RESEARCH PROJECT

On

“Status and Rights of Unborn Child in Hindu Undivided Family”

Submitted to

MAHARASHTRA NATIONAL LAW UNIVERSITY, AURANGABAD

Submitted by

HRITHIK CHORMARE

BA.LL.B. (Hons.) Semester-V

Roll No. 2020/BALLB/19
Paper 5.5.: Family Law II

Under the guidance of

Dr. Ashok Wadje & Mr. Abdul Hakeem
Registrar I/c | Associate Professor of Law & Professor of Law

Maharashtra National Law University, Aurangabad

October, 2022

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 ACKNOWLEDGEMENT

First and foremost, I would like to thank our Hon'ble Vice-Chancellor Prof. Dr. K. V. S. Sarma
for providing me an opportunity to do this research project.

I owe a debt of gratitude to my mentor, Mr Abdul Hakeem and Mr. Ashok Wadje, for their
intensive support and helping me complete the project. They have always been supportive in
all my endeavours and I am grateful for her support.

I humbly thank my friends for their constant support and help whenever I was feeling low. It
is their inspiration that made me complete the project with precision. I would also like to
express my gratitude to my teachers, friends and my relatives for helping me ad providing me
support, inspiration and encouragement throughout the study.

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 Table of Contents
1. Introduction..................................................................................................... 4

2. Property Rights of an Unborn under the Hindu Succession Act, 1956 ............ 8

3. What is coparcenary property in Hindu law? ................................................... 9

4. What was the traditional position and how was it changed by codified law? 10

5. What changes did the 2005 Amendment bring? ............................................. 11

6. Judicial Interpretation ..................................................................................... 12

7. Conclusion ...................................................................................................... 13

8. References and Bibliography .......................................................................... 14

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 1. Introduction

Since the inception of human civilization, rights of legal heirs have been one of the crucial
concerns for the society. With the progress of law and justice in the course of time, special
emphasis was also given to the unborn or 'in-womb' children under various legislations. We
shall try to give an elaborate analysis on the position of children in the womb in the context of
the Hindu Coparcenary.

As per Hindu Coparcenary, Coparceners includes Father and his 3 lineal descendants. Females
have also been given the status of coparceners by the legislature through the enactment of
Hindu Succession (Amendment) Act, 2005. Also, Section 5 of Transfer of Property Act, 1882
talks about transfer of properties between living persons only.1 However, what is the position
of an unborn child in Hindu coparcenary, this question has must crossed our minds once for
sure. So, in this article we will talk about the legal position of an unborn child in Hindu
Coparcenary.

Hindu Succession Act, 1956 gives due rights and benefits to a child in womb. Section 20 of
this act explains if an intestate (a person without any valid will) dies and at the time of his death
his child is in womb, and subsequently born alive then he/she shall have the same rights to
inherit the property as if he/she was born before the death of the intestate. He will be given
same rights and share as other heirs. Hence as per this section, an unborn child shall be treated
at par with a born child. So, based on Section 20 following rules emerged:

1. The child in womb has legal right for the property of Hindu Undivided family.
2. The child is entitled for a share in property of Hindu Undivided family, only if he/she
is born alive and not otherwise.
3. A legal suit for reopening of partition is maintainable only if filed by the child after
birth but not by anyone else on his behalf when he/she is still in womb.
4. In case partition among coparceners has already taken place, and the father has not
reserved any share for himself, then the child has right to ask for reopening of partition
after birth.2

Under Hindu law two viewpoints are followed while considering the rights of a child in womb.
Under Hindu law, as per Smirities, Vishnu and Yajnavalkya follow different rule as from

1
The transfer of properties act, 1882.
2
Hindu Succession Act,1956.

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Gautama, Manu, Narada and Brihaspati regarding rights and position of a child in womb which
are as follows:

1. Vishnu and Yajnavalkya follows that if partition has taken place and the child was in
womb at that time, then after the birth of the child the partition should be re-opened to
give the child his/her share.
2. Gautama, Manu, Narada and Brihaspati follows that if a child is born after the
participation then he will only get the share from his father’s property.

The philosophy of Mitakshara upon considering the conflict on whether the child will get
property share from his/her father or from his ancestral property as it has been laid down by
both the groups came to the conclusion that the latter texts take such share from the father's
property the general rule, while the former texts follow a particular rule applicable to a child in
the womb at the time of the partition.

The Mitakshara has two rules regarding the child in womb:

i. When a child is in womb at the time of Partition of Hindu undivided family – Hindu
law for many purposes treats a child in womb as a living person or person in existence.
Further, in this case two additional situations may arise a) When at the time of partition
pregnancy is known and b) When at the time of pregnancy is not known
a) When at the time of partition pregnancy is known one option available is to postpone
partition till the child is born. But in case the coparceners are not ready for delaying
partition then a share equal to the share of child needs to be reserved for the child in the
womb. In case no share for the child is reserved then the child after birth can ask for
reopening of the partition.
b) In case at the time of partition pregnancy was not known, and no share would be
reserved for the unborn child, then also after birth the child can ask for reopening of the
partition and ask for his share. This was held originally in the case of Yekayamain v.
Aganiswarian,3 This rule applies in case of partition between father and son only.

ii. Other when a child comes into womb after the Partition of Hindu undivided family
– Under this situation also two cases may arise a) When the father has taken a share out

3
(1870) Mad. H.C.R. 307.

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 for himself out of partition and, b) When the father has not reserved a share out of
partition for himself.
a) When the father has got a share out of the partition, then after the birth of the child, the
child becomes a coparcener. After the death of the father, the child would get his estate
by survivorship (Right by Survivorship means after the death of intestate the property
is inherited by his surviving children.). Also, before the Hindu Succession Act, 1956
the child after his father’s death used to get entire share of his father’s property,
excluding the divides sons. This was held in the case of Kalidas v. Krishan.4 But after
the Hindu Succession Act, 1956 the divided/separated and undivided children are
treated same for the purpose of succession According to Section 8 of the Act. The
divided/separated and undivided children both will get the same share after their
father’s death.
b) In case the father has not taken any share for himself out of the partition, then also the
child after birth can ask for reopening of partition and can ask for his share from the
property as it was before partition. This was held in the case of Cbennagama v.
Munisami.5 This rule applies in case of partition between father and son only not
grandfather or grandson. For example - partition takes place between P and his two sons
R and S. After partition a child T is born to P and a child U is born to R. Then in this
case only the child of P i.e., T can ask for reopening of the partition and not U i.e., the
son of R. the example follow the rule laid down in the cases of Supra; Kusum v.
Dasarathi,6 and Sliivaji v. Vasantrao.7

Another of such case may arise, where the coparcener has renounced his share in the Hindu
Undivided family and the child is conceived or born after such renunciation, now the area of
concern is if the child can ask for his share or reopening of partition. In this regard a full bench
of Andhra Pradesh High Court held that after such renunciation the coparcener can no longer
be treated as member of coparcenary, so also the son born after such renunciation cannot be a
coparcener with the Hindu Undivided family.8 And therefore, the child cannot ask for
reopening of partition. In of such case before the Court of Law, Chief Justice Reddy also said

4
(1869) 2 B.L.R. 103
5
(1897) 20 Mad. 75
6
1921 Cal. 487
7
(1909) 33 Bom. 267.
8
Modern Hindu Law – Paras Diwan

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that the child can be a coparcener with his father, but he can-not be added as coparcener to the
original Hindu coparcenary. It was held in the case of Anjaneyulu v. Ramayya.9

9
19G5 A.P. 177.3

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 2. Property Rights of an Unborn under the Hindu Succession Act, 1956

According to the Mitakshara school of law, a son by birth acquires an interest in the ancestral
property of the joint family. Whereas, under the Dayabhaga school, the son has no automatic
ownership right by birth but acquires it on the demise of his father. The conflict has been
somewhat resolved by the express acknowledgment under Section 20 of the Hindu Succession
Act, 1956 which recognises the rights of a child in the womb;

‘A child who was in the womb at the time of the death of an intestate and who is subsequently
born alive shall have the same right to inherit to the intestate as if he or she had been born,
before the death of the intestate, and the inheritance shall be deemed to vest in such a case with
effect from the date of the death of the intestate.’

In the case of FM Devaru Ganapati Bhat V. Prabhakar Ganapati Bhatv,10 the Court held that
‘There is no ban on the transfer of an interest in favour of an unborn person. Section 20 permits
an interest being created for the benefit of an unborn person who acquires interest upon his
birth. Where the donor gifted the property in favour of the appellant, then living, and also
stipulated that if other male children are later born to her brother they shall be joint holders
with the appellant, the court also held that such stipulation is not hit by Section 13 of the Act.
Creation of such a right is permissible under Section 20 of the Act.

“It is by fiction or indulgence of the law that the rights of a child born justo matrimonio are
regarded by reference to the moment of conception and not of birth and the unborn child in the
womb if born alive is treated as actually born for the purpose of conferring on him benefits of
inheritance. The child in embryo is treated as in esse for various purposes when it is for his
benefit to be so treated. This view is not peculiar to the ancient Hindu law but one which is
adopted by all mature systems of jurisprudence. This section recognises that rule of beneficent
indulgence and the child in utero although subsequently born is to be deemed to be born before
the death of the intestate and inheritance is to be deemed to vest in the child with effect from
the date of the death of the intestate.”11

10
FM Devaru Ganapati Bhat V. Prabhakar Ganapati Bhatv AIR 2004 SC 2665
11
Mullas Hindu Law (Seventeenth Edition)

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 3. What is coparcenary property in Hindu law?

A Hindu joint family consists of lineal descendants of a common ancestor. In other words, a
male head and his descendants, including their wives and unmarried daughters. A coparcenary
is a smaller unit of the family that jointly owns property. A coparcenary consists of a
‘propositus’, that is, a person at the top of a line of descent, and his three lineal descendants —
sons, grandsons and great-grandsons. Coparcenary property is named thus because the co-
ownership is marked by “unity of possession, title and interest”.

The English term itself is borrowed from common law, but the concept is found in Hindu law.
In the Mitakshara school, which prevails in most parts of India, a male’s right to be a coparcener
is by birth. But if a newborn male is the fifth lineal descendant — that is a great-great-grandson,
while the common ancestor, his son, grandson and great-grandson are alive — the right to be
included in the coparcenary will ripen only when the common ancestor dies. In other words, a
coparcenary has succession up to four degrees of lineal descent. It is believed that this is based
on the Hindu tenet that only males up to three degrees can offer spiritual ministration to
ancestors. And only males can be coparceners.

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 4. What was the traditional position and how was it changed by codified
law?

In Mitakshara law, on the death of a coparcener, his interest became merged with that of the
surviving coparceners. Sons inherited property only by virtue of being or becoming
coparceners. When the Hindu Succession Act, 1956, was enacted, this position was largely
preserved by Section 6. It said that when a male Hindu died after the Act came into force, his
interest in a Mitakshara coparcenary shall go to the surviving members of the coparcenary and
not in accordance with the Act. However, a proviso was added to preserve the interest of female
children. It said if the deceased left behind a Class I female relative (daughter, widow or
mother, etc.) or a male relative claiming through such female kin, his interest would go to them
by testamentary (by will) or intestate (without a will) succession, and not by survivorship.

This meant that even the codified law did not address the conventional discrimination against
women. Although by separate colonial-era laws, some limited rights of inheritance were
conferred on daughters (in respect of intestate, non-coparcenary property in the Hindu Law of
Inheritance (Amendment) Act, 1929) and widows (whose right to succeed to husband’s
property was equated to that of the son in the Hindu Women’s Rights to Property Act, 1937),
women were denied coparcenary status. These laws were repealed by the Hindu Succession
Act, 1956.

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 5. What changes did the 2005 Amendment bring?

In its statement of objects and reasons for the amendment, the Union government said the
recognition given in the 1956 Act to the rule of devolution by survivorship and its retention of
the Mitakshara coparcenary property without including women in it meant that women could
not inherit ancestral property in the same way as men. It said: “The law by excluding the
daughter from participating in the coparcenary ownership not only contributes to her
discrimination on the ground of gender but also has led to oppression and negation of her
fundamental right of equality guaranteed by the Constitution....”

Therefore, it amended Section 6 to remove the discrimination and confer equal rights on
daughters too. It declared that a coparcener’s daughter would become a coparcener in her own
right by birth, in the same manner as a son; and would have the same rights that she would
have, had she been a son. The amendment came into force on September 9, 2005, but it
contained a proviso that it would not invalidate any disposition of property by partition or will
that had taken place prior to December 20, 2004 — the day the amendment was introduced in
the Rajya Sabha.

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 6. Judicial Interpretation

As laws are generally deemed prospective, civil cases relating to coparcenary property threw
up questions such as whether it would apply only to daughters born after September 9, 2005,
or whether, if they were born before that, it would be limited to those whose father — the
coparcener through whom they will inherit the status — was also alive on that day.

Many courts took the view that only a living coparcener’s daughter would get the benefit of
the new law. It was argued that if a man had died before 2005, his interest would not have
passed on to his daughter, as the amendment was yet to come into force. Allowing coparcenary
status to such women would imply that the amendment had retrospective effect.

The Supreme Court in Prakash and Others vs. Phulavati,12 (2015) ruled on these lines, holding
that it had no retrospective effect, and only living daughters of living coparceners (as on the
date of its coming into effect) would get its benefit. As another judgment took a different view,
this was posted before a three-judge Bench headed by Justice Arun Mishra.

Tuesday’s verdict has upheld the stand that coparcenary status of daughters is created by birth,
and is not dependent on whether the father was alive or not on the date on which it came into
force — a daughter has the same status as a son as soon as she is born. The significance of this
verdict is that it has put an end to all doubts about when the amendment comes into force, and
whether some women could be left out of it on the ground that it can only have prospective
application.

On August 11, the Supreme Court of India held that daughters, like sons, have an equal right
to inherit ancestral property. The legislation that conferred coparcenary status on women dates
back to 2005, when the Hindu Succession Act, 1956 was amended. The verdict answers the
question whether the coparcenary right of daughters comes into effect only if the father —
through whom the right is claimed — was alive on the day the amendment came into force.
The top court ruled that a daughter’s right flows from her birth and not by any other factor.

12
Prakash and Others vs. Phulavati (2016) 2 SCC 36

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 7. Conclusion

In conclusion it can be said that a child is considered into existence from the date the child was
conceived for the purpose of Hindu Laws and his due rights are reserved in every sphere of the
law. Most of the legislations including Hindu Succession Act,1956; The Transfer of properties
act,1882; etc. covers the aspects dealing with the rights and position of a child in womb.13

Therefore, it is pertinent that the status of a human being in the making and the related rights
are expressly clarified through adequate legislation. Judicial pronouncements, though binding,
have been varying and evolving. In a country where even a defamed deceased has right to sue,
it is essential that the property rights of future citizens are secured adequately.

13
T. S. Srinivasan (Deceased) and Others v. Commissioner of Income Tax (High Court of Judicature At
Madras) Tax Case No. 241 Of 1980 Tax Case No. 152 Of 1980) | 19-03-1998

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 8. References and Bibliography

1. Garner B.A., Black‟s Law Dictionary, (9th ed., 2009).

2. Gurbax Singh, The Principle of Hindu Law, (Vinod Publication) Edn 2009.
3. Halsbury‟s Law of India, Family Law II, (Lexis Nexis) Vol. 28, 2007.
4. S.A Desai, Mulla; Principle of Hindu Law, (Lexis Nexis) Vol. 2 Edn.28th 2007.
5. http://dejurenexus.com/wp-content/uploads/2021/03/Position-of-Child-in-the-Womb-
in-Hindu-Coparcenary-By-Deepika-Nain.pdf
6. https://blog.ipleaders.in/legal-rights-status-person-unborn-child-environmental-
resources/#:~:text=The%20rights%20of%20an%20unborn,an%20interest%20in%20c
oparcenary%20property.
7. https://www.foxmandal.in/property-rights-of-an-unborn-in-india/
8. https://www.lawinsider.in/columns/rights-of-child-in-womb-brief-analysis
9. https://www.thehindu.com/news/national/the-hindu-explains-what-is-coparcenary-
property-in-hindu-law/article32364484.ece
10. https://www.toppr.com/guides/legal-aptitude/jurisprudence/status-of-unborn-minor-
lunatic-drunk-and-dead-person/
11. www.judis.nic.in.
12. www.lexisnexis.com.
13. www.manupatrafast.com
14. www.scconline.com

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