Significance Of The Amendment of 2005 to the Hindu Succession Act (Daughters Equal Right To Coparcenary) and Intestate Succession Of Hindu Female to Property
Author: Dhanya Shailendra Gaonkar
Christ University
ISSN: 2582-3655
Abstract
This research paper intends to elucidate and analyze the Amendment of 2005 to the Hindu Succession Act ( daughters equal right to coparcenary) and Intestate Succession of Hindu Female to Property.[1] The earlier Act i.e Hindu Succession Act, 1956 [2]was extremely discriminatory in nature and deprived the women of their rights to coparcenary or right to ancestral property. To own property is crucial when it comes to empowerment of women as it many times gives them the headway to even become economically and financially independent hence giving them a strong voice firstly in their own household and family and further even in the society. Hence it helps in enhancing the societal status of women in all too. The Act most definitely was the need for a more progressive and egalitarian society. However, the Act still has some lacunas and in the event of discussing the same, the researcher also elucidates and analyzes upon Intestate Succession of Hindu Female to Property.
Key Words
Amendment, Act, Women, Succession, Hindu.
Research Question
What is the significance of the Amendment of 2005 to the Hindu Succession Act (Daughters Equal Right To Coparcenary) and Intestate Succession of Hindu Female Property?
Introduction
Indian society has been divided by gender bias from times immemorial. This gender bias has manifested itself in the society and lives of the people in many forms. One such form was that of the inheritance laws. Right To Equality[3] (Article 14 of the Indian Constitution ) and Protection From Discrimination[4] ( Article 15 of the Indian Constitution) are fundamental rights guaranteed under the Indian Constitution. However the same was not followed in terms of ensuring Hindu females their right to the ancestral property until the Amendment of 2005 to the Hindu Succession Act. The Hindu Succession Act,1956 provided for a uniform law of succession for all Hindus. The distinction between Mitakshara and Dayabhaga schools and their sub-schools was done away with through this Act. An end was put to Mitakshara’s dual mode of devolution of property i.e. through survivorship and preference for aganates over cognates. This Act deals in detail with intestate and testamentary succession. Under the Act scheme of succession is purely based on secularism and there is no importance given to religious efficacy in the regard to the same. Finally, the Amendment of 2005 brought in substantial changes to the Act of 1956 with regard to daughters’ right to coparcenary. Earlier only sons or male lineal descendants would form a part of the coparcenary by birth ( under the Mitakshara school) however the Amendment of 2005 brought in a change with regard to the same. The Amendment of 2005 to the Hindu Succession Act mainly deals with replacing the previous Section 6 of the Act with a new section which even entitles daughters with the same and equal rights as sons to coparcenary ( right to ancestral property) and secondly it deals with the omission of the discriminatory section of 23 of the Act which deprives women of their right to demand partition in a house occupied by the intestate family for dwelling that had been initiated by the male heirs. The Hindu Succession Act, 1956 also deals with the Intestate Succession of Hindu Female Property. And it is debatable how fair the Act is in deciding who must succeed the property of Hindu females.
Analysis
The researcher intends to elucidate and analyze the sections of the Amendment of 2005 to the Act (Hindu Female’s Right To Inherit Property )and then further even Intestate Succession of Hindu Females with regard to the Act.
Section 4(2) of the Hindu Succession Act,1956[5] was omitted in the Amendment Act of 2005. This was done as this section excluded women from having any interest in agricultural land and the state-level tenure laws were used to regulate the same. With the omission of this section women’s interest in agricultural land has been secured.
Section 6 of the Hindu Succession Act, 1956 was replaced with a new one through the Amendment Act of 2005.[6] This new section gives daughters equal and same rights as the sons to coparcenary (ancestral property) in Hindu Joint Family from her very birth. We must note that Hindu women’s right to property varies depending on their marital status and as well as their status in the family for example if she’s a daughter or wife and is married, unmarried, widowed, or even deserted. The right to property also differs with regard to the kind of property one is looking at i.e. is it ancestral property, matrimonial property or if the property was self-acquired.
Earlier women were only allowed to only possess whatever they got in the form of Stridhan . However, it’s noteworthy how discriminatorily they were not allowed to inherit property at all. Neither from the husband nor from the father. Stridhan was of two types: saudhayika and non-saudhayika. The former included gifts from both husabnds’s side as well as from the father’s side of the family and relatives. A woman would have absolute right of ownership over these gifts and she would even have the right to dispose of the same. The latter were gifts from strangers and property that she acquired by herself after her marriage. The woman would have limited rights over these and was not allowed to dispose of the same without consenting her husband prior to doing the same. The same was even held by the Privy Council in one of its decisions.
It was in the Hindu Women Rights to Property Act , 1937[7] that women’s right to property was recognized for the first time. However, even this Act only recognized a widow’s right to her late husband’s property in case he died intestate. In order to bring uniformity in succession/inheritance laws the Hindu Succession Act, 1956 was introduced ; however, this Act too was extremely discriminatory towards women in its nature. Finally, the Amendment of 2005 to the Act brought a new ray of hope for women and in that sense thus the introduction of the new Section 6 to the Act is a milestone in securing the rights of women to ancestral property as she becomes a coparcener from her very birth and even has the right to demand partition with regard to her share in the Hindu Joint Family.
Omission of Section 23 of the Act[8] too was monumental in further putting an end to the discrimination faced by women with regard to the right to ancestral property in terms of seeking partition. This section deprived women of their right to demand partition in a house occupied by the intestate family for dwelling that had been initiated by the male heirs. The women according to this section were firstly not allowed to seek partition in the dwelling house of the people mentioned above and she too could continue living in that house only if she were unmarried, widowed, or deserted. In reality, this possibility too would become highly contingent and bleak as most of the time it depended on the opinion of other members of the family dwelling in that house.
Omission of Section 24[9] of the Act too is an extremely important step toward a more egalitarian Act. As this section discriminated against women depending on three categories. According to this section only if the intestate’s wife remarried did her right to her dead husband’s property would remain as she was his surviving half of her dead husband the same would not be followed in the case predeceased son’s widow or the widow of predeceased son or brother’s widow would remarry. In such an event the three widows mentioned above remarrying another person would deprive them of the right to their predeceased husband and inspite of them being the surviving half they would have no claim over the property they had inherited from their late husbands before remarriage with another person. This section clearly discriminated against different kinds of windows and did not treat everybody equally. We must note that the first two kinds of widows mentioned above form a part of the Class-I of heir and the third one forms a part of the Class-III heir and even is an agnate according to Section 10 of the Act[10]. Hence after the death of the Husband, they are entitled to inherit their intestate husband’s property. And once they’ve received such property they cannot be divested of the same due to any future events.
Section 30[11] of the Act too was amended. In order to make it gender-neutral. The earlier the section would just state disposed of by him with the amendment it was changed to disposed of by him or her.
Certain other changes too were introduced to the act in order to make it inclusive of daughters as coparceners in an effort to provide equal treatment to both sons and daughters as lineal descendants.
By the virtue of section 6 of the Amendment of 2005 of the Hindu Succession a daughter has an equal right to coparcenary and hence can also become the Karta of a Joint Hindu Family if she is the senior-most member of the family.
We must note that the Amendment of 2005, Hindu Succession Act was enforced on the 9th of September 2005 hence daughters born after that have a right to inherit ancestral property by the virtue of being a coparcener just like a son would.
One problem with the Amendment of 2005 to the Hindu Succession Act is that it has been for too long in the turmoil of if it should be retrospective in nature or should it be prospective in nature. It was in the case of Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors[12] The Bombay High Court (division bench) had held that the Act should be perceived prospectively as Section 6(1) of the respective Amendment of 2005 states “on and from”. and therefore all those born after 9th September 2005 in a Hindu Joint Family regardless of being a son or daughter would be considered a coparcener and hence would have a right inherit ancestral property ad everybody born prior to that would only have a right to the coparceners property after the death of the coparcener by a means of succeeding his interest. However, this decision was contradicted by the decision of the full bench of the same court in the case of Badrinarayan Shankar Bhandari Vs Ompraskash Shankar Bhandari[13]. In this case, the Bombay High Court held that the respective Amendment Act is retroactive in nature. And hence the court, in that case, decided that the Act shall be applicable to all those daughters who were born before and after the 17th of June 1956 but before the 9th of September,2005. Provided that the daughters were alive during the amendment and we must also note that the property being claimed too must be available coparcenary property at the time of amendment of the Act. In the best interest of the daughters, the Supreme Court in the case of Danamma @Suman Surpur v. Amar Singh[14] The Supreme Court held that the amendment of 2005 of the Hindu Succession Act shall be applicable to all living daughters of the living coparceners as on 9th of September 2005. However the court also held that any disposition could be in the form of partition or alienation before the 20th of December, 2004 shall remain unaffected. The Supreme Court in the case of Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr[15] finally held that in case of suit that is filed before 2005 for partition and if it’s still pending in the court for its final decree in such a case the daughter’s right to ancestral property is also created by her being alive after the amended has been enforced.
In an attempt to understand the relationship between women and property better the researcher has also elucidated and analyzed upon the sections of the act stating laws for Hindu Female Intestate Succession.
According to Section 14[16] of the Hindu Succession Act, 1956 the property belonging to a Hindu Female is her absolute property and hence she shall have full ownership of the same regardless of if she has held /possessed it before or after the Act. Property here also includes movable property, immovable property as well as stridhan.
Section 15 of the Hindu Succession Act, 1956[17] states the general rules of succession for Hindu females. According to the section :
1. The property of a female Hindu shall devolve according to the rules set out in Section 16 of the respective act –
(a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) then, upon the heirs of the husband;
(c) then, upon the mother and father;
(d) then, upon the heirs of the father; and
(e) finally, upon the heirs of the mother.
2 (a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of son or daughter of the deceased (including children of any pre-deceased son or daughter) not upon the heirs mentioned under sub-section (1), but upon the heirs of the father.
(b) Any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the heirs mentioned in sub- section (1) but upon the heirs of the husband.
Order of Succession & Manner of Distribution among heirs of a Female Hindu – Section 16 of the Hindu Succession Act.[18]
Rule 1: Among the heirs specified in S.15(1), those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.
Rule 2 (Rule of Representation): If any son or daughter had died before the intestate, leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which they (pre-deceased son/daughter) would have taken if they were alive at the time of the intestate’s death.
Rule 3: This rule is applicable only when succession by heirs of entry b,d,e. It is invoked when under Rule 1 the heirs of husband /father/mother are to be ascertained for distribution. It is also applicable to succession under section 15(2) i.e. for property inherited from father and husband.
In the case of Omprakash and Ors. v. Radhacharan and Ors, Narayani Devi[19] was married to Dindayal Sharma however he passed away within three months of their marriage post which his wife was driven out of his house. She returned to her matrimonial house. Her parents paid for her education after that and she was also after that gainfully employed. She earned a large number of liquid assets and even accumulated a huge provident in the meantime. However, after her passing away the mother of Narayani Devi filed a petition seeking the right to succession certificate to her daughter’s assets and the sons of Dindayal Sharma’s sister too applied for a petition seeking the same as that of Narayani Devi’s mother. The Supreme Court in this case decided in the favour of Dindayal Sharma’s sister’s sons as they were Narayani Devi’s Husbands heir ( Section 15(1)(b) of the Hindu Succession Act,1956) and hence were entitled to the succession of Narayani Devi’s asset in spite of them being of no help to her ever and in fact even after having caused her trouble. This is because the court had not put an embargo on her making a will in the favour of her parents. The court in such cases follows the law and cannot be carried away by emotions, hence we here also understand the rules of Intestate Succession of Hindu Female Property and the importance of making a will for a Hindu Female.
Some other general provisions that deal with the intestate succession are as follows:
Section 18 of the Hindu Succession Act ,1956 [20]states how full blood is preferred over half blood.
Section 19 of the Hindu Succession Act , 1956[21] states the mode of succession in case two or more heirs.
Section 20 of the Hindu Succession Act, 1956 [22]deals with the rights of a child in the womb .
Section 21 of the Hindu Succession Act, 1956[23] deals with presumption in case of simultaneous deaths.
And finally Section 22 of the Hindu Succession Act, 1956[24] deals with certain cases which involve preferential rights to acquire property.
Section 25 to 28 of the Hindu Succession Act, 1956 deals with disqualification from succession.
Section 25 of the Hindu Succession Act1956[25], deals with disqualification on the basis of murder.
Section 26 of the Hindu Succession Act 1956[26], deals with disqualification on the basis of convert descendents.
Section 27 of the Hindu Succession Act 1956[27], deals with succession when heir is disqualified.
Section 28 of the Hindu Succession Act 1956[28], states that disease , defect etc are not grounds for disqualification.
Conclusion
The researcher through this paper intended on gaining an understanding of the Hindu Female’s Right to Inheritance of Property and the Intestate Succession of Hindu females to Property.
Answering the research question hence the researcher from the above analysis concludes that the Amendment of 2005 to the Hindu Succession Act is an extremely important milestone in the struggle for fighting gender discrimination that is so deeply ingrained in our society. In order to beat this problem of gender bias, we must fight it from the very grass root level and that is by bringing changes in regressive laws. The Amendment of 2005 to the Hindu Succession Act is an example of the same. At the same time, we also see how sections of intestate succession of Hindu female property make it necessary for Hindu females to execute a will in order to make sure her assets after her death passes on to people of her choice first and so that preference is not just first given to her husband and his heirs instead of her parents or heirs of her choice.
References
- Hindu Succession Act , Amendment of 2005.
- Hindu Succession Act ,1956 .
- Article 14 of the Indian Constitution 1950.
- Article 15 of the Indian Constitution 1950.
- Section 4(2)of the Hindu Succession Act ,1956.
- Section 6 of the Hindu Succession Act ,1956 & Amendment of 2005,Hindu Succession Act.
- Hindu Women Rights to Property Act , 1937.
- Section 23 of the Hindu Succession Act ,1956.
- Section 24 of the Hindu Succession Act ,1956.
- Section 10 of the Hindu Succession Act ,1956.
- Section 30 of Amendment of 2005 to the Hindu Succession Act.
- Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors; AIR 2012 Bom 101.
- Badrinarayan Shankar Bhandari Vs Ompraskash Shankar Bhandari, AIR 2014 BOM 151.
- Danamma @Suman Surpur v. Amar Singh [(2018) 3 SCC 343] .
- Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788 .
- Section 14 of the Hindu Succession Act ,1956.
- Section 15of the Hindu Succession Act ,1956.
- Section 16 of the Hindu Succession Act ,1956.
- Omprakash and Ors. v. Radhacharan and Ors, (2009)15SCC66.
- Section 18 of the Hindu Succession Act ,1956 .
- Section 19 of the Hindu Succession Act , 1956.
- Section 20 of the Hindu Succession Act , 1956.
- Section 21 of the Hindu Succession Act , 1956.
- Section 22 of the Hindu Succession Act , 1956.
- Section 25 of the Hindu Succession Act , 1956.
- Section 26 of the Hindu Succession Act , 1956.
- Section 27 of the Hindu Succession Act , 1956.
- Section 28 of the Hindu Succession Act , 1956.
[1] Hindu Succession Act , Amendment of 2005.
[2] Hindu Succession Act ,1956 .
[3] Article 14 of the Indian Constitution 1950.
[4] Article 15 of the Indian Constitution 1950.
[5] Section 4(2)of the Hindu Succession Act ,1956.
[6] Section 6 of the Hindu Succession Act ,1956 & Amendment of 2005,Hindu Succession Act.
[7] Hindu Women Rights to Property Act , 1937.
[8] Section 23 of the Hindu Succession Act ,1956.
[9] Section 24 of the Hindu Succession Act,1956.
[10] Section 10 of Hindu Succession Act ,1956.
[11] Section 30 of Amendment of 2005 to the Hindu Succession Act.
[12] Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors; AIR 2012 Bom 101.
[13] Badrinarayan Shankar Bhandari Vs Ompraskash Shankar Bhandari, AIR 2014 BOM 151.
[14] Danamma @Suman Surpur v. Amar Singh [(2018) 3 SCC 343] .
[15] Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788 .
[16]Section 14 of the Hindu Succession Act ,1956.
[17] Section 15 of the Hindu Succession Act ,1956.
[18] Section 16 of the Hindu Succession Act 1956.
[19] Omprakash and Ors. v. Radhacharan and Ors, Narayani Devi,(2009)15SCC66.
[20] Section 18 of the Hindu Succession Act ,1956 .
[21] Section 19 of the Hindu Succession Act , 1956.
[22] Section 20 of the Hindu Succession Act, 1956 .
[23] Section 21 of the Hindu Succession Act, 1956 .
[24] Section 22 of the Hindu Succession Act, 1956 .
[25] Section 25 of the Hindu Succession Act,1956.
[26] Section 26 of the Hindu Succession Act 1956.
[27] Section 27 of the Hindu Succession Act 1956.
[28] Section 28 of the Hindu Succession Act 1956.