The dire need for Sikkim's exclusive succession laws and how it would empower women
Legislations like Hindu Succession Act has taken a dramatic turn by giving equal shares to the women in the ancestral property and further it was sharpened by the Supreme Court and brought much clarity concerning the devolution of equal shares in the property of women
Succession assumes a great significance for all of us, for every property our ancestors own, it passes on throughout the generations via the Succession law. In India it varies from one faith to another - Hindus, Buddhist, Sikh & Jains are governed by the Hindu Succession laws whereas Christians and Muslims have their respective personal laws. In recent times, the beneficial legislation like Hindu Succession Act has taken a dramatic turn by giving equal shares to the women in the ancestral property and further it was sharpened by the Supreme Court and brought much clarity concerning the devolution of equal shares in the property of women.
It’s a catch-22 situation so far as the application of Succession law granting equal rights at par with male descendant to Sikkimese women are concerned because neither Hindu Succession laws are extended nor the Indian Succession Act, 1925 is formally enforced; it is just that the principles of Indian Succession law are being followed by the various decision of the High Court.
The irony within the Indian Succession Act, 1925 so far Succession is concerned is that the Part-V of the Act which deals with Intestate Succession excludes its application to the Hindus, so therefore even if a principle of the Act is followed then the Intestate Succession will not apply to Sikkimese Hindus.
In absence of any legislative pronouncement in the State in one hand and on the other hand when the central legislation is not extended, there is a widespread cause of concern and confusion so far as the partition of the family properties and its equal inheritance is concerned.
The pan-India demand for equal succession rights for women started before the central amendment of 2005, given Marriages and divorces falling under the preview of the concurrent list in the Seventh Schedule of the Indian Constitution several States like Karnataka, Maharashtra, Andhra Pradesh and Tamil Nadu started bringing an amendment in Hindu Succession Act mid since the 1980s granting equal shares to women in Mitakshara Property of their ancestors.
SIKKIM’S SUCCESSION LAW IN DIRE STRAIT.
In the year 1962, the then Chogyal had proclaimed Married Women's Property Regulation to provide succession rights to Sikkimese women married to non-Sikkim subjects to acquire, hold and dispose of immovable property in Sikkim and to, provide for rules of succession to property. Though this Regulation was the first of its kind to provide Succession rights to hold property but sadly it didn’t accord devolution of property rights to Sikkimese women married within the State subjects. Furthermore, the validity of this Regulation came under scrutiny in 1991 in the case of Padma Kumari Ganesan, when the district authorities refused to register a gift deed executed by her in favour of her two sons. The Sikkim High Court in this Judgment had directed the district authorities to reconsider the plea of registration of gift deed afresh without relying on the 1962 Regulation Promulgated by the Chogyal because it was found to be non-existent as it was not notified.
Further in the year 2008, the then social Justice Minister tabled the “Sikkim Succession Bill”. This Bill which was introduced in the Sikkim Legislative Assembly had the provision for the devolution of property to the entire lineal descendant in case of intestate property and the surviving member of the family including the unmarried women of Sikkim as per their entitlement.
The validity of this Act came under Judicial Scrutiny on the touchstone that this Act forbids the right of Sikkimese Women married to non-Sikkimese to get shares or to hold property. Further this Act was challenged before the High Court on the ground that it violates the basic tenants of Equality clause enshrined in the Constitution. The perplexity was finally put to end to our further astonishment when we found through High Court Judgment in the year 2017 in Basanti Rai’s case pursued by the Daughter of Sikkim group that such an important Succession law was never enforced and it was just a piece of paper so therefore the High Court never needed to deal the matter/issue in merits or detail.
Thereafter according to Basanti Rai’s case, the Land Revenue Department in a willy-nilly way issued a notification in June 2018 thereby conferring an ownership right to Sikkimese women married to non-Sikkimese even after her marriage. But the land registered in her name shall not be further transferred to her offspring. Though the realm of this decision making power is vested with the concerned authority such an important announcement that determines the rights of an individual could have been passed by a majority vote in the state legislature in a comprehensive way.
Therefore I ask a question to myself on how our legislature can enact a Succession law that will be in the larger interest of the Sikkimese and keeping in mind the intent of our forefathers who believed that “Sikkim is for Sikkimese”. And on the other hand, how do we also keep in mind the basic tenants of the Equality Clause enshrined in Article 14-18 by also safeguarding the interest of the Sikkimese women married to non-Sikkim, in which majority of us fear that Sikkimese women after being married to non-Sikkimese would drive away immovable properties in the hands of non-Sikkimese population and will be in contrary to the old laws of Sikkim that have especially being guaranteed by the Special enactment under Article 371 (F) of the Indian constitution.
EQUAL INHERITANCE RIGHTS OF WOMEN UNDER HINDU SUCCESSION ACT.
The Hindu Succession Act which went into unprecedented changes has not been extended in the State of Sikkim, but has got much relevance after its amendment that granted equal property rights to women and placing them as coparceners and further treating them at par with the male counterpart is concerned. Since its major amendment in the year 2005 the Hindu Succession so far coparcenary rights are concerned took a fascinating twist and turn. Finally, the law is now well-settled in a recent judgment in Vineeta Sharma’s case wherein the Supreme court has held that the daughter will have a share in their father property after the Hindu Succession (Amendment), Act irrespective of whether her father was alive or not at the time of Hindu Succession (Amendment) in the year 2005.
Soon after the verdict was announced in Vineeta’s case on 11th August, netizens in Sikkim took into various social media account and expressed immense happiness and on the other hand, few others were also anguished for the reason that the state is yet to put relevant law in practice.
The Hindu Succession law as it stands today is a long-fought battle with various conflicting judgment from the apex court itself. Section 6 of the Hindu Succession Act which granted inheritance right stood into a different footing before the 2005 amendment, as it granted inheritance right only to sons, grandsons and great-grandsons. Only males descendants up to 4th generation were regarded as coparceners and only the male descendants had the right to demand partition, but as mentioned 2005 amendment to the said section brought sweeping changes in which since then daughters were also regarded as coparceners which conferred the same right in the coparcenary property as she would have had if she had been a son.
But soon thereafter bigger question of law emerged about the interpretation of the amended provision of section 6 of the Hindu Succession Act. The Supreme Court in the year 2015 in the case of Prakash vs. Phulavati held that property right would be given only if both the daughter and father is alive at the time of amendment of the Hindu Succession (Amendment) Act, 2005 and held that the amended law is prospective in nature. Again another judgment though conflicting with Phulavati’s case but in the right direction was passed in Danamma Vs. Amar wherein the Supreme court held that even if the father died in the year 2001 i.e before the amendment then the daughters would be eligible for the partition and further daughter's right of shares will be crystallized even if they were born before the enactment of the Hindu Succession Act, 1956.
HINDU SUCCESSION ACT & THE PROTECTIVE OLD LAWS OF SIKKIM
Why is it that such important beneficial legislation is not extended in the state of Sikkim is an intriguing question that requires much deliberation. But on the other hand, it is also not surprising for us to see much legislation that Sikkimese are deprived of because of non-enforcement and due to various contradictions with the old laws of Sikkim. What happened in Sikkim during the pre-merger era was, due to the Indian Influence we borrowed many principles from various legislation to fill the lacunae created by the existing situation then. When the laws in Sikkim were almost scanty in the Independent kingdom of Sikkim, the administration freely borrowed various legislation that was not covered by the Sikkimese laws, but on the other hand, it is also a matter of fact if any Indian laws were found to be contrary with the old laws of Sikkim it was never considered for implementation.
Similarly, at this point of time when Sikkim does not have any Succession law of its own, it has now become incumbent upon the legislature to either legislate the new law that comprehensively deals with the law of Partition & Succession and shall equally consider that Sikkimese women married to non-Sikkimese get their due keeping in mind the principle of old laws that has been constitutionally guaranteed and also by borrowing the liberal principles from the central law or on the other hand the legislature can either extend the existing Hindu Succession law in letter and spirit.
Laws, particularly that deals with Partition, succession, marriages and divorce positively flow from the morality and culture of one’s society, place and region and therefore it should always be based on the principle of natural justice and morality and further, it should always be accepted by the consensus of the people living in a society at a particular point of time. Any law that acts as a fire will surely ignite destruction to the social fabric but a law that emerged within the realm of morality and existing practices that safeguards the consensus formed in the pre-merger times should always be respected and any new law that is based within the framework of old laws should be upheld.
The author, Pramit Chettri, is an Advocate who hails from Malbassey, Budang, West Sikkim and is an Advocate in Supreme Court of India. He can be reached at firstname.lastname@example.org
Views/Opinions expressed in the article or write up is purely of the author or writer and not of the Sikkim Chronicle. For any queries or contradictions, the author can be contacted in his/her email id.
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