Kerala Joint Family System (Abolition) Act Is In Direct Conflict With Hindu Succession (Amendment) Act: Kerala High Court
The Kerala High Court referred to the ‘Skanda purana’ Chapter 23 Verse 46, which depicts the importance of a daughter in our society.
Justice Easwaran S., Kerala High Court
The Kerala High Court held that the Kerala Joint Family System (Abolition) Act, 1975 is in direct conflict with the Hindu Succession (Amendment) Act, 2005.
The Court held thus in a Second Appeal in which the issue arose regarding questions including the question of repugnancy of the Kerala Joint Hindu Family System (Abolition) Act qua the Hindu Succession (Amendment) Act.
A Single Bench of Justice Easwaran S. observed, “… when the understanding of the author of the legislation, Act 30 of 1976, is made evident before this Court, the argument of the learned Senior Counsel for the respondents that the Amendment Act of 2005 does not affect the statutory partition effected under the Act 30 of 1976 will pale into oblivion. Accordingly, the question of law framed in answered by holding that Kerala Joint family System(Abolition) Act 1975 is in direct conflict with the Hindu Succession (Amendment) Act 2005.”
The Bench said that the provisions of the Act 30 of 1976 and the amendments caused to the Hindu Succession Act, 1956 (HSA) by Act 39 of 2005 are in direct conflict and therefore, after the amendment to the HSA, the Act 30 of 1976 lost its efficacy and will have to cede to the Act 39 of 2005.
“In a daughter, the goddess of prosperity resides always. She is established in her always. A daughter is glorious, endowed with all that is good, to be honoured at the beginning of every good work”, the Court also quoted this verse which underscores the revered status of daughters in ancient Indian society, likening them to Lakshmi, the goddess of wealth and prosperity. The ‘Skanda purana’ Chapter 23 Verse 46 -depicts the importance of a daughter in our society.
Advocate Nirmal S. appeared on behalf of the Appellants while Senior Advocate Shyam Padman, Special Government Pleader (SGP) S. Renjith, and Advocate Laya Mary Joseph appeared on behalf of the Respondents. Senior Advocate P.B. Krishnan was appointed as the Amicus Curiae by the Court.
Facts of the Case
The Plaintiffs and Defendant No. 3 were siblings born in the wedlock of Defendants 1 and 2. The plaint schedule properties originally belonged to one Nambidi Parambath Tharawad by a registered deed. The properties were partitioned among its then members, including the first Defendant. The plaint schedule properties with certain other items were allotted to the 1st Defendant and on behalf his branch. The 2nd Defendant being his wife, had no right over the properties, except maintenance. It was contended that after the HSA amendment, the Plaintiffs being the daughters of the deceased 1st Defendant are also entitled to equal share in the property. Though the 1st Defendant had executed a Will, he did not have a right to bequeath the properties in favour of son i.e., 3rd Defendant. Thus, the Will was valid only to the extent of the share, the 1st Defendant inherited over the property which was allotted to him as per the registered partition deed.
The Defendants entered appearance and contested the case. The 1st Defendant who was alive at the time of filing the suit, stated that he was in sound mind and the Will was executed by him. It was further contended that since the Plaintiffs were married away by spending his own money, they are not entitled for partition. The 3rd Defendant supported 1st Defendant. The Trial Court found that the Will is genuine and was executed by the 1st Defendant and therefore, it dismissed the suit. On Appeal by the Plaintiffs, the First Appellate Court found that the Will bequeathing the entire extent of the property in favour of son is not valid. It passed a preliminary decree for partition dividing the property item nos. 1, 3, and 4 and allotting the Plaintiffs 1/12th share each in it. Insofar as item no. 2 property is concerned, it was held as not partible. Being aggrieved, the Plaintiffs approached the High Court.
Issues for Consideration
The following substantial questions of law were raised by the Plaintiffs before the Court –
i. Whether the Plaintiffs, being the female members can claim right over the plaint schedule property as a coparcener along with the 2nd Respondent, male member in view of the Hindu Succession (Amendment) Act, 2005 in view of the decision of the Supreme Court in Vineeta Sharma v. Rakesh Sharma and Others (2020)?
ii. Whether after the promulgation of the Hindu Succession (Amendment) Act, 2005, the Kerala Joint Hindu Family System (Abolition) Act, 1975, will survive rigour of Article 254 (1) of the Constitution of India.
Court’s Observations
The High Court in view of the above facts, highlighted, “दशपुत्रसमा कन्या दशपुत्रान्रवर्धददयन्। यत्फलं लभते मत्यदस्तल्लभ्यं कन्ययैकया॥". Meaning thereby, “One daughter is equal to ten sons. Whatever phala (merits, good results) a person attains by siring and upbringing ten sons, the same phala is attained by begetting a single daughter.”
The Court remarked that the aforesaid statement, however, does not always stand as a true reflection of a daughter’s right when it comes to the right of inheritance to her father’s property as in the ancient customary law like “Mitakshara Law”, daughters are not entitled to any right by birth on the ancestorial property.
“When the Hindu Succession Act, 1956 was enacted, the position was the same. However, the law underwent a radical change when the Parliament enacted the Hindu Succession (Amendment) Act, 2005. However, in State of Kerala, we are faced with a peculiar situation wherein the Kerala Joint Hindu Family System (Abolition) Act, 1975 stands in the way of a daughter claiming the benefit of Hindu Succession (Amendment) Act, 2005”, it added.
The Court further noted that the Presidential assent would give the Act 30 of 1976 predominance over Section 6 of the HSA, but, the said Presidential assent will not enable the State to claim immunity for the Act 30 of 1976, when a subsequent amendment is brought into the Central legislation by the Parliament.
“Once the Hindu Succession Act, 1956 was amended by the amending Act 39 of 2005, it was incumbent upon the State legislature to have caused subsequent amendment to the Act 30 of 1976, thereby making sufficient safeguards for the operation of the Act and send the said amendment for the presidential assent in order to save it from repugnancy under Article 254(2). Therefore, as on today, Section 6 as amended by the Parliament by Act 39 of 2005 is the law as far as the State of Kerala is concerned”, it said.
The Court, therefore, held that Section 3 of the Act 30 of 1976 is in collision caused to Section 6(1) and 6(2) of the Act 39 of 2005 and Section 4 of the Act 30 of 1976 is inconsistent and repugnant to Section 6 of the Amendment Act [Act 39 of 2005].
“In this context, it is important for this court to take note of submissions of the Special Government Pleader that, only on execution of a registered partition deed after the notional partition having been effected, the parties will get true benefit of Section 4. The argument is, perfectly in consonance with the intention of the Parliament under sub-Section (5) of Section 6 and also the principles laid down by the Supreme Court in Vineeta Sharma (supra). The above stands appears to be in tune with the averments in the counter affidavit filed by the State before the Division Bench in WP(C) No.17530/2020. Of course, the State could not have resiled from their stand in the counter affidavit filed before the Division bench in WP(C) No 17530 of 2020 and contend otherwise before this Court in the present appeal”, it also observed.
Conclusion
Summarizing the analysis as above, the Court concluded the following points –
(a) Section 3 and Section 4(1) of the Kerala Joint Hindu Family System (Abolition) Act, 1975 [Act 30 of 1976] are repugnant to Section 6 of the Hindu Succession (Amendment) Act, 2005 [ Act 39 of 2005], and thus cannot have any effect.
(b) The decisions of the High Court in Babu v. Ayillalath Arunapriya [2012 (4) KHC 445] and Kali Ammal & Another v. Valliyammal & Others [2016 (5) KHC 332] are no longer good law, in the light of the decision of the Supreme Court in Vineeta Sharma v. Rakesh Sharma and Others (2020).
(c) On and from the commencement of the Hindu Succession (Amendment Act), 2005, daughter of a Hindu who dies after December 20, 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.
Accordingly, the High Court answered the substantial questions of law in favour of the Appellants (Plaintiffs-daughters), reversed the impugned Judgment, and passed a preliminary decree ordering partition of the property into equal share of the daughters and son.
Cause Title- N.P. Rajani & Ors. v. Radha Nambidi Parambath & Anr. (Neutral Citation: 2025:KER:49346)
Appearance:
Appellants: Advocates Nirmal S. and Veena Hari.
Respondents: Senior Advocates Shyam Padman, P.B. Krishnan, Sr. GP K. Denny Devassy, SGP S. Renjith, Advocates Laya Mary Joseph, C.M. Andrews, P.T. Mohankumar, Boby M. Sekhar, Irene Paramel, and Piyo Harold Jaimon.
