There is a plethora of court decisions interpreting various aspects of the Hindu Succession Act, 1956 (HSA) and with many contradictory findings.
None is more vexatious than the interpretation of the implications of the amendments introduced in 2005 that provided equal status to daughters in family properties.
The Supreme Court has, in the space of a few years, contradicted itself in figuring out the import of the 2005 amendment, a law of recent origin.
The trigger to adventure upon this subject is a recent decision of the Madras High Court in Vasumathi & Another vs Vasudevan and Others in SA No 527 of 2022, pronounced on 8 November 2024.
The enactment of the HSA was compelled by the situation that women did not enjoy any rights in ancestral properties and the process of succession that prevailed favoured the male members, except for a very limited interest allowed to widows under the 1937 Act.
The HSA made a significant departure in the inheritance process in that it provided for an equal share for women and men as specified in Class I.
It also went a step further to change the manner of the succession to properties held by a joint Hindu family (JHF) which, historically, went by the concept of survivorship and not by succession.
The interest of a deceased male Hindu in a JHF property was carved out and succeeded to by all the eligible heirs under Class I, including women.
Though this inroad into the traditional male-dominated property ownership system was substantial, it was not complete. The women did not enjoy the coparcenary rights that their brothers did. The change towards a complete parity for women was only gradual.
Kerala showed the way in 1975 by abolishing joint ownership. AP (Andhra Pradesh) and TN (tamil Nadu) followed in 1985 and 1989 by making women equal in the coparcenary. Except the women married before the advent of the change were excluded in the applicability.
But a sweeping change happened in 2005 when Parliament changed the scope of Section 6 of HSA to provide full rights to women in a JHF and also preserved the inheritance order that pre-existed the change.
In addition to the succession rights that daughters enjoyed in parity with the sons, they secured the right to sue for partition of the JHF and receive the applicable share in the property even when the father was alive and the JHF subsisted.
There are essentially three parts to the diverging jurisprudence arising in the context of the JHF which crop up in the aforementioned decision pronounced on 8th November.
The first is whether the process of segregating the share of a deceased male Hindu in a JHF dismantled the structure even as far as the surviving members.
The second is specific to the change under the 2005 law if the accruing of the rights of a coparcener for a daughter is contingent on the father being alive at the time of enacting the law in 2005.
The third is the identification of joint property and the entitlement to make a claim of joint ownership.
For nearly seven decades since 1956, when the law first emerged, the courts, including the Supreme Court, have dithered on whether the process of separating or identifying the share in a joint property of a deceased resulted in a complete partition and break up of the joint ownership.
To cut to the chase, only in this decade in 2020 did the SC provide a semblance of finality to this issue by a three-judge bench in the case of Vineeta Sharma vs Rakesh Sharma and Others reported in (2020) 9 SCC 1 (2020) 9 SCC 1, by holding that the process of notional identification did not disrupt the continuity of the joint family ownership for the surviving members.
However, the property that devolved on the Class 1 heirs out of the said joint property would be independently owned by each of the heirs succeeding to the property.
The next is the change brought about by the 2005 amendment equating a daughter with a son in a coparcenary.
In terms of the plain reading of the law, a daughter becomes a coparcener upon the coming into force of the law. Thus, irrespective of when the daughter was born or any other consideration, the interest is created.
This was challenged in different ways and one such was that the law will not apply to those daughters whose father was not alive at its commencement.
This aspect too was settled in Vineeta Sharma, which differed with the earlier contradictory conclusions by the same court, holding that the father being alive when the law came into force was not necessary for the daughter to get any rights.
The third aspect is about the characterisation of a property as a joint family property or an individual property.
This was relevant in the matter of succession and delineating ownership rights even before the coming into force of the HSA in 1956. But, the dimensions of the judicial appreciation of this has significantly changed post this.
The concept of a clear line of succession and the quantum and the manner emerged for the first time under the HSA. The question is: if the law has an identified hierarchy of persons who succeed as Class I and Class II heirs, and such persons are individually enumerated, does the concept of a family succession arise?
Thus, if a son receives a share in his father’s property on the demise of the latter, and has also a son, would the property received be the sole property of the son or a joint property to be held with his wife and son?
This is a vexed question before the courts and there appears to be views on both sides.
To make the proposition a little more complicated, the demise of the father brings not only a share of his private property to the son, but also a share in the HUF that the father was part of!
Is there a difference between the character of the self-acquired property of the deceased and his interest in a JHF property from the point of view of the son who has a family that qualifies to be a HUF?
It is not easy to categorise the kaleidoscopic findings of the courts on this point.
One set of juristic views takes the approach that upon the advent of the HSA the specificity of the heirs makes it an individual inheritance and other claimants like the children of the heir stand automatically excluded.
In fact, those next level children are themselves specified as Class I heirs if their father had predeceased the grandfather whose asset is being passed on.
The alternative view is that the HSA while codifying inheritance did not intend to disrupt the continuity of the JHF and joint ownership. Therefore, even if the heirs are specified in Class I the formation of JHF with the children of the said recipient is not statutorily excluded.
The first view is clearly held in the SC’s decision in CWT vs Chander Sen (1986 AIR 1753) that a succession under Section 8 of the HSA is by that individual and no other rights are set up for any children of the individual, present or future.
The other category deals with cases of a JHF property falling to the share of an individual on a partition. In C Krishna Prasad vs CIT [(1975) 1 SCC 160] the case was of a partition of a JHF property that fell to the share of a coparcener who was unmarried at that time.
He subsequently married and, upon the birth of a son, claimed that the property received on partition would be that of his JHF with his newborn and not his individual property.
The court conceded to that position. The said case was followed in Shyam Prasad Narayan vs Krishna Prasad, 2018 (7) SCC 646, on similar facts.
It is difficult to see any contradiction between Chander Sen and Krishna Prasad decision, as they cover entirely different situations.
However the Madras High Court in Para 26.1 and later raises the concern as to how the phenomenon of a JHF construct would perpetuate if Chander Sen is preferred to Krishna Prasad and seeks to pin its bets on the latter.
This anguish does have a sentimental value, but its juristic reach is doubtful. The Delhi High Court in the matter of Sh. Surender Kumar vs Sh. Dhani Ram & Others((2016) 1 High Court Cases (Del) 17) provided clarity on the dichotomy.
- “If a person dies after passing HSA and there is no HUF existing at the time of the death of such a person, inheritance of immovable property of such a person by his successors – in – interest is no doubt inheritance of ‘ancestral’ property, but the inheritance is as self-acquired property in the hands of the successor and not as HUF property although the successor(s) indeed inherits ‘ancestral’ property, i.e., a property belonging to his parental ancestor.
- The only way in which HUF/ joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual’s property is thrown into a common hotchpotch. Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners, etc. to a share in such HUF property.
- An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to the properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956, of HUF and of its properties existing, a coparcener etc., will have a right to seek partition of properties.
- Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such HUF continues even after 1956, then in such case a coparcener etc., of an HUF was entitled to partition of HUF property.”
In conclusion, a point is touched upon which was headlined in some newspapers as an anomaly in the matter of succession after the 2005 amendment.
Quoting from the order in para 22, “In the din of this euphoria what however, appears to have been overlooked is that other than the daughters, the widow and the mother of the deceased coparcener also figure as Class I female heirs, and the rise in status of daughters as coparceners in effect has reduced the quantum of property which the widow and the mother would get.”
In a lighter vein, the court could have also added that the absence of a son would increase the share of the widow. And who wishes for a mother-in-law to be around, especially if it meant a big bite into one’s share in the property!
The higher the number of claimants, the denominator jacks up! Does that make the law retrogressive?
There are two ways of looking at this issue.
The 2005 law extends to all women and the widow in one family is a daughter in another one and enjoys her share there as well! In fact, this dual right for a woman can be viewed as an anomaly that a male is not privileged!
An equally efficacious alternative is for the father (head of the family) to leave a Will that could take care of a skewed succession to favour the wife, if warranted.
The status of a daughter is a creation of the nature and permanent, while that of a wife is a matter of contact and contract!
The subject of succession, especially the demand of women members, has been surfacing in many disputes in family businesses. This subject may resonate well in those houses!
(Ranganathan V is a CA and CS. He has over 43 years of experience in the corporate sector and in consultancy. For 17 years, he worked as Director and Partner in Ernst & Young LLP and three years as a senior advisor post-retirement handling the task of building the Chennai and Hyderabad practice of E&Y in tax and regulatory space. Currently, he serves as an independent director on the board of four companies.)
