Summary of Hindu succession Amendment Act 2005
The constitution of India guarantees different types of fundamental rights to every citizen one of them is Article 14( equal protection of the law and equality before law) and Article 21 living with dignity .
The above article ceases the discrimination on the basis of caste, colour, creed , race, and sex .So the Hindu Succession Amendment Act 2005 is abrogation of gender disparity .This act was enacted to abolish all the unfair principles of the Hindu Succession Act, 1956.
The Hindu succession Amendment Act 2005 was came into effect on 9 September 2005 . The act recognizes that in a co-parcenary property , daughters have equal rights as male hires .
o The Hindu law of succession preserve the dual mode of devolution of property ;
2. By succession
o The act bases its rule of succession on basic principle of propinquity (preference of hire on the basis of proximity of relationship based on love and affection or nearness of blood).
o Law of succession is classified under two heads – testamentary succession and intestate succession.
Testamentary succession:- the testator which means a person who made the will enjoys full freedom of bequeathing his property separate or undivided interest.
Intestate succession:– It is based on law of inheritance , the rules which determine the mode of devolution of property of deceased on the heirs solely on the basis of their relationship to the deceased.
o Hindu succession Act 1956 deals with both testamentary succession (section 30) and instate succession.
Mitakshara Law School and Dayabhaga Law School-
Mitakshara Law School :-
• A son , by birth acquires and interest in the ancestral property of the joint family.
• Coparceners share is not defined and cannot be disposed of.
• A wife cannot demand partition but has the right to a share in any partition between her husband and her sons.
• All the members enjoy coparcenary rights during the father’s lifetime.
Dayabhaga Law School-
• A son no automatic ownership right by birth but acquired on death of father.
• A share of each coparcener is defined and can be disposed of.
• The same right does not exist for the women because the son’s cannot demand partition as the father is the absolute owner.
• Sons to not enjoy coparcenary rights when the father is alive.
Need for the Amendment –
• Prior to the 2005 amendment , daughters of the Hindu undivided family were not granted the status of coparceners to the property.
• Distribution of property in a family took place from grandfather to the father to the son.
Co-parcenary :- A joint Hindu Family means all people lineally descending from a common ancestor, including wife’s and unmarried daughters. Coparcenary property is one of which is inherited by a Hindu man from his father, grand father or great grandfather.
The property is coparcenary is held as joint owner and only a coparcener has a right to demand the partition of this property. Before 2005, coparceners included only sons grandsons and great grandsons who are holders of a joint property.
But the 2005 amendment act to section 6 of Hindu Succession act essentially gave equal rights to daughter in ancestral property. So the amendment allowed daughters to be recognised as coparceners by birth in the family as like the sons.
When Hindu Succession (Amendment Act) 2005 came into effect , in a joint family governed by the Mitakshara Law, which guarantees equal Share to daughters as like sons have .
The main provisions of the Hindu Succession (Amendment) Act, 2005 are as following :-
1.Section 4(2) of the Act ;
By virtue of section 4(2) of Hindu Succession Act , the devolution of the agricultural holdings was not governed by that Act , so that the provisions of that act could not be called to the plaintiff aid.
Case reference :- Sitabai Vs Kothulal
2. Section 6 ;
• By birth daughters will become co-parcerner in her own right as the son of the Joint Hindu Family deemed too be .
• They will have the same rights in the co-parcenary property as male heirs have .
• The daughters will have same legal rights and liabilities in the ancestral property by birth as it is given to the son.
Case reference – Vineeta Sharma vs Rakesh Sharma the Supreme court’s three – member bench of justices Arun Mishra, S Abdul Nazeer and MR Shah .
The Section 6 of the Act deals with devolution of interest of a female heir in co-parcenary property and recognizes the rule of devolution by survivorship among the members of the co-parcenary . The amendment included the females which means they can inherit in ancestral property as male counterparts to.
o The amendment also seeks to abolish the biasness ; the daughters is allotted the same share as is allotted to a male heirs.
The Act disentitles of female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family untill the male heirs choose to divide their retrospective share therein . It also abrogates the disability on female heirs contained in that section.
The doctrine of survivorship –
Under the survivorship states that property after the death of common ancestors devolves by the survivor. Females will inherit the property as it will goes to male heirs .
The section 30 says that the word “disposed off by him” should be substituted by “ disposed off by him or by her”.
“ Half of the Indian population to are woman. Have been discriminated against and have suffered and are suffering discrimination in silence. Sacrifice and self dineal are their nobility and fortitude , and yet they have been subjected to all equities indignities, inequality and discrimination” said by Justice K.Rama Swamy .
As said by the above justice that there is always a biasness with women in India at every walk of their life. After viewing the problems and hindrance which were faced by women’s the 174th Law commission presented the report in favour of women’s right in property under Hindu law advocating the changes to be brought in the court to ensure equal treatment of both the genders.
Author: Kajal Bind,
Prayag Vidhi Mahavidyalaya (Allahabad State University)