Legal Analysis: Madras HC Ruling on Hindu Succession Act 2005

The Hindu Succession (Amendment) Act, 2005 (the 2005 Amendment) was meant to remove a long-standing gender inequality in Mitakshara coparcenary law by giving daughters, by birth, the same coparcenary rights as sons. More than 20 years later, courts are still working out a question the amendment itself never answered: What happens when the daughter through whom a claim is made died before the amendment came into force, on 9 September 2005, but left behind legal heirs who were alive on that date? The Madras High Courts Division Bench recently took up this question in M. Iyyanar v. Kalvikarasi 1 and held that the daughter herself must have been alive on 9 September 2005 for a coparcenary right to arise in her. As a result, her legal heirs cannot claim the share she would have taken as a coparcener. This article looks at the reasoning in the M. Iyyanar case , at the case made by some of the amici in the same matter, which this article calls the revival argument, that the right should pass to the daughters legal heirs who were alive when the amendment took effect, and at the main objection to that argument: that a right cannot, as a matter of principle, be conferred on someone who is already dead. Findings in M. Iyyanar v. Kalvikarasi : What the court held The dispute arose out of a partition suit. The coparcener, Murugesa Gounder, died on 3 June 2007, leaving a son and four daughters. One of the daughters, Anbazhagi, had predeceased him on 3 March 1998, well before the 2005 Amendment . Her daughter, the fourth plaintiff, joined the other daughters and their heirs in seeking partition, and claimed the share Anbazhagi would have taken as a coparcener. The trial court granted each of the five branches, including hers, a 1/5 share, and the defendants appealed. On appeal, the defendants accepted that, at most, the 4th plaintiff could take 1/25 as an heir to her grandfathers own share but disputed the coparcenary share claimed through her mother. The Division Bench framed the issue as whether a daughter must be alive on 9 September 2005 to claim the benefit of amended Section 6, Hindu Succession Act, 1956 and answered yes. The reasoning rested on four main points. First, reading paras 61, 69, 76, 78, 80, 85 and 114 of Vineeta Sharma v. Rakesh Sharma 2 together, the court held that although a daughter becomes a coparcener by birth, the right, though conferred retroactively, can be exercised only on and from 9 September 2005, and only by a daughter who is alive on that date. Second, it placed particular weight on para 80 of that judgment, where the Supreme Court, while rejecting the living coparcener requirement for the daughters father, also observed that the daughters should be living on 9-9-2005, and on para 114, under which a daughter alive on the date the amendment came into force becomes a coparcener from that date. The Bench treated para 80 as a finding rather than a passing remark. Third, it found support in the Full Bench decision of the Bombay High Court in Badrinarayan Shankar Bhandari v. Ompraskash Shankar Bhandari 3 , which the Supreme Court considered in Vineeta Sharma case without overruling; in Kamlakar Purushotaminamdar v. Rajani Shriram Madiwale 4 , a Single Judge decision of the Bombay High Court that the Supreme Court has since confirmed in a special leave petition; and in the decision of a Single Judge of the Madras High Court in R. Muthulakshmi v. Valliamrnal 5 . Fourth, and most important for this discussion, the court held that Section 6(3), the provision protecting the branch of a predeceased son or daughter, applies only where a Hindu dies after the commencement of the amendment, and so cannot be applied to distribute the interest of a daughter who died before that date to her legal heirs. It drew support from para 71 of Prasanta Kumar Sahoo v. Charulata Sahu 6 , which records that the coparcenary must exist on 9 September 2005 and that a daughter born before the amendment can claim coparcenary rights only from t