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Case Analysis on G.Sekar v/s Geetha

The factual matrix of the present case as provided for before the forum was that one Govind Singh died on 9/1/1996, leaving behind his son and four daughters. He was purported to have executed a will dated 29/11/1995 in favour of his son named G. Sekar. The parties dwelled in the premise which is a subject of dispute before the Hon’ble Court. Disputes and differences also arose between the parties alleging that the deceased had died intestate. Thus, a suit dated 11/03/1996 was filed before the High Court of Madras seeking partition and questioning the genuineness of the will.

The learned single judge passed a preliminary decree for partition of the suit property into eight equal shares and answered the issue of genuineness of the will in the negative. The division bench of the same court also posed stern doubts over the genuineness of the will and further opined that the anomaly regarding the right of female heir to seek partition in the dwelling house has been removed by the 2005 Amendment. Aggrieved by the same Defendant no.1 (the appellant herein) has preferred an appeal before Hon’ble Supreme Court of India.

Analysis of decision by the court
Brief of the judgment
The present case came before the Apex Court by invoking its appellate jurisdiction. The Court 2in the present case was dealing with a matter of partition which had been sought by the daughters of the deceased. The appellant had based his contentions placing reliance on section 23 of the Hindu Succession Act, 1956 (for brevity HSA). In order to advance a judicious pronouncement the court had to delve into the question of the effect on the Act by the by virtue of the 2005 Amendment. Another question before the court was to look into the genuineness of the will dated 29/11/1995. The Apex Court held the impugned section to be non-applicable to the proceedings initiated before December 20, 2004. The Court further upheld the finding of the High Court in relation to the will i.e. held the will to be spurious.

1. Whether the will executed by the deceased is genuine or not

The question as to the genuineness of an executed will is decided by the court through scrutinising the facts and surroundings that existed while execution of the will. The will so purported can only be said to be genuine when there are no suspicious circumstances existing. The Apex court has specifically stated that though the will might be registered still the propounder has to do away with all the suspicious circumstances.[1]

The question as to determination of existing suspicious circumstances cannot be confined to definitional bounds and is inevitably dependant on the facts of each case.[2] Exclusion or bestowing of lesser share on one or any of the naturally born heir cannot be exclusively cannot be said to be existence of suspicious circumstance. [3] Though a duty has been vested upon the propounder of the will to eliminate such circumstances. The court has further observed that such suspicion must be based upon real, germane and valid suspicious features and not fantasy of the doubting mind.[4]

The nature of evidence required for removal of such suspicion is to be done with the help of clear and reasonable evidence.[5] The Court in this case has not laid down any standard of evidence that is required for disproving any skeptical viewpoints and has held it to be totally decided in accordance with the existing facts.

However in Kalyan Singh v Smt. Chhoti and Others the court opined that it is of indispensable importance that trustworthy evidence is produced before the court in order to establish genuineness and authenticity of the Will. Execution and validity of the will cannot be solely determined on the basis of the evidence produced by the propounder.[6] Further the onus to prove the genuineness of the will has been vested upon the person who claims benefit under the same.[7]

Thus, it can be indubitably concluded that determination of genuineness of a will is mixed a question of fact and law.[8] The court besides looking into the circumstances under which the testament had executed the will also has to pay heed to the relevant provisions of Indian Evidence Act, 1872[9] and Indian Succession Act, 1925[10] before determining such questions as will being a document in itself has to conform with the standards as required for other documents.

In the present case the Apex Court scrutinized the facts and circumstances at the time of execution of the will. There were several evident contradictions in the testimony provided by the witnesses for the plaintiff. The thumb expression instead of the signature and the varied line spacing in different pages of the will would pose serious suspicion in the mind of any prudent man regarding the genuineness of the will. The Court has opined the question of genuineness of the will to be a pure question of fact. Though it has been deemed to be in the mixed question of law and fact but in light of the given factual matrix any prudent man would hold a skewed perspective in relation to the will in question.

Thus, the court rightly concluded the deceased to have died intestate as the appellant (original defendant no. 1) failed to prove the genuineness of the will under which he claims.

2. Whether section 23 of the act as amended by the 2005 amendment would be applicable to present proceedings

The Court while dealing with the question of maintainability of the suit for partition held that daughters had equal title over the property as that of the son owing to section 8[11] of the HSA. The court acknowledged the restriction imposed under section 23 of the HSA [12]but also went on to hold that the restrictive right under the impugned section only pertains to dwelling house which is clearly evident through them bare perusal of the said section.

According to the impugned section if a Hindu dies intestate leaving behind both male and female heirs then the any right as far as it relates to a dwelling house is possessed exclusively by the male heir. The female has no right to claim partition of such property unless male heir agrees to do so. However the female heir shall have a right of residence provided that she is unmarried or has been deserted by her husband or is a widow.[13]
The court contemplated upon the question that though the said section has been omitted under the 2005 Amendment to the HSA[14], but can the provisions as amended thereto be applied to a suit instituted before the said amendment.

For the analysis of the effect of the amendment the Court placed reliance upon section 6 of the General Clauses Act, 1897[15] (GCA). Where any regulation has been repealed after the commencement of GCA, the same would deem to have a prospective effect unless intended otherwise. The question pertaining to the prospective or retrospective effect of any statute inadvertently depend upon the construction of the statute.

The Court in the present case has held the effect of the amendment to be prospective in nature and henceforth not applicable in the present situation. The Court while dealing with the issue has rightly pointed out that if the right vested is of an enduring character it cannot be taken away even if it has been explicitly taken away. The said provision is a disabling provision and rather than bestowing any vested right, it rather takes away the right of a female coparcener in matters relating to the dwelling house.

However, the Court has recommended the parties to initiate proceedings afresh so as to obtain benefits under the amended provision. In the impugned decision the division bench of the Madras High Court stated that the embargo that existed under section 23 had been removed and therefore question of any bar under the said provision does not apply.

I would like to humbly differ from the viewpoint as purported by the Apex Court in the present judgment. The intent of the legislature was clearly to remove the anomaly that existed in the HSA due to the gender discrimination inherent in the Mitakshara coparcenary and provide equal rights to daughters in coparcenary property. [16]Though the provision should not be applied to the cases that have been already disposed of owing to the overburden of cases upon the judiciary but the Court in the present matter could have gone ahead to pronounce a verdict that would serve the purpose of justice and do what the legislature intended to do.

Though effect of the section cannot be applied retrospectively, but in such disabling provisions it should still be applied on pending proceedings owing to the fact that it is a hindrance in the process of doing justice. If we see in the present case also Judges have asked the respondents to file a fresh suit in order to obtain a decree of partition which implies that the Judges would have pronounced a decree of partition if the said section could be applied retrospectively. The Supreme Court in a recent pronouncement has applied HSA as amended by the 2005 amendment on the proceedings before it though the suit had been instituted prior to the amendment.[17]
Judicial approach on the given issue in the previous decisions of the court.

The question of genuineness of will and effect of amendment to a given provision and thereby its applicability has arisen before the court in a plethora of cases. While scrutinising the effect of a given amendment the wordings of section 6 of the GCA[18] are of indispensable prominence. The said section lays down as to the nature of any amendment whether prospective or retrospective. According to this provision prospective nature is imbibed in the legislation unless it is otherwise provided expressly or by necessary implications.

Genuineness of will
The question as to determination of existing suspicious circumstances cannot be confined to definitional bounds and is inevitably dependant on the facts of each case.[19] Exclusion or bestowing of lesser share on one or any of the naturally born heir cannot be exclusively cannot be said to be existence of suspicious circumstance. [20] Though a duty has been vested upon the propounder of the will to eliminate such circumstances. The court has further observed that such suspicion must be based upon real, germane and valid suspicious features and not fantasy of the doubting mind.[21]

The nature of evidence required for removal of such suspicion is to be done with the help of clear and reasonable evidence.[22] The Court in this case has not laid down any standard of evidence that is required for disproving any sceptical viewpoints and has held it to be totally decided in accordance with the existing facts. Further the onus to prove the genuineness of the will has been vested upon the person who claims benefit under the same.[23]

Effect of Hindu Succession Act, 1956

In Eramma v. Verrupanna and Ors.[24] the court applying the literal rule of interpretation to hold that it is evident from a bare perusal of section 8 vis-à-vis section 6 of the HSA that its applicability is prospective in nature and it would not apply to cases where the succession opened prior to the formulation of the Act.

Applicability of section 6 of the GCA

In State of Orissa v. Bhupendra Kumar Bose and Ors.[25] The Court opined that even if the right had been vested in an individual through a temporary legislation i.e. an ordinance then also the same cannot be taken away if the statute by which it was granted had ceased to operate provided that it was of an enduring character.

In the present case the provision so amended did not vest right in any person rather it was a disabling provision and hence it can be abrogated by the legislation as was done through the 2005 amendment to the HSA.

In Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni and Ors.[26] The court purported that applicability of section 6 [27]also extends to circumstances in which the repealed Act includes a legislation on the same subject, though for the determination of different intention one would have to look at the provisions of the new Act. Such enquiry would be dependent upon the new Acts intention to destroy the old rights and liabilities and not expressly keeping them alive.

Applicability in pending proceedings

In Kolhapur Canesugar Works Ltd. and Anr. v. Union of India and Ors. [28]The applicability of a given rule to the pending proceedings has to be seen in light of the new provision after the omission of the rule. The express language of the rule has to be given divided in the determination of such questions as to whether the pending proceedings would continue or lapse.

Determination of Retrospective or Prospective Effect

The Apex Court in Shyam Sunder and Ors. v. Ram Kumar and Anr. [29]Held that generally a statute should be construed to be operative prospectively. Furthermore, the court opined that when a fresh legislation trails the repeal of an enactment, such a legislation has no bearing on the substantive rights of the parties in an ongoing suit unless it has a retrospective effect.

The appellate Courts power is also restricted to the law that was prevalent at the time of the adjudication and cannot be determined by the fresh legislation as the rights of the parties are to be determined in accordance with the law enforce on the date of institution of the suit.

In its concluding remarks the court purported the viewpoint that when a fresh legislation follows the repeal of an enactment such legislation would be deemed to be prospective in operation and the substantive or vested rights of the parties would remain unaffected by the same.

Also, in Anil Kumar Goel v Kishan Chand Kaura [30] it was specifically stated that the laws which effect the vested or substantive right of any person, the presumption would be against their retrospectivity unless the legislative intent is clear and compulsive.

Dr. Arijit Pasayat J.-
“The question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not.”[31]­­­­­­
On analysing the viewpoint purported in the aforementioned cases in light of the present case, it is clear that no substantive or vested right of a person can be taken away by way of an amendment but the question in the present case pertains to a disabling provision rather than an enabling one thus, it can be made applicable to the ongoing proceedings before the court as it imposes a vested authority on the daughters to claim partition of the dwelling house.

Effect of Hindu Succession (Amendment) Act, 2005

The Apex Court in its landmark verdict in Sheela Devi and Ors. V. Lal Chand and Anr.[32] Analysed the intent of formulating the 2005 amendment which conferred right upon the female heirs in matters relating to inheritance and coparcenary property thereby demolishing the gender bias existing in the legislation. The court stated the said amendment to be applicable prospectively from the date of institution of the suit.

Approach of the legislature on the issue
Discrimination on the grounds of gender has been a menace which has been imbibed in the Indian mentality since centuries. The legislative organ is not left unaffected by the patriarchal nature of the Indian society and its chauvinist nature. The disparity is easily visible through a bare perusal of the laws made by the legislature. The same can be seen particularly in relation to the laws governing the inheritance/succession of property in a Hindu Undivided Family.[33] A women in a HUF had only a right of sustenance but no birth right over the family property was provided to her as that of the son. The property was devolved in accordance with the rules of survivorship among the coparceners.[34] Though during the period of the British there were several enactments made for social and political integration of the country but seldom was any interference made by them in the personal laws of any religion.

The framers of our constitution in order to ensure that women are kept at the same pedestal as that of men made several provisions to protect any sort of discrimination on the basis of gender. The Constitution of India entails Article 14, 15(3), 16 etc. which stringently restrict any kind of discrimination on the basis of gender. Despite the want of gender neutral legislations by the constitution itself still the personal laws blatantly discriminate against women.

Hindu Succession (Amendment) Act, 2005

The Hindu Succession (Amendment) Act, 2005 was primarily enacted with the aim of removing the gender disparity in the existing provisions. These provisions have been identified as major sources of disabilities thrust by law on women.[35]The Amendment so made was based on the report formulated by the Law Commission.[36] The law commission based its analysis on the public opinion obtained through questionnaires, the primary role of the legislature is to reflect the opinion of the public. In discharge of this function the legislature came with the enactment with the aim to achieve gender equality.

The legislature made several changes in the existing legislations to make it gender neutral and provide the daughters the same stature as that of the son in matters of inheritance specifically when it pertains to Hindu Mitakshara Coparcenary. The two main facets of the said amendment are elevating the status of daughters and scrapping of section 23 from the legislative texts.[37]

Under the impugned section, formally the daughters had been denied the right to claim partition in dwelling house also, their right of residence was limited to limited circumstances. The legislature through the said amendment has omitted the impugned section to enable the daughters to claim partition of dwelling house as well. Right of inheritance had already been bestowed to daughters through section 8 of the HSA. Further the legislature has also played an indispensable role in putting an end to the prevalent disparity in the succession laws by changing the mode of devolution in interest in the coparcenary property from survivorship to testamentary or intestate succession. [38]

It is noteworthy on part of the legislation to have amended the HSA to include even married daughters as coparceners in a HUF. It is of abundant importance to women, both economically and symbolically. This measure provides economic security to the women, by providing them with birth rights in property which cannot be willed away by men. In a male-biased society where wills often disinherit women, this is a substantial gain.

Suggestions on the present issue
Section 23 of the Hindu Succession Act can be seen in isolation of the remaining Act. Though no retrospective effect can be given to the act as a whole but, since section 23 being a disabling provision does not vest any substantive right on any individual but rather restricts the right of a female coparcener to claim partition in a dwelling house it can be made applicable to the proceedings pending before the court irrespective of the institution of the suit. Failure of which would do gross injustice.

Though the legislature has made an attempt to articulate a gender biased legislation in matters of succession there is still prevalence of voluminous amount of disparity in the sector. People usually refrain from giving daughters/women any share in the property, the violation of this right can be primarily attributed to the lack of awareness among the female coparceners of their rights. Furthermore, even those who are aware of their rights refrain from taking family matters before the court for the sake of preventing any bitterness in relations.

Thus, spreading awareness among the females with regards to their right of inheritance is the need of the hour to curb the unlawful denial of property rights to women.

The women have to face severe impacts on account of the drive for equalising the inheritance rights of women and men in order to keep a hold of stronger economic position of sons vis-à-vis daughters there have been increasing incidences of female foeticide[39] indicating the disparity between the legal reform with the social norms.

The violation of property thus, should not be seen isolation of other rights of females as such rights have to be counterbalanced with the skewed narrow perspective of the Indian society which often advocates for sons and can adopt to extreme methods in order to keep the position of son at a higher pedestal. Thus, there is need for deterrent punitive legislations in case of violation of the property rights of women as it would be essential to protect the other rights of females that are being violated so that they can be deprived of the property rights.

End-Notes:

  1. Bharpur Singh and ors. Vs. Shamser Singh, AIR 2009 SC 1766.
  2. Surendra Nath Chatterji vs Jahnavi Charan Mukherji, AIR 1929 Cal 484.
  3. Ramabai Padmakar Patil and Ors. Vs. Rukminibai Vishnu Vekhande and ors., AIR 1962 SC 567.
  4. Ramabai Padmakar Patil and Ors. Vs. Rukminibai Vishnu Vekhande and ors., AIR 1962 SC 567.
  5. Patna High Court MA No.145 of 2013.
  6. Kalyan Singh v Smt. Chhoti and Others, AIR 1990 SC 396.
  7. H. Venkatachala Iyengar vs B. N. Thimmajamma, 1959 AIR SC 443.
  8. H. Venkatachala Iyengar vs B. N. Thimmajamma, 1959 AIR SC 443.
  9. Section 67, Indian Evidence Act, 1872; Section 68, Indian Evidence Act, 1872; Section 45, Indian Evidence Act, 1872; Section 47, Indian Evidence Act, 1872.
  10. Section 63, Indian Succession Act, 1925.
  11. Section 8, Indian Succession Act, 1956.
  12. Section 23, Hindu Succession Act, 1956.
  13. Section 23, Hindu Succession Act, 1956.
  14. Hindu Succession (Amendment) Act, 2005
  15. Section 6, General Clauses Act, 1897.
  16. Report No.174, Property Rights of Women: Proposed Reforms Under the Hindu Law, Law Commission of India 92017, http://www.lawcommissionofindia.nic.in/kerala.htm#chapter3.
  17. Danamma v Amar, AIR 2018 SC 721.
  18. Section 6, General Clauses Act, 1897.
  19. Surendra Nath Chatterji vs Jahnavi Charan Mukherji, AIR 1929 Cal 484.
  20. Ramabai Padmakar Patil and Ors. Vs. Rukminibai Vishnu Vekhande and ors. AIR 1962 SC 567.
  21. Ramabai Padmakar Patil and Ors. Vs. Rukminibai Vishnu Vekhande and ors. AIR 1962 SC 567.
  22. Patna High Court MA No.145 of 2013.
  23. H. Venkatachala Iyengar vs B. N. Thimmajamma 1959 AIR SC 443.
  24. Eramma v. Verrupanna and Ors, 1996 2 SCR 626.
  25. State of Orissa v. Bhupendra Kumar Bose and Ors.,AIR 1962 SC 945.
  26. Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni and Ors., (1963) 3 SCR 85.
  27. Section 6, General Clauses Act, 1897.
  28. Kolhapur Canesugar Works Ltd. and Anr. v. Union of India and Ors., 2000(119) ELT257 (SC).
  29. Shyam Sunder and Ors. v. Ram Kumar and Anr.,
  30. Anil Kumar Goel v Kishan Chand Kaura, 2008 AIR SCW 295.
  31. Anil Kumar Goel v Kishan Chand Kaura, AIR 2008 SCW 295.
  32. Sheela Devi and Ors. V. Lal Chand and Anr. (2006)206CTR(SC)149.
  33. Report No.174, Property Rights of Women: Proposed Reforms Under the Hindu Law, Law Commission of India 92017, http://www.lawcommissionofindia.nic.in/kerala.htm#chapter3.
  34. Section 6, Hindu Succession Act, 1956.
  35. Report Of The Standing Committee Of Parliament On Law And Justice.
  36. Report Of The Standing Committee Of Parliament On Law And Justice.
  37. REPORT OF THE STANDING COMMITTEE OF PARLIAMENT ON LAW AND JUSTICE.
  38. Report No.174, Property Rights of Women: Proposed Reforms Under the Hindu Law, Law Commission of India 92017.
  39. Siddharth Priyadarshi Sharma, A CRITICAL ANALYSIS OF THE 174TH REPORT OF THE LAW COMMISSION OF INDIA, (18th January at 6:00pm). https://www.academia.edu/7575974/A_CRITICAL_ANALYSIS_OF_THE_174TH_REPORT_OF_THE_LAW_COMMISSION_OF_INDIA_Subject_Family_Law.
  40. Section 6, Hindu Succession (Amendment) Act, 2005.
  41. Sonia Bhalotra, WOMEN’S INHERITANCE RIGHTS AND SON PREFERENCE IN INDIA, Tata centre for development at Uchicago, (20th January, 5:00pm) at https://www.ideasforindia.in/topics/social-identity/women-s-inheritance-rights-and-son-preference-in-india.html.

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