Hindu Succession Act 1956
Generally succession refers to succeeding or following but in the context of hindu succession act it means succeeding or passing of rights of property from one to another.
Hindu succession act,1956 enforced and enacted from 17 june,1956. Also amendment has been done in 2005 as Hindu Succession amendment act 2005 introducing the concept of notional partition ( daughter rights under succession of property).
Under hindu law, there are four types in which property among hindu being divided.
- Joint Family Property( CONCEPT OF KARTA AND HINDU UNDIVIDED FAMILY)
- Separate property ( NO ANCESTRAL PROPERTY)
- Testamentary Succession (WILL)
- Intestate Succession(WITHOUT WILL)
But , under hindu succession act 1956 act it deals with the rules and regulations relating to intestate succession among hindus.
Right of dwelling house of a Hindu – Hindu succession act 1956
Dwelling house meaning:-
Generally , Dwelling house means a place where a person has to be regarded as his fixed permanent home to which whenever he is absent, he has the intention of returning moreover a place where he used to live from long time or we can say a person residence.
There is no specific definition of the expression dwelling of house and is not described and explained anywhere than in section 23 of Hindu succession act 1956.
In Fatime Begum v. Sakina Begum , the allahabad high court in their decision held that the Dwelling or Residence both the words are synonymous with Home or Domicile.
In Commissioner of Income Tax v. K.S. Ratnaswamy [1980 (2) SCC 548 at 553] the court quotable saying ,
- The expression “dwelling place” means “residence”, “abode” or “home”
- In other words , a place where an individual is supposed to live and sleep.
In Ford v. Barnes case
It is being described that the word “inhabitant” would seem to bring about more fully the meaning of the word dwelling house.
Before Amendment of 2005 Under Hindu succession act it defines:-
Section 23 of the Act
- Disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family
- Until the male heirs choose to divide their respective shares therein.
In simple words, before 2005 amendment in respect of the provision of section 23.
A bar was there for the woman to apply for the partition of the dwelling house until the male heir does not decided and filed for the partition in respect of the same.
For example :-
In respect of the dwelling house as per section 23 a daughter was not entitled to file a suit for partition in the absence of any partition suit filed for dwelling house by a son or any male member of the joint family.
However, the prior provision of the section 23 did not lead to the contrast that female heirs deny the right of the to claim partition in respect of the dwelling house but their right is postponed till the male files the suit for partition.
After amendment to Hindu succession act in 2005
- Hindu Succession (Amendment) Act,2005 (39 of 2005)
- The act came into force-9.september.2005
- The act is prospective in nature.
After coming into force of Hindu Succession (Amendment) Act,2005 (39 of 2005)
- The amendment came up with the procedure referring that it does not create any substantive right in claiming the relief of partition in respect of the dwelling house
- Further As being procedural in nature therefore same can be applied even to a pending suit
- The amendment with the omission of section 23 from the act generates certain rights that is being given to female members in the ancestral property
Resulted in ,
- A female member is entitled to claim partition even in respect of the dwelling house even in the absence of any partition suit filed by the male member.
- For example: daughter to claim partition in respect of the dwelling house even in the absence of any partition suit filed by the son
- Therefore, having regard to the omission of Section 23 of the Hindu Succession Act, 1956 by the Hindu Succession (Amendment) Act,2005 (39 of 2005) the bar which was operative against the female members to claim partition of the dwelling house was removed
- The female members are entitled to claim partition in respect of the dwelling house also along with other members
Section 23 of the hindu succession act 1956 defined as When a Hindu male dies without will and has left surviving both male and female heirs specified in class I heirs and his or her property includes a dwelling-house wholly occupied by members of his or her family then the right of the female heir to claim partition of the dwelling-house shall not arise until the male heirs decided to file suit for partition to divide their respective shares but with amendment of 2005 of Hindi succession act , the section 23 with giving right to female in ancestral property deleted the provision in regard to the section 23 of the Hindu succession act which resulted that female heirs have right to claim partition without the bar of whether the male heir choose partition or not
Author: Tanveen Kaur,
Chandigarh university/2 year/law student