Does India need Uniform Civil Code? Part-I | In view of Hindu Personal Law




Introduction

In the year 2018, the Law Commission of India has come up with a comprehensive report to address the grey areas of surrounded the personal laws concerning the Uniform Civil Code (‘UCC’) in India. UCC lays down common laws concerning marriage, property and Succession, irrespective of religion, and it presents in Art. 44 of the Constitution as DRSP. The question about UCC comes into light after the case of Shah Bano. However, it cannot be implemented. 

In view of that report, this paper tries to internalise some of the key points laid down in that report and try to comprehend the Law Commission’s decision, which is not to follow UCC. Moreover, based on its analysis of inheritance and Succession, this paper tries to counter some of the Law Commission’s arguments and tries to lay down some suggestions that would be judicious in contemporary society. 

Critical Appraisal of the Inheritance and Succession Laws in India (Under different Personal laws)

Inheritance is the acquisition of property from ancestors by way of devise or bequest.[1] On the other hand, Succession is the acquisition of property or right by way of inheritance within the scope of descent and distribution laws, which can be further divided into two prongs – Intestate Succession and Testamentary Succession.[2] So, inheritance can be regarded as a means to receive property while Succession as a means to have title or right over the property. By keeping these points into mind, the subsequent parts deal with these laws concerning different personal laws: 

Hindu Law

With the introduction of the statutory law (the Act of 1956), traditional law was replaced with a uniform inheritance system. Moreover, in view of gender equality, the 2005 amendment provides the coparcenary rights to daughters; nonetheless, there is still remain the scope of improvement in the statutory provisions,[3] which is evaluated subsequently. 

i. The system of Coparcenary

Coparcenary is an essential part of the Hindu succession system. It is also noteworthy that the sprite of the concept coparcenary entails the “unity of ownership”[4] under Mitakshara law’s ambit and “unity of possession” in Dayabhaga law.[5] Also, Coparcenary is based upon the notion of joint tenancy.[6]

However, in recent cases, the SC laid down that in the course of ascertaining the share of heirs, it is important to assume partition in property between the coparceners and the deceased person just before the death.[7] Moreover, the court laid down that in case of application of §8, the principle of intestacy will be applicable and not that of survivorship, thereby it holds them as tenants-in-common and not as joint tenants, which has consequently laid to the decline like the Joint family property.[8]

Moreover, B.N. Rau Committee which was to codify the Hindu Law was of the opinion that “joint family is started to crumble as the big estate is no more maintainable however the independence of the individual members has become important”,[9] which is further supported under by the 174th Law Commission Report on Women’s Right in Property.[10] So, it is in itself suggestive of abolishing the concept of Coparcenary at the Union level by enacting upon the ‘tenancy in common’[11] rather than ‘joint tenancy’. 

ii. Hindu Undivided Family (HUF)

HUF has a trading entity and recognised under a distinct category for taxation.[12] However, Ramanujam, a former Chief Income Tax Commissioner of Income Tax, “HUF is a bane to the government revenues notwithstanding with the better condition of taxpaying Hindus”.[13] Moreover, in the Income Tax Enquiry Report, a significant threat of enormous revenue loss is specified if HUF continues to get special exemptions, which is further supported by the Direct Taxes Enquiry Committee Report.[14] Therefore, it is evident that the institution of HUF standing position based on deep-rooted sentiments in exchange of Country’s huge revenues is in toto not prudent. 


LJCS: Legal Journal for Contemporary Society

iii. The requirement of the reallocation of lists of heirs

Some issues arose after the 2005 amendment concerning the location of the heirs in the schedule to the Act, which is needed to be addressed. Firstly, omissions related to those heirs promoted from class II to class I heir, which lead to duplication. Secondly, there is reverse discrimination as there is an omission on the part of two male descendants in comparison to the daughter’s line. Thirdly, Father should be placed to class I heir list with respect to the purpose of Senior Citizenship Act, 2007. Fourthly, it should make clear in class II that the father’s wife indicates the step-mother. 

iv. Concerns related to Gender Equality

Regarding the women empowerment, the 2005 amendment can be considered a significant move that provides the daughter with the coparcenary rights.[15] However, there are still lots of lacuna in the Act concerning the position of the females, which are discussed below, and with are needed to be covered up: 

a. The problem under the self-acquirement of the property

In case, a woman died interstate, the husband’s heirs got priority over her property compared to her own parents and siblings. This position is in contrast with male intestate provision. However, in the case of Omprakash v. Radhachandran, the arbitrariness of this scheme is highlighted where a woman got widow within three months of marriage and thereafter thrown out from their matrimonial house, and she had to live in her parent home. Later on, on the death of this woman, her husband’s heir prioritised the property rather than her mother, who mostly had taken for her.[16] Therefore, the mother of a wife a must-have an equitable position as that of husband.[17] The 207th Law Commission Report has also proposed an amendment in § 15 of the said act. 

b. Testamentary Succession

As per § 30, the Act, 1956, a widow or unmarried daughter or other dependents a who do have means to self-sustainment may be deprived of their share by will and given to any testator. It provided with nought means for sustainment to dependents. Though maintenance may be claimed, however, no charge can be made on the husband’s estate. 

Thus, it is suggested that there must be a reservation of some portion of the property that a dependent can dispose of in the preview of § 30 of the Hindu Succession Act, 1956, for their upliftment. 


Note: Other Personal laws will be dealt under our subsequent posts

References

[1] Black Law’s Dictionary, 8th ed., 2004. 

[2] Sekhar Agarwal, India: Succession Law in India, Mondaq, available at https://www.mondaq.com/india/wills-intestacy-estate-planning/957940/succession-laws-in-india-in-a-nutshell/ (Last visited September 22, 2020). 

[3] Vellikannu v. R. Singaperumal&Anr., AIR 2005 SC 2587. 

[4] Vijendra Kumar, Coparcenary Under Hindu Law : Boundaries Redefined, 4 (1) NALSAR Law Review (2008-2009). 

[5] Commissioner of Income Tax v. Prafulla Kumar Panja&Ors. (1993), 200 ITR 706 (Cal). 

[6] Commissioner of Wealth-Tax v. KantilalManilal, (1973) 90 ITR 289 Guj. 

[7] Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383; Shyama Devi v. Manju Shukla (1994) 6 SCC 342. 

[8] Uttam v. Saubhag Singh, AIR 2016 SC 1169. 

[9] Report of the Hindu Law Committee, (1947) at 15. 

[10] Law Commission of India, Women’s Right in Property, Report No. 174 (May, 2000). 

[11] Valiyaveettil Konnappan v. Mangot Velia Kunniyil Manikkam, AIR 1968 Ker 229 (The court emphasised the distinction between the rights arising from joint tenancy and tenancy in common. It was observed that in case of tenants-in-common there is only unity of possession, not of title or interest). 

[12] Government of India, Report of the Taxation Inquiry Commission, 118, Ministry of Finance, Dept. of Economic Affairs (1953-54), at 43. 

[13] T.C.A. Ramanujam, HUF: Bane or Boon, available at https://www.thehindubusinessline.com/todays-paper/tp-opinion/HUF-Bane-or- Boon/article20217532.ece/ (Last visited on 22-03-2018). 

[14] Government of India, Final Report of Direct Taxes Inquiry Committee, 73-75, Ministry of Finance, (1971). 

[15] The Hindu Succession (Amendment) Act, 2005, § 6(1) (a) & (b). 

[16] 2009 (7) SCALE 51. 

[17] Ganny Kaur v. State of NCT of Delhi, AIR 2007 Del 273.

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