LAW COLLAGE DEHRADUN FACULTY OF DEHRADUN

PROJECT REPORT
204th Report on Proposal to amend the Hindu Succession
Act, 1956 as amended by Act 39 of 2005.

NAME – PRIYANSHU BISHT

SEMESTER – 4TH
SECTION – B
COUSRE – BA.LLB ( HONS )
PROJECT SUBMITED BY – PRIYANSHU BISHT
PROJECT SUBMITED TO –
CONTENT
1-Introduction
2- reasons leading to deliberation on the issue
3- Legal Analysis of the issue
4- Judicial precedents
5- Recommendations Made
6- Has the report been adopted by the Parliament
7- Authors viewpoint on the efficacy of the Law Commission's
venture.
8- Conclusion
 INTRODUCTION
The Hindu Succession (Amendment) Act, 2005 (39 of 2005) was
enacted to remove gender discriminatory provisions in the Hindu
Succession Act, 1956. Under the amendment, the daughter of a
coparcener shall by birth become a coparcener in her own right in
the same manner as the son. The daughter shall now have the same
rights in the coparcenary property (ancestral property of the Hindu
undivided family) as a son. This amendment also repeals Section 23
of the Hindu Succession Act which disentitled 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.
Section 24 of the Act which denied rights of a widow to inherit her
husband‟s property upon her re-marriage has been repealed. This
Act has brought about a central amendment which is applicable to all
the state governments.

Reasons leading to deliberation on the issue

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
8Murumakkattayam, Aliyasantana and Nambudri 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, Pararthana or Arya Samaj; or to any person who is
Buddhist, Jain or Sikh by religion; or to any other person who is not a
Muslim, Christian, Parsi or Jew by religion. 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.
2. Section 6 of the Act deals with devolution of interest of a male
Hindu in coparcenary property and recognizes the rule of devotion by
survivorship among the members of the coparcenary. The retention
of the Mitakshara coparcenary property without including the females in
it means that the females cannot inherit in ancestral property as their
male counter-parts do. The law by excluding the daughter from
participating in the coparcenary ownership not only contributes to her
discrimination on the ground of gender but also has led to oppression
and negation of her fundamental right of equality guaranteed by the
Constitution, having regard to the need to render social justice to
women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and
Maharashtra have made necessary changes in the law giving equal
right to daughters in Hindu Mitakshara coparcenary property. The
Kerala Legislature has enacted the Kerala Joint Hindu Family System
(Abolition) Act, 1975.
3. It is proposed to remove the discrimination as contained in
section 6 of the Hindu Succession Act, 1956 by giving equal rights to
9daughters in the Hindu Mitakshara coprarcenary property as the sons
have. Section 23 of the Act 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. It is also proposed to omit the said section so as to remove the
disability on female heirs contained in that section.
4. The above proposals are based on the recommendations of the
Law Commission of India as contained in its 174th Report on
“Property Rights of Women: Proposed Reform under the Hindu Law

LEGAL ANYLYSIS OF ISSUE

A three-judge bench took notice of the conflicting judgement
to settle the law. In the case of Vineet Sharma VS Rakesh Sharma
(2018)
The Supreme Court stated that Section 6 of the Hindu
Succession Act provides an unobstructed heritage by
birth to the daughter. Thus a coparcener’s father need
not be alive on 9 September 2005. The court also
stated the following, “Coparcener’s right is by birth.
Thus, it is not all necessary that the father of the
daughter should be living as on the date of the
amendment act 2005, as she has not been conferred
the rights of a coparcener by obstructed heritage”.
Hence, the daughter can only claim her rights from the
date of the amendment and any transaction in relation
to the property will not be affected according to the
amended Section 6(1) of the HSA.

Further, the court explained Section 6(5) of the HSA

which states partition only by the virtue of registered
partition deed or partition effected by a decree of the
court, hence, the court can take notice of the oral
partition in exceptional cases only based on long-
standing evidence in the form of clear public
documents. Also, the court directed that the
significantly delayed due to the conflicting decision
earlier by the High Court and subordinate courts needs
to be disposed of involving the same subject matter for
dispute within six month. Moreover, this case mentions
an essential point on the intent of Section 6 of HSA as
it was neither to benefits female successors
prospectively nor retrospectively, but its main intent
was to confer benefits retrospectively. While stating the
amendment act to be retrospective, it was held that it
confers female successors the benefit of succession on
par with that of her male counterparts based on their
birth in the Hindu family.
JUDICIAL PRECEDENTS
The case law on this issue has been unclear and contradictory so far.
In Prakash v Phulavati (2016), a single-judge bench of the Supreme
Court held that section 6, as amended in 2005, did not apply
retrospectively, and thus only applied to those cases where both the
father and his daughter were alive on the September 9th 2005, when
the amendment came into effect. However, in Dannama @ Suman
Surpur v Amar (2018), a division judge bench of the Supreme Court
held that the amended section conferred full rights upon the daughter,
who could claim her rights to the property in question despite her
father having passed away in 2001 before the amendment came into
force.
The current decision is on a batch of appeals, the main case among
which is Vineeta Sharma v Rakesh Sharma. The other cases which were
also referred for hearing involve similar questions or disputes. In the
main case, the Delhi High Court highlighted the contradiction in the
cases of Phulavati and Danamma. In its ruling, however, it referred
also to the case of Mangammal v T.B. Raju (2018), where the Supreme
Court followed the reasoning in Phulavati. The Delhi High Court thus
held that the daughter was not a coparcener when her father passed
away in December 1999, as the amendment of 2005 could not be
applied retrospectively. The daughter then appealed to the Supreme
Court on this matter, and the question was placed before the three-
judge bench for final clarification.
The Solicitor General, arguing on behalf of the Union of India, said
that the act was not retrospective, but retroactive, by which he meant
 that the amendment allowed daughters to exercise their rights on its
commencement, and no earlier. However, he held that the
conferment of this coparcenary status could not affect the partition of
property that took place before the date when the Bill was tabled
before the Rajya Sabha—December 20th 2005.

Senior counsel R. Venkataramani as amicus curiae argued that to

grant the amendment retrospective power would be to introduce
much uncertainty and instability in the law. He insisted that the
amendment must be forward-looking to properly serve the purpose
intended by the legislature, or else it would only cause more
problems and introduce further litigation into courts. Furthermore,
counsel Sridhar Potaraju also argued that ‘daughter of a coparcener’
could only mean the daughter of an alive person who had the status
of coparcener at the time of the amendment.

ADOPTED BY PARLIAMENT:
The Hindu Succession (Amendment) Act, 2005, an amendment to the
Hindu Succession Act 1956 , received the assent from President of India
on 5 September 2005 and was given effect from 9 September 2005. [1] It
was essentially meant for removing gender discriminatory provisions
regarding property rights in the Hindu Succession Act, 1956. It was a
revolutionary step in the field of Indian legislation regarding rights of
women in India.

Authors viewpoint on the efficacy of the

Law Commission's venture
The Supreme Court on the right of Hindu daughters to
ancestral property corrects an obvious anomaly in the
interpretation of a crucial 2005 amendment to the Hindu
Succession Act, 1956. The verdict settles the question whether
the coparcenary right of daughters comes into effect only if the
father through whom they claim that right was alive on the day
the amendment came into force. The apex court has now
categorically ruled that the daughters’ right flows from their
birth and not by any other factor such as the existence of their
fathers. In other words, it has rejected the common
misinterpretation that only daughters of coparceners who were
alive on that day could get an equal share in property. The
court has rightly recognised that the amendment conferred
equal status as a coparcener on daughters in Hindu families
governed by Mitakshara law, and this right accrued by birth .
The court’s reasoning is unexceptionable. First, it locates the
origin of the coparcenary right in one’s birth. Second, it finds
that there is no necessity for a predecessor coparcener to be
alive for one to acquire that status, as what is relevant is birth
within the degrees of succession to which it extends. In that
sense, the legislation, even though it comes into effect on a
prescribed date, is retroactive in its application as it is linked to
birth, an antecedent event. It also underscores that the
legislation makes it clear that the daughter’s rights are the
same “as that of a son,” and “as if she had been a son at the
time of birth”. The coparcenary status given to daughters has
been a subject of reform in many States, particularly in south
India, long before the UPA regime brought in the amendment
for the whole country. Kerala had introduced legislation in
1975, Andhra Pradesh in 1986, Tamil Nadu in 1989 and
Maharashtra and Karnataka in 1994. The legislative aim was
that a flagrant discrimination between sons and daughters in
entitlement to an equal share in coparcenary property, that is
property inherited from one’s father, grandfather or great-
grandfather, should be done away with. It is indeed welcome
that the apex court has sought to give full effect to this intent
by setting at rest doubts arising from varying interpretations.
Conclusion :
Status of Hindu women was always subjected to male
members of the family even in Dharmashastras. And
that’s why when the Hindu Succession Act was enacted
in 1956; the legislators didn’t feel any need for giving
rights to daughters in the property of the Father, since
the notion of daughter being part of another family after
her marriage and should not have right to inherit
anything from her father’s property.

But with the 2005 amendment, the equality ensured

under the Constitution was reestablished and the
provisions granted the equality in status of son and
daughter in a Joint Hindu Family. Though the certain
ambiguity still exists in regards to the validly adopted
daughters, as this term is nowhere mentioned in the
amended Act and her rights in regards to inheritance of
her father’s property. Also the children of the daughter
will be treated as coparceners in the same sense as that
of son’s children, as the status of son or daughter has
been equally under section 6 of the Act.

Hence, it is the most eminent achievement in the

backdrop of where Hindu women were situated in the
society before this amendment came into being.