r the Hindu Succession

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http://www.hrln.org/admin/issue/subpdf/HSA_Amendment_2005.pdf

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

NO. 39 OF 2005

[5th September, 2005.]

An Act further to amend the Hindu Succession Act, 1956.

BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-

1.

Short title and commencement.

1. Short title and commencement.-(1) This Act may be called the Hindu Succession

(Amendment) Act, 2005.

(2) It shall come into force on such date as the Central Government may, by notification in the

Official Gazette, appoint.

2.

Amendment of section 4.

2. Amendment of section 4.-In section 4 of the Hindu Succession Act, 1956 (30 of 1956)

(hereinafter referred to as the principal Act), sub-section (2) shall be omitted. 3.

Substitution of new section for section 6.

3. Substitution of new section for section 6.-For section 6 of the principal Act, the following

section shall be substituted, namely:-

'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
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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

recognise 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


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(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.'.

4.

Omission of section 23.

4. Omission of section 23.-Section 23 of the principal Act shall be omitted.

5.



6.

Amendment of section 30. 6. Amendment of section 30.-In section 30 of the principal Act, for the words "disposed of

by

him", the words "disposed of by him or by her" shall be substituted.

7.

Amendment of Schedule.

7. Amendment of Schedule.-In the Schedule to the principal Act, under the sub-heading "Class

1", after the words "widow of a pre-deceased son of a pre-deceased son", the words "son of a

pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a

pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter

of a pre-deceased daughter of a pre-deceased son" shall be added.

T. K. VISWANATHAN,

Secy. to the Govt. of India.


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WOMEN'S RIGHT TO PROPERTY

In this Post I shall briefly explain the property rights of women under the Hindu law. There are four

stages here, to wit, pre-1937, 1937-1956, 1956-2005 and post-2005.

In theory, in the ancient times, the woman could hold property but in practice, in comparison to mens

holding, her right to dispose of the property was qualified, the latter considered by the patriarchal set up as

necessary, lest she became too-independent and neglect her marital duties and the management of

household affairs. This was the situation prior to 1937 when there was no codified law. The Hindu Womens

Right to Property Act, 1937 was one of the most important enactments that brought about changes to give

better rights to women. The said Act was the outcome of discontent expressed by a sizeable section of

society against the unsatisfactory affairs of the womens rights to property. Even the said Act did not give an

absolute right to women. Under the said Act a widow was entitled to a limited interest over the property of her

husband what was to be termed as Hindu widows estate. The Act was amended in 1938 to exclude the

widow from any interest in agricultural land.

The Hindu Succession Act, 1956 introduced many reforms and it abolished completely the essential

principle that runs through the estate inherited by a female heir, that she takes only a limited estate. The

Supreme Court put a lot of controversy at rest by holding that the woman becomes the absolute owner under

Section-14 of the Hindu Succession Act, 1956. The object of Section 14 is two-fold : (1) to remove the

disability of a female to acquire and hold property as an absolute owner and (2) to convert the right of woman

in any estate held by her as a limited owner into an absolute owner. The provision was retrospective in the

sense that it enlarged the limit of the estate into an absolute one even if the property was inherited or held by

the woman as a limited owner before the Act came into force. Any property acquired under the 1937 Act held

in capacity of a limited owner was now converted to her absolute estate. The Hindu Succession Act, 1956abrogates all the rules of the law of succession hitherto applicable to Hindus whether by virtue of any text or

rule of Hindu law or any custom or usage having the force of laws in respect of all matters dealt with in the

Act. Therefore no woman can be denied property rights on the basis of any custom, usage or text and the
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said Act reformed the personal law and gave woman greater property rights. The daughters were also granted

property rights in their fathers estate.

Under Section 8 of the Hindu Succession Act, 1956 the property of a male Hindu dying intestate (that

is, without leaving any testamentary instrument like will, settlement etc.,) shall devolve on his son, daughter,

widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter,

daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased son of a

predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of apredeceased son. Thus female heirs were granted property rights in the estate of the deceased male Hindu.

The above said Section applies to the self acquired property or the separate property of a male Hindu.

However Section-6 of the Act clearly states that in the case of joint family property, known as

coparcenary property, the interest of a male Hindu, on his death, would devolve by survivorship upon the

surviving members of the coparcenary and not in accordance with the above said provision. Coparcenary

consists of grandfather, father, son and sons son. However, if the deceased had left him surviving a female

relative (daughter, widow, mother, daughter of a predeceased son, widow of a predeceased son, daughter of apredeceased son of a predeceased son, widow of a predeceased son of a predeceased son) the interest of the

deceased in the coparcenary shall devolve by testamentary or intestate succession, as the case may be,

under this Act and not by survivorship. For example, A (who had an interest in the coparcenary property) dies

leaving behind him his 2 sons B & C and a daughter D. When he was alive, B & C (sons) were members of the

coparcenary and D (daughter) was not a member of the coparcenary. On the death of A, his daughter D will

get only 1/3 share in the 1/3 share of her father in the coparcenary property. It means the sons B & C will get

1/3 +1/9 each where as the daughter D will get only 1/9 share in the property.

Under Section 23 of the Hindu Succession Act, 1956, where a Hindu intestate has left surviving him or

her both male and female heirs and his or her property includes a dwelling house, wholly occupied bymembers of his or her family, 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 share 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.

No doubt, the above provisions of the Hindu Succession Act, 1956 are gender discriminatory. To

remove the said gender discriminatory provisions the Hindu Succession (Amendment) Act, 2005 was enacted

and the said Act came into force on 9th September, 2005 and it gives the following rights to daughters:

In a Joint Hindu family 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 coparcener shall be

deemed to include a reference to a daughter of a coparcener:

Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest

in the property of a Joint Hindu family 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 aliveat the time of partition, shall be allotted to the surviving child of such pre-deceased 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


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to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may

be.

The above mentioned provision under Section 23 of the Hindu Succession Act, 1956 relating to right of

residence in dwelling houses has been omitted under the Hindu Succession (Amendment) Act, 2005.

Thus gender discrimination has been removed to a larger extent by the 2005 Act. Now, daughters canclaim equal right in the self acquired/separate property and also coparcenary property left by their father.


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Amendment of section 4.-In section 4 of the Hindu Succession Act, 1956 (30 of 1956) (hereinafter referred to as the principalAct), subsection (2) shall be omitted.

3. Substitution of new section for section 6.

3. Substitution of new section for section 6.-For section 6 of the principal Act, the following section shall be substituted, namely:-

'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 partitionor 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 ofcoparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time beingin 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 ofa 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 hadtaken 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 ofpartition, shallbe allotted to the surviving child of such pre-deceased 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 hadhe or she beenalive 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-deceaseddaughter, as the case may be. Explanation.- For the purposes of this sub-section, the interest of aHindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partitionof 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 recognise any right to proceedagainst a son,grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on theground of thepious 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 orgreat-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 enforceableunder the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the HinduSuccession (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 tothe son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the HinduSuccession (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 dulyregistered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.'.

Omission of section 23.!4. Omission of section 23.-Section 23 of the principal Act shall be omitted.



6. Amendment of section 30.!6. Amendment of section 30.-In section 30 of the principal Act, for the words "disposed of by him", the words "disposed of byhim or by her" shall be substituted.

7. Amendment of Schedule.

7. Amendment of Schedule.-In the Schedule to the principal Act, under the sub-heading "Class 1", after the words "widow of apre-deceased son of a pre-deceased son", the words "son of a pre-deceased daughter of a pre-deceased daughter; daughter of apre-deceased daughter of a predeceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of apre-deceased daughter of a pre-deceased son" shall be added.----T. K. VISWANATHAN,

Secy. to the Govt. of India.

Hence in case no partition has taken place in the family before 20.12.2004, you can ask for partition

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