The Hindu Succession (Amendment) Act, 2005

The discrimination on the rights of women had been writ large everywhere from ancient times to the modern times in India. All the laws were made mainly in favour of men regarding property. The women had always been treated as the second class citizens and infact were treated as the property of men itself. This was a grave discrimination against the women and all laws were made only to control women. In olden times the Hindu women had very little rights of property. The women were entitled for their maintenance and nothing else. This was sheer inequality with the fair sex and they have been treated less of a man. The son was treated as coparcener i.e. share holder in the Joint Hindu Family (hereinafter referred to JHF) property to the extent of equal share as that of the other coparceners. The Britishers governing India also felt this rampant discrimination and the Privy Council passed an enactment which was called, The Hindu Women Rights to Property Act, 1937. Although after passing of  The Hindu Women Rights to Property Act, 1937 , some of the rights of the women were recognized i.e., she got limited interest known as a Hindu Woman’s estate provided however, that she shall have the same right of claiming partition as owner  after the death of male member, who died intestate. The rights of females of the family were still limited and were based upon her matrimonial relations.  The Hindu Women Rights to Property Act, 1937, could not remove all the obstacles from the way of females in getting equal status as that of men in the matter of property.

After independence, the Parliament enacted   the Hindu Succession Act, 1956 where the women came on better footing but, even after passing of the Hindu Succession Act, 1956 , the discrimination could not be cured. The law commission took the subject suo moto due to the glaring discrimination existed in the Mitakshara Coparcenery. It was observed by the Commission that since the time immemorial property laws were enacted for the benefit of men. Property rights had been denied to Hindu women just in order to exercise control over them and to make them under- estimated and dependent on men. In the Joint Hindu family women were entitled only to maintenance. On the contrary a son acquires birth right in the ancestral property since he is a coparcener. The retention of the coparcenary excluding Women continued the traditional male dominance in the matter of inheritance. The Commission pointed out this inequity in its finding and observed   that it is in fact a fraud on the Constitution. On the basis of these findings the Commission recommended for the amendment of  The Hindu Succession Act 1956. On the basis of recommendations of Law Commission the parliament enacted The Hindu Succession (Amendment) Act, 2005. The following changes were made in the Hindu Succession Act, 1956.

In  Section 4 of the Hindu Succession Act, 1956, Sub Section (2) has been omitted. Let us see what Section 4 was before amendment;

4. Overriding effect of Act

 (1)Save as otherwise expressly provided in this Act,

 (a)any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b)any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.

(2)For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.

In simple language Section 4 of the Hindu Succession Act, 1956 says about two things i.e., in Sub Section (1) it says that any text, rule or interpretation of Hindu Law or any custom or usages as part of that law in force immediately before the commencement of the Hindu Succession Act, 1956 shall cease to have effect with respect to any matter for which provision is made in this Act. It further says that any Act governing Hindus in so far as it is inconsistent with the Hindu Succession Act, 1956 is also ceased to have effect.

Sub Section (1) only says that Hindus will not be governed by any old Law, Customs  and Texts except the Hindu Succession Act, 1956

Now let’s talk about Sub Section 2 which says that other Acts governing the matters  others then succession were in operation  at the time of the Hindu Succession Act, 1956. It is relevant to mention here that at the time of passing of the Hindu Succession Act, 1956, some other Acts governing the affairs of lands having different status inter se between its holders were in operation   such as; The  Punjab Occupancy Tenants( Vesting of Proprietary Rights) Act,1952 , The Punjab Security of Land Tenures Act, 1953 and The Punjab Tenancy Act, 1887. These Acts mainly governing the fragmentation of agricultural holdings and fixation of ceilings or for tenancy rights in respect of such holdings.

The Hindu Succession (Amendment) Act, 2005 Act only removed this  Sub Section because this Sub Section 2 was mainly based upon the operation of the Hindu Succession Act, 1956 governing the matters based upon old Hindu personal law, customs and usages and the same may create hindrances in exercise of full rights by the females and therefore this sub section has been removed.

Now let us come to the next Section i.e. Section 6 of the the Hindu Succession Act, 1956 which runs as under:-

“6. Devolution of interest of coparcenary property

 When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

 PROVIDED that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

 Explanation I: For the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

 Explanation 2: Nothing contained in the proviso to this Section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”

Lets now discuss Section 6 the Hindu Succession Act, 1956.

There are 4 elements in this Section i.e.,

1. If a male Hindu dies after the commencement of the Hindu Succession Act, 1956t, his interest in the Mitakshra Joint Hindu Family coparcenery property, shall be governed by survivorship and not by the Hindu Succession Act, 1956

2. Secondly if a Hindu dies leaving  female relatives specified in class I of the Schedule or a male relative specified in that class who claims such female relative, the interest of the deceased Hindu in the Mitakshara  coparcenery  property shall devolve by testamentary or intestate succession  under the Hindu Succession Act, 1956 and not by Survivorship. Meaning thereby the females have been deprived of claiming any rights in co- parcenery property not by survivorship as in the case male coparcener but is dependent upon testamentary and other mode of disposition as provided in the Hindu Succession Act, 1956. This was a step- motherly treatment with females of JHF;

3. The third point was that what was the interest of Mitakshra coparcener in the JHF coparcenery property  and that was  the share which he would have gotten  if the partition  had taken place  immediately before his death;

4. The fourth point was that if a person claiming though coparcener, had separated from the Joint Hindu Family Property before the death of the deceased intestacy or any of his legal heirs, he cannot claim anything from the share of the died coparcener.

The above discussed Section 6 of the Hindu Succession Act, 1956 was discriminatory against the women as they have not been treated as coparcener in the Mitakshra Joint Hindu Coparcenery Property and thus this provision had  to go and therefore was substituted by the new Section 6 in The Hindu Succession (Amendment) Act, 2005 Act which runs as follow:-

“6. Devolution of interest in coparcenary property -

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara  law, the daughter of a coparcener shall,-

 (a) by birth become a coparcener in her own right in the same manner as the son;

 (b) have the same rights in the coparcenary  property as she would have had if she had been a son;

 (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

 and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

 Provided that nothing contained in this Sub-Section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

 (2) Any property to which a female Hindu becomes entitled by virtue of Sub-Section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

 (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and:-

 (a) the daughter is allotted the same share as is allotted to a son;

 (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; and

 (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

 Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

 (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

 Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect -

 (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

 (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

 Explanation.-For the purposes of Clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

 (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

 Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.”

 Now let us discuss that what the new Section 6 of The Hindu Succession (Amendment) Act, 2005 has brought for the females of Joint Hindu Family.

The first thing the new Section has brought is the recognisition of females as coparceners in the Joint Hindu Family Coparcenery Property and this status was not available to them earlier at any point of time. Now let us examine  what the Sub Section (1) of Section 6 of The Hindu Succession (Amendment) Act, 2005 and its Sub Clauses has given to women;

The daughter of a coparcener has become a coparcener by birth in her own right in the same manner as the son.

Have got the same rights in the coparcenery property as she would have had if she had been a son. Meaning thereby no discrimination of any kind being daughter.

In any reference to the term Hindu Mitakshara   Coparcener shall include a reference to a daughter of a coparcener.

But while amending this Section the legislature has kept in mind the earlier disposition or alienation including any partition or testamentary disposition of property which had taken place prior to amendment of law. The legislature has put a last date for the same which is 20th December, 2004.

Let us examine little further what this proviso is for;

After passing of the Hindu Succession Act, 1956, there may be instances of disposition of property by the coparceners of Hindu Mitakshara coparceners and properties have been sold, alienated, disposed of  by way of testamentary disposition or alienation by way of sale deed, gift deed and lease deed etc. after 1956 till the appointed date i.e. 20-12-2004.There may not create any clouds on the rights of  transferees or beneficiary , a safeguard has been provided for them that their rights which had already been created shall not be hit by the new amendment.

Now let us examine Sub Section (2) of Section 6 of The Hindu Succession (Amendment) Act, 2005 which says once a female has become coparcener by virtue of Sub Section (1) she has even got the right to dispose off her interest being coparcener by way of any testamentary disposition; meaning thereby she can now dispose off her share in  the manner she likes.

Thereafter there comes Sub Section 3 of Section 6 of the newly incorporated provisions of law in the Hindu Succession Act, 1956  by way of present t. This Sub Section talks about the proposition when a Hindu dies after the commencement of Hindu Succession (Amendment) Act, 2005. This Sub Section says that if a Hindu dies after the commencement of this 2005 Act, his interest in the property of a Joint Hindu family governed by Mitakshara law shall be devolved by testamentary or intestate succession governed by this Act and not by survivorship and it shall be deemed that the coparcenery property has already been divide by way of partition.

Now let us examine Sub Section 4 of Section 6;

The 2005  Amendment Act has also brought something for sons, grandsons or great grandson that after passing of the amendment Act,they are not under pious obligation under the Hindu law to discharge the debt taken by their father,forefather if the debt has been created after passing of  The Hindu Succession (Amendment) Act, 2005.

But the new amendment has  created no protection from discharging the previous debt of the  creditors taken by the a Hindu prior to passing of  The Hindu Succession (Amendment) Act, 2005.

This Section further cleared the position about the discharge of debt by the daughters and their legal heirs. Since the daughter has been recognized as coparcener in the Joint Hindu Family property and has got every right like a son, she is also liable to discharge all obligations also.

The pious obligation created after 2005 will be discharged in the manner as if the new amendment Act of 2005 has not been enacted.

Now Sub Rule 5 which says that nothing contained in this Section shall apply to a partition, which has been effected before the 20th day of December 2004.

This Sub Section further clarifies that the partition should have been taken place legally i.e. partition made by execution of a deed of partition duly registered under the Registration Act,1908 or partition should have been effected by a decree of court.

This Sub Section 5 has opened a new venue for the daughters to claim partition of their share in case there is no prior legal partition.

Now let us discuss another amendment in the Hindu Succession Act, 1956.

The Section 23 of the Hindu Succession Act, 1956 has been omitted which had appeared as under:-

23. Special provision respecting dwelling houses Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: PROVIDED that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

This was another kind of discrimination felt by the females of a Joint Hindu Family that she could not have claimed partition in the dwelling house which was wholly occupied by the members of her family, until the male members choose to go for partition of the dwelling house. This section was discriminatory and thus has been omitted by the  Hindu Succession (Amendment) Act, 2005.

There was another Section in the Hindu Succession Act, 1956 which also had created a hurdle in the ways of certain class of  females i.e. widows and that was Section 24 of the Hindu Succession Act, 1956 which runs as under:-

 24. Certain widows remarrying may not inherit as widows Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a predeceased son of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married.

This Section says that the widow of predeceased son, widow of predeceased son of predeceased son and widow of a brother would not be entitled to succeed to the property of the intestate as such widow, if on the date  the succession opens, she has re-married. In the olden time a woman was treated as half of a man after his death and incase she has married; she was not treated as that half and was not given any right to claim any share from the property of the intestate. This was totally inhuman for a woman either to get share in the property or to remarry. This was against the basic feature of article 15 and 21 of the Constitution of India. Therefore this section has also been omitted by the new amendment.

There is also minor amendment in Section 30 of the Hindu Succession Act, 1956. The Section 30 of the Hindu Succession Act, 1956 as appeared in the principal Act is as under:-

30. Testamentary succession

 2 [* * *] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. Explanation: The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this 3 [section.]

In this Section of the Hindu Succession Act, 1956, for the words “disposed of by him”, the words “disposed of by him or by her” have been substituted. This has been made to  make the provisions gender equal.

RAKESH KUMAR SHARMA, ADVOCATE, PUNJAB AND HARYANA HIGH COURT, CHANDIGARH 

EMAIL:-rakesh1569@yahoo.com, Mob.6280805261