Introduction 

Property is an evergreen symbol of status which often decides the standing and respect which an individual or family enjoys in the society. As it is, people in India are quite obsessed with the notion of property holdings. This fact is quite evident when one takes a quick glance at the number of land ownership disputes pending in the judicial pipeline of India. Here, cases concerning property often run for many long years in the Courts as nasty chains of litigation are triggered by disputes over land holdings, thus adding to the burden on our Courts.

Intestate succession among Hindus in India is governed primarily by the Hindu Succession Act which was enacted in the year 1956 with the objective of codifying the existing law relating to intestate succession. The Act applies to any person who is a Hindu by religion, including people who are Buddhist, Jain or Sikh and any other person who is not a Muslim, Christian, Parsi or Jew by religion[1]. The Act, though, does not have any extra-territorial application, i.e., it operates only upon the property that is situated within India.

Position of Women

The position of women in traditional Hindu society has not been very prominent. Women have been looked upon by men since the beginning of time as property belonging to men to do as they please. The depiction of women in the Manusmriti, which is one of the most important and authoritative legal texts followed by Hindus, paints a clear picture of how women were perceived to be merely objects possessed by men in ancient India.

One of the verses from this text says that girls are supposed to remain in the custody of their father as children; women under the custody of their husband after marriage; and further, under the custody of their sons as widows. Women have been depicted as dependent on their husbands for their lives and not capable enough to make their own living.

In continuance of this line of narrow thought, the law-makers of the country did not find the argument giving women equal rights in property and making daughters coparceners by birth, compelling enough to bring a change in the societal hierarchy. The Hindu Law Committee’s proposal to remove the notion of granting rights in property by birth was met with lots of opposition as the patriarchal mindset could not accede their superiority over women and give them an equal status[2].

Thus, women remained on the lower pedestal of social structure and did not receive any property rights. The doctrine of survivorship too was an outcome of the patriarchal mindset that prevailed in that era. By keeping the coparcenary restricted only to male members of a joint family and placing survivorship over succession, a female was effectively completely locked out of the family property.

The doctrine has since been abolished by the amendment of 2005 to the Hindu Succession Act which gave the status of a coparcener to the daughter of a coparcener as well. It mandated that the daughter of a coparcener would become, by birth, a coparcener in the same manner as a son of a coparcener does. The daughter would also be entitled to and acquire all those rights in the coparcenary property as would a son in her stead[3]. Therefore, the doctrine of survivorship must be evaluated in light of women’s struggle for equality and property rights.

Hindu Joint Family

A Hindu Joint Family (HJF) is the basic and most fundamental unit of Hindu jurisprudence. Under traditional Hindu law, the ‘family’ has been considered as one of the most important institutions in society. The Dharmasastras dictate that the institution of the family is to be kept at the highest pedestal in an individual’s life and work as the other institutions depend upon it. A meaningful and complete life can be led only when the duties with regard to the family are taken care of. Thus, the family is of very special importance to Hindus.

A group of relatives, bound together in knots by relations of kinship and marriages constitute a Hindu Joint Family set-up.  A Hindu Joint Family can also be defined as a “larger body consisting of a group of persons, both male and female, who are united by a tie of sapindaship, arising by birth, marriage and adoption. It consists of a common ancestor, his lineal male descendants up to any generation, including widows, unmarried daughters, wives and adopted children.” The jointness of any Hindu Joint Family is presumed to be in three essential elements of life – food, worship and estate[4]. This presumption is held as valid until and unless any contrary position is proved.

The Supreme Court has held, in the case of Adiveppa v. Bhimappa[5], that “it is a settled principle of Hindu law that there lies a legal presumption that every Hindu Joint Family is joint in food, worship and estate. In the absence of any proof of division, such presumption continues to operate in the family. The burden lies on the member, who after admitting the jointness, asserts his claim that some properties are his self-acquired properties.”

Coparcenary 

The foundation of any Hindu Joint Family lies in the concept of coparcenary, which is a species in the realm of the Hindu Joint Family. Vijnaneshwara propounded that daya, or coparcenary property, is the type of property upon which a person can assert a claim on the basis of the relation between that person and the owner. In the modern scenario, this concept has been moulded into a full-fledged doctrine by which a person acquires certain interest in his/her family property simply by virtue of being born into that family. It is essential to understand that coparcenary is a very narrow branch in the wider set-up of a Hindu Joint Family. The coparcenary does not include all the members of a joint family. It is limited to that degree of persons who have been defined as having an interest in the coparcenary property by birth. This extends to four generations of a lineage starting from the last holder of the property.

Coparcenary property means and includes the following kinds of property:

i. That which is acquired with the assistance of joint family property or which is acquired jointly by two or more coparceners as joint family property;

ii. That which is regarded as ancestral property in Hindu law;

iii. That which is owned separately by a coparcener but later thrown into the common stock of the coparcenary voluntarily by the owner.

As per the Mitakshara school of thought, there is no individual ownership of property, rather it is corporal in nature. No single person owns the property, but the entire body of coparceners exercises ownership over the property together. Thus, there comes into being survivorship. Survivorship is constituted in the sense that interest in the property is devolved to the survivors of the last holder of the property post his death which implies that the interest never ceases to exist, rather it is simply passed on.

The essence of a coparcenary under the Mitakshara School of Hindu law is a community of interest and unity of possession[6]. However, under the Dayabhaga school of thought, the concept is entirely different. Here, no one acquires interest in the property by birth, but the right arises on the death of the father. Therefore, there is no survivorship in the property under Dayabhaga.

Survivorship

In the original Mitakshara coparcenary set-up, the property of the family devolved by survivorship, i.e., the interest held by a coparcener in the property did not cease to exist on his/her death but this interest was transferred to the remaining coparceners. In State Bank of India v. Ghamandi Ram[7], the Supreme Court has held that “the Mitakshara coparcenary entails certain incidents, such as (i) the property, in which the male issue of a coparcener acquires an interest by birth; and (ii) the joint property devolves by survivorship, and not by succession.”

The first incident pointed out in the above-cited case is one of the most remarkable features of the concepts of coparcenary and survivorship. The interest that a coparcener is entitled to at his/her birth, is never a fixed interest. Rather, the interest keeps fluctuating along with the occurrence of births and the deaths in the family. Death of an existing coparcener will enlarge the interest of the remaining members in the coparcenary. On the contrary, the birth of a new member in a coparcenary will diminish the interests of pre-existing members as the number of people having an interest in the property will increase.

Section 6 of the Hindu Succession Act, 1956 makes provisions for the devolution of interest in coparcenary property of a person who dies intestate, i.e., without making a will before dying. Prior to the amendment of the Act in the year 2005, men and women were not deemed to have equal rights under the Hindu personal law. The law provided then that when a person died intestate, leaving behind only male heirs, the coparcenary property will devolve accordingly by survivorship to his sons, grandsons and great-grandsons. The devolution and inheritance process included only male heirs up to three generations from the deceased coparcener. In a nutshell, this is what is referred to as the doctrine of survivorship.

As a result of the doctrine of survivorship, women were denied the right to inherit property as they were not considered as coparceners in the first place. Thus, there was a very wide and disturbing lacuna in the law as it discriminated severely between male and female heirs. Even the wife of the deceased coparcener was not included in the devolution of property as she was not a coparcener in the joint family of her husband. This was the trigger point for bringing about the amendment of 2005.

Originally, the relevant clause of this particular section read as follows: “Devolution of interest in coparcenary property. – When a male Hindu dies after 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.[8]”

Abolition of the Doctrine

The B.N.Rau Committee had recommended the abolition of the Mitakshara coparcenary concept altogether, which would render the survivorship doctrine ineffective. Yet, this recommendation was brushed aside due to strict opposition from various sections of society and therefore, the coparcenary has continued to this date[9]. Even the legislature was caught in a fix over the rights over women to property. Take, for instance, the Hindu Women’s Right to Property Act, 1937. The provisions of this law permitted a widow to take control of the undivided share of her deceased husband in the coparcenary. Thus, she stepped into the shoes of her husband and as a consequence, succession by the doctrine of survivorship could not take place until the death of the widow. This entitled the widow to a class of rights which are only available to a coparcener, such as the right to demand a partition[10].

However, the provision attached to the clause reproduced above seems to have offered some sort of protection to women, although it was inadequate until daughters were recognised as coparceners by birth. The provision stated that when the deceased coparcener was survived by a female relative falling under the category of Class I heirs, the devolution will not take place by survivorship, rather it would take place in accordance with the Hindu Succession Act, 1956.

Section 8 of the Act also provided some relief to female members of a Hindu Joint Family. It provided some rules for succession in case of a Hindu male dying intestate. It mandated that – “(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.[11]” Therefore, the effect of the doctrine of survivorship wherein only male members of the family could benefit from the interest of the deceased member was attenuated to a limited extent.

The final blow to the doctrine of survivorship, however, came after five decades of struggle against the original enactment. In 2005, the Hindu Succession Act was finally amended to recognise daughters at par with sons and grant them the status of coparcenary by birth. After the amendment, Section 6 of the Act reads as follows: “… the daughter of a coparcener shall,― (a) by birth become a coparcener in her own right the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener …[12]”

Conclusion

The doctrine of survivorship under Hindu law was bid a final goodbye and buried among the heap of outdated laws after the Hindu Succession (Amendment) Act, 2005 was passed by the Parliament. Women were finally placed on an equal footing with men, at least with regards to interest in the property. Daughters of a coparcener were also given the status of coparceners which started right from their birth, providing them with a similar status as that of a son. The abolition of the doctrine of survivorship was a landmark moment in India’s legal jurisprudence.

Although making daughters coparceners has been a commendable move, it is merely a band-aid on a deep-running wound. To keep up with the changing times, Hindu law must be evolved to remove the concept of right by birth as it gives birth to more anomalies than the number of problems it solves. The solution lies, as the B.R. Rau Committee had recommended earlier at the time of the drafting of the Hindu Code legislations, in getting rid of the entire concept of coparcenary itself and having a more holistic law relating to intestate succession among Hindus in India.

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ENDNOTES

[1] Section 2, Hindu Succession Act, 1956.

[2] Singhal, Shivani. “Women as Coparceners: Ramifications of the Amended Section 6 of the Hindu Succession Act, 1956.” Student Bar Review, vol. 19, no. 1, 2007, pp. 50–67. JSTOR, www.jstor.org/stable/44308350. Accessed 16 Feb 2020.

[3] Section 6, Hindu Succession Act, 1956.

[4] Raghunadha v. Brozo Kishoro (1876) 3 IA 154.

[5] AIR 2017 SC 4465.

[6] VIJENDER KUMAR AND VIDHI SINGH, Extinguishing Hindu Joint Family and Mitakshara Coparcenary: A Critique, NLU Nagpur Contemporary Law and Policy Review, Vol. 1 Issue 1, 2018, pg. 3.

[7] AIR 1969 SC 1330.

[8] Section 6, Hindu Succession Act, 1956, [Substituted by Section 3, Hindu Succession (Amendment) Act, 2005].

[9] M. Kishwar, Codified Hindu Law: Myth or Reality, 33 Economic and Political Weekly 2145, 2154 (1994).

[10] J.D. Mayne, Treatise on Hindu Law and Usage, pg. 861.

[11] Section 8, Hindu Succession Act, 1956.

[12] Section 6, Hindu Succession Act, 1956.