Hindu Succession (Amendment) Act, 2005 has brought radical changes in law of succession as well as the heirs entitled to succeed therein. A look at the changes…
The Hindu Succession Act, 2005 amends and codifies the law relating to succession to separate as well as coparcenary property (referred to as joint family property in common parlance) for all Hindus and provides uniform law for all Hindus in relation to succession. The term ‘Hindu’ includes Buddhists, Jainas and Sikhs. The statute bases its rule of succession on the basic principle of propinquity, i.e., preference to heirs on the basis of proximity of the relationship and it deals with both testamentary succession as well as intestate succession.
The Hindu Succession Act, 1956 (‘the Act’) modified the Mitakshara coparcenary system. The Act gave a share to the Class I female heirs in the coparcenary property of the father or husband, subject to certain conditions. Females have also been given a share in the separate property of the father and husband. The commendable achievement of the Act is that the females have become absolute owners of their property.
The Act removed the disqualifications for inheritance based on physical and mental deformities. Males and females succeed simultaneously, though the schemes of succession to the property of male and female dying intestate are different. Males were also given right to make a testamentary disposition, i.e., a Will of their undivided share in the Mitakshara coparcenary property.
Laws of succession fall in Entry 5 of the concurrent list of the VIII Schedule to the Constitution. Therefore, States can make their own laws on the subject. State of Kerala abolished joint Hindu family system by the Kerala Joint Hindu Family System (Abolition) Act, 1975. The Hindu Code Bill had recommended abolishing the Mitakshara coparcenary with its concept of survivorship and also the abolition of son’s right by birth in a joint family system and substitute it with a principle of inheritance by succession, but the recommendations were not accepted.
Females were conferred the status of ‘coparcener’ by way of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, The Hindu Succession (Tamil Nadu Amendment) Act, 1989, The Hindu Succession (Karnataka Amendment) Act, 1990 and The Hindu Succession (Maharashtra Amendment) Act, 1994.
The Act has been amended in 2005 by the Hindu Succession (Amendment) Act 2005 (‘the Amendment Act’) and came into effect on September 9, 2005. Changes introduced by the Amendment Act of 2005 are commendable.
Any law which dealt with the prevention of fragmentation of agricultural holdings or fixation of ceilings or devolution of tenancy rights of such holdings, that law was not affected by the provisions of the Act and continued to be valid. However, after the Amendment Act of 2005, any such law is also subject to the amended provisions.
The rule of survivorship in case of male coparceners stands abolished. Females have become coparceners. A female has the same rights in the coparcenary property as she would have had, if she had been a son and is subject to the same liabilities in respect of the said coparcenary property as that of a son.
Any reference to a Hindu Mitakshara coparcener in the Amendment Act is deemed to include a reference to a daughter of a coparcener. Any property, to which a female Hindu becomes entitled, by virtue of becoming a coparcener, shall be held by her with the incidents of coparcenary ownership. This means that if circumstances exist, which justify alienation of joint family property, the share of female coparceners would also be bound by that alienation. Thus, female coparceners also cannot challenge alienation of their share.
Such property, to which she becomes entitled, by virtue of becoming a coparcener, shall be property capable of being disposed of by her by testamentary disposition, a right which was enjoyed only by males prior to the Amendment Act. Thus, a female coparcener too, can make a Will of her share in joint family property. This provision is being criticised as by making a Will of her share in such property, there is a likelihood of strangers being given the share in joint family property. However, such a probability exists equally in case of male coparceners as they had been empowered to make a Will of their undivided share in joint family property way back in 1956. Therefore, the fears or risks against empowering females in this regard are unfounded and exaggerated.
The concept of notional partition is retained, i.e., when a Hindu dies leaving behind an interest in the coparcenary property, it is deemed as if he is alive and the shares of each coparcener are determined as if there was a partition affected immediately before his death. This way his (the deceased’s) share in the coparcenary property is calculated and it is this share, which is distributed according to the rules of succession amongst his heirs. At notional partition, daughter is allotted the same share as is allotted to a son.
Surviving child of the predeceased son or daughter would get the share of his or her predeceased father or mother, as the case may be. Thus, son as well as daughter of the daughters and son as well as daughter of the predeceased son will get the share of their predeceased mother or father, as the case may be, at notional partition, irrespective of whether such a child is entitled to claim partition or not. If the son or daughter of the predeceased son or predeceased daughter have also died but have left behind a surviving child, such surviving child will get the same share on notional partition which his or her paternal or maternal grandparents would have got, had they been alive, irrespective of whether such a child is entitled to claim partition or not.
A son who seeks partition from his father during the father’s lifetime, taking away his share in the coparcenary property, again inherits the share from his father’s share in the coparcenary property. Pious obligation of the son, grandson and of the great-grandson for recovery of any debt due from the father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, has been abolished and no court shall recognise any right to proceed against such son, grandson or great-grandson for recovery of that debt. The sub-clause is prospective and thus, liability of his son, grandson or great-grandson, as the case may be, under pious obligation, for debts contracted before the Act of 2005 continues. The liability is attached to adopted, as well as natural born, son, grandson or great-grandson. It also signifies the non-recognition of oral partition for the purpose of section 6 of the Amendment Act.
The Amendment Act has also deleted the section of the Act which denied a female the right to seek partition of an inherited ‘dwelling’ house, if other male heirs were residing in it and restricted her right to reside in the inherited residence, unless she was a widow or had separated from or deserted by her husband. Earlier, the coparceners, who resided in the dwelling unit, deprived the females to get any share in the same by actually affecting partition but not bringing the same on records. As the female had no right to claim partition, she was practically ousted from ever getting a share in the same.
The Amendment Act has empowered a female too, to make testamentary disposition of her undivided interest in coparcenary property by way of ‘Will’.
The provision, which placed a bar on widow of predeceased son, widow of predeceased son of a predeceased son, and brother’s widow related to intestate from inheriting the property of the intestate, if they remarried at the time of opening of the succession, has now been deleted.
Four new Class I heirs have been added, namely son of a predeceased daughter of a predeceased daughter, daughter of a predeceased daughter of a predeceased daughter, daughter of a predeceased son of a predeceased daughter, and daughter of predeceased daughter of a predeceased son.
Most of these are welcome changes, although it remains to be seen how successful their implementation would be in actual practice. The Hindu Succession Act is a species of personal law, which has tried to change progressively but unfortunately, neither our society nor the beneficiaries under the Amendment Act, namely females, approve of the daughters seeking share or partition in the coparcenary property.
Rajni Abbi Deputy Chairperson, Standing Committee, MCD, Delhi
In a joint Hindu family, there is unity of food, worship and estate. Coparcenary is an important characteristic of joint Hindu family. For years, males alone have been enjoying the status of coparceners, even under the Hindu Succession Act, 1956 (‘the Act’). In 2005, the legislature has affected a laudable change in the Act by conferring coparcenary on females too. One of the basic flaws of personal laws is that there is nothing automatic about them. Succession to the property is not automatic. It is not as if the intestate would die and share would be divided and given to the coparceners on its own. The coparcener has to demand it.
Those females who demand partition or their share, which they inherit from intestate, most of the time land up in a vicious circle of litigation. A female is looked down upon by her relatives through paternal line and ultimately, it ends in her relinquishing all claims. Whenever such progressive legislations are passed, the practical difficulties and realities in their implementation should also be addressed. Till the time there is a social revolution, where the females are given equal status, it is very difficult to avoid such social harassment. The society has to realise that a daughter, sister or widow is as much related to the deceased as any male heir and has as much right as any male heir.
In enacting personal laws, law has always been progressive and much ahead of the times. After few years, the society would accept the importance and need of such laws and there would be more females to claim their share as a matter of right. The judiciary also has a responsibility to decide such cases in time to encourage more women to enforce their rights.
Prof. Poonam Saxena* Professor-in-Charge, Law Centre-II, Faculty of Law, University of Delhi
It was one of the most inhibitive provisions under the Hindu Succession Act, 1956 (‘the Act’) because it prevented a female i.e. any Class I female from seeking partition of inherited dwelling house against the wishes of the male members of the family. The advantages of deleting section 23 is striking, as now, a daughter, a widow or any Class I female heir of the family can claim partition or her proportion of the share out of the dwelling house. Dwelling house is one of the major assets that any person can have because immovable property is always more valuable than movable property and cash.
It is not very clear as after 2005, whether it would be covered under the separate property or general property, it could not definitely be called inherited property from father or mother. The problem is because under the present scheme of the Act, any property that she receives through inheritance from father’s, or paternal family reverts to the family of the father, if she dies issueless but if she had issues, then the property, irrespective of the source, will go to her issues. The problem arises, when she dies without leaving any issue; according to the scheme of the Act, property should go back to the coparceners and not go to the husband. However, if she dies after the partition of the property, one can not even apply the doctrine of survivorship. This particular question is left unanswered by the legislation, i.e., there is an anomaly here. In case she is unmarried, then the property will go to the coparceners.
Pious obligation is basically for the benefit of the creditor, so its abolition has not done any harm or benefit to the family but to the creditors.
No, since the succession opens on the day the husband dies and on that day the property vests with her and subsequent remarriage will not affect the inheritance property. Yes, in case of intestate to whose family she belongs, as daughter-in-law or as a widow of grandson of the intestate, even section 24 is superfluous because one needs to be a member of the family in order to have inheritance right, which she ceases to be after her remarriage.
It is at par vis-à-vis the property rights of the male members or coparceners. If she is a member of the coparcenary and she has a share in it, she should be allowed to make a will or alienate it in the same manner as the male coparceners of the family do.
The heir of a person is determined at the time when he dies. Therefore, whoever was an heir at his death, would be entitled to get a share in the property and no one else. *She has authored many books on family laws & property law that have been published by Lexis-Nexis.
Pramod Swarup Senior Advocate, Supreme Court of India
It is a male dominated society, where all laws are made to give rights only to the male members of the family. However, for the first time, females of India, i.e. widows and daughters are given rights to inherit the property left by a deceased male member by making them heirs in the Class-I, alongwith the sons by an amendment in the Hindu Succession Act. Earlier, a female member of the family only possessed the right of maintenance out of the joint family property and the right of residence in the family house.
The amendment in 2005 making females coparceners is a significant move by which daughters have been placed at par with the sons’ move as coparceners. This has removed the gender bias keeping in view the provision of the Constitution laid down in Article 15, which allows the State to make any special provision for women and also keeping in view the operation and the negation of her fundamental right to equality guaranteed by the Constitution having regard to the need to render social justice to a woman. Daughters can now play a role in the joint family business, as they have their own share in the same and can claim partition, if they desire and think so in their interest.
A female can now get share from her parental side as well as married daughter can also get shares from her husband’s side after the demise of her husband being his heir, whereas a son can get shares only in his family. By this amendment, the daughter’s son has also become coparcener just like the son’s son. The daughter’s son will therefore, become coparcener in the joint family of her mother (from her mother’s parental side) as well in the joint family of his father by birth. The rights of daughter’s son, in the joint family of her mother vis-à-vis to the rights of the son’s son, will need a new look.
The grievances of the daughters that they do not have any share in the joint family or in joint family business though they are part of the same family is largely met and the discrimination on the basis of gender is removed. The daughter will now get more respect and her views will be shared by the male counterpart coparcener and if the coparceners are of the view that she can handle the interest of the joint family effectively, she can also be nominated as the Manager or Karta of the family.
By the amended Act, the daughter has been given a right in the joint family, which was long due. How far the daughters will exercise their right will be seen in the days to come, though the amendment has given them the right in this regard.
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