Daughter Of Hindu Who Died After 20.12.2004 Entitled To Equal HUF Share In Kerala; Kerala Joint Family Abolition Act Repugnant To HSA : HC
The Kerala Excessive Courtroom on Monday dominated that Sections 3 and 4 of the Kerala Joint Hindu Household System (Abolition) Act 1975 are repugnant to Part 6 of the Hindu Succession (Modification) Act, 2005, and therefore, can’t prevail.
As per Part 3 of the Kerala Joint Hindu Household System (Abolition) Act, no particular person can declare birthright in a household. As per Part 4 of the Act, a Hindu Undivided Household in Kerala is deemed to have been partitioned and transformed to tenancy-in-common.
The Courtroom famous that due to these provisions, a Hindu daughter can’t declare equal coparcenary rights in a joint household property, as per the 2005 Modification to the Hindu Succession Act.
“in State of Kerala, we’re confronted with a peculiar state of affairs whereby the Kerala Joint Household System (Abolition) Act, 1975 stands in the best way of a daughter claiming the advantage of Hindu Succession (Modification) Act, 2005,” the Courtroom noticed in its judgment.
Holding that Part 3 and Part 4 of the Kerala Joint Hindu Household System (Abolition) Act, 1975 are repugnant to Part 6 of the Hindu Succession (Modification) Act, 2005 [ Act 39 of 2005], and thus can’t have any impact, the Courtroom declared :
“On and from the graduation of the Hindu Succession (Modification Act), 2005, daughter of a Hindu who dies after 20.12.2004, within the State of Kerala is entitled to equal share within the ancestral property, topic to the exception offered below sub-Part (5) of Part 6 and the Rationalization to sub-Part (5) of Part 6.”
The judgement was delivered by Justice Eswaran on an everyday second enchantment.
The case originated from a partition go well with, in search of equal share of their late father’s ancestral property. The query of legislation earlier than the courtroom was whether or not the plaintiffs being a feminine members can declare the precise over the plaint schedule property as a coparcener together with the male member in view of the Hindu Succession (Amendement) Act, 2005 and whether or not after the promulgation of the Hindu Succession (Modification) Act, 2005, the Kerala Joint Hindu Household System (Abolition) Act, 1975, will survive the rigour of Article 254(1) of the Structure.
The appellants argued that they had been entitled to equal inheritance below the Hindu Succession (Modification) Act, 2005, which grants daughters coparcenary rights by delivery.
The defendants, countered the declare, citing a Will allegedly executed by the daddy of their favour and argued that the Kerala Joint Hindu Household System (Abolition) Act, 1975, excluded daughters from coparcenary rights within the State.
P. B Krishnan, Senior Counsel appointed as Amicus Curiae, raised that the State Act is in direct battle with the Central Act in view of the battle between sections 3 and 4 of the State Act with that of part 6 of the Central Act.
Particular Authorities Pleader, who addressed the Courtroom on the query as as to if the provisions of the State Act stands in battle with that of the Hindu Succession (Modification) Act, 2005, contended that each the enactments are meant to function on totally different points altogether.
The Courtroom emphasised that the 1975 Kerala Act, regardless of its title, didn’t explicitly abolish the joint household system. It solely offered for a ‘deemed partition’, changing coparcenary to tenancy in widespread, however didn’t destroy the underlying joint household construction.
The Courtroom reaffirmed that the daddy couldn’t bequeath the whole ancestral property to 1 inheritor, because the legislation mandated equal shares amongst all authorized heirs, together with daughters.
Drawing closely from the 2020 Supreme Courtroom ruling in Vineeta Sharma v Rakesh Sharma, the Courtroom said that daughters purchase coparcenary rights by delivery, not depending on the daddy’s survival previous the 2005 modification.
The choice clarified that prior Excessive Courtroom judgments like Babu v Ayillalath Arunapriya (2012), Kali Ammal & Anr v Valliyammal &Ors (2016) had been not good legislation within the gentle of the Supreme Courtroom choice in Vineeta Sharma.
The Courtroom additionally opined that with the enactment of the Hindu Succession Act, the Parliament had evinced the intention to occupy the whole discipline and therefore a State legislation repugnant to the Central legislation can’t be sustained.
Counsel for Appellant – Nirmal S
Counsel for Respondent/defendant – Shyam Padman (Sr), Senior Authorities Pleader S Renjith for State of Kerala
Amicus Curiae – P B Krishna (Sr.)