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The article is authored by Ayush Bagrodia of Maharashtra National Law University Mumbai. The article talks about the amendment which was made in 2005 in the Hindu Succession Act, and how this affects the succession in the following year.

Introduction

“Our Constitution fosters and strengthens the spirit of equality and envisions a society where every person enjoys equal rights which enable him/her to grow and realize his/her potential as an individual.”

  • Navtej Singh Johar & Ors. v. UOI & Ors.

The worth of a civilization can be judged from the position that it gives to women. Since Vedic times, the status of women in Indian society is always considered secondary and substituted to that of male members of society or family. As even in our ancient texts like Manusmriti, it mentions “Her father protects her in childhood, her husband protects her in youth and her sons protect her in old age; a woman is never fit for independence”. This could be the most probable cause why women’s right to inheritance was not recognized by the laws over a long period. 

Though the Constitution of India enshrines the principle of equality in the chapters III, IV and IVA among its provisions but it can be always debated that have women been treated equally in the eyes of laws? This gender disparity has manifested itself through various forms, and especially with regard to effective rights in property. The inheritance law was of subsequent nature and, more broadly, applied to property owned in absolute seventy only as distinct from a joint family property. The central notion of the Hindu joint family is a shared male ancestor with his linear descendants. Sons acquired equal interest with the father in their ancestral property as co-participants even under early Hindu rule.

There are two eminent schools of Hindu Law namely the Mitakshara and the Dayabhag governing the inheritance practices among the Hindus. So prior to 2005, under the Mitakshara law, the male descendants acquires a right in property by the way of coparcenary, whereas the female born out in the same Joint Hindu Family was not granted any of such rights of inheritance, their right of ownership was restricted to the stridhan.  By virtue of this, every coparcener has a right to ask for partition and inherit the property of the Joint Hindu Family. Though, inheritance by succession of the individual property would be granted to both male and female members of the family.  Whereas under the Dayabhag law, no such distinction existed both the two genders, as there is no birth right upon the property till the Karta or last holder of the property is alive, as he/she acts as the sole owner, and only after the person’s death the property can be inherited by both male and female successors. And even females can be holders of that position managing the affairs of the Family.

So by this Mitakshara School created a differential position of daughters in the family barring them from similar treatments as that of sons, and reason could be traced back from ancient concepts of status of women. Even the courts are reluctant to interfere in family matters as they are exclusive in nature. But, there are several occasions where the judiciary has interfered in order to protect the individual’s rights. As no personal law can be held above the Constitution of India and if any, such provision is held void and therefore will not be made applicable.

And by way of State amendments brought in by the state of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra To the Act, the existing launch of gender disparity was resolved by granting equal status to daughters as that of the sons in the Joint Hindu Family much earlier than 2005. And on the other hand, with the enactment of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the State of Kerala has totally abolished the right to property by birth of males and put an end to the Joint Hindu family system.  

But only after 2005, the Hindu Succession Amendment Act was brought in by the parliament rectifying the status of daughters in the Joint Hindu family, granting them equal rights as that of son. This change brought in the act was based upon the recommendations of the 174th law commission report on women’s right in property under Hindu law advocating the changes to be brought in the code to ensure equal treatment of both the genders. 

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Changes Brought in By 2005 Amendment

The Hindu Succession (Amendment) Bill, 2004 was introduced with the idea of bring two major changes in the then existing Hindu Succession Act, 1956 (hereinafter referred to as the Act). First being, bring a new section in place of the existing Section 6 in order to give equal rights to the daughters as to the sons and second being omission of section 23 which disentails the female rights to ask for partition in a dwelling house occupied by the intestate family with the male heirs initiating it. And finally, in 2005, certain changes were brought in to the Hindu Succession Act, 1956 by way of this amendment.  These changes were brought in:

Section 4(2)

The said section shall be omitted as the said provision provided 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. Since this section excluded rights on agricultural lands from its purview and was regulated by the State- level tenure laws, it was creating a discriminatory in favour of women as the women were not getting any entitlement or interest in the agricultural lands. So with the removal of this provision, the women’s interest in agricultural land as that of men is ensured.   

Section 6

Another significant change which became a milestone in the history of women’s rights in property was deletion of the old provision under Section 6 of the act and insertion of new provision. With this new provision, the daughter becomes coparceners in the property of the Joint Hindu Family by birth, acquiring similar rights and liabilities to that of a son. As women’s right in property i.e. undivided property was quite alienated and highly fragmented in the Hindu law. Not dwelling deep into the ancient and medieval practices and sticking to the recognition brought in by the legislature by way of introduction to laws protecting the same. Property rights of Hindu women vary depending on the status of the woman in the family and her marital status as whether the woman is a daughter, married or unmarried or deserted; wife or widow or mother. It also depends on the kind of property one is looking at whether the property is hereditary/ ancestral or self-acquired, land or dwelling house or matrimonial property.

So women were not allowed to inherit any property either from husband or father, and would possibly possess the stridhan. And their existed two types of stridhan, first being the sauadayika, these are gifts from relatives of both sides (parents and husband), over which she had full absolute ownership and had rights of disposal, and second being the non-sauadayika, which included gifts from strangers and property acquired by self-exertion, mechanical art, and so forth as a married woman, over which she had limited rights on such property and cannot alienate it without the consent of her husband. 

This confusion of women’s limited rights on certain was settled by Privy Council mentioning that the property with limited rights as women’s estate whereby the female owner takes it as a limited owner only. This right of women in property was first recognized by the legislatures only with the enforcement of The Hindu Women Rights to Property Act, 1937. But only one type of women i.e. widow’s right got recognition where any Hindu dies intestate leaving her, then she can claim partition as a male owner. Though this right was limited in nature i.e. she requires consent of male members in order to dispose of this women’s estate. This would be definitely seen as a milestone in the history of women’s property rights, though it was limited in scope and subjugated the women’s status mere to her matrimonial relation making it base for such claim in property.

So to overcome the abnormalities created by the abovementioned actThe legislatures finally introduced an act named The Hindu Succession Act, 1956. But still the act was not adequate enough to recognize the coparcenary of daughters in the Joint Hindu Family. So this created a disadvantage upon the daughter as they don’t have a right to seek partition. But with the changes brought in by the amendment of 2005, the daughter became coparcener, getting all rights of the coparcener including the right to seek partition for her share in the Joint Hindu Property. 

And by virtue of this new provision all the alienation or partition or testamentary partition affected before the 20th December 2004 will not be affected. 

Section 23

Another landmark change brought in with this amendment was omission of section 23 of the act, which clearly discriminated against the female heirs to seek any partition in the dwelling house which the intestate left before the male heir chose to do so. This is the most evident form of prejudice created by the Hindu Succession act prior to 2005, as the female rights were restricted to dwell in that house that too only in case of she being unmarried, separated, deserted or a widow and became contingent on the whim and fancies of the male members of the family.   

Section 24

The said section was also omitted with the amendment brought in 2005, which discriminated three category of women related to the intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother, by virtue of their remarriage on account of opening of the succession. This was laid down on the principle that the widow is the surviving half of her husband and virtue of her remarriage ceased to be the same. And by way of this her right in the property was divested.  But certain other kinds of widow as that of intestate’s own wife have not been divested even after remarriage to have right in property of her deceased husband. Now as the constitutional pronouncements made it clear that equality is the essence of the justice and legislative system. But still inequality was persistent in the act before the 2005 amendment.

As a claimed fact the first two category of discriminated widow i.e. widow of a predeceased son and the widow of a predeceased son of a pre-deceased son from part of Class I heir and the third category of widow i.e. widow of the brother forms a part of an agnate. That means by virtue of being such they inherit the property immediately after the dead of the intestate, and their rights get invested accordingly. And once her right is invested in that property, she becomes an absolute owner as per section 15 and after such investment of property by means of she being the heir of the deceased, it cannot be divested by any further event. Therefore, in order to correct this problematic situation creating disadvantage to certain categories of women under section 24 of the Act, it was omitted.

Section 30

Under section 30 of the Act, the substitution of words from “disposed by him” to “disposed by him or by her” was done, in order to make it gender-neutral which is the objective of this amendment.

And, certain additions were done to the schedule under the subheading of class I heir, in order to give equal treatment to lineal descendants of the daughters as to that of son.

Hence, with the introduction of The Hindu Succession (Amendment) Bill, 2004 which further got enforced in 2005 became the turning point of turmoil of sexual discrimination exiting in the Hindu Law.   

Effects of Amendment brought in the act upon the Interest of Women in the Property

This amendment was enforced on September 9, 2005 and created a history in the terms of women’s right in property under Hindu Law. The impact of this amendment was that the secondary or substituted position of which the women were usually subject to under Hindu law was removed and created similar rights or position of a daughter that of a son. As per section 6, daughters were recognized as coparcener since birth, thereby she exercises all rights of a coparcener and by virtue of that she can also become a Karta, if she is the senior-most member of the family.

With the recent Judicial pronouncement and interpretation given by the Courts upon the amendment questions related to the implication of this amendment and how it would affect the position of women and property after the enforcement becomes clear and distinct. As the daughters born on or after 9th September’ 2005 accrue an interest in the ancestral property by virtue of becoming a coparcener as that of son. Though this question of the effect of this amendment whether would be retrospective or prospective in nature is in dispute for a long time. As the Bombay High Court in case of Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors. The Division bench observed that the act should be applied retrospectively unless explicitly mentioned as the words “on and from” in Section 6 (1) of the Act after amendment shows its prospective nature. And they held that the daughters born on or after 9th September’ 2005 will only be considered as coparceners and those who are born prior to the aforesaid date will devolve an interest in the coparcener property only after his death by means succeeding his interest.

But this view was disputed by the Full Judge bench of the same court in case of Shri Badrinarayan Shankar Bhandari & Ors. v. Ompraskash Shankar, where the court observed that for the implication of amended section 6(1) of the act, there are two prerequisite conditions. Firstly, the daughters claiming benefit under Section 6 of the Act must be alive on the date of enforcement of the amendment act. And, secondly, the property in question must be available as the coparcenary property on the date of enactment of the amendment. The Court held that the amendment is retroactive in nature and will be applicable to all those daughters who were born prior and after 17th June’ 1956 but before 9th September’ 2005. However, it is conditioned to only one fact that at the time of commencement of 2005 Amendment, the daughter was alive. As when the Principal Act was enforced, it was applicable to all Hindus born prior or after 17th June’ 1956, but was contingent on the fact that the person was alive at the time of such enforcement. The Parliament will enact this amendment has specifically used the word “on and from”, so to make sure that the already settled rights in terms of coparcenary property won’t be disturbed by a claiming as an heir to a daughter who had passed away before this amendment came into force. Therefore, the daughters born prior to 9th September’ 2005 will be covered under this amendment subject to given conditions.

This view of amendment being applied retrospectively in order to ensure the best interest of the daughters was also upholded the Supreme Court in case of Danamma @Suman Surpur v. Amar Singh, the Hon’ble court held that the amendment is applicable to all living daughters of living coparceners as on 9th September’ 2005 and cannot be disputed further for its implication. Though the disposition either in form of partition or alienation secured before 20th December’ 2004 by the application of law won’t be affected.

Now the same court in the case of Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., the held that a preliminary order passed by the Court in regards to a partition suit, do not prejudices the rights of daughters conferred by the amendment. As far as partition suits are concerned, it becomes final only with the passing of the final decree. Therefore, the court may make necessary amendments in the preliminary decree in order to restore the rights conferred by the law. Hence, it can be concluded that a suit for partition filed before 2005, but was pending before the Court for its final decree. Then in such suits the daughter’s right in the property is also being created by the virtue of her being alive after the amendment was enforced. 

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.


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