WHETHER AMENDMENT MADE TO THE HINDU

SUCCESSION ACT ACHIVING GENDER EQUALITY….?

CONTENTS

INTRODUCTION

Objectives

Research Methodology

Statement of Problem

Hypothesis

Key words of reference bearing significance

Material

(i)The United Nation's Report in 1980,

Background

The Hindu Succession Act, 1956,

(i)Gender Position Before 2005 Amendment,

The Hindu Succession (Amendment) Act, 2005

(i)A Prologue

Amendments To The Hindu Succession Act And Gender Equality Changes

brought in the position of women

(specifically in Sec 6 of the HSA, 1956) after the 2005 Amendment (431)

(i)What Is Mitakshara Coparcenary?

Position Of Woman (In Regards To Property Rights) Prior To Enactment Of

Hindu Succession Act, 1956,

(i) Prior to Hindu Law of Inheritance Act, 1929,

(ii)Hindu Law of Inheritance Act, 1929

Hindu Women's Right to Property Act (XVIII of), 1937,

Constitutional Provisions ensuring Gender Equality,

(i)It shall be the duty of every citizen of India,

Position Of Woman After Enactment Of Hindu Succession Act, 1956,

Devolution of interest in coparcenary property,

The State Amendments.

The Hindu Succession (Amendment) Act, 2005,

Changes Brought In The Position Of The Women (Specifically Focusing On

Section 6).

Some other anomalies persist.

Conclusion & Suggestion.

Bibliography.

Critical Appraisal Of Amendments To The Hindu Succession Act,

WHETHER AMENDMENT MADE TO THE HINDU

SUCCESSION ACT ACHIVING GENDER EQUALITY….?

Introduction:-

In the recent legislative proposals amending the Hindu Succession Act are

important steps towards gender equality and abolition of the paternal system of inheritance

prevailing among Hindus. It also gives daughters and equal share in agricultural property.

The Hindu Succession (Amendment) Bill 2004 passed unanimously by the LOK

Sabha, comes after a long gap; the Act was passed in 1956. The present debate about removing

discrimination against women to a large extent remains confined to the experts. The law, obtuse at

the best of times, takes on an even more tedious character when it comes to inheritance laws.

The Constitution of India provides that every person is entitled for equality

before law and equal protection of the laws and thereby prohibits discrimination on the basis of

caste, creed and sex. The discrimination on the basis of sex is permissible only as protective

measures to the female citizens as there is need to empower women who have suffered gender

discrimination for centuries. Empowerment of women, leading to an equal social status with men

hinges, among other things, on their right to hold and inherit property. Civilized societies across the

globe ensure that women's inheritance rights are more secure than those of men because women

take on the tremendous responsibility of producing and nurturing the next generation. In India,

women's rights have suffered serious setbacks among all communities. Before 1956

Despite the Hindu Succession Act being passed in 1956, which gave women

equal inheritance rights with men, the mitakshara coparcenary system was retained and the

government refused to abolish the system of joint family. According to this system, in the case of a

joint family, the daughter gets a smaller share than the son . While dividing the father's

property between the mother, brother and sister, the share is equal.

The Constitution of India enshrines the principle of gender equality in its

Preamble and Parts III, IV and IVA pertaining to Fundamental Rights, Fundamental Duties and

Directive Principles respectively. The Constitution not only grants equality to women, but also

empowers the State to adopt measures of positive discrimination in favour of women. And now as

India becomes increasingly aware of the need for equal rights for women, the government can't

afford to overlook, property rights have a deep impact on the national economy. The need to

dispense gender justice raises deep political debate and at times acrimony in legislative forums. This

enthused the ?house? to move a bill to make amendments in the Hindu Succession Act, to secure

the rights of women in the area of property.

The aim is to end gender discrimination in Mitakshara coparcenary by including

daughters in the system. Mitakshara is one of the two schools of Hindu Law but it prevails in a large

part of the country. Under this, a son, son's son, great grandson and great great grandson have a

right by birth to ancestral property or properties in the hands of the father and their interest is equal

to that of the father. The group having this right is termed a coparcenary. The coparcenary is at

present confined to male members of the joint family, it has been further elucidated in the project.

The Hindu Succession (Amendment) Act, 2005 is a landmark. After 50 years, the

Government finally addressed some persisting gender inequalities in the 1956 Hindu Succession

Act (1956 HSA), which itself was path-breaking. The 2005 Act covers inequalities on several

fronts:-agricultural land; Mitakshara joint family property; parental dwelling house; and certain

widow's. The amendment has come into operation from 2005; our project makes an analysis of this

amendment, in that specifically dealing with changes brought in the woman's property rights in

Mitakshara joint family property, what effects it will have on the position of women, loopholes in

the amendment, its advantages and disadvantages and few suggestions to make it more effectual.

Research Methodology-:Doctrinal research methodology has adopted in this project

which is basis on the secondary sources of data.

Statement of Problem -:The study to examine the laws made for the women interest and

find out the what extent it protects her interest in the society.

Objectives of the study-:

1. To study the women rights relating to property.

2. Analyze the role of Hindu Succession Act relating to property right of women’s.

Hypothesis -:All though the laws have been made for the protection of women interest but

these seems to be not sufficient for protection of women interest.

Keywords:- Property Rights, Legal Reform, Women's Empowerment, Elite Capture, Norms,

Entitlement, Development.

Material :-

Government reports:-

1.The United Nation's Report in 1980.

2.174th Report of Law Commission of India under the Chairmanship of Justice B.P. Jeevan Reddy,

vide D.O. No. 6(3)(59)/99-LC(LS), dated 5th May, 2000.

3. Mulla, Principles of Hindu Law (1998 17th ed. by SA Desai), p. 168.

4.Ibid.

5. Mayne's, Treatise on Hindu Law & Usage, (1996 14th Edn., edt. by Alladi Kuppuswami p. 1065.

6. M. Indira Devi, "Woman's Assertion of Legal Rights to Ownership of property" in Women & Law Contemporary

Problems, (1994 edt. by L. Sarkar & B. Sivaramayya) p. 174; also section 3(3) of Hindu Women's Right to Property

Act, 1937.

7. 7th Report of Parliamentary Standing Committee dated 13th May, 2005.

The United Nation's Report in 1980 presented that:-

"Women constitute half the world's population, perform nearly two-thirds of its hours, receive one-

tenth of the world's income and less than one ?hundredth of the property."

Since time immemorial the framing of all laws have been exclusively for the

benefit of man, and woman has been treated as subservient, and dependent on male support. The

right to property is important for the freedom and development of a human being. Prior to the Hindu

Succession Act, 1956 shastric and customary laws that varied from region to region governed

Hindus and sometimes it varied in the same region on a caste basis resulting in diversity in the law.

Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal

and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or

Nambudri in Kerala and Mitakshara in other parts of India with slight variations The multiplicity of

succession laws in India, diverse in their nature, owing to their varied origin made the property laws

even mere complex. Earlier, woman in a joint Hindu family, consisting both of man and woman,

had a right to sustenance, but the control and ownership of property did not vest in her. In a

patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in

the family property like a son.

Discrimination against women is so pervasive that it sometimes surfaces on a bare

perusal of the law made by the legislature itself. This is particularly so in relation to laws governing

the inheritance/succession of property amongst the members of a Joint Hindu family. It seems that

this discrimination is so deep and systematic that it has placed women at the receiving end.

Recognizing this the Law Commission1 in pursuance of its terms of reference, which, inter alia,

oblige and empower it to make recommendations for the removal of anomalies, ambiguities and

inequalities in the law, they decided to undertake a study of certain provisions regarding the

property rights of Hindu women under the Hindu Succession Act, 1956.

Background:-

A woman in a joint Hindu family, consisting both of man and woman, had a right

to sustenance, but the control and ownership of property did not vest in her. In a patrilineal system,

like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family

property like a son. Under the Mitakshara law, on birth, the son acquires a right and interest in the

family property. According to this school, a son, grandson and a greatgrandson constitute a class of

coparcenars, based on birth in the family. No female is a member of the coparcenary in Mitakshara

law. Under the Mitakshara system, joint family property devolves by survivorship within the

coparcenary. This means that with every birth or death of a male in the family, the share of every

1 174th Report of Law Commission of India under the Chairmanship of Justice B.P. Jeevan Reddy, vide D.O. No.

6(3)(59)/99-LC(LS), dated 5th May, 2000.

other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his

two sons, each would own one third of the property. If another son is born in the family,

automatically the share of each male is reduced to one fourth.

The Mitakshara law also recognises inheritance by succession but only to the

property separately owned by an individual, male or female. Females are included as heirs to this

kind of property by Mitakshara law. Before the Hindu Law of Inheritance (Amendment) Act 1929,

the Bengal, Benares and Mithila subschools of Mitakshara recognised only five female relations as

being entitled to inherit namely - widow, daughter, mother, paternal grandmother, and paternal

great-grandmother2. The Madras sub-school recognised the heritable capacity of a larger number of

females heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who are

expressly named as heirs in Hindu Law of Inheritance (Amendment) Act, 19293. The son's daughter

and the daughter's daughter ranked as bandhus in Bombay and Madras. The Bombay school which

is most liberal to women, recognised a number of other female heirs, including a half sister, father's

sister and women married into the family such as stepmother, son's widow, brother's widow and

also many other females classified as bandhus.

The Dayabhaga school neither accords a right by birth nor by survivorship

though a joint family and joint property is recognized. It lays down only one mode of succession

and the same rules of inheritance apply whether the family is divided or undivided and whether the

property is ancestral or selfacquired. Neither sons nor daughters become coparceners at birth nor do

they have rights in the family property during their father's life time. However, on his death, they

inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters

also get equal shares along with their brothers. Since this ownership arises only on the extinction of

the father's ownership none of them can compel the father to partition the property in his lifetime

and the latter is free to give or sell the property without their consent. Therefore, under the

Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies, his

heirs, including females such as his wife and daughter would become members of the joint property,

not in their own right, but representing him. Since females could be coparceners, they could also act

as kartas, and manage the property on behalf of the other members in the Dayabhaga School.

However, during the British regime, the country became politically and socially integrated, but the

British Government did not venture to interfere with the personal laws of Hindus or of other

communities. During this period, however, social reform movements raised the issue of

amelioration of the woman's position in society.

The earliest legislation bringing females into the scheme of inheritance is the

Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs,

i.e., son's daughter, daughter's daughter and sister (thereby creating a limited restriction on the rule

of survivorship). Another landmark legislation conferring ownership rights on woman was the

Hindu Women's Right to Property Act (XVIII of) 1937.

This Act brought about revolutionary changes in the Hindu Law of all schools,

and brought changes not only in the law of coparcenary but also in the law of partition, alienation of

2 Mulla, Principles of Hindu Law (1998 17th ed. by SA Desai), p. 168.

3 Ibid.

property, inheritance and adoption. 4 The Act of 1937 enabled the widow to succeed along with the

son and to take a share equal to that of the son. But, the widow did not become a coparcener even

though she possessed a right akin to a coparcenary interest in the property and was a member of the

joint family. The widow was entitled only to a limited estate in the property of the deceased with a

right to claim partition 5. A daughter had virtually no inheritance rights. Despite these enactments

having brought important changes in the law of succession by conferring new rights of succession

on certain females, these were still found to be incoherent and defective in many respects and gave

rise to a number of anomalies and left untouched the basic features of discrimination against

women. These enactments now stand repealed.

The framers of the Indian Constitution took note of the adverse and

discrimnatory position of women in society and took special care to ensure that the State took

positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India,

thus not only inhibit discrimination against women but in appropriate circumstances provide a free

hand to the State to provide protective discrimination in favour of women. These provisions are part

of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the

Directive Principles which are no less fundamental in the governance of the State and inter alia also

provide that the State shall endeavor to ensure equality between man and woman. Notwithstanding

these constitutional mandates/directives given more than fifty years ago, a woman is still neglected

in her own natal family as well as in the family she marries into because of blatant disregard and

unjustified violation of these provisions by some of the personal laws. Pandit Jawaharlal Nehru, the

then Prime Minister of India expressed his unequivocal commitment to carry out reforms to remove

the disparities and disabilities suffered by Hindu women. As a consequence, despite the resistance

of the orthodox section of the Hindus, the Hindu Succession Act, 1956 was enacted and came into

force on 17th June, 1956. It applies to all the Hindus including Buddhists, Jains and Sikhs. It lays

down a uniform and comprehensiye system of inheritance and applies to those governed both by the

Mitakshara and the Dayabahaga Schools and also to those in South India governed by the the

Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu Law.

The Hindu Succession Act, 1956 : -

Gender Position Before 2005 Amendment:-

The very preamble of the Act signifies that an Act to amend and codify t law

relating to intestate succession among Hindus. The Act aims to lay down an uniform law of

succession whereas attempt has been made to ensure equality inheritance rights between sons and

daughters. It applies to all Hindus including Budhists, Jains and Sikhs. It lays down an uniform and

comprehensive system of inheritance and .applies to those governed by the Mitakshara and

Dayabha schools as well as other6 schools. The Hindu Succession Act reformed the Hindu personal

law and gave women greater property rights, allowing her f ownership rights instead of limited

rights in property.

4 Mayne's, Treatise on Hindu Law & Usage, (1996 14th Edn., edt. by Alladi Kuppuswami p. 1065.

5 M. Indira Devi, "Woman's Assertion of Legal Rights to Ownership of property" in Women & Law Contemporary

Problems, (1994 edt. by L. Sarkar & B. Sivaramayya) p. 174; also section 3(3) of Hindu Women's Right to Property

Act, 1937. 6 Murumakkattayam, Aliyasantans and Nambudri.

The daughters were also granted property rights in their father's estate. In the

matter of succession of property of a Hindu male dying intestate, the Act lays, down a set of general

rules in sections 8 to 13. Sections 15 and 16 of the act contain separate general rules affecting

succession to the property of a fem intestate. Under section 8 of the Act three Classes7of heirs

recognized by Mitakshara Law and three Classes8of heirs recognised by Dayabhaga Law cease exist

in case of devolution taking place after coming into force of the Act. The heirs are divided into

instead, four Classes viz:

(i) Heirs in Class I of the Schedule

(ii) Heirs in Class II of the Schedule

(iii) Agnates, and

(iv) Cognates.

…..Of course mother, widow, son and daughter are primary heirs. In the absence of Class I heirs,

the property devolves on Class II heirs and in their absence first on agnates and then on cognates.

Still some sections of the Act came under criticism evoking controversy as being favourable to

continue inequality on the basis of gender. One such provision has been the retention of mitakshara

coparcenary with only males as coparceners.9

As per the Law Commission Report, coparcenary constitutes a narrower body of

persons within a joint family and consists of father, son, son's son and son's son's son. Thus

ancestral property continues to be governed by a wholly patrilineal regime, wherein property

descends onlythrough the male line as only the male members of a Joint Hindu Family have an

interest by birth in the coparcenary property, in contradiction with the absolute or separate property

of an individual coparcener, devolve upon surviving coparceners in the family, according to the rule

of devolution by survivorship. Since a woman could not be a coparcener, she was not entitled to a

share in the ancestral property by birth.Section 6 of the Act, although it does not interfere with the

special rights of I those who are members of a mitaksltara coparcenary, recognises, without

abolishing joint family property, the right upon death of a coparcener, of certain members of his

preferential heirs to claim an interest in the property that would have been allotted to such

coparcener if a partition10

of the joint family property had in fact taken place immediately before his

death.

Thus section 6 of the Act, while recognising the rule of devolution by

survivorship among the members of the coparcenary, makes an exception to the rule in the proviso.

According to the proviso, if the deceased has left a surviving female relative specified in Class I of

the Schedule I or a male relative specified in that Class who claims through such female relation,

the interest of a deceased in mitakshara coparcenary property shall devolve by testamentary of

intestate succession under the Act and not as survivorship 11

. Thus non-conclusion of women as

coparceners in the joint family property under the mitakshara system as reflected in section 6 of the

Act relating to devolution of interest in coparcenary property, has been under criticism for being

violative of the equal rights of women guaranteed under the Constitution in relation to property

7 . Gotraja, Sapindas, Samanodlakas and Bandhus

8 Sapindas, Sakulyas and Bandhus.

9 7th Report of Parliamentary Standing Committee dated 13th May, 2005.

10 Notional partition.

11

7th Report of Parliamentary Standing Committee

rights. This means that females cannot inherit ancestral property as males do. If a joint family gets

divided, each male coparcener takes his share and females get nothing. Only when one of the

coparceners dies, a female gets share of his interest as an heir to the deceased. Further as per the

proviso to section 6 of the Act, the interest of the deceased male in the mitakshara coparcenary

devolve by intestate succession firstly upon the heirs specified in Class I of Schedule I. Under this

Schedule there are only four primary heirs, namely son, daughter, widow and mother. For the

remaining eight, the principle of representation goes up to two degrees in the male line of descent.

But in the female line of descent, it goes only up to one degree. Thus the son's son's son and the

son's son's daughter get a share but a daughter's daughter's son and daughter's daughter's daughter

do not get anything.

Again as per section- 23 of the Act married daughter is denied the right to

residence in the parental home unless widowed, deserted or separated from her husband and female

heir has been disentitled to ask for partition in respect of dwelling house wholly occupied by

members of joint family until the male heirs choose to divide their respective shares therein. These

provisions have been identified as major sources of disabilities thrust by law on woman. Another

controversy is the establishment of the right to will the property. A man has full testamentary power

over his property including his interest in the coparcenary.

On the whole the Hindu Succession Act 12

gave a weapon to a man to deprive a

woman of the rights she earlier had under certain schools of Hindu Law. The legal right of Hindus

to bequeath property by way of will was conferred by the Indian Succession Act, 1925.

The Hindu Succession (Amendment) Act, 2005 - A Prologue:-

This amending Act of 2005 is an attempt to remove the discrimination as

contained in the amended section- 6 of the Hindu Succession Act, 1956 by giving equal rights to

daughters in the Hindu mitakshara coparcenary property as to sons have. Simultaneously section-

23 of the Act as disentitles the female heir to ask for partition in respect of dwelling house wholly

occupied by a Joint Family until male heirs choose to divide their respective shares therein, was

omitted by this Amending Act. As a result the disabilities of female heirs were removed. ?This is a

great step of the government so far the Hindu Code is concerned.

This is the product of 174th Report of the Law Commission of India on

"Property Rights of Women: Proposed Reform under the Hindu Law". First, the 2005 act, by

deleting a major gender discriminatory clause - Section 4 (2) of the 1956 HSA - has made women's

inheritance rights in agricultural land equal to men's. Section 4(2) excluded from the purview of the

HSA significant interests in agricultural land, the inheritance of which was subject to the succession

rules specified in state-level tenurial laws. Especially in the north-western states, these laws were

highly gender unequal and gave primacy to male lineal descendants in the male line of descent.

Women came very low in the succession order and got only a limited estate. The new legislation

brings male and female rights in agricultural land on par for all states, overriding any inconsistent

state laws. This can potentially benefit millions of women dependent on agriculture for survival.

Second, the 2005 act makes all daughters, including married ones, coparceners in joint family

property. The 1956 HSA distinguished between separate property and joint family property.

12

Before amendment of Hindu Succession Act, 1956 in 2005

The separate property of a (non-matrilineal) Hindu male dying intestate (without

leaving a will) went equally to his class I heirs, viz, son, daughter, widow and mother (and specified

heirs of predeceased children). On joint family property, those previously governed by `Mitakshara'

(prevailing in most of India) differed from those governed by `Dayabhaga' (prevailing in Bengal

and Assam). For the latter, joint family property devolved like separate property. But in Mitakshara

joint family property, while the deceased man's "notional" share went intestate to all class I heirs

(including females) in equal parts; sons, as coparceners, additionally had a direct birthright to an

independent share. Sons could also demand partition of the joint family property; daughters could

not. The 2005 act does not touch separate property. But it makes daughters coparceners in the

Mitakshara joint family property, with the same birthrights as sons to shares and to seek partition. In

addition, the act makes the heirs of predeceased sons and daughters more equal. Third, the 2005 act

by deleting Section 23 of the 1956 HSA gives all daughters (including those married) the same

rights as sons to reside in or seek partition of the parental dwelling house. Section 23 disallowed

married daughters (unless separated, deserted or widowed) even residence rights in the parental

home, and unmarried daughters had rights of residence but not partition. Fourth, the legislation

removes a discriminatory section which barred certain widows from inheriting the deceased's

property, if they had remarried.

According to the amending Act of 2005, in a Joint Hindu Family governed by the

mitakshara Law, the daughter of a coparcener shall, also by birth become a coparcener in her own

right in the same manner as the son heir. She shall have the same rights in the coparcenary property

as she would have had if she had been a son. She shall be subject to the same liabilities and

disabilities in respect of the said coparcenary property as that of a son and any reference to a Hindu

mitakshara coparencer shall be deemed to include a reference to a daughter. But this provision shall

not apply to a daughter married before the commencement of the Hindu Succession (Amendment)

Act of 2005.

This provision shall not affect or invalidate any disposition or alienation

including partition or testamentary disposition of property which had taken place before 20th

December, 2004.Further any property to which female Hindu becomes entitled by virtue of above

provision shall be held by her with the incidents of coparcenary ownership and shall be regarded, as

property capable of being disposed of by her by will and other testamentary disposition. The

provision was also made that where a Hindu dies after the commencement of the Hindu Succession

(Amendment) Act of 2005, his interest in the property of a Joint Hindu Family governed by the

Mitakshara Law, shall devolve by testamentary or intestate succession under the Act and not by

survivorship, and the coparcenary property shall be deemed to have been divided as if a partition

had taken place.

Further the daughter is allotted the same share as is allotted to a son. The

provision was also made that the share of the predeceased son or a predeceased 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 predeceased daughter.

Further the share of the pre-deceased child of a predeceased 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. The most important fact is that 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 bad taken place immediately before his death, irrespective of whether he was entitled

to claim partition or not. This amending Act of 2005 has also clear provision that, after

commencement of the Amending Act of 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 (on the ground of the pious obligation under the Hindu Law), of such son,

grandson or great grandson to discharge any such debt. But if any debt contracted before the

commencement this Amending Act of 2005 the right of any creditor, to proceed against son,

grandson or great grandson, shall not affect or any alienation relating to any such debt or right 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 Hindu Succession Amending Act of 2005 had not been enacted.

Further for the purpose of creditors right stated above the expression son,

grandson or great grandson shall be deemed to refer to the son, grandson or great grandson who was

born or adopted prior to the commencement (9th September, 2005) of the Amending Act of 2005.

Such provisions shall not apply to a partition which has been done before 20th December, 2004.

Sections 23 and 24 omitted. Likewise special provisions relating to rights in respect of dwelling

house and the disentitlement rights of widow's remarrying, respectively omitted from the Act. The

Amending Act also in the Schedule of the Hindu Succession Act, 1956 added new heirs viz, son of

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

deceased daughter, son of a pre-deceased daughter, daughter of a pre-deceased son.

Thus the amendment of Hindu Succession Act of 1956 in 2005 is a total

commitment for the women empowerment and protection of women's right to property. This

Amending Act in a partrilineal system, like mitakshara School of Hindu Law opened the door for

the women, to have the birth right in the family property like the son. The women were vested the

right of control and ownership of property beyond their right to sustenance.

Amendments To The Hindu Succession Act And Gender Equality:-

The recent legislative proposals amending the Hindu Succession Act are

important steps towards gender equality and abolition of the patrilineal system of inheritance

prevailing among Hindus. These proposals are based on the 174th Report of the Law Commission

published in 2000 and seek to give Hindu women equal rights in the Mitakshara Joint Family

Property. The proposed Bill also seeks to do away with Section 23 of the Hindu Succession Act

which denies a woman the right to seek partition of an inherited ?dwelling? unit / house if other

male heirs are residing in it and further restricts her right to reside in the inherited residence unless

she is a widow or has been separated from or deserted by her husband.

However, the proposed changes are not comprehensive enough and women will

still be subjected to unequal property rights in agricultural land as Section 4(2) of the Hindu

Succession Act allows for special State laws to address the issue of fragmentation of agricultural

holdings, fixation of ceiling and devolution of tenancy rights in these holdings. Thus, State laws

exist in Delhi, U.P, Madhya Pradesh, Punjab & Haryana, which deny women equal rights of

succession in tenancy rights. Further, certain other Sections of the Hindu Succession Act

discriminate against women through the discriminatory order of succession for male & female heirs.

The proposed Amendments to the Mitakshara Joint Family Property laws making women equal

coparceners are sought to be made applicable only to women who are not married at the time the

law is passed and is thus patently unjust also.

When the Hindu Succession Act was passed in 1956, the Mitakshara coparcenery

system was retained and the then Government refused to abolish this system of Joint family in spite

of contrary recommendations by the Select Committee and protest by AIWC. Under the Mitakshra

System of Joint Family, which prevails in all parts of India apart from Bengal only males are

members (coparceners) of the Joint Family and the right to inheritance was by way of survivorship

and not by way of succession. The son acquired a right and interest in Joint Family Property on

birth while a woman family member only had a right to maintenance.

However the Hindu Succession Act gave a share to the first class female heirs

(daughters and wives) in the share of the father / husband in the joint family property who died

intestate (without making a will). However this share was not equal to the share, which a son

inherited, since the son was deemed to be coparcener (member of the joint family) by birth. For e.g.

in a joint family consisting of a father, a son and a daughter, both the father and the son, according

to the Mitakshara coparcenary system, would be equal owners of the property. Thus when the father

died, after the 1956 Act, his share would devolve equally on both the son and daughter. However

the daughter in this particular case would only get 1/4th share of the property whereas the brother

who was already a co owner would have his half share plus 1/4th share of the property. The

Amendment cleared by the Union Cabinet proposes to make the daughter also a coparcener in the

Joint Family Property. It is pertinent to point out that some states like Karnataka, Andhra Pradesh,

Maharashtra and Tamilnadu have already passed laws making the daughter a member (coparcener)

of the joint family while other states like Kerala have completely abolished the joint family system.

This could be done as laws of succession fall in Entry 5 of the concurrent list of

the VIII th Schedule to the Constitution. It is relevant to note that the Hindu Code Bill, as originally

framed by the B.N.Rao committee and piloted by Dr B.R.Ambedkar, had recommended abolishing

the Mitakshara coparcenery with its concept of survivorship and the son?s right by birth in a joint

family system and substitute it with a principle of inheritance by succession. In fact, AIDWA had

also during the Dowry Prohibition Act amendments in early 1980s, asked for abolition of the Joint

family System. In this sense the Amendment doesn't go far away. The other Amendment, which

was cleared by the Cabinet, was to abolish Section- 23 of the Hindu Succession Act 1956. This

provision denies a married daughter the right to residence in an inherited parental home unless she

is widowed, deserted or separated from her husband. The section further denies the daughter, who

has inherited a house along with a male member of a family from asking for her share of the

property if any member of the family resides in the inherited house, until the male heirs also agreed.

However, no such restriction has been placed by the Section 23 on a male heir.

Apart from this the proposed amendment seeks to make the new law applicable

only to those women who are not married at the date of the amendment. This provision is based on

the Maharashtra Law and is said to be made on the presumption that women, who are married have

already received their share of property etc. as dowry / gift during their marriage. This is patently

unfair not only because many women may not have received dowry but also because the amount of

dowry received can hardly be equated to equal rights in property. In reality this is a devise to restrict

the number of women, who inherit and to maintain status quo as far as possible.

Apart from the obvious discrimination in Section 6 and Section 23 discussed

above, certain other sections of Hindu Succession Act also blatantly discriminate against women

and require amendment. The most important section, which has been used to deny property rights to

women in agricultural land, is Section 4 (2) of the Hindu Succession Act, which allows for State

legislation to prevail over the Hindu Succession Act. This Section states that the Act shall not apply

to laws ?providing for the prevention of fragmentation of agricultural holdings or for fixation of

ceilings or for the devolution of tenancy rights in respect of such holdings?. Judgments under this

Section have upheld laws under Section 4 (2) of the Hindu Succession Act and have mostly denied

women equal rights in agricultural land. While some courts have held that the Hindu Succession

Act will apply to agricultural holding, this can only be in the absence of State laws for the purposes

mentioned in Section 4 (2) or if the States laws under Section 4(2) themselves apply the Hindu

Succession Act or personal laws to ?devolution of tenancy rights?. Courts have upheld the State

Land Reform Acts, relating to devolution of tenancy rights even though these do not allow women

to inherit these tenancies. Some courts have further interpreted the term?devolution? of tenancy

rights broadly / comprehensively to include devolution of tenure holder's right and have thus also

denied women ownership rights over agricultural land.

Thus even laws meant for land reform and to enforce ceiling have resulted in

denying to women equal rights over land and a chance to improve her disempowered status. Section

30 of the Hindu Succession Act allows any Hindu to dispose off his property including his share in

the Joint Family Property by will. As has been pointed by women's organizations/ groups and

activists this Section can and has been used to disinherit women. It has been recommended by many

that a limitation should be placed on the right to will. Such a provision exists in Muslim law where

a Muslim can only Will away up to a maximum of -1/3rd of his property.

Section 15 of the Hindu Succession Act which specifies how the property of a

female Hindu will devolve also contains certain discriminatory provisions. It states that in the

absence of class I heirs( son, daughters & husband) the property of a female Hindu will go to her

husband's heirs and only if these heirs are not then will the property devolve upon her mother and

father. However, in the absence of the mother and father, the property will again devolve upon the

heirs of the father and only if there are no heirs of father will the property devolve upon the heirs of

the mother.

The proviso to Section-6 of Hindu Succession Act contains another instance of

gender bias. The proviso states that the property of the deceased in the Mitakshara Coparcenary

shall devolve by intestate succession if the deceased had a female heir or a male heir who claims

through such female relative. In order to appreciate the gender bias it is necessary to see the rules of

devolution of interest under section 8 of the Hindu Succession Act. In this section there are only

four primary heirs in the Schedule to class I, namely, mother, widow, son and daughter. If, however,

for example the son or daughter has already died, their children can inherit the property. The

principle of representation goes up to two degree in the male line of descent; but in the female line

of descent it goes only upto one degree. Accordingly, the deceased son's son's son and son's son's

daughter get a share but a deceased daughter's daughter's son and daughter's daughter's daughter do

not get anything. A further infirmity is that a widow of a pre-deceased son and grandson are class-I

heirs, but the husbands of a deceased daughter or grand-daughter are not heirs.

Changes brought in the position of women

(specifically in Sec 6 of the HSA, 1956) after the 2005 Amendment (431)

What Is Mitakshara Coparcenary?

Coparcenary literally means Joint inheritance or heir ship of property. Also

called parcenary. Coparcenary is a narrower body of persons within a joint family, and consists of

father, son, son's son, son's son's son. The disparity in the property rights on the basis of gender is

deep rooted and can be traced back to the ancient times. Traditional Hindu inheritance laws evolved

from the ancient texts of Dharmashastras and the various commentaries and legal treatises on them.

In particular, the

Mitakshara and the Dayabhaga legal doctrines, dated around the twelfth century

AD govern the inheritance practices among the Hindus. In most of northern and parts of western

India Mitakshara law is prevalent.Under the Mitakshara law, on birth, the son acquires a right and

interest in the family property. According to this school, a son, grandson and a great grandson

constitute a class of coparceners, based on birth in the family. No female is a member of the

coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by

survivorship within the coparcenary. This means that with

every birth or death of a male in the family, the share of every other surviving male either gets

diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one

third of the property. If another son is born in the family, automatically the share of each male is

reduced to one fourth. The Mitakshara law also recognizes inheritance by succession but only to the

property separately owned by an individual male or female. Females are included as heirs to

this kind of property by Mitakshara law.

Position Of Woman (In Regards To Property Rights) Prior To Enactment Of

Hindu Succession Act, 1956:-

Since time immemorial the framing of all property laws have been exclusively

for the benefit of man, and woman has been treated as subservient, and dependent on male support.

The right to property is important for the freedom and development of a human being. Prior to the

Act of 1956, Shastric and Customary laws, which varied from region to region, governed Hindus

and sometimes it varied in the same region on a caste basis. As the country is vast and

communications and social interactions in the past were difficult, it led to diversity in the law.

Consequently in matters of succession also, there were

different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan

and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India

with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to

their varied origin made the property laws even mere complex.

But, however the social reform movement during the pre-independence period raised the issue of

gender discrimination and a number of ameliorative steps were initiated. The principal reform that

was called for, and one which became a pressing necessity in view of changed social and economic

conditions, was that in succession there should be equitable distribution between male and female

heirs and the Hindu women's limited estate should be enlarged into full ownership (however

that actually never happened). The only property over which she had an absolute ownership was the

Stridhan meaning women's property.

Prior to Hindu Law of Inheritance Act, 1929:-

Prior to this Act, the Mitakshara law also recognizes inheritance by succession

but only to the property separately owned by an individual, male or female. Females are included as

heirs to this kind of property by Mitakshara law. Before the Hindu Law of Inheritance Act 1929, the

Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations as

being entitled to inherit namely - widow, daughter, mother paternal grandmother, and paternal

great-grand mother . The Madras sub-school recognized the heritable capacity of a larger number of

female's heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who are

expressly named as heirs in Hindu Law of Inheritance Act, 1929.The son's daughter and the

daughter's daughter ranked as bandhus in Bombay and Madras. The Bombay school which

is most liberal to women, recognized a number of other female heirs including a half sister, father's

sister and women married into the family such as stepmother, son's widow, brother's widow and

also many other females classified as bandhus.

Hindu Law of Inheritance Act, 1929:-

This was the earliest piece of legislation, bringing woman into the scheme of

inheritance. This Act, was conferred inheritance rights on three female heirs i.e., son's daughter,

daughter's daughter and sister (thereby creating limited restriction on the rule of

survivorship).

Hindu Women's Right to Property Act (XVIII of), 1937:-

This was the landmark legislation conferring ownership rights on women. This

Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not

only in the law of coparcenary but also in the law of partition, alienation of property, inheritance

and adoption . The Act of 1937 enabled the widow to succeed along with the son and to take a share

equal to that of the son. But, the widow did not become a coparcener even though she possessed a

right akin to a coparcenary interest in the property and was a member of the joint family. The

widow was entitled only to a limited estate in the property of the deceased with a right to claim

partition . A daughter had virtually no inheritance rights.

Despite these enactments having brought important changes in the law of

succession by conferring new rights of succession on certain females, these were still found to be

incoherent and defective in many respects and gave rise to a number of anomalies and left

untouched the basic features of discrimination against women. These enactments now stand

repealed.

Constitutional Provisions ensuring Gender Equality:-

The framers of the Indian Constitution took note of the adverse condition of

women in society and a number of provisions and safeguards were included in the Constitution to

ward off gender inequality. In this context, Articles 14, 15(3) and 16 of the Constitution can be

mentioned. These provisions are part of the Fundamental Rights guaranteed by the Constitution.

Part IV containing Directive Principles of State Policy-Which are no less fundamental in the

governance of the State to ensure equality between man and woman such as equal pay for equal

work. The Directive Principles further endorses the principle of gender equality, which the State has

to follow in matters of governance. Similarly, Part IVA of the Constitution enshrining the

Fundamental Duties states that:

==> It shall be the duty of every citizen of India:-

(e) ... to renounce practices derogatory to the dignity of women....

Despite these provisions for ensuring equal status, unfortunately a woman is still not only neglected

in her own natal family but also the family she marries into because of certain laws and attitudes.

Position Of Woman After Enactment Of Hindu Succession Act, 1956:-

After the advent of the Constitution, the first law made at the central level

pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956

(hereinafter called the HSA). This Act dealing with intestate succession among Hindus came into

force on 17th June 1956. It brought about changes in the law of succession and gave rights, which

were hitherto unknown, in relation to a woman's property. The section 6 of Hindu Succession Act,

1956 follows as:

Devolution of interest in 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 and not by survivorship.

Explanation1. For the purpose 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.

Explanation2. 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.

Section- 6 deals with the devolution of the interest of a male Hindu in

coparcenary property it says that if a male Hindu dies leaving behind his share in Mithakshara Co-

parcenary property , such property will pass on to his sons, son's son's, son's son's son by

survivorship, on surviving members. In case there are female relatives like daughter, widow,

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

widow of predeceased son of a

predeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by

succession and not by survivorship . And while recognizing the rule of devolution by survivorship

among the members of the coparcenary, makes an exception to the rule in the proviso. According to

the proviso, if the deceased has left him surviving a female relative specified in Class I of Schedule

I, 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 under this Act and not by survivorship. The rule of survivorship comes into operation

only: -

Where the deceased does not leave him surviving a female relative specified in

Class I, or a male relative specified in that Class who claims through such female relative; and ·

When the deceased has not made a testamentary disposition of his

undivided share in the coparcenary property.

As pointed out above that the main provision of this section deals with the

devolution of the interest of a coparcener dying intestate by the rule of survivorship and the proviso

speaks of the interest of the deceased in the Mitakshara Coparcenary Property. Now, in order to

ascertain what is the interest of the deceased coparcener, one necessarily needs to keep in mind the

two Explanations under the proviso. These two Explanations give the necessary assistance for

ascertaining the interest of the deceased coparcener in the Mitakshara Coparcenary Property.

Explanation I provides for ascertaining the interest on the basis of a notional partition by applying a

fiction as if the partition had taken place immediately before the death of the deceased coparcener.

Explanation II lays down that a person who has separated himself from the coparcenary before the

death of the deceased or any of the heirs of such divided coparcener is not entitled to claim on

intestacy a share in the interest referred to in the section.

Under the proviso if a female relative in class I of the schedule or a male

relative in that class claiming through such female relative survives the deceased, then only would

the question of claiming his interest by succession arise. The Supreme Court in 1978 Gurupad v.

Heerabai and reiterated later in 1994 in Shyama Devi v. Manju Shukla wherein it has been held

that the proviso to section 6 gives the formula for fixing the share of the claimant and the share is to

be determined in accordance with Explanation I by deeming that a partition had taken place a little

before his death which gives the clue for arriving at the share of the deceased.

Section- 6 can further be understood by the following-Example: If ?C? dies leaving behind his two

sons only, and no female heirs of class I then property of ?C? passes to his sons by survivorship

since there are no female relatives like daughter or any other member specified in the class I of first

schedule. In case ?C? dies leaving behind two sons and three daughters, then property of ?C? will

pass on to his sons and daughters by succession in the following manner.

Firstly property of "C" is divided between "C" and his two sons. The shares of "C" and his two sons

are, C gets one-third and each son one-third.

The sons are entitled to the equal share of the property along with the father. But the daughters are

entitled to the share in the share of the deceased ?C? along with other sons. So the sons will get one-

third of the property and a share, which is one-fifth in the share of deceased ?C?. Hence the

daughter does not take equal share with the son.

However, section- 6 did not interfere with the special rights of those who are

members of a Mitakshara coparcenary except to provide rules for devolution of the interest of a

deceased in certain cases. The Act lays down a uniform and comprehensive system of inheritance

and applies, interalia, to persons governed by Mitakshara and Dayabhaga Schools as also to those in

certain parts of southern India who were previously governed by the Murumakkattayam,

Aliyasantana and Nambudri Systems. The Act applies to any person who is a Hindu as defined in

section 2 of HSA . But now the question the question is whether, the Hindu Succession Act actually

gave women an equal right to property or did it only profess to do so. Significantly, the provisions

regarding succession in the Hindu Code Bill,as originally framed by the B.N.Rau Committee and

piloted by Dr.Ambedkar, was for abolishing Mitakshara coparcenary with its concept of

survivorship and the son's right by

birth in a joint family property and substituting it with the principle of inheritance by succession.

These proposals met with a storm of conservative opposition. The extent of opposition within the

Congress or the then government itself can be gauged from the fact that the then Law Minister

Mr.Biswas, on the floor of the house, expressed himself against daughters inheriting property from

their natal families.

The retention of the Mitakshara coparcenary without including females in it

meant that females couldn't inherit ancestral property as males do. If a joint family gets divided,

each male coparcener takes his share and females get nothing. Only when one of the coparceners

dies, a female gets a share of his share as an heir to the deceased. Thus the law by excluding the

daughters from participating in coparcenary ownership (merely by reason of their sex) not only

contributed to an inequity against females but has led to oppression and negation of their right to

equality and appears to be a mockery of the fundamental rights guaranteed by the Constitution.

Hence this very fact necessitated a further change in regards to the property rights of women, and

which was done by the Hindu Succession (Amendment) Bill, 2004.

The State Amendments:-

The idea of making a woman a coparcener was suggested as early as 1945 in

written statements submitted to the Hindu Law Committee by a number of individuals and groups;

and again in 1956, when the Hindu Succession Bill was being finally debated prior to its enactment

an amendment was moved to make a daughter and her children members of the Hindu coparcenary

in the same way as a son or his children. But this progressive idea was finally rejected and the

Mitakshara Joint family was retained.

The concept of the Mitakshara coparcenary property retained under section 6 of

the HSA has not been amended ever since its enactment. Though, it is a matter of some satisfaction

that five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka

have taken cognizance of the fact that a woman needs to be treated equally both in the economic

and the social spheres. As per the law of four of these states, (Kerala excluded), in a joint Hindu

family governed by Mitakshara law, the daughter of a coparcener shall by birth become a

coparcener in her own right in the same manner as the son. Kerala, however, has gone one step

further and abolished the right to claim any interest in any property of an ancestor during his or her

lifetime founded on the mere fact that he or she was born in the family. In fact, it has abolished the

Joint Hindu family system altogether including the Mitakshara, Marumakkattayam, Aliyasantana

and Nambudri systems. Thus enacting that joint tenants be replaced by tenants in common.A list of

the legislation passed by the five states is set out below and

the legislation is annexed as Annexed "1"

· The Joint Hindu Family System (Abolition) Act, 1975, Kerala.

· The Hindu Succession (Andhra Pradesh Amendment) Act, 1986.

· The Hindu Succession (Tamil Nadu Amendment) Act, 1989.

· The Hindu Succession (Karnataka Amendment) Act, 1994.

· The Hindu Succession (Maharashtra Amendment) Act, 1994.

The Hindu Succession (Amendment) Act, 2005:-

The Hindu Succession (Amendment) Act, 2005 was seeks to make two major

amendments in the Hindu Succession Act, 1956. First, it is proposed to remove the gender

discrimination in section 6 of the original Act. Second, it proposes to omit section 23 of the original

Act, which 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.

However in the instant project

we have focused specifically on the changes brought in Section 6 in regards to the position of

woman and has made a clause-by-clause consideration of the section thus amended.

Section 6 of the Hindu Succession Act, 1956 has been restated for convenience:-

Devolution of interest in 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 and not by survivorship.

Explanation 1. For the purpose 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.

The Hindu Succession (Amendment) Act, 2005-

6(I) .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 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 subsection (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 in, 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 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 predeceased 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 so 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 or partition affected by a decree

of a court.

Section- 6 seeks to make the daughter a coparcener by birth in a joint Hindu

family governed by the Mitakshara law, subject to the same liabilities in respect of the said

coparcenary property as that of a son.

Laws reflect the face of society and its evolution over the time. To respond to the

needs of a dynamic social system, laws have to be changed and amended, at regular intervals. As far

as the basic objective of the Act, is to remove gender discriminatory practices in the property laws

of the Hindus, whereby daughters have been given the status of coparceners

in the Mitakshara joint family system. However, the position of other Class I female heirs should

not suffer as a result of this move.

However, it does not interfere with the special rights of those who are members

of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased

male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and

applies, inter alia, to persons governed by the Mitakshara and Dayabhaga

schools and also to those governed previously by the Murumakkattayam, Aliyasantana and

Nambudri laws. It is proposed to remove the discrimination as contained in section 6 of the Hindu

Succession Act, 1956 by giving equal rights to daughters in

the Hindu Mitakshara coparcenary property as the sons have.

Changes Brought In The Position Of The Women (Specifically Focusing On

Section 6):- Out of many significant benefits brought in for women, one of the significant

benefit has been to make women coparcenary (right by birth) in Mitakshara joint family property.

Earlier the female heir only had a deceased man's notional portion. With this amendment, both male

and female will get equal rights.

In a major blow to patriarchy, centuries-old customary Hindu law in the shape of

the exclusive male mitakshara coparcenary has been breached throughout the country.

The preferential right by birth of sons in joint family property, with the offering

of "shradha" for the spiritual benefit and solace of ancestors, has for centuries been considered

sacred and inviolate. It has also played a major role in the blatant preference for sons in Indian

society. This amendment, in one fell swoop, has made the daughter a member of the coparcenary

and is a significant advancement towards gender equality.

The significant change of making all daughters (including married ones)

coparceners in joint family property - has been of a of great importance for women, both

economically and symbolically. Economically, it can enhance women's security, by giving them

birthrights in property that cannot be willed away by men. In a male-biased society where wills

often disinherit women, this is a substantial gain. Also, as noted, women can become kartas of the

property. Symbolically, all this signals that

daughters and sons are equally important members of the parental family. It undermines the notion

that after marriage the daughter belongs only to her husband's family. If her marriage breaks down,

she can now return to her birth home by right, and not on the sufferance of relatives. This will

enhance her self-confidence and social worth and give her greater bargaining power for herself and

her children, in both parental and marital families.

Now under the amendment, daughters will now get a share equal to that of sons

at the time of the notional partition, just before the death of the father, and an equal share of the

father's separate share. Equal distribution of undivided interests in co-parcenery property. However,

the position of the mother vis-à-vis the coparcenary stays the same. She, not being a member of the

coparcenary, will not get a share at the time of the notional partition. The mother will be entitled to

an equal share with other Class I heirs only from the separate share of the father computed at the

time of the notional partition. In effect, the

actual share of the mother will go down, as the separate share of the father will be less as the

property will now be equally divided between father, sons and daughters in the notional partition.

Some Anomalies Still Persist:-

Some other anomalies also persist:-

1. One stems from retaining the Mitaksara joint property system. Making daughters coparceners

will decrease the shares of other Class I female heirs, such as the deceased's widow and mother,

since the coparcenary share of the deceased male from whom they inherit will decline. In States

where the wife takes a share on partition, as in Maharashtra, the widow's potential share will now

equal the son's and daughter's. But where the wife takes no share on partition, as in Tamil Nadu or

Andhra Pradesh, the widow's potential share will fall below the daughter's.

2. Co-parcenary remains a primary entitlement of males; the law, no doubt provides for equal

division of the male co-parcener's share on his death between all heirs, male and female; still, the

law puts the male heirs on a higher footing by providing that they shall inherit an additional

independent share in co-parcenary property over and above what they inherit equally with female

heirs; the very concept of co-parcenary is that of an exclusive male membership club and therefore

should be abolished.

But such abolition needed to be dovetailed with partially restricting the right to will (say to 1/3 of

the property). Such restrictions are common in several European countries. Otherwise women may

inherit little, as wills often disinherit them. However, since the 2005 Act does not touch

testamentary freedom, retaining the Mitaksara system and making daughters coparceners, while not

the ideal solution, at least provides women assured shares in joint family property (if we include

landholdings, the numbers benefiting could be large). 3. If a Hindu female dies intestate, her

property devolves first to husband's heirs, then to husband's father's heirs and finally only to

mother's heirs; thus the intestate Hindu female property is kept within the husband's lien.

Another reason for having an all India legislation is that if the Joint Family has properties in two

states, one which is governed by the Amending Act and the other not so governed, it may result in

two Kartas, one a daughter and the other a son. Difficulties pertaining to territorial application of

Amending Act will also arise. Thus is the need for an all India Act or Uniform Civil Code more

immediate.

Conclusion:-

The Preamble to the Amending Acts indicates the objective as the removal of

discrimination against daughters inherent in the mitakshara coparcenary and thereby eradication of

the baneful system of dowry by positive measures thus ameliorating the condition of women in the

human society.

It is necessary to understand that if equality exists only as a phenomenon outside

the awareness and approval of the majority of the people, it cannot be realized by a section of

women socialized in traditions of inequality. Thus there is need to social awareness and to educate

people to change their attitude towards the concept of gender equality. The need of the hour is also

to focus attention on changing the social attitudes in favour of equality for all by enacting a uniform

law.

The difficult question of implementing the 2005 Act remains. Campaigns for

legal literacy; efforts to enhance social awareness of the advantages to the whole family if women

own property; and legal and social aid for women seeking to assert their rights, are only a few of the

many steps needed to fulfill the change incorporated in the Act.

Empowerment of women, leading to an equal social status in society hinges, among other things, on

their right to hold and inherit property. Several legal reforms have taken place since independence

in India, including on equal share of daughters to property. Yet equal status remains illusive.

Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn out

process. The government, the legislature, the judiciary, the media and civil society has to perform

their roles, each in their own areas of competence and in a concerted manner for the process to be

speedy and effective.

These amendments can empower women both economically and socially. and

have far-reaching benefits for the family and society. Independent access to agricultural land can

reduce a woman and her family's risk of poverty, improve her livelihood options, and enhance

prospects of child survival, education and health. Women owning land or a house also face less risk

of spousal violence. And land in women's names can increase productivity by improving credit and

input access for numerous de facto female household heads.

Making all daughters coparceners like wise has far-reaching implications. It gives women

birthrights in joint family property that cannot be willed away. Rights in coparcenary property and

the dwelling house will also provide social protection to women facing spousal violence or marital

breakdown, by giving them a potential shelter. Millions of women - as widows and daughters - and

their families thus stand to gain by these amendments.

Bibliography:-

1. Hindu Succession Act, 1956.

2. Hindu Succession (Amendment) Act, 2005. 3. The United Nation's Report in 1980,

Critical Appraisal Of Amendments To The Hindu Succession Act:-

The recent amendment to the Hindu Succession Act has made the daughter a

member of the coparcenary. It also gives daughters an equal share in agricultural property. These

are significant advancements towards gender equality. The Hindu Succession (Amendment) Bill

2004, passed unanimously by the Lok Sabha, comes after a long gap: the Hindu Succession Act was

passed in 1956. The present debate about removing discrimination against women to a large extent

remains confined to the experts. The law, obtuse at the best of times, takes on an even more tedious

character when it comes to inheritance laws.

For almost half a century since the passing of the Hindu Succession Act, 1956, there has been the

widespread belief that under Hindu personal law daughters are equal to sons. This belief was based

on Section 10 of the Act dealing with the distribution of property of a Hindu who has died without

making a will, referred to as ?intestate? in law. The provision unequivocally declares that property

is to be distributed equally among Class I heirs, as specified in the schedule. The schedule clearly

lays down daughters, mothers and widows as Class I heirs entitled to a share equal to that of sons.

This, though seemingly a huge step in favour of gender justice, was in fact more a sleight of hand.

The mischief lay in customary Hindu law and the concept of mitakshara

coparcenary property. A Hindu joint family consists of a common ancestor and all his lineal male

descendants, together with wives or widows and unmarried daughters. The existence of a common

ancestor, necessary to bring a joint Hindu family into existence, continues even after the death of

the ancestor. Upper links are removed and lower ones are added; the joint family can continue

indefinitely. Except in the case of adoption, no outsiders are permitted and membership to the joint

family is by birth or marriage to a male member. A Hindu joint family is a unit and is represented

by the karta or head.

The Hindu Succession Act retained the coparcenary. In fact, Section 6

specifically declares that, on death, the interest of a male Hindu in mitakshara coparcenary property

shall devolve by survivorship to other members of the coparcenary and not by succession under the

Act. However, it laid down that the separate share of the deceased, computed through the device of

a deemed partition just before his death, would devolve according to the Succession Act.

The Act did not clearly spell out the implications of exclusion from membership

to the coparcenary in respect of inheritance of property. Thus, if a widowed Hindu male died

leaving a son and a daughter, then, according to the explanation in Section 6 of the Act, there will

be deemed to be a partition just before the death of the person. In this deemed or ?notional?

partition, the father and son share equally and each gets half the property. The father's half will be

shared equally by his son and daughter as Class I heirs. In effect, therefore, the daughter gets one-

fourth of the property, while the son gets his own half from the deemed partition as a coparcener

and an additional half from the share of his father. Together that would be three-fourths of the

property. It is this inequity between son and daughter that has now been removed by the

amendment.

The preferential rights by birth of sons in joint family property, with the offering

of shradha for the spiritual benefit and solace of ancestors, have for centuries been considered

sacred and inviolate. It has also played a major role in the blatant preference for sons in Indian

society. This amendment, in one fell swoop, has made the daughter a member of the coparcenary

and is a significant advancement towards gender equality.

After the amendment, daughters will now get a share equal to that of sons at the

time of the notional partition, just before the death of the father, and an equal share of the father's

separate share. However, the position of the mother vis-a-vis the coparcenary stays the same. She,

not being a member of the coparcenary, will not get a share at the time of the notional partition. The

mother will be entitled to an equal share with other Class I heirs only from the separate share of the

father computed at the time of the notional partition. In effect, the actual share of the mother will go

down, as the separate share of the father will be less as the property will now be equally divided

between father, sons and daughters in the notional partition.

The original bill, introduced in 2004, exempted agricultural land from the

purview of the amendment. A considerable section of society is totally against equal shares to

daughters with respect to agricultural land. The inclusion of agricultural land in the amendment,

giving equal shares to daughters and overriding state-level discriminatory tenurial laws, is a great

credit to parliament. Effective lobbying by women's groups must also be given due credit.

The equal sharing of the father's property applies in cases where he dies intestate

-- that is, without making a will. Given the bias and preference for sons and notions of lineage,

discrimination against daughters in inheritance through wills is bound to remain. In most cases, the

terms of the will would favour the son. Perhaps the share of property that can be willed by a person

could be restricted, as a step towards greater gender equality. For example, Islamic jurisprudence

lays down that a person can only will one-third of his property. Provisions to check the prevalent

practice of ?persuading? daughters to give up their share in joint family property is another area that

requires attention. This is an opportune time to keep up the momentum for further reforms to reduce

gender inequities and move towards a more equal society.

The amendment will only benefit those women who are born into families that

have ancestral property. There is no precise definition of ancestral property. Given the fact that

families have long since been fragmented and the fact that the joint family system is on the decline,

it is not at all clear whom this law will benefit. It cannot apply to self-acquired property. No person

by birth will acquire any rights in self-acquired property. In today's context, most property is self-

acquired and that property must follow principles of succession under the different succession laws.

Moreover, its owner can dispose off such property during his lifetime by gift. It can be bequeath by

will to anyone of his choice. The proposed amendment notwithstanding, a Hindu father can

disinherit his wife or daughter by will, in his self-acquired property. The amendment therefore by

itself cannot offer much to Hindu women. What is more, under the laws of certain states, it will

actually disadvantage widows, as the share of the daughter will increase in comparison to the

widow. The amendment is not at all well thought out and can play women against each other. There

is no equity in that. Thus, though seemingly progressive, it does nothing more than make a political

point, that the state is committed to abolishing discrimination against women, but only Hindu

women. The position of women married into the joint family will actually become worse.

The proposed amendment only makes the position of the female members of the

joint family worse. With a daughter along with the sons acquiring a birthright, which she can

presumably partition at any time, the rights of other members of the joint family get

correspondingly diminished. While the reforms of the 1950s disadvantaged a divorced wife, the

reforms of the present times will disadvantage married women as well. Until now, the only

protection women had in the marital home was the status of being married, which carried with it the

right to be maintained, not only by the husband, but by the joint family and its assets as a whole.

Thus married women who lived in a joint Hindu family had the protection of the family home. This

protection will now stand eroded, to the extent that the total divisible amount gets reduced.

Something similar will happen to Hindu widows. Daughters will acquire a birthright in Hindu joint

family property, mothers stand to lose a portion of the cake, as an inheritance. Since Hindu law does

not grant any rights to wives in marital property, their only chance of getting anything was on an

inheritance, as equal share with the sons and daughters, if the marriage was subsisting on the death

of the husband. On divorce, of course, even that right to inheritance disappears. It is birthright in

Hindu law that is the root of the problem. Birthright by definition is a conservative institution,

belonging to the era of feudalism, coupled as it was with the rule of primogeniture and the

inalienability of land. When property becomes disposable and self-acquired, different rules of

succession have to apply. It is in the making of those rules that gender justice has to be located.

What the proposed amendment does is to reinforce the birthright without working out its

consequences for all women.

Justice cannot be secured for one category of women at the expense of another.

It is impossible to deal with succession laws in isolation. One has to simultaneously look at laws of

matrimonial property, divorce and succession to ensure a gender just regime of laws. The present

bill does nothing of the kind. The exercise should be abandoned in toto.