FAMILY LAW

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Coparcenary Rights to Daughters: Constitutional and Interpretational Issues
by B. Sivaramayya

Cite as : (1997) 3 SCC (Jour) 25

Five states in India viz. Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka passed legislation to remove the discriminatory features of the right by birth under the Mitakshara law. The lead was taken by Kerala Legislature in 1976 when it passed the Kerala Joint Family System (Abolition) Act, 1976 (hereafter the Kerala Act). This legislation broadly followed the recommendations of the Hindu Law Committee - the Rau Committee1 - and abolished the right of birth under the Mitakshara as well as the Marumakattayam law. On the other hand, the Andhra Pradesh Legislature conferred the right by birth on daughters who are unmarried on the date when the Act came into force. This approach, instead of abolishing the right by birth, strengthens it, while broadly removing the gender discrimination inherent in Mitakshara coparcenary. The States of Tamil Nadu (1989), Maharashtra (1994) and Karnataka (1994) followed the Andhra model.

Broadly comparing the two models, one notices that the Kerala model furthers the unification of Hindu law. It may be recalled that P.V. Kane supporting the recommendation of the Rau Committee stated:2

"And the unification of Hindu law will be helped by the abolition of the right by birth which is the cornerstone of the Mitakshara school and which the draft Hindu Code seeks to abolish."

He pointed out that with the rule that any member of a joint Hindu family may alienate his interest for value, on the enactment of the Hindu Gains of Learning Act, 1928, the Hindu Women's Rights to Property Act and other enactments (more so after the Hindu Succession Act, 1956) the real core of the ancient Hindu family system has been removed3.

The Kerala Act, it may be noticed closely adheres to the wording of the Hindu Code Bill, 1948 (as amended by the Select Committee)4. Insofar as the protection of women's rights are concerned, the Act is open to the objection that it not only abolished the right by birth of males only under the Mitakshara but also of females under the Marumakattayam law.5 Section 3 of the Act states that after its commencement, a right to claim any interest in any property of an ancestor, during his or her lifetime founded on the mere fact that the claimant was born in the family of the ancestor, shall not be recognised. (emphasis added) Thus the Act is wholly prospective and fails to confer rights on daughters in the existing coparcenary properties unlike the Andhra model legislation. Section 4(1) of the Kerala 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. However, its major drawback is that in times to come it will fail to protect the share of the daughter from being defeated by making a testamentary disposition in favour of another, or by alienation. In other words, in the absence of restriction on testation, the abolition of right by birth, may prove to be illusory.

On the other hand, the approach of the Andhra Pradesh Legislature is strikingly new. It elevates a daughter of coparcener in a Mitakshara coparcenary. In this context, Hon. Pataskar's statement at the time of moving the Hindu Succession Bill might be relevant. He stated:

"To retain the Mitakshara joint family and at the same time to put a daughter on the same footing as a son with respect to the right by birth, right of survivorship and to claim partition at any time, will be to provide for a joint family unknown to law and unworkable in practice."6

However, events proved that three decades later not only Andhra Pradesh, but also Tamil Nadu, Maharashtra and Karnataka Legislatures followed that solution. One redeeming feature is that except for unavoidable alterations, the enactments are couched in the same language. Indeed the adaptation of the language had been carried out with such a vengeance that the erroneous heading of Chapter II-A of the Andhra Pradesh Act "succession by survivorship" appears in other State legislation barring that of Karnataka7. The phrase is unfortunate for under the Mitakshara survivorship is used with reference to coparcenary property whereas succession is used in the context of separate property8. The numbering of the sections is the same, viz., 29-A, 29-B and 29-C with the exception of Karnataka which numbers them as 6-A, 6-B and 6-C of the Act.

These pieces of legislation strike a new ground which was considered "unknown to law and unworkable in practice". The constitutional and legal aspects of these Acts will be now considered. As the numbering of the sections is also the same, they may be considered as applicable to the relevant State enactments.

Constitutional Aspects

The opening paragraphs of the preamble of the A.P. Act are thus:

"Whereas the Constitution of India has proclaimed equality before law as a Fundamental Right;

Whereas the exclusion of the daughter from participation in coparcenary ownership merely by reason of her sex is contrary thereto."

These statements indicate, at least impliedly, that these State Legislatures (as also Kerala) subscribe to the view that "laws in force" in Article 13(1) of the Constitution include personal laws9 and the personal laws are subject to Fundamental Rights, especially Article 14. In this context it may be noted that the Apex Court is yet to give its definitive ruling on this implication.

In the State of Bombay v. Narasu Appa Mali10 the Bombay High Court took the view that the term "law in force" includes only laws passed or made by Legislature or other competent authority and does not include Personal laws. They observed that personal law was not included in "laws in force" as defined in Article 13(3)(b). The Supreme Court in Sant Ram v. Labh Singh11, on the other hand rejected the above view. There the validity of a customary right of pre-emption based on vicinage was in question. It was contended that, even though a statutory right of pre-emption, based on vicinage was invalid, as offending the Constitution, a customary right could not be held invalid under Article 13 of the Constitution. Negativing the contention the Supreme Court observed: (SCC para 316)

"There are two compelling reasons why custom or usage having in the territory of India the force of the law must be held to be contemplated by the expression 'all laws in force'. Firstly to hold otherwise would restrict the operation of first clause (of Article 13) in such way that none of the things mentioned in first definition Art. 13(3)(a) would be affected by fundamental rights. Secondly, it is to be seen that the second clause speaks of 'laws' made by the State and custom or usage is not made by the State."

Strictly viewed the decision can be construed as involving custom and, therefore, it alone comes within the scope of Article 13. Can the reasoning of Sant Ram be construed as equally applicable to personal laws? Prima facie, it is so applicable, though such a view will be seriously contested.

In this context it may be pertinent to refer to an obiter of Sen, J. in Shri Krishna Singh v. Mathura Ahir12 which runs counter to the above view. In this case, among other issues, the question before the Court was whether a Shudra was entitled to hold the office of a Matadhipati (head of a Mutt). The trial court as well as the High Court upheld the claim of the plaintiff Shudra to be Matadhipati. The view was that after the Constitution the rule that a Shudra is disentitled to hold the office would be invalid under Article 14.

The Supreme Court held that the matter should be governed by the Sampradaya or custom of the Mutt and not by the Shastric law. To the view that after the Constitution the rule of Shastric law was no longer valid under Article 14, Sen, J. responded thus: (SCC p. 712)

"In our opinion, the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties, he could not introduce his own concepts of modern times but should have enforced the laws as derived from recognised and authoritative sources of Hindu law...."

Justice Sen did not refer to Sant Ram11. Nor did he adduce any reason for his obiter. Further, while side-stepping the constitutional issue and upholding the right of a Shudra to hold the office of a Matadhipati on the basis of customs, he did not clarify whether custom accepted by personal law should be considered as custom per se or personal law for the purposes of application or otherwise of Part III of the Constitution.

Justice Sen's obiter made Justice Dhanuka of Bombay High Court to refer the question to a Division Bench thus:

"With all respect it appears to me to be too obvious that the case before the Supreme Court Krishna Singh v. Mathura Ahir12 was not decided on the basis that personal laws were not subject to fundamental rights, but was decided on the basis that the traditional law could not operate in view of established customs and usage to the contrary."13

The prevailing judicial position thus leaves the following alternatives: (1) to reconcile the decision in Sant Ram11 and the obiter in Krishna Singh12, and to conclude that while custom is governed by Fundamental Rights, a personal law is not so subject to; and (2) to hold that both custom and personal law are within the ambit of Fundamental Rights.

Acceptance of the first alternative may entail problem. Of the four major personal laws, viz., Hindu, Muslim, Christian and Parsee laws, the last two are statutory laws. Hindu law is partly statutory and partly non-statutory. This would imply that statutory laws and statutory portion of personal laws would be governed by Fundamental Rights while non-statutory portions will not be governed by Part III. Insofar as Muslim law is concerned the Shariat Act, 1937 made the law of Sharia applicable to Muslims, overriding the application of customary law, that too with respect to non-agricultural properties. (Subsequently some states extended them to agricultural properties also.) So Muslim law also is part of statutory law and as such to be governed by the Constitution.

The second alternative namely, to interpret "laws in force" as including personal laws is on a sound basis. Seervai's views seem to accord with this view. He writes:

"We have seen that there is no difference between the expression 'existing law' and '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."14

The second interpretation will also be in consonance with the Convention on the Elimination of All Forms of Discrimination against Women15 adopted by the General Assembly of the U.N. on 18-12-1979 which was signed by India on 30-7-1980. It was ratified on 9-7-1993 subject to two reservations. (One of which pertains to its policy of non-interference in the personal affairs of any community without its initiative and consent.)

Notwithstanding this, one is not sure about the judiciary's courage to accept the second alternative.

The present writer feels that it should be possible for the judiciary to accept it. It is pertinent to note that the Supreme Court is yet to decide the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986. There is nothing to prevent the Supreme Court to interpret the Constitution fearlessly. It has in Minerva Mills v. Union of India16 held that Article 14 constitutes a basic feature of the Constitution. The Court can reiterate that position.

Even if we restrict ourselves to the narrow issue of the constitutional validity of Mitakshara coparcenary, it is clear that the classical Mitakshara coparcenary can no longer be considered as constitutionally valid. For, Kerala abolished the right by birth itself; in the States following Dayabhaga like West Bengal, Orissa (barring areas of Southern Orissa), Assam and Tripura do not recognise the right by birth; and the States of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka while retaining Mitakshara coparcenary substantially removed its discriminatory feature by conferring equality on daughters who are not married when the respective Acts came into force. As has been pointed out earlier, these four legislations emphatically state that the exclusion of a daughter from "coparcenary ownership" is contrary to Article 14. If courts were hold that the classical Mitakshara right by birth restricted in favour of males alone is valid, it would tantamount to one department of State contradicting another inasmuch as the judiciary, the legislature and the executive constitute State under Article 12 of the Constitution.

The New Coparcenary

The new amendments to the Hindu Succession Act in the Southern States considerably alter the concepts of Mitakshara joint family and coparcenary. Once a daughter becomes a coparcener she will continue to be member of the natal joint family and will be so even after marriage in the natal family and as also in the marital joint family - a unique feature hitherto unknown in matrilineal or patrilineal joint families in India.

Do these new Amending Acts in trying to correct the discrimination against daughters, introduce a concept of joint family "unknown to law and unworkable in practice" affect the vires under the Constitution?

The decisions in cases like Kunhikoman v. State of Kerala17 indicate that it may. In this case, the Supreme Court invalidated the Kerala Agrarian Relations Act, 1961. The Act among other things, defined "family" as meaning husband, wife, and their unmarried children or such of them as exist. The Court declared the Act as invalid. Referring to the definition of the family in the Kerala Act, the Court pointed out that the Act adopted an artificial definition and that it did not correspond to any of the three types of families, viz. the joint Hindu family, the family under the Marumakkattayam law or the Aliyasanthana law. The feature, among others, was held to violate Article 14 of the Constitution. A Full Bench decision of the Punjab and Haryana High Court also in Sucha Singh Bajwa v. State of Punjab18 held that the statutory definition of "family" of the Punjab Land Reforms Act, 1973 was constitutionally invalid.

Constitutional validity of the provisions may be questioned in the following situations:

Where there was partial partition with respect to some coparceners, the interests of undivided coparceners may suffer significant reduction in the value of their shares because of the introduction of daughters (other than those married at the time of the passing of the respective enactments) as coparceners. This may give rise to questions of constitutional validity. Such question can also arise in a situation where a father having a daughter by his first marriage dies leaving the daughter and second wife alive. On the demise of the father, the daughter as a coparcener is entitled to act as karta of the joint family in preference to her stepmother though she may lack experience being young and belong to another family on her marriage. This is because "coparcenership is a necessary qualification for managership of a joint Hindu family" as held by the Supreme Court in CIT v. G.S. Mills19. The above position holds good equally in the case of a mother and her daughter, and an elder sister, who became a coparcener, and her brothers.

Thus the Amending Acts are liable to be challenged under Articles 14 and 21.

It may be questioned as to how a challenge is possible after 44th Amendment to the Constitution which deleted clause (f) of Article 19(1). This is answered by pointing out that the right to acquire, hold and dispose of property as was guaranteed in Article 19(1)(f) is very much a "personal liberty" in Article 21 and as such, it should be possible to challenge the validity of the provision under Article 21 even after the 44th Amendment.

It should be noted that the new coparcenary is not without its parallels in the Shastric Hindu law. On the rights of unmarried sisters at a partition to a fourth share, Mayne states:

"On the question whether unmarried sisters were sharers with their brothers or were only entitled to an amount sufficient for their marriage, there has been an acute difference of opinion from early times amongst commentators. Asahaya, Medhatithi, Vijnaneswara, Nilakantha and Mitramistra combat the view that the provision is only for an amount sufficient for marriage expenses, the Mitakshara going farthest and declaring that 'after the deceased(?) of the father an unmarried daughter is a participant in the inheritance'. Bharuchi, Apararka, the Smiriti Chandrika, Jimutavahana, and his followers, the Madhaviya, the Sarasvathi Vilasa, the Vivada Ratnakara, and the Vivada Chintamani all take the view that the mention of a definite fourth only meant, that an amount must be allotted to each daughter as would be sufficient for her marriage. But the extreme position in the Mitakshara that an unmarried sister along with her brother is entitled to a share in inheritance had probably no foundation in usage nor has modern usage been in accordance with it."20

Pawate, a scintillating scholar of Hindu law, interpreting the Mitakshara, put the rights of women on a higher pedestal. He says:

"The position according to the Mitakshara theory as developed by Vijnaneshwara seems to be this, that a wife gets rights of ownership of her husband's separate and joint family property from the moment of her marriage and a daughter from the moment of her birth. But Vijnaneshwara does make a distinction between males and females and says that females are asvatantra or unfree. If we are to translate his notion into the language of the coparcenary, I think we can state that women are coparceners but 'unfree' coparceners."21

Thus these amendments cannot be seriously challenged on the ground that they contemplate a coparcenary novel in law. On the other hand as noted previously, the constitutional validity of Mitakshara coparcenary which recognised the right by birth in favour of males alone is open to question. However, as will be noticed later, a widow has been relegated to a secondary position.

Distinction between a daughter "by birth" and by adoption

Section 29-A of the Acts (6-A of the Karnataka Act) says:

"Notwithstanding anything contained in this Act-

(1) in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right...."

The above language of the Acts gives rise to the following questions: (1) Is the phrase "by birth" a condition precedent for the acquisition of the coparcenary right by a daughter? (2) If so, whether the distinction between a natural-born daughter and an adopted daughter can be upheld as a reasonable classification?

A prime facie reading of Section 29-A or 6-A of the Karnataka Act suggests that the words "by birth" were intended as a condition precedent. The dictionary meaning of "by" is "through, means or causation of, or owing to". If the phrase "by birth" is omitted, still the legislative intention of conferring on daughters the coparcenary rights is in no way affected. This suggests that birth is regarded as a prerequisite for a daughter for the acquisition of a coparcenary right.

To the contrary it may be argued on the basis of Section 12 of the Hindu Adoptions and Maintenance Act, 1956 deeming adopted child to be the child of adoptive father or mother for all purposes22 that an adopted child is entitled to exercise all rights including the coparcenary rights. But this argument may not hold water as Section 12 makes it also clear that an adopted child's rights in the adoptive family will accrue from the date of adoption. Thus is case of an adopted daughter, the conferment of coparcenary rights in the adoptive family will be from the date of adoption and in the natural family also she will be having a vested coparcenary right by birth. This situation must not have been intended by the legislature. Therefore, the better view seems to be that the Amending Acts do not envisage the conferment of coparcenary right on an adopted daughter.

Is there any ostensible reason for the exclusion of adopted daughter? While non-application of mind on the part of the legislature cannot be ruled out, one can only speculate the reasons, if any exist. First, adoption of daughters is not common, as yet. Second, the adopted daughter's rights seriously affect the rights of other heirs, especially that of a wife.

The further question is whether the differentiation between a natural-born and an adopted daughter is valid. The conventional perception is that ties of blood are stronger than those of adoption. Under the Shastric law the rights of an adopted son suffered diminution in the presence of an afterborn natural son. But the policy of Hindu Adoptions and Maintenance Act is to treat an adopted son and an afterborn natural son on an equal footing. The courts may, it is felt, hold the distinction between an adopted and natural-born son as reasonable classification.

Distinction between a Married and Unmarried Daughter

Section 29-A clause (iv) Section 6-A clause (d) of the Karnataka Act, says:23

"Nothing clause (ii) clause (c) of Karnataka shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Amendment) Act...."

One can only surmise the reasons for the exclusion of the married daughter. First, the legislature might have taken into account the sociological fact that dowry was given at the time of marriage in the case of married daughters. Second in some cases property or jewellery might have been given at the time of marriage to the daughter in the name of dowry. But there might be cases where either or both the assumptions are not relevant in which case it might cause hardship. As regards cases where property had indeed been given a suitable provision could have been made to avoid double portions.

According to classical formulation the applicable test is whether the classification adopted by legislature between a married and unmarried daughter can be regarded as reasonable. The tests are: (i) the classification must be founded on intelligible differentia, and (ii) the differentia must have a rational relation to the object sought to be achieved by the law.

A recent decision of the Supreme Court in Savita Samvedi v. Union of India24 lends support to the view that the distinction between a married and an unmarried daughter will be unconstitutional. There a circular of the Railway Board stated that when a "railway servant who is an allottee of Railway accommodation retires from service, his/her son, unmarried daughter, wife, husband or father as the case may be, may be allotted railway accommodation on out of turn basis". The out of turn allotment was subject to two conditions: first, such son or unmarried daughter must be a railway employee; and second, the retiring employee has exercised his choice for regularisation. Under the circular a retiring employee's married daughter will be eligible, in case he has no son. The Supreme Court held that the circular in fettering the choice of a retiring employee to nominate a married daughter is "wholly unfair, unreasonable and gender biased" and liable to be struck down under Article 14 of the Constitution. Referring to the distinction drawn by the circular between a married and an unmarried daughter, Punchhi, J. observed: "The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she too must have been once in that state), so as to claim the benefit...."25

From the preamble it appears that the objective of the Act is to remove discrimination against daughters inherent in the Mitakshara coparcenary. The eradication of dowry by positive measures is only a subsidiary or collateral objective and it cannot be said that the classification drawn by the Amending Acts bears a rational relationship to the objective sought to be achieved.

Joint Family

In some respects the new amendments introduce far-reaching changes in the law of joint family. Section 29-A Section 6-A of Karnataka Act says that a daughter of a coparcener "shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son ... and shall be subject to the same liabilities and disabilities in respect thereto as a son".

Turning to her rights as a son, she will be entitled to be a karta of the joint family, and will by virtue of that position exercise the right to spend the income for joint family purposes and alienate the joint family properties for legal necessity or benefit of the estate. In popular perception as well as under the Shastric law, a daughter on marriage ceases to be a member of the parental family; but the Amending Acts change that position and a daughter will not only continue to be a member of her parental family, but also can be the head of the family.

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 the head of her natal joint family. Even in India, mothers acted as guardians of their minor sons, and as de facto managers of the joint families on their husbands' death. Though her position as de facto manager is recognised the de jure conferment of the right eluded her.

Liabilities

Daughter as a coparcener will be bound by common run of liabilities well settled under the Hindu law. But the question whether a daughter would be governed by the doctrine of pious obligation as in the case of a son has not been answered clearly by legislation.

The Kerala legislation by a special provision abrogated the doctrine of pious obligation of a son.26 But the legislations of other States which confer coparcenary rights on daughters are silent in this aspect. There are sufficient reasons to exclude daughters from the operation of this doctrine. Some are as follows: First, however, much legal and moral obligations were intertwined in classical Hindu law, according to contemporary concepts the doctrine represents a moral obligation ripening itself into a legal obligation. Second as pointed out by Kane27 the doctrine was altered in some material respects under the Anglo-Mitakshara law. Third even in the case of a wife who belongs to the same family, and is regarded as half of her husband, the view had been expressed that she is not bound by the doctrine of pious obligation.28 In Keshav Nandan v. Bank of Bihar29 the Patna High Court observed: (AIR p. 190)

"The doctrine of pious obligation cannot apply to the wife and she, therefore, cannot be liable to the creditors on the principles applicable to the sons."

The Karnataka High Court in Padmini Bai v. Aravind Purandhar Murabatta30 took the same view.

Section 29-A gives rise to at least three other questions. First, if the joint family has properties in two States, one which is governed by the Amending Act and the other not so governed, will it result in two kartas: one a daughter and the other a son? Territorial application of the Amending Act and the lex situs principle would suggest such a situation.

The second question is whether a reunion of a brother and sister who were coparceners is possible. Reunion is still a feature of Shastric Hindu law. The text of Brihaspati31, on which the law is based, says:

"He, who, once being separated dwells again through affection with his father, brother or paternal uncle is termed reunited with him."

In Ram Narain v. Pan Kuer32 the Privy Council held that in a Hindu family governed by Mitakshara a valid reunion is possible only between a father and son, brother and brother and paternal uncle and nephew, and only if it is between parties to the original partition. But according to Vyavahara Mayukha which is a paramount authority in Gujarat, the Island of Bombay and in Northern Konkan and Vivada Chintamani, which is authoritative in Mithila, the text of Brihaspati is illustrative and not exhaustive. Thus Vyavahara Mayukha expressly states that "a reunion may take place even with a wife, a paternal grandfather, a brother's grandson, a paternal uncle's son and the rest".

The above regional differences may give rise to an impression that a reunion with a sister is quite possible under Section 29-A in Maharashtra. However, this view needs to be examined with reference to a question of some constitutional nicety. That is, the law of reunion pertains to uncodified Hindu law; on the other hand the Amending Act seeks to amend the Hindu Succession Act as passed by Parliament and to which amendment, the consent of the President is required under Article 254(2) of the Constitution, and which had been secured, will be operative "with respect to that matter". Therefore, Section 29-A can be operative only on a matter within the scope and intendment of the Hindu Succession Act. The topic of reunion does not fall within the scope and intendment of the Hindu Succession Act and traverses far beyond it.33

The third aspect that needs consideration is: What is the impact of Section 29-A of the Amending Acts (6-A of the Karnataka Act) on Section 23 of the Hindu Succession Act? Section 23 of the Hindu Succession Act provides that on the death of Hindu intestate 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; and second it curtails even the right of residence of a daughter by stating 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 unmarried or has been deserted by or has separated from her husband or is a widow".34

When considering whether these restrictions will be operative in the case of female coparceners, we have to focus on the interpretation of the words "Hindu intestate" and "heirs" occurring in Section 23. Under Mitakshara law unobstructed heritage (Apratibandhadaya) devolves by survivorship and obstructed heritage (sapratibandha daya) by succession and both the phrases viz., "Hindu intestate" and "heirs" exclude coparceners and coparcenary interests from their scope. Section 6 of the Hindu Succession Act retains the rule of devolution of undivided coparcenary interest by survivorship in spite of the significant change introduced in it. There is a second ground which buttresses this view. Section 23 applies to both the male and female intestates and its applicability to the latter indicates that coparceners and coparcenary interests were outside the scope of Section 23. Thus it is submitted that female coparceners are not bound by the restrictions contained in the section.

Apart from these constitutional and interpretational issues, these legislations give rise to a policy issue of substantial importance overlooked by the legislatures. That is, the preserving of right by birth and its extension to daughters, undermines the position of the wife, especially in States governed by the Dravida sub-school of Mitakshara Law. First, her successional share is reduced; second, her share can be defeated by making a testamentary disposition; third as noted earlier, she cannot be the karta of the joint family, even if her children are minors. This is indeed a sad diminution in the status of a wife whom the Shastras referred to as Ardhangini (half of her husband) and the English phrase refers to as the "better half".

To elaborate the first point in the Dravida School following Smriti Chandrika as the authoritative work, the practice of allotment of shares to female members like wife and mother of the father at a partition had become obsolete. Thus in Andhra Pradesh, Tamil Nadu and in the region comprising of erstwhile Mysore State in Karnataka, under notional partition envisaged by Section 6 of the Hindu Succession Act shares are allotted to father and his sons only.

To illustrate, a joint family consists of father F, his wife W, two sons S-1 and S-2 and unmarried daughters D-1 and D-2. The family possesses joint family properties worth three lakhs of rupees. Prior to the amendment on the death of F, F's interest under the notional partition would be one-third, that is, Rs 1,00,000 which would be divided among the five Class I heirs. Thus W's share would be Rs 20,000. After the amendment, if F dies, his share under the notional partition will be one-fifth (the deceased is a coparcener along with his two sons and two daughters) that is, Rs 60,000. If this is distributed, among the Class I heirs, the share of W will be Rs 12,000.

If the family is governed by the law applicable in Maharashtra, prior to the Amending Act, because of the allotment of shares to the wives at a partition (the sharers being F, W, S-1 and S-2) the share of F will be Rs 75,000. The successional share of W will be Rs 15,000 and in case W files "a suit for partition expressing her willingness to go out of the joint family she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her".35 Thus her share would be Rs 75,000 + Rs 15,000 = Rs 90,000.

But after the amendment in 1994 in Maharashtra and also in Northern Karnataka (part of erstwhile Bombay Province, after the Karnataka amendment came into force), if W who inherits an interest on the joint family property under Section 6 of the Hindu Succession Act "files a suit for partition expressing her willingness to go out of the family, she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her".

The share of F on notional partition will be Rs 50,000. On F's death this will be divided among the five Class I heirs, each getting a successional portion of Rs 10,000. In case W files a suit for partition, she would be entitled to Rs 60,000 (Rs 50,000 as her share under notional partition plus Rs 10,000 as successional share).

But the successional share of W or of any other heir can be defeated by F, by making a testamentary disposition of his undivided interest.36 If that happens, it will have disastrous effect on the position of W in States of Andhra Pradesh, Tamil Nadu and in Mysore region of Karnataka, where her right will be reduced to that of getting maintenance only.

All these regional amendments tend to defeat the goal of uniform Hindu law envisaged by Parliament during the years 1955-56. The State amendments have the effect of dividing the Mitakshara law into the following sub-schools.

(a) Mitakshara law in which daughters have a right by birth in coparcenary properties under the Dravida School.

(b) Mitakshara law which recognises right by birth of daughters in coparcenary under the Bombay School.

(c) Mitakshara law which recognises right by birth in favour of sons, (the term son being understood in its wider sense) as per the traditional view; and

(d) Mitakshara law which abolishes the right by birth altogether, as in Kerala.

The last mentioned approach is in consonance with the recommendations of Rau Committee and subserves the goal of uniformity. If that approach has been coupled with the imposition of restraints on testation37 as under the continental laws and Muslim law that would have achieved better results than the present amendments which confer the coparcenary rights on unmarried daughters.

1. Report of the Hindu Law Committee 13 (1955 reprint) Return to Text
2. P.V. Kane, History of Dharmasastra 823 (1946) Return to Text
3. Ibid Return to Text
4. Sections 3, 4, 5 and 6 of the Kerala Act correspond to Sections 86 to 89 of the Hindu Code Bill (as amended by the Select Committee). See P.P. Moothath "The Kerala Joint Family System (Abolition) Bill - A Study", 1973 KLT (J) 91 Return to Text
5. K. Saradamoni ICSSR - WDS, Report 5 (1983) Return to Text
6. 4 Lok Sabha Debates col. 8014 (1955) (emphasis added) Return to Text
7. See the Hindu Succession (Tamil Nadu Amendment) Act; The Hindu Succession (Maharashtra Amendment Act. (Hereafter these Acts will be referred to as the T.N. Act and the Maharashtra Act respectively) Return to Text
8. For example Mayne says : "He an undivided member has an interest in the coparcenary and on his death this interest lapses to the coparcenary; it passes by survivorship to the other coparceners. He, therefore, has no power to devise it by will, nor is there any question of succession to it." Mayne's Treatise on Hindu Law and Usage, 550 (13th A. Kuppuswami Ed., 1991) Return to Text
9. Article 13(1): All laws in force in the territory of India immediately before the commencement of this Constitution., insofar as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void Return to Text
10. AIR 1952 Bom 84 Return to Text
11. AIR 1965 SC 314 Return to Text
12. (1981) 3 SCC 689 Return to Text
13. AIR 1992 Bom 214, 221 Return to Text
14. H.M. Seervai, Constitutional Law of India 677 (4th Ed. 1991) Return to Text
15. Multilateral Treaties Deposited with the Secretary General, Status as at 31-12-1994 - ST/LEG/SER.E/13 Sales No. E 95.V.5 Return to Text
16. (1980) 2 SCC 591. Minerva Mills was seemingly overruled on this aspect by Sanjeev Coke Mfg. Co. v. Bharat Cooking Coal Ltd. (1983) 1 SCC 147. On this aspect of Sanjeev Coal see the trenchant criticism of H.M. Seervai in his Constitutional Law of India, Vol. 2, at 2007-2008 (4th Ed., 1993) Return to Text
17. AIR 1962 SC 723 Return to Text
18. 76 PLR 273 (FB) (1974) Return to Text
19. AIR 1966 SC 24 Return to Text
20. Mayne's Hindu Law & Usage 728 (13th A. Kuppuswami Ed. 1991) (Footnotes omitted) Return to Text
21. I.S. Pawate, Daya-Vibhaga or the Individualization of Communal Property and Communalization of Individual Property in Mitakshara Law 297 (2nd Ed. 1975) Return to Text
22. Section 12. Effects of adoption.- An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date all ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. (Provisos omitted) Return to Text
23. A wary reader must be informed that clause (iv) of A.P. Act is wrongly given in Mayne's Hindu Law and Usage at p. 1036 (13th Edition) as Explanation II to Section 2 Return to Text
24. (1996) 2 SCC 380 Return to Text
25. Id at 382 (para 7) Return to Text
26. Section 5, the Kerala Joint Hindu Family System (Abolition) Act, 1976 Return to Text
27. P.V. Kane, History of Dharmasastra, Vol. 3, 450 (2nd Ed. 1973) Return to Text
28. Mulla: Principles of Hindu Law, 387 (15th Ed. 1982) Return to Text
29. AIR 1977 Pat 185 Return to Text
30. 1988 (I) Karn LJ 291 Return to Text
31. Brahaspati XXV 7 Return to Text
32. (1935) 62 IA 16 Return to Text
33. Gram Panchayat v. Malwinder Singh, (1985) 3 SCC 661, 668-70. See generally V.N. Shukla: Constitution of India 679-85 (9th M.P. Singh edn.) Return to Text
34. Proviso to Section 23, The Hindu Succession Act, 1956. See also Narashimaha Murthy v. Susheelabai, (1996) 3 SCC 644 Return to Text
35. State of Maharashtra v. Narayan Rao, (1985) 2 SCC 321 at 330 (para 6) Return to Text
36. Section 30 of the Hindu Succession Act, 1956 Return to Text
37. See generally B. Sivaramayya, Women's Right of Inheritance in India (1973)Return to Text