Hindu succession act 2005, Exams of Law

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CHAPTER - 5

RECENT CHANGES BROUGHT BY

HINDU SUCCESSION

(AMENDMENT) ACT, 2005

CHAPTER - V

RECENT CHANGES BROUGHT ABOUT BY THE HINDU

SUCCESSION (AMENDMENT) ACT, 2005

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 the 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 174 th Report of the Law Commission of India on “Property Rights of Women: Proposed reform under the Hindu Law”. 1

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 coparcenary shall be deemed to include a reference to a daughter.

This provision shall not affect or invalidate any disposition or alienation including partition or testamentary disposition of property which had taken place before 20 th December, 2004.

1 P.K. Das, Hand Book on Hindu Succession (Property rights of women and daughters), 2 nd edition, 2007 p. 18.

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 (Amendment) 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 be apply to a partition which has been done before 20 th December, 2004. Sections 23 and 24 omitted. Likewise special provisions relating to rights 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 (Amendment) Act of 2005 added new heirs viz, son of a predeceased daughter, son of a pre deceased daughter, daughter of a pre deceased son.

Thus the amendment of Hindu Succession (Amendment) Act of 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’s law opened the door for the women, to have the birth right of control and ownership of property beyond their right to sustenance.

174™ REPORT OF LAW COMMISSION OF INDIA ON “PROPERTY RIGHTS OF WOMEN: PROPOSED REFORMS UNDER THE HINDU LAW”

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 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 commission in pursuance of its terms of reference,

which, inter alia, oblige and empower to it make recommendations for the removal of anomalies, ambiguities and inequalities in the law, decided to undertake a study of certain provisions regarding the property rights of Hindu women under The Hindu Succession Act, 1956. The study was aimed at suggesting changes to this act so that women get an equal share in the ancestral property. 2

Before any amendment in the law is suggested with a view to reform the existing law, it is proper that opinion is elicited by way of placing the proposed amendments before the public and obtaining their views and if possible by holding workshops etc. the commission thus decided to have the widest possible interaction with a cross section of society including judges, lawyers, scholars, NGO’s etc. by issuing a questionnaire. Their views were also elicited on several of the provisions introduced by certain state legislatures regarding the property rights of Hindu Succession Act, 1956. The main focus/thrust of the questionnaire was to elicited views on three issues namely:

(i) Granting daughters coparcenary rights in the ancestral property: or to totally abolish the right by birth given only to male members; (ii) Allowing daughters full right of residence in their parental dwelling house; and (iii) Restricting the power of a person to bequeath property by way of testamentary disposition extending to one half or one third of the property.

The commission received replies in response to the questionnaire. These replies have been analysed and tabulated.

Aiming at a wider and more intense interaction the law commission in collaboration with the ILS, Law College and Vaikunthrao Dempo Trust of Goa, organized a two way workshop on “Property rights of Hindu Women proposed Reforms” in Pune on 28-29 Auguest, 1999. At this workshop the Chairman and

2 174 th 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 5 th May 2000.

hitherto unknown, in relation to a woman’s property. However, it 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, inter alia, 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 4. The Act applies to any person who is a Hindu by religion in any of its forms of developments including a Virashaiva a Lingayat or follower of the Brahmo Prrarthana or Arya Samaj: or to any person who is Buddhist, Jain or Sikh by religion to any other person who is not a Muslim, Christian, Parsi or Jew by religion as per section 2. In the case of a testamentary disposition this Act does not apply and the interest of the deceased is governed by the Indian succession Act, 1925.

Section 4 of the Act is of importance and gives overriding effect to the provisions of the Act abrogating thereby 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. The HSA reformed the Hindu personal law and gave a woman greater property rights, allowing her full ownership rights instead of limited rights in the property she inherits under section 14 with a fresh stock of heirs under sections 15 and 16 of the Act. The daughters were also granted property rights in their father’s estate. In the matter of succession to the property of a Hindu male dying intestate, the Act lays down a set of general rules in sections 8 to 13.

Devolution of inertest in Coparcenary Property

Section 6 of the HSA dealing with devolution of interest to coparcenary property states:

4 174 th 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 5 th May 2000

“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 in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1 - For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in 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 his 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.

Before the commencement of the HSA, codifying the rules of succession, the concept of a Hindu family under Mitakshara school or law was that it was ordinarily joint not only in estate but in religious matters as well. 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.

Section 6 dealing with the devolution of the interest of a male Hindu in coparcenary property and while recognizing the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the 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

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 1 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. Explanation I to section 6 was interpreted differently by the High Courts of

Bombay, Delhi, Orissa and Gujarat in the cases 5 where the female relative

happened to a wife or the mother living at the time of the death of the

coparcener. It is now not the mother living at the time of the death of the

coparcener. It is now not necessary to discuss this matter as the controversy has

been finally set at rest by the decision of the Supreme Court in 1978 in Gurupad

v. Heerabai 6 and reiterated later in 1994 in Shyama Devi v. Manju Shukla 7

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.

5 See Shiramabai vs. Kolgunda, AIR 1964 Bom 263; Kanhiyalal vs. Jamna, AIR 1973 Del 160; Rangubai Lalji vs. Laxman Lalji, AIR 1966 Bom 169; see also Ananda vs. Haribandhu, AIR 1967 Ori 90; 6 (1978)^ Vidyaben 3 SSC^ vs. 383:Jagdish AIR^ Chandra, 1978 SC^ AIR 1239.^1974 Guj^ 23;^ Sushila^ Bai^ vs.^ Narayan^ Rao,^ AIR^1975 Bom^ 257. 7 (1994) 6 SSC 342 (343).

Despite the Constitution guarantees equality to women there are still many discriminatory aspects in the law of succession against a Hindu woman under the Mitakshara system of joint family as per section 6 of the HSA as only males are recognized as coparceners.

The States of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka have amended the provisions of HSA effecting changes in the Mitakshara coparcenary of the Hindu undivided family. These four states have declared the daughter to be coparcener. The state of Kerala, however, have totally abolished the right by birth and put an end to the joint Hindu family instead of tinkering with coparcenary. The consequence of this de-recognition of the members of the family, irrespective of their sex, who are governed by Mitakshara law is that they become tenants in common of the joint family property and become full owners of their share.

Recommendations given by the iaw commission

As a first reaction the law commission was inclined to recommend the adoption of the Kerala model in toto as it had abolished the right by birth of males in the Mitakshara coparcenary and brought an end to the joint Hindu family, this appeared to be fair to women as they did not have any right by birth; but on further examination it became clear that if the joint Hindu family is abolished as on date and there are only male coparceners, then only they would hold as tenants in common and women would not get anything more than what they are already entitled to by inheritance under section 6 of HSA. So the commission is of the view that it would be better to first make daughters coparceners like sons so that they would be entitled to and get their shares on partition or on the death of the male coparcener and hold thereafter as tenants in common. We recommend accordingly 8.

174 th 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 5 th May 2000

quite often persons will away their property to people who are not relatives, thus totally depriving the children and legal heirs who have a legitimate expectation. Consequently, there has been a strong demand for placing a restriction on the right of testamentary disposition. But after due deliberation the commission is not inclined to the placing of any restrictions on the right of a Hindu deceased to will away property.

STATE AMENDMENTS ON THE PROPERTY RIGHTS OF WOMEN:

To overcome the lacuna and in order to make gender equality, the states of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu amended section 6 of Hindu Succession Act in 1986, 1994 and 1989 respectively 9 declaring daughters to be a coparcener in joint Hindu family, besides with the enactment of Kerala joint Hindu Family System (Abolition) Act in 1975, the state abolished fully the right to property by birth by males and put an end to the joint Hindu Family System. Likewise all the members became tenants in common of the joint family property and became full owner of their share.

The state of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu removed the discrimination inherent in Mitakshara coparcenary. The expression of provisions in Hindu Succession Act are almost similar with each other. Only difference poses is that Karnataka in respect of property rights of women inserts sections 6A, 6B and 6C and the States of Andhra Pradesh, Maharashtra and Tamil Nadu insert 29A, 29B and 29C in the Hindu Succession Act of 1956, the Central Act. These amendments contain non-obstante clause and at the same time provide equal rights to a daughter in the coparcenary property with the son. As per these amendments, in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener becomes entitled to be a coparcener by birth in her own right in the equal scale as her brother and accordingly has similar rights in the coparcenary property and at same time be subject to similar liabilities and disabilities.

9 State Amendments have been discussed in brief.

Again the daughter is entitled to equal share with her brother in the joint family coparcenary property on a partition of the said property. The provision also made clear that the share of the predeceased daughter son or predeceased daughter on such partition shall be shared by the surviving children of such predeceased son or predeceased daughter if alive at the time of partition. Another clarity in the provision is that the daughter can also dispose of the property in the form of will or other testamentary disposition because the property shall be held by her with the incident of coparcenary ownership. 10

Moreover, the daughter can have double property rights. Firstly she became coparcenary property right owner in her natal joint family and secondly after her marriage she shall also be a member of her marital joint family. Hence it can be said that these four states have altered the system of Mitakshara joint family coparcenary.

SALIENT FEATURES OF THE HINDU SUCCESSION (AMENDEMENT) ACT, 2005 - OBJECT OF THE AMENDING ACT 39 OF 2005:

1. The Hindu succession act 1956 has amended and codified the law relating to intestate succession among Hindus. The act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. 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 Marumakkattayam, Aliyasantana and Nambudari laws. The act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo Prarthana or Arya Samaj; or to any 10 State enactments are prospective in nature and not applicable to daughters who are married prior to or to a partition which has been effected before the commencement of such enactments.

THE HINDU SUCCESSION (AMENDMENT) ACT 2005- PRIMARY CHANGES

INTRODUCED BY THE ACT:

The Hindu succession (Amendment) Bill was introduced in the parliament on 20 December 2004 and was passed by the Rajya Sabha on 16 August 2005 and the Lok Sabha on 29 August 2005 respectively. Based on the recommendations of the 174 th Report of the law Commission on property right of women proposed reforms under Hindu Law its primary aim was to remove gender inequalities under the Act, as it stood before the amendment. The amendment also become necessary in view of the changes in Hindu Succession Act, 1956, in five Indian states namely, Kerala, Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra.. The Bill received president ’s assent on 5 September 2005 and it came into force on 9 th September 2005 12.

It is noteworthy that while in Kerala, the joint family concept and the pious obligation of the son to pay his father’s debts were abolished the other four states retained both, additionally, introducing an unmarried daughter as a coparcener. The present Act incorporates changes that are a combination of the Andhra and the Kerala model. It retains the concept of joint family and introduces daughters as coparceners but abolishes the pious obligation of the son to pay the debts of his father. Besides these basic changes, it amends the concept of coparcenary, abolishes the doctrine of survivorship, modifies the provisions relating to devolution of interest in Mitakshara coparcenary, the provisions relating to intestate succession, the category of class I heirs, rules relating to disqualification of heirs and marginally touches the provision relating to testamentary succession. The primary changes introduced by the Act have been discussed in detail under the following headings.

12 Poonam Saxena Family Law lectures Family Law-II, 2 nd edition 2007, p. 338.

(1) Deletion of provisions exempting application of the Act to agricultural holdings

With respect to the application of the Act, s 4(2), Hindu succession Act 1956, provided:

Section 4(2) - For the removal of doubts it is herby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for fixation of ceilings or for the devolution of tenancy rights of such holdings.

Thus, if there was law that dealt with

(i) Prevention of fragmentation of agricultural holdings or (ii) Fixation of ceilings or (iii) Devolution of tenancy rights of such holdings

To such property and to the interests in such property the Hindu succession Act did not apply. At the same time, if a particular state did not have any such law, then the Hindu succession Act applied by default. It was only when express provision existed with respect to devolution of agricultural property owned by an individual or held by him as tenant of the respective state government (the ownership of the land vesting with the state, with the tenant having heritable cultivating rights) that the Hindu Succession Act 1956, did not apply.

By deleting s 4(2) confusion has been created, as the legislature has not provided any express provision, that states or confirms the application of Hindu Succession Act to agricultural property over and above any state law, that also deals with the same. These laws, which provide for prevention of fragmentation of agricultural holdings, fixation of ceilings and devolution of tenancy rights, apply to the inhabitants of the states uniformly, in respective of their religion. For example, the whole of

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.

Thus, the traditional concept of coparcenary, where coparcenary property shelf with incidents of survivorship, stand abolished expressly by the legislature.

Under the classical law, the share of each coparcener fluctuated with births and deaths in the family. It decreased with the birth of a coparcener and increased with the death of a coparcener. On the death of coparcener, his interest was taken by the surviving coparceners and nothing remained for his female dependents. This rule was first modified by the Act of 1937, where the coparcener’s widow was permitted to hold on to his share for the rest of her life, and only on her death, the doctrine of survivorship applied and the male collateral could take the property.

The application of doctrine of survivorship was further diluted in 1956, when the Hindu succession Act was enacted. The Act confined the application of doctrine of survivorship only to cases where a male Hindu died as a member of Mitakshara coparcenary, having an undivided interest in the property and did not leave behind him, a class I female heirs or the of his predeceased daughter. In such cases, the application of doctrine of survivorship was expressly saved by the Act. However, if there was any class I female heirs present or the son of his predeceased daughter, then the application of doctrine of survivorship was defeated and the interest of the male Hindu in the Mitakshara coparcenary, calculated after effecting a notional partition, went by intestate succession in accordance with the Act. Thus, the application of doctrine of survivorship was conditional upon an undivided male coparcener dying without leaving behind any of these nine heirs. As per the present Act, the

doctrine of survivorship has been abolished unconditionally. Now, if any male Hindu dies, having at the time of his death, an undivided interest in Mitakshara coparcenary, the rule of survivorship would not apply to any class of heirs.

For example, a Hindu family comprises of a father f, and two sons S1 and S2 who form an undivided coparcenary. Each of them would have a one third share in the joint family property. Then, S2 dies as a member of this undivided coparcenary.

F r ““°~^ i 1 Si s 2

Under the old law, on the death of S2 the surviving coparceners would have taken the share of S2 by survivorship and their share would have increases to a half each. Thus, both F and S1 would have entitled to one half of the property on the death of S2.

After the amendment, and with the abolishing of doctrine of survivorship, the share of S2 would be calculated after affecting a notional partition, and that would come to one third. This one third would not go by doctrine of survivorship and would go by testamentary or intestate succession as the case may be. If there is no will, then this one third would go according to the Hindu succession Act, as per which as between the father and the brother, the father will be preferred and the brother will be excluded from inheritance in his presence. Therefore, the father will get two third of the total property and the brother would take one third.

Thus, abolition of doctrine of survivorship creates unequal rights between surviving coparceners vis-a-vis each other, which is contrary to