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samudra (Retired)     19 December 2008

Hindu Succession (Amendment) Act. 2005.

Dear Friends!
    A person writes a will of his Inherited property( on his adopted Son and his Grand sons),in the year 1993and dies in the year2003.
    There is a dispute in the family on the adoption of a Female child( adopted by the dead person, during his life time).
 My question to the Esteemed members is: How THE HINDU SUCCESSION (Amendment)Act. 2005 Sec. 6(a) (b) (c) is help full to the Female child( in the event of her Adoption is UP HELD by the Court) ?


Learning

 8 Replies

AEJAZ AHMED (Legal Consultant/Lawyer)     19 December 2008

DEAR MR SAMUDRA,


THERE IS NO SUCH SECTIONS IN THE HINDU SUCCESSION (Amendment)Act. 2005.

AEJAZ AHMED (Legal Consultant/Lawyer)     20 December 2008

SORRY DEAR MR SAMUDRA,


YES ITS A SUBSTITUTED SECTION,


_____________________________________



Title : THE HINDU SUCCESSION (AMENDMENT) ACT, 2005



Year : 1962




Act :


THE HINDU SUCCESSION (AMENDMENT) ACT, 2005.#



NO. 39 OF 2005.



[5th September, 2005.]



+



An Act further to amend the Hindu Succession Act, 1956.BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-







1.



Short title and commencement.







1. Short title and commencement.-(1) This Act may be called the Hindu Succession (Amendment) Act, 2005.(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.







2.



Amendment of section 4.



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







3.



Substitution of new section for section 6.



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



6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-



(a) by birth become a coparcener in her own right in the same manner as the son;



(b) have the same rights in the coparcenary property as she would have had if she had been a son;



(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,



and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:



Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.



(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-



(a) the daughter is allotted the same share as is allotted to a son;



(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and



(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.



Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.



(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-



(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or



(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.



Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court..







4.



Omission of section 23.



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







5.



Omission of section 24.



5. Omission of section 24.-Section 24 of the principal Act shall be omitted.







6.



Amendment of section 30.







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







7.



Amendment of Schedule.







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



----



T. K. VISWANATHAN,



Secy. to the Govt. of India


 


 



The Hindu Succession (Amendment) Act, 2005 (39 of 2005) comes into force from 9th September, 2005. The Government of India has issued notification to this effect. The Hindu Succession (Amendment) Act is to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters under Section 6:

·         The daughter of a coparcener cell by birth become a coparcener in her own right in the same manner as the son;

·         The daughter has the same rights in the coparcenary property as she would have had if she had been a son;

·         The daughter shall be subject to the same liability in the said coparcenary property as that of a son; and any reference to a Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener;

·         The daughter is allotted the same share as is allotted to a son;

·         The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;

·         The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter.

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.

_______________________________________________

samudra (Retired)     20 December 2008

Aejaz,


         Thank  you ,But my question is not Answered fully.


         I know this( section 6). My Question is its applicability in the circumstances i have posted above!Will some one help me?

Selvam P (Advocate)     20 December 2008









Dear Mr Samudra,


The Hindu Succession (Amendment) Act, 2005 was come into effect only from 09-9-2005, whereas the adopted father was died prior to the date of the Amendment Act, 2005 was come into effect.  


As such the newly Amended Act, 2005 will no way helpful to your case and only the provision as prevails prior to the Amendment Act, 2005 will govern your case.


Furthermore, the Hindu Succession Act will comes into picture only if the person dies intestate (namely without writing any document such as Will, etc.,) but in your case he had written a Will infavour of his adopted son. So the Will shall prevail over the provisions of the Hindu Succession Act unless and until the Will shall be questioned before the Court of law regarding its genuine and credibility.     


Moreover, in which State, the said adopted father resided and his property was situated has much important to decide your query since each State has its own customary law for dealing with the immovable properties besides the written provision existing in the Hindu Succession Act, 1956.   


For more details, please go through the Judgment rendered by the Hon’ble Karnataka High Court in Sugalabai Vs. Gundappa A. Maradi & others which is available at: https://indiankanoon.org/doc/1251422


With regards,

P.SELVAM.

samudra (Retired)     25 December 2008

SelvamSelvamGaru Garu,


                      Thank you very much.  AndhrarPradeshAndhra Pradesh. What is the effect of,HUF coparcenary on this case?


       If you can kindly share your Email id,... I will post complete details of the CASE!

PALNITKAR V.V. (Lawyer)     25 December 2008

About the question as to how the adoption would affect the HUF coparcenary I would request Mr. Samudra to give complete details so that proper and satisfactory reply can be given. You may send the details on vpalnitkar@gmail.com.

Vijay Raj Mahajan (Advocate)     27 December 2008

Here the question is with regard to inherited property by the deceased person who made a Will in favor of his adopted Son and his Grand sons in 1993 & he died in 2003. The very fact the inherited property on his inheritance had become his self acquired property & hence his Will is valid, now how come this Adopted daughter comes in picture if her name doesn't appear in the Will of the deceased & how the Amendment in 2005 in the Hindu Succession Act, 1956 is of any relevance in this case. The amendment is with regard to ancestral property wherein daughters are given same status as sons as Hindu Coparcener in the Hindu Joint Family. The property in question in no manner can be held as Ancestral Property or coparcenary property. The Will is valid unless proved void in this case.

samudra (Retired)     03 January 2009

Dear VijayVijayMahajanhgaru garu,


 


         Thank  you  very much.


 


       Here i think, i have to give clarificationation.The property in question, is got to the person by virtue of his marriage in to the family; from his mother in law side (He got married to, Only Daughter of a lonely Widower).


  I think i am little clear now.


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