“The glory of justice and the majesty of law are created not just by the Constitution – nor by the courts – nor by the officers of the law – nor by the lawyers – but by the men and women who constitute our society – who are the protectors of the law as they are themselves protected by the law.” — Robert Kennedy
The word 'Hindu' is derived from the river Sindhu which is known as Indus which flows from the Punjab. That part of the famous and controversial Aryan race who had immigrated from Central Asia by crossing the mighty mountains into India were first settled in the districts near the river Sindhu.
The Constitution-makers were fully aware of the ever widening scope and boundaries of Hindu religion as the sources of the state; and so when they were confirming the fundamental right to freedom of religion, Explanation II of Article 25 of Constitution of India was kept under monitoring namely. The Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, thereafter overturned the concept of Hindu under the above mentioned Acts and an extended meaning and purpose was offered so that the laws can become at par with the evolutioning societies from time to time.
Section 2 of the The Hindu Succession Act, 1956 states that:
Application of Act.
(1) This Act applies--
(a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation.-- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:--
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
(c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
Coparcenary refers to equal divided inheritance that was running down only to male descendants of the Hindu Undivided Family. It has a narrow aspect covering only the persons within a joint family. Coparceners gain the property together and have equal possession. According to Merriam Webster Dictionary, the word coparcenary reflects itself as ‘Joint Heirship’ or ‘Joint Ownership.’
A coparcener is a person who inherits the property in the joint family by birth. The most important and only difference between a 'coparcener' and a 'member' of an Hindu Undivided Family is that a coparcener can enforce partition of the Hindu Undivided Family, while a member cannot enforce partition.
Prior to the year 2005, an HUF was interpreted as a family with a common ancestor and all lineal male descendants together with their wives and unmarried daughters. The 2005 Amendment of the Hindu Succession Act, 1956 however brought about an immense amount of changes in the category of HUF.
Before the Amendment of 2005, only the direct male descendants were considered and allowed as coparceners whereas daughters had to attain the status of members. The daughters did not have any control over the properties related to their father because they were called as 'ParayaDhan' which means someone else's property or dignity. This was encouraged because marriage being a social institution allows the daughters to tie a bond with another person and family for the rest of her life. The Amendment of 2005 however has conferred equal rights upon daughters and finally they achieved the equity status. Daughters as well as sons can become coparceners of their father's HUFs on birth, with the result that they have equal rights in the property dealings.
The Hindu Succession Amendment Act, 2005 was established to widen the scope and horizon of the rights of a daughter who can be married or unmarried and to bring her same as the male member of a Hindu joint family regulated by the Law of Mitakshara.
By this established amendment, the daughter reserves her rights same as the son of the father. Therefore she will be responsible and will have to face the good and bad aspects which can be inheritance or clearing off debts. And regardless, she on her own can dismiss her share through legal procedure or mentioning in her will.
In M. Yogendra and Ors. vs. Leelamma N. and Ors., the Supreme Court held that the Act undoubtedly would prevail over the Hindu Law. It may be noticed that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005.
Further in G. Sekar vs. Geetha and Ors., the Supreme Court held that: "It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only by Section 6 of the Act but also by conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act."
ASSESSMENT OF HUF
A Hindu Undivided Family is witnessed as a separate assessable entity under the Hindu Succession Act, 1956. The income may be assessed if following two conditions are satisfied:
i. There should be a coparcenarship. In this type of condition, when the income of the family under HUF is assessed then, it continues to be assessed as such in subsequent assessment years until the partition is claimed by coparceners of the family
ii. There should be an existence of a joint family property which should contain ancestral property, property acquired with the aid of ancestral property and property transferred by its members.
Ancestral property as above mentioned, may be defined as the property which is inherited by a man from any of his three immediate male ancestors, i.e. his father, grandfather and great grandfather. Therefore, property which is inherited by any other source or origin, it will not be considered as an ancestral property.
Income from ancestral property for the following families is taxable as income of Hindu Undivided Family:
a) A family of widowed mother and her sons (can be minor or major);
b) Family of a husband and a wife who have no child ;
c) Family of widows of deceased brothers ;
d) Family of two or more brothers ;
e) Family of an uncle and a nephew ;
f) Family of a mother, her son and the son’s wife ;
g) Family of a male and his late brother’s wife.
When a daughter obtains property from her joint family then it will be considered as her absolute property. If from there an income is earned by her then the tax would be charged on her individually. Then it opens an opportunity for any legal heir receiving the property in the capacity of a deserved descendent.
The concept of coparcenary had a long long way to come and reach where it is now. Since our society is dynamic therefore the laws should become dynamic in nature in order to cope up with the upcoming transformations. The Amendment of 2005 has indeed brought equality and is regarded as a big leap towards the modern generation. The family law is based upon customary laws which obviously portray an air of traditions and belief from every personal law. The Hindu Law is the oldest form of laws which governed and administered the people. Therefore, it is obvious that the laws will not run parallely admist the rapidly growing economies and modernising societies.
It is necessary to understand whether equality exists only as an activity or status in our Constitution but the true meaning can only be established if the either of the sexes and genders as well adhere to humanity which is the most important aspect to count upon.
: CIVIL APPEAL NOS.4818-4819 OF 2009 ARISING OUT OF S.L.P. (C) NO.5964-5965 OF 2008
Decided On, 29 July 2009
: Original Side Appeal No. 29 Of 2010 & Miscellaneous Petition No. 1 Of 2010 | 28-01-2010
G. Sekar v. L. Geetha& Others
● THE SUPREME COURT AND THE HINDU UNDIVIDED FAMILY: A FOOTNOTE J. Duncan M. Derrett, Journal of the Indian Law Institute; Vol. 20, No. 3 (July-September 1978), pp. 463-470 (8 pages) Published By: Indian Law Institute