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KEY TAKEAWAYS

  • The Hindu Succession Act first came into force in the year 1956. The objective of the act was to deal with interstate or unwilled succession among Hindus.
  • The act is based on the rule of succession of Mitakshara principle of propinquity, i.e. preference of heir on the basis of proximity of relationship.
  • A major amendment to the act was brought about in the year 2005, when several loopholes were found regarding women’s ownership of property. The amendment sought to address the issue.
  • The provisions of Sec. 4(2) of the act were removed, which stated that the act shall not override the provisions laid down in any other act to avert the division or fragmentation of the agricultural or sealing the ceiling or creation of tenancy rights in spite of such holding. The removal of the aforementioned section, therefore, brought about a protection to women’s interest in agricultural land.
  • Several more important provisions were either amended or removed by the amendment act of 2005.

INTRODUCTION

The Hindu Succession Act, which came into force on 17th June, 1956, was based on the Mitakshara principle of propinquity, i.e. preference of heir on the basis of proximity of relationship. This principle sought to create a differential position of daughters in a family, barring them from inheriting properties, etc.

The reasons for preferential treatment of sons over daughters with regards to inheritance of property can be found from ancient history which had seen women being treated as second class citizens.

This issue was addressed by the amendment act which was brought into force in the year 2005. This Act rectified the status of daughters in the joint Hindu family system, granting them equal rights as that of their male counterparts.

This change to the act was brought about based on the recommendations of the 174th Law Commission report on women’s right to property under equal law and advocating for equal treatment of both genders.

FURTHER DETAILS

There were several changes brought to the provisions of the Hindu Succession Act, 1956, through the amendment act of 2005. Firstly, a new section was brought in to replace the existing provision of Sec. 6, which held that only male coparcenars were eligible for inheritance of property after the death of the patron of the family. This section denied rights to female coparcenars. After the amendment act of 2005, the female coparcenars were given equal rights with regards to inheritance of property.

In the case of Danamma @ Suman Surpur v. Amar1, the court held that the amended section conferred full rights to the daughter, who could claim rights to the property despite her father having passed away before the amendment came into force.

Secondly, amendments were brought by way of omissions to the provisions of the Act. Sec. 4(2) of the Act, which stated that the act shall not override the provisions laid down in any other act to avert the division or fragmentation of the agricultural or sealing the ceiling or creation of tenancy rights in spite of such holding, was removed by the amendment act. The inheritance of which was subject to the devolution rule was specified in State-level tenurial laws. Especially in north-western states, these laws were highly gender-unequal by giving preference to male heirs to agricultural property and denying women heirs their fair share. The new legislation brought male and female heirs of agricultural land on equal footing, thereby overriding inconsistent state laws. Therefore, this omission, in a way, brought about protection to women’s interest and rights to agricultural land.

Thirdly, the provisions of Sec. 23 were omitted and were replaced by a new provision. The old provision disentitled female heirs 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. This section disallowed married daughters to seek residence rights and partition rights in their parental home. This was viewed as a prejudicial provision of the old legislation. The amendment act replaced the old provision and brought equality and allowed for female heirs to seek partition rights in their dwelling homes. In G. Sekar v. Geetha & ors2, the court held that the legislature intended to achieve the goal of removal of discrimination only as contained in Section 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in dwelling house wholly occupied by a joint family as provided for in terms of Section 23.

Fourthly, the provisions of Sec. 24 of the Act were omitted and replaced by a new provision. This section held that widows who had decided to remarry were not eligible for inheritance of property. The section was based on the principle that as the widow is the surviving half of her husband and virtue of her remarriage ceased to be the same. The new provision removed this barrier. After amendment, it enabled all widows to inherit property after remarriage. This section, therefore, serves as a relief for widows seeking to remarry and inherit the property of their late husbands.


APPLICABILITY OF THE AMENDMENT ACT

There was considerable ambiguity with regards to the applicability of the amendment act. Questions were raised as to whether the amendment act was retrospectively applicable or prospectively applicable. However, the confusion was cleared by the judgment given by the Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma &Ors.3 Here, a three member bench of the Supreme Court held that the amendment act was retroactively applicable.

The aforementioned judgment operates on the premise that the amendment of Sec. 6 of the act was done to confer benefits to female heirs retroactively and not retrospectively or prospectively. The court held that the provisions of an act apply retroactively, when it prescribes benefits conditional upon an eligibility that may arise even prior to the passing of such legislation. Furthermore, the court held that the death of the predecessor coparcener which triggers the notional partition under Section 6 of the old legislation, only affected the computation of the share but not the right to claim a share.

The court, in the aforementioned judgment, overruled the decision given in the case of Prakash v. Phulavati4, which held that the notional partition prescribed by the proviso to Section 6 of the unamended Act leads to severance of coparcenary property in the event of the predecessor coparcener's demise prior to the 2005 amendment and therefore no coparcenary property is left available to be partitioned at the hands of the daughter claiming under the 2005 amendment.

The court, in the Vineeta Sharma case, held that the notional partition prescribed by the said proviso to Section 6 is intended only affect the computation of the share of the deceased coparcener when he was survived by a female heir (as specified in Class I of the Schedule to the Act) or by a male relative of such female heir and such notional partition does not finally determine the rights and liabilities of the male and female successors itself, which can only be undertaken either through a registered partition deed or through a decree of partition drawn by court.

Similarly, in the case of Prabhudayal v. Smt. Ramsiya & Ors.,5 the court held that before coming into force of amended Act of 2005, female heir of joint Hindu family was not entitled to ask for partition of the dwelling house occupied by joint Hindu family unlike the male heirs choose to divide their respective shares therein but Section 23 of the Act, 1956, has been omitted by Section 4 of the amendment Act, 2005, which would mean that from the date of enforcement of amended provision to the Act, the female heir of a coparcener can ask for partition of the dwelling house because according to Section 6 of the amendment Act, her status is also that of a coparcener.

Therefore, it can be conclusively said that the amendment act can be applied only in a retroactive manner and not in a retrospective or prospective manner.


CONCLUSION

The provisions of the act passed in 1956 were promulgated keeping in mind the Mitakshara system that was followed before the creation of the legislation. The system often sought to deny women their right to inherit properties that their male counterparts were made eligible to inherit.

The 174th Law Commission tried, and was successful in addressing this issue by recommending changes to the provisions of the act. The commission held that the old act was prejudicial towards women and that there should be equal treatment of both genders.

The amendment act of 2005 addressed this issue by removing certain provisions which were deemed to be prejudicial and replaced it with provisions that brought both male and female coparcenars on equal footing as both coparcenars were deemed to be eligible for inheritance of property.


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