Rights of Hindu Women

In Family Property

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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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