fell short in explicitly making it clear whether the amendment would take effect from the date of enactment of the amended provision or would have retrospective effect. The courts around the country, as only the they can, interpreted it differently some even debating whether the amended provisions would have retrospective or retroactive effects.

 

After all the hair-splitting and years of avoidable litigations for want of a thoughtfully drafted legislation, the issue as expected ended up at the doorstep of the Supreme Court. As luck would have it even the apex court gave contradictory views on the amended provisions in the matter with one Division Bench of the Court maintaining that a daughter would be reckoned as a coparcener only if both she and her father were to be alive on the date of the amendment of the Act thereby subjecting the very spirit of the amendment at risk. Faced with a dilemma the government by invoking the power granted to it under the Constitution referred the matter back to the Supreme Court for a resolution which was taken up by a larger Bench consisting of 3 judges. The Bench in its collective wisdom summarily overruled the view taken by one Division Bench and partially overruled another view of another Bench! At last on 11th August 2020 we saw the white smoke emanating from the chimney of the Court. The verdict – the daughter wins. A daughter’s right to coparcenary arises on her birth and it has nothing to do with the death of her father. So spake the Court.

About the Verdict: The Justices had taken upon themselves to comprehensively and critically look at all the related judgments on the subject. In a long winded but not necessarily well worded judgement the Court finally put the vexed matter to rest. In the process they, instead of expressing an opinion with just enough justifications, has come out with a virtual treatise on the matter after traversing a number of judgments of various courts in the past on the subject. The Court has put to rest the controversies surrounding conflicting judgements pronounced by various Courts including the Supreme Court itself. The law built upon the foundations of Hindu customs is not only vague but also complex as can be expected. The judgment also reflects this fact. The judges arrived at their conclusions after creatively interpreting the statute and at times reinterpreting the Court’s own previous judgments. Some conclusions drawn may appear more convoluted at the cost of being consistent. The verdict appears to have been driven primarily by the need to dispense justice faced with the issue of gender equality. In the ever-evolving social milieu any other finding would not have found easy acceptance. This was also obvious from the stand taken by Solicitor General representing the government who advocated for an expansive interpretation of the amended section of the Act to benefit daughters.

Impact of the Verdict: The amendment to the Act and its final interpretation by the courts has kept the basic structure of an HUF intact with all its inherent infirmities. But the impermissible discrimination against daughters was struck down. One must also keep in mind the nature of HUF as an entity. It is not an artificial juridical person like a joint stock company nor is it an individual like you and me. It cannot be created and in one sense cannot be destroyed. For Income Tax purposes it is mostly bracketed with individuals. It has an independent PAN and bank account and it also holds properties in its name or through the Karta on its behalf but does not have an independent existence like a company. The biggest problem with HUF is that everyone including the banker and the tax administrator considers it to be a strange animal and many times look at it suspiciously as a vehicle designed to avoid tax. This is more out of ignorance as the HUF is a creature of law based on evolved customs of the Hindus. Hopefully this court verdict should help the HUF to have a makeover from being an archaic outfit to outwit the tax authorities to a presentable family unit. Other mainstream religions like the Christians and Muslims have their own personal laws. If and when a uniform civil code gets implemented across the country, HUF would also become history. Till then HUF as a family cum business unit is here to stay with all members of the family without excluding the daughters.

Law is an ass. But the implementers and interpreters are not, as this case shows. Justice was no doubt delayed to the daughters; but let us be happy that it was not denied to them in the end.

 

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