rights of hindu women in family property
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Rights of Hindu Women
In Family Property
Acelegal
D-201, 2nd floor
Tower No. -3
International Infotech Park
Vashi station complex
Navi Mumbai – 400703.
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09.09.2005
Hindu Succession Amendment
Act, 2005 passed with a view to
amend Hindu Succession Act,
1956.
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Social Revolution.
As per Explanatory Memorandum
Proposal to remove discrimination as contained
in section 6 by giving same rights to daughters
as the sons and omit section 23 to remove
disability of female heirs.
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Law of succession – Concurrent List.
Prior to amendment – daughter had been
granted coparcenary by State Acts of Kerala,
Andhra Pradesh, Tamil Nadu, Maharashtra,
Karnataka
Though all the except Kerala had denied rights
to daughter married prior to State Act.
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Origin of the HINDU Law
Doctrine of Pious Obligation
He who inherits the property, also offers
the pinda.
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Features of Hindu Succession
Act, 1956
Effective from 17.6.1956
Codification of laws relating to intestate
succession among Hindus.
Not operational in Jammu & Kashmir.
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Features of Hindu Succession
Act, 1956 (Cont.)
Applies to Hindu, Buddhist, Jain, Sikh.
Does not apply to Muslim, Christian, Parsi, Jew.
Includes in its fold both legitimate and
illegitimate children.
Has overriding effect.
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Problem/Inequality due to 1956 Act.
Daughter once married, treated as an outsider.
Discrimination between children on the basis ofgender.
Not practical in today’s nuclear family, whichmay or may not have a son.
Fundamental rights to equality guaranteed byConstitution negated.
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Important concepts & definitions.
HUF Family joint in estate, food and worship.
Membership by birth, marriage and adoption.
Countless generations.
Headed by Karta.
Karta entitled to dispose of HUF prosperity in direneed.
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Coparcenary
Joint ownership / heirship of ancestral property.
Narrower body within HUF.
the oldest male member + 3 generations of males.
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Before Amendment
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Male Son Grand
Son
Great Grand
Son
After amendment
Male
Son Grand
son
Great Grand
son
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DISTINCTION
Coparcenary
Only male members upto 4 degrees by
birth.
HUF
Females are members by
birth / marriage
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DISTINCTION:
DayabhagaDayabhaga school
East India
Eg. Bengal and Assam
Sons and daughters have equal share
property
Transmitted by succession and survivorship on death
of male ancestor.
Mitakshara
Mitakshara school
Rest of India
Hindu woman has only right of
maintenance and not inheritance of
property
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DISTINCTION
Ancestral
Inheritance from
ancestors
Self acquired property
Earned by own efforts or endeavour.
Nobody has interest during
lifetime.
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Two types of inheritance
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Interest in share of
deceased in Coparcenary
property.
Self share in Coparcenary
property
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❑ Intestate - When a person dies, in
respect of property for which no will
has been prepared.
❑Interest of a Hindu Male coparcener –
Share in property of HUF that would
have been allotted, if partition had
taken immediately before his death.
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What is Survivorship ?
❑Inheritance of Coparcenary property
by the surviving male members of the
Coparcenary.
❑Interest to fluctuate with every birth ordeath of male.
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Old provisions of Section 6
Section 6 – Devolution of interest in
mitakshara coparcenary property of a
male Hindu after his death.
Property shall devolve by survivorship
upon surviving members of
Coparcenary.
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Proviso to Old Section 6
❑If deceased having female relatives of Class I or
male relatives claiming through such female, then
property shall devolve by testamentary or intestate
succession.
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Amended provisions of
Section 6. Scope enlarged to include daughter as a
coparcener:
6(1)(a) Daughter shall become coparcener by birth.
6(1)(b) & (c) daughters shall have same rights and
liabilities as that of a son.
Reference to a Hindu Mitakshara coparcener shall
include reference to daughter.
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Amended provisions of Section 6 (Cont.)
Importance
Coparcener can inherit property, seek partition
and also be karta of HUF.
She can will her share of property.
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Any alienation of property before
20th December 2004 not affected.
Provided: a) Duly registered under Registration
Act or
b) Decreed by Court.
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6(3) to substitute old 6(1)❑ Survivorship deleted
❑ Death of a Hindu if intestate:
❑A partition shall be deemed and daughter shall
be allotted same share as son.
❑Share of predeceased son/daughter shall beallotted to surviving child.
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Issues before Court 6(1)(a) - No doubt/dispute or challenge.
Amended section 6: Prospective or
Retrospective
6(1)(b)&(c) rights and liabilities of coparcenaries
- date of application of amendment.
Daughter born before 17.6.1956.
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Issues before Court(Cont.)
Daughter born between 17/6/1956 & 8/9/2005.
Daughter predeceased before 9/9/2005.
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Issues before Court(Cont.) coparcener deceased before 9/9/2005.
Property alienated before 9/9/2005
Is amendment a substitution of old section 6 and
does it relate back to 17.6.1956.
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Supreme Court cases G.Shekhar V. Geeta (2009) 6 SCC 99
Sheeladevi V. Lalchand (2006) 8 SCC 581
Zile Singh v. State of Haryana (2004) 8 SCC 1.
Ganduri Koteswaramma 2012(4) Bom. CR 821 (SC)
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High Court cases -
Vaishali Ganorkar (DB) 2012(5) Bom. CR (OS)
210.
Badri Narayan Shankar Bhandari – 2014 (5)
Bom. CR 481
Pushplata NV AIR 2010 Kar. 124.
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CASE STUDY
Vaishali Ganorkar
❑Daughter born on/after 9.9.2005 –
acquired rights on birth.
❑Daughter born prior to 9.9.2005 – acquired
rights on death of ancestor i.e. devolution
on or after 9.9.2005.
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Basis of Decision ❑Section 6 - uses word devolution
❑Section 6(1) - says : On and from commencement
of the Amendment Act, 2005.
❑Statute not retrospective unless expressly stated to
be so.
❑Therefore, Amendment Act is prospective in
nature.
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❑Reliance upon Supreme Court rulings in
G.Shekhar v. Geeta (2009 – 6 SCC-99) and
Sheeladevi (2006-8 SCC 581)that Amendment
Act, prospective and has no application if
succession opened before 9.9.2005.
❑Disagreed with Karnataka High Court in Pushplata
AIR 2010 Karn.124 which said Section 6 is
retrospective w.e.f. 17.6.1956.
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Appeal before Supreme Court in
Vaishali Ganorkar dismissed but
question of law kept open.
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CASE STUDY
Badri Narayan
❑In Badri Narayan’s case, Single Judge considered
Vaishali Ganorkar to be incorrect and referred
matter to full Bench.
❑Appellant - Supreme Court decision in GanduriKoteshwaramma
❑Respondent - Supreme Court decision sG. Shekhar & Sheeladevi
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Issue: 1Retrospectivity Vs. Prospectivity
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1956 Act
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Allowed
• Hindu coparcener towill his interest inCoparcenary propertyto daughter.
Did not allow
• Daughter to claim inthe principalCoparcenary propertyitself
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Intestate – co-parcener interest to pass not by
survivorship but by succession, which included
females as well.
So only right – share in father’s property, and
that also upon his death.
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Mischief Gender discrimination
Violation of Article 14 & 15 of the Constitution.
(no discrimination – religion, caste, gender etc.)
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To plug this mischief
Amendment Act 2005 passed.
So cannot hold that amendment is prospective
and helps daughters born after 9/9/2005.
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Prospective statute - operates forward from date ofenactment, conferring new rights on parties withoutreference to prior events.
Retrospective statute – operates backwards,attaches new consequences for future, taken awayvested rights.
Retroactive - operates forward and does not takeaway vested rights, but brings into operation, acharacteristic before it was enacted.
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Thus – 6(1)(a) – Prospective – daughter born
after 09.09.2005
6(1)(b) & (c) – retroactive – daughter
alive on 09.09.2005.
Daughter dying before 09.09.2005
Not vested with coparcenary
Her heirs having no rights in same
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Issue IIWhy amendment does not
apply to daughter deceased
prior to 9.9.2005?
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20.12.2004 - Date on which bill introduced in
Rajya Sabha.
All alienations of coparcener including
partition/testamentary dispositions, if registered,are saved.
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Amended Act does not save partition prior to
20/12/2004.
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Oral/ Unregistered
Not followed by partition By metes and
bounds
Followed by physical partition by metes and
bounds
public notification thereof
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In 1st case – daughter should be alive on9/9/2005 to challenge old partition.
In 2nd case – property of coparcener shouldactually be present to incorporate female’sinterest.
Property alienated between 20/12/2004-8/9/2005 even if registered & decreed is notsaved. This is to avoid alienation to subvertfemale’s rights.
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Issue IIIWhy amendment does not relate
back to 1956?
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Supreme Court judgment in Zile Singh v. State of
Haryana. (2004) 8 SCC 1.
Not accepted in present case of Badrinarayan
Bhandari. So amended section not to apply from
17.6.1956.
Complete retrospectively denied as it would
unsettle all partitions not effected by decrees or
regd. document prior to 20/12/2004.
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Hindu dying before 09.09.2005 to be governedby old provision.
Importance of ‘on and from commencement ofAmendment Act, 2005’ – vested rights are notdisturbed by person claiming to be heir of deaddaughter.
So also daughter should be alive on 9.9.2005,person concerned ought to be alive on thedate on which Act in sought to applied.
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Issue IVDate of birth of Daughter
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Whether before 17.6.1956 benefit available -
yes.
Date of birth irrelevant.
Principal Act 1956 applied to all Hindus
irrespective of date of birth.
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Final Summation❑Amended Section 6 is retroactive
6(1)(a) – Prospective
6(1) (b) & (c) – retroactive.
❑Date of birth of daughter immaterial as long as
she is alive on 9.9.2005.
❑Alienation of property prior to 20/12/2004 is
saved.
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Alienation of property after 20/12/2004 and
before 9/9/2005 saved only if
registered/decreed.
If coparcener dies before 9.9.2005, old section 6
to apply since property already stood devolved.
Female coparcener can gift, will, alienate her
share in coparcenary property.
Female coparcener can demand partition of a
coparcenary property.
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Section 23 of Hindu Succession Act, 1956
Deleted as per Amendment Act, 2005.
Provision – female heir not entitled to claim
partition of dwelling house wholly occupied by
members of family, until male members decide
to divide their shares.
But she can seek right of residence.
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Property of Hindu female; its
intestate Succession Section 14: Property of a female Hindu
To be her absolute property
Whether gift, inheritance, maintenance or her
own efforts etc.
Section 15 : Rules of succession in female
Hindus- intestate:
sons, daughters, husband.
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AcelegalRitika Agarwal
Senior Partner
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