The law relating to a
Joint Hindu Family governed by the Mitakshara law has undergone unprecedented
changes. The said changes have been brought forward to address the growing need
to merit equal treatment to the nearest female relatives, namely, daughters of
a coparcener. The section stipulates that a daughter would be a coparcener from
her birth, and would have the same rights and liabilities as that of a son. The
daughter would hold property to which she is entitled as a coparcenary
property, which would be construed as property being capable of being disposed
of by her either by a will or any other testamentary disposition. These changes
have been sought to be made on the touchstone of equality, thus seeking to
remove the perceived disability and prejudice to which a daughter was
subjected. The fundamental changes brought forward about in the Hindu
Succession Act, 1956 by amending it in 2005, are perhaps a realisation of the
immortal words of Roscoe Pound as appearing in his celebrated treaties, The
Ideal Element in Law, that “the law must be stable and yet it cannot stand
still. Hence all thinking about law has struggled to reconcile the conflicting
demands of the need of stability and the need of change”.
Section 6 of the
Hindu Succession Act, as amended, stipulates that on and from the
commencement of the amended Act, 2005, the daughter of a coparcener shall by
birth become a coparcener in her own right in the same manner
as the son. It is apparent that the status conferred upon sons under the
old section and the old Hindu Law was to treat them as coparceners since
birth. The amended provision now statutorily recognises the rights of coparceners
of daughters as well since birth. The section uses the words in
the same manner as the son. It should therefore be apparent that both the
sons and the daughters of a coparcener have been conferred the right of
becoming coparceners by birth. It is the very factum of
birth in a coparcenary that creates the coparcenary, therefore the
sons and daughters of a coparcener become coparceners by virtue of
birth. Devolution of coparcenary property is the later stage of and a
consequence of death of a coparcener. The first stage of a coparcenary is
obviously its creation and is well recognised. One of the incidents of
coparcenary is the right of a coparcener to seek a severance of status. Hence,
the rights of coparceners emanate and flow from birth (now including daughters)
as is evident from sub-sections (1)(a) and (b). Danamma v. Amar, (2018) 3 SCC 343
It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. Shyam Narayan Prasad v. Krishna Prasad¸ (2018) 7 SCC 646.
In Kale v. Director of Consolidation, (1976) 3 SCC 119, it was held as under:
“By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.
The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term ‘family’ has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have spes successionis so that future disputes are sealed forever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. Rajni Sanghi v. Western India State Motors Ltd., (2015) 16 SCC 631.
Hindu Marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of bone to bone and flesh to flesh. To a Hindu wife her husband is God and her life becomes one of the selfless service and profound dedication to her husband. She not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband’s life and activities. Colebrooke in his book Digest of Hindu Law, Vol.II, described the status of wife thus:
“A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts: whether she ascends the pile after him or survives for the benefit of her husband, she is a faithful wife.”
Further Colebrooke in his book Digest of Hindu Law, Vol. II quoted the Mahabharata at page 121 thus:
“Where females are honoured, there the deities are pleased; but where they are unhonoured there all religious acts become fruitless.” Anuradha Samir Vennangot v. Mohandas Samir Vennangot, (2015) 16 SCC 596.
To put binding effect and the essentials of a family settlement in a concretized form, the matter may be educed into the form of following propositions:
(1) The family settlement must be bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.
(3) The family arrangement may be oral even in which case no registration is necessary.
(4) It is well settled that registration would be necessary only if the terms of the family arrangements are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable.
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has not title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same.
(6) Even if bona fide dispute, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable is final and binding on the parties to the settlement. Smt. Rama Devi v. Mahendra Pal, 2016 (114) ALR 852.
In a recent judgment of the Allahabad High Court (Phool Chand v. Joint Director of Consolidation),it was held as under:
“The presumption under the Section is that if the deed is signed by the person giving and the person taking in adoption the provision has been complied with. It is the person challenging the factum of adoption who has to disprove the adoption. A mere plea that the deed is not genuine is not sufficient to rebut the presumption under Section 16 of the Act. Under such circumstance, the plea that the requirements of Section 11 of the Act had not been satisfied are not made out and hence loose all significance with the registration of the deed of adoption.”