Daughter Of Hindu Who Died After 20.12.2004 Entitled To Equal HUF Share In Kerala; Kerala Joint Family Abolition Act Sections Repugnant To HSA : HC
The Kerala High Court on Monday ruled that Sections 3 and 4 of the Kerala Joint Hindu Family System (Abolition) Act 1975 are repugnant to Section 6 of the Hindu Succession (Amendment) Act, 2005, and hence, cannot prevail.
As per Section 3 of the Kerala Joint Hindu Family System (Abolition) Act, no person can claim birthright in ancestral property. As per Section 4 of the Act, a Hindu Undivided Family in Kerala is deemed to have been partitioned and converted to tenancy-in-common.
The Court noted that because of these provisions, a Hindu daughter cannot claim equal coparcenary rights in a joint family property, as per the 2005 Amendment to the Hindu Succession Act.
"in State of Kerala, we are faced with a peculiar situation wherein the Kerala Joint Family System (Abolition) Act, 1975 stands in the way of a daughter claiming the benefit of Hindu Succession (Amendment) Act, 2005," the Court observed in its judgment.
Holding that Section 3 and Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 are repugnant to Section 6 of the Hindu Succession (Amendment) Act, 2005 [ Act 39 of 2005], and thus cannot have any effect, the Court declared :
"On and from the commencement of the Hindu Succession (Amendment Act), 2005, daughter of a Hindu who dies after 20.12.2004, in the State of Kerala is entitled to equal share in the ancestral property, subject to the exception provided under sub-Section (5) of Section 6 and the Explanation to sub-Section (5) of Section 6."
As per Section 6(5), the 2005 amendment will not affect a partition, which has been effected before the 20th day of December, 2004.
The judgement was delivered by Justice Eswaran on a regular second appeal.
The judgment opened with a verse which likened daughters to goddess Lakshmi. Reference was also made to a verse in Skanda Purana, which said, "One daughter is equal to ten sons."
The case originated from a partition suit, seeking equal share in their late father's ancestral property. The question of law before the court was whether the plaintiffs being a female members can claim the right over the plaint schedule property as a coparcener along with the male member in view of the Hindu Succession (Amendement) Act, 2005 and whether after the promulgation of the Hindu Succession (Amendment) Act, 2005, the Kerala Joint Hindu Family System (Abolition) Act, 1975, will survive the rigour of Article 254(1) of the Constitution.
The appellants argued that they were entitled to equal inheritance under the Hindu Succession (Amendment) Act, 2005, which grants daughters coparcenary rights by birth.
The defendants, countered the claim, citing a Will allegedly executed by the father in their favour and argued that the Kerala Joint Hindu Family System (Abolition) Act, 1975, excluded daughters from coparcenary rights in the State.
P. B Krishnan, Senior Counsel appointed as Amicus Curiae, raised that the State Act is in direct conflict with the Central Act in view of the conflict between sections 3 and 4 of the State Act with that of section 6 of the Central Act.
Special Government Pleader, who addressed the Court on the question as to whether the provisions of the State Act stands in conflict with that of the Hindu Succession (Amendment) Act, 2005, contended that both the enactments are intended to operate on different issues altogether. It was also pointed out that the Joint Family Abolition Act had received the President's assent on 10.8.1976 and hence no question of repugnancy arose. It was also pointed out that its validity was upheld by the High Court in Chellamma Kamalamma vs Narayana Pillai J [1993 KHC 35].
The Court emphasised that the 1975 Kerala Act, despite its title, did not explicitly abolish the joint family system. It only provided for a 'deemed partition', converting coparcenary to tenancy in common, but did not destroy the underlying joint family structure.
The Court reaffirmed that the father could not bequeath the entire ancestral property to one heir, as the law mandated equal shares among all legal heirs, including daughters.
Drawing heavily from the 2020 Supreme Court ruling in Vineeta Sharma v Rakesh Sharma, the Court stated that daughters acquire coparcenary rights by birth, not dependent on the father's survival past the 2005 amendment. Also, the said judgment did not accept notional/statutory partitions.
"The categoric finding rendered by the Supreme Court so far as exclusion of any other mode of partition other than execution of a registered document and a decree passed by the civil court, will certainly have an impact on the present case, inasmuch as there is no registered document entered between defendants 1 and 3 before coming into force of Act 39 of 2005."
The decision clarified that prior High Court judgments like Babu v Ayillalath Arunapriya (2012), Kali Ammal & Anr v Valliyammal &Ors (2016) were no longer good law in the light of the Supreme Court decision in Vineeta Sharma.
"When pitted against Section 3 of the Act 30 of 1976, it appears that there is a conflict with the central Act since it gives right by birth to a daughter which the State Act does not recognize. When Supreme Court in Vineeta Sharma (Supra) held that Act 39 of 2005 is retroactive, it renders the decision of the court in Kali Ammal (supra) and Ayillalath Arunapriya (supra) ineffective, thus eroding its precedential value."
The Court also opined that with the enactment of the Hindu Succession Act, the Parliament had evinced the intention to occupy the entire field and hence a State law repugnant to the Central law cannot be sustained. Reference was made to the speech made by the then Law Minister while moving the 2005 amendment to state that the Parliament was aware of the existence of the Kerala law. In this backdrop, the judgment stated :
"..this Court has no hesitation to conclude that when the Act 39 of 2005 was enacted, the Parliament intended the Act to occupy the field of 'succession' and 'joint family' under Entry-5 of List-III Seventh Schedule. Therefore, even if we were to assume that the Act 30 of 1976 enacted by the State of Kerala intended to occupy the field of 'joint family', immediately on introduction of Act 39 of 2005 , it governs both 'succession' and 'joint family' since without the other, amendment will not serve purpose."
As regards, the Kerala HC judgment in Chellamma Kamalamma , which upheld the 1976 Act, Justice Easwaran observed that the said judgment was based on the premise that the State enactment did not occupy the field relating to 'wills, intestacy and succession'. It was opined that the Chellamma Kamalamma judgment did not preclude the consideration of the question of repugnancy on any other ground.
Justice Easwaran observed that the 2005 amendment showed that the Parliament intended to continue the joint family system in the country.
"The amendments brought in would lead to an inference that, when the Parliament decided to confer benefits on a daughter by birth in a joint Hindu family, it intended to continue the joint family system in the country. "
The judgment also took note of the 174th report of the Law Commission of India which opined that the Kerala law failed to protect the share of daughter and widow from being defeated by making a testamentary disposition in favour of another or by alienation.
Counsel for Appellant - Nirmal S
Counsel for Respondent/defendant - Shyam Padman (Sr), Senior Government Pleader S Renjith for State of Kerala
Amicus Curiae - P B Krishna (Sr.)