Alive on 9 September 2005? A Legal Analysis of Madras High Court’s Decision in M. Iyyanar v. Kalvikarasi

Introduction

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 Court’s Division Bench recently took up this question in M. Iyyanar v. Kalvikarasi¹ 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 daughter’s 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 grandfather’s 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 Sharma² 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 daughter’s 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 Bhandari³, which the Supreme Court considered in Vineeta Sharma case without overruling; in Kamlakar Purushotaminamdar v. Rajani Shriram Madiwale⁴, 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. Valliamrnal⁵. 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 Sahu⁶, 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 that date.

On the question of gender discrimination, the Bench accepted that the pre-2005 position, which excluded daughters from coparcenary altogether, was itself discriminatory. But it held that the 2005 Amendment removed that discrimination only from a fixed date onward, and that choosing such a cut-off is a legitimate legislative decision rather than a continuation of the old discrimination. Adopting the submission of one of the amici, it held that the court “cannot put the clock back on time”. The same amicus had also argued that a right can only be conferred on a natural or juristic person capable of holding it, not on someone already dead, so that a daughter who died before 9 September 2005 could not receive a right on that date, however far back her underlying birthright might otherwise reach.

Section 6(3) and the legal heirs of a predeceased daughter

The heirs of Anbazhagi, did not ask the court to confer a right on Anbazhagi after her death. It took a different route. The purpose of the 2005 Amendment, on this reading, was to recognise the daughter’s line in the coparcenary on an equal footing with the son’s line, not simply to reward daughters who happened to survive to a particular date. One of the amici pointed out that the amendment also added four heirs to Class I of the Schedule, extending recognition to two generations of a predeceased daughter’s line, exactly as had always been the case for a predeceased son’s line. Sections 6(3)(b) and (c) were said to reflect the same parity: when a coparcener dies leaving a predeceased child, that child’s notional share passes to the surviving grandchild, so a family branch is not wiped out just because its immediate link died first. The argument is that this logic should apply consistently, whether the predeceased child was a son or a daughter, and whether her death fell before or after 9 September 2005, so long as her own legal heirs were alive when the amendment took effect.

On the facts, the argument also had a textual footing. Section 6(3) is triggered by the death of the coparcener whose interest is being divided, not by the death of the predeceased child. Murugesa Gounder died in 2007, after the amendment, and clause (b) gives a predeceased daughter’s branch the share she “would have got had [she] been alive at the time of partition”. Had Anbazhagi been alive in 2007, she would have been a coparcener in her own right. The Bench did not accept this reading. It held that Section 6(3) cannot be used to distribute the interest of a daughter who was not alive on 9 September 2005, and it divided only the father’s own 1/5 share among his heirs on his death, from which Anbazhagi’s branch received 1/25.

A further argument was that the notional partition under Section 6(3) is simply a machinery provision: it exists to work out a deceased coparcener’s share by assuming a partition immediately before death. Once that share is worked out, it becomes part of the deceased’s estate and passes under the ordinary rules of intestate succession, like any other property a person leaves behind. The amicus who advanced this argument accepted, however, that it could not succeed if the amendment were read as creating a new statutory right available only to daughters alive on 9 September 2005, which is how the Bench read it.

Under this reasoning, Anbazhagi’s legal representatives would not be asserting an independent coparcenary right of their own. They would simply be inheriting an asset that Section 6(3)’s fiction had already assigned to their mother’s estate. Further, reading the cut-off date to defeat a daughter’s heirs, when a son’s heirs would never face the same obstacle, risks bringing back through interpretation the very gender-based exclusion the 2005 Amendment was meant to end.

The Division Bench rejected this reasoning, holding that Section 6(3) applies only where a Hindu dies after the commencement of the amendment and cannot be applied to a daughter who died before it, so the machinery these arguments rely on was never available in Anbazhagi’s case. The Bombay Full Bench in Badrinarayan Shankar Bhandari case⁷, which supports that conclusion, was considered in Vineeta Sharma case⁸ and not overruled, and the Supreme Court has since confirmed Kamlakar in a special leave petition. What remains open to the heirs is narrow. The observation in para 80 of Vineeta Sharma case was made while rejecting the requirement that the coparcener father be alive, not in a case that directly raised the question of a predeceased daughter’s own heirs, and Kamlakar was confirmed through an order in a special leave petition. Whether either is enough to close off the revival argument, or leaves it open for a case that raises it squarely before a larger Bench, is itself an open question.

Can the “revival” argument meet the objection?

One objection to the “revival” argument remains: A right vests in a person, and someone who is dead cannot receive a newly created right, no matter how far back its underlying birthright is said to go.

The response available to those arguing for “revival” is that this is not actually what is being asked. On that theory, the “revived” right does not vest in the deceased daughter at all. It vests, from the start, in her living legal heirs, as an inherited item of property rather than a right conferred on her after death. The person actually receiving anything under this reasoning is alive on the relevant date, which is exactly what ordinary succession law requires.

The difficulty with this response is that it assumes the very thing in dispute: that Anbazhagi’s notional share in the coparcenary property had already crystallised into a heritable part of her estate before 9 September 2005. But the entire premise of amended Section 6 is that daughters did not hold coparcenary rights before the amendment; that is the discrimination the amendment was meant to fix. If Anbazhagi held no coparcenary interest when she died in 1998, there was nothing to crystallise into her estate for her heirs to inherit. The revival argument has to assume, in effect, that the amendment vests an interest in a daughter as of some date before her death, which is a stronger and more debatable claim than what Vineeta Sharma actually decided: that the right operates retroactively from birth but can only be exercised “on and from” 9 September 2005 by a daughter who is alive to exercise it.

Neither position fully closes the gap. The textual reading in M. Iyyanar case⁹ meets the objection that a dead person cannot hold a right, but it arguably treats a daughter’s branch differently from a son’s branch depending on the death, which may not sit with the amendment’s stated aim of putting daughters on an equal footing. The revival argument has the amendment’s purpose on its side, but it has not yet pointed to a provision, with the same textual precision, under which a coparcenary interest vests in a daughter who died before the amendment came into force. That gap remains unfilled for now.

The wider statute book helps both sides. Indian law does not ordinarily treat a dead person as alive. The General Clauses Act, 1897 does not define “person” to include a deceased person, and where Parliament wants that fiction, it says so in express words. Section 109, Succession Act, 1925 is the clearest example, where a child or other lineal descendant of a testator dies before the testator but leaves a lineal descendant, the bequest does not lapse and takes effect “as if the death of the legatee had happened immediately after the death of the testator”. Read one way, this supports the Bench: Section 6(1), which makes a daughter a coparcener, contains no such fiction. Read the other way, it supports the heirs, because Section 6(3)(b), Hindu Succession Act, 1956 is exactly such a fiction. It directs that the surviving child of a predeceased daughter be allotted the share she “would have got had [she] been alive at the time of partition”, and it is written specifically to protect a daughter’s branch.

On balance, the authors feel that the heirs’ argument is the more just one, and are inclined to go with it. Section 6(3)(b) is the one place where Parliament has protected a predeceased daughter’s branch. Where, as here, the father died after the amendment, the fiction operates at the notional partition immediately before his death, and at that point a living Anbazhagi would have been a coparcener in her own right. Had Anbazhagi been a son who died in 1998, his child would have taken his full share under clause (b) on the father’s death in 2007. Denying her child the same share makes the outcome for a daughter’s line turn on the accident of when a death occurred, which is the kind of distinction the 2005 Amendment set out to remove. On this reading, the heirs do not need a dead daughter to hold a right. They need only the fiction Parliament itself wrote into Section 6(3)(b).

Conclusion

M. Iyyanar case¹⁰ is a carefully reasoned answer to a question the Supreme Court has so far addressed only through its observations in Vineeta Sharma case and its order confirming Kamlakar: whether the legal heirs of a daughter who died before 9 September 2005 can claim the coparcenary share she would have held under the 2005 Amendment. The Bench’s answer, that they cannot because the daughter herself must be alive to hold the right, draws on Vineeta Sharma, on the Bombay Full Bench in Badrinarayan Shankar Bhandari case and the decision in the Kamlakar case¹¹, on the Madras High Court’s own earlier ruling in R. Muthulakshmi case¹², and on the Supreme Court’s decision in the Prasanta Kumar Sahoo case¹³. It does not leave the heirs with nothing. Where the father dies after the amendment, they still take a share of his own interest as his heirs, which in this case gave Anbazhagi’s branch 1/25.

At the same time, the arguments raised by the amici on the other side, that Sections 6(3)(b) and (c) exist specifically to protect a predeceased child’s branch, and that the 2005 Amendment was meant to recognise the daughter’s line and not just living daughters, were not made lightly, and in the authors’ view they reflect the more just reading of the amendment. The observation in para 80 of Vineeta Sharma case was not addressed to this precise question, which leaves some room for the point to be raised again before a larger Bench. Until then, the position in Tamil Nadu, in line with Maharashtra, is that the daughter must be alive on 9 September 2005 for a coparcenary right to arise in her, and her heirs cannot claim that right in her place.