Hindu Succession Act,1956 particularly discuses about the inheritance of property. This act is also applied in case of intestate or unwilled properties involving who is considered as Hindus according to the definition under Hindu Marriage Act, 1956. In this article I would particularly be discussing about the status of female in the property with respect to latest amendments.
Before 1956, Hindus were administered by property laws which had no cognizance and changed from area to district and sometimes inside a similar locale, from standing to station. The Mitakshara school of progression which was predominant in the vast majority of north India, had confidence in the selective area of male beneficiaries.
Interestingly, the Dayabhaga framework didn’t perceive legacy rights by birth and the two children and little girls didn’t have rights to the property during their dad’s’ lifetime. At the other outrageous was the Marumakkattayam law, pervasive in Kerala which followed the heredity of progression through the female line. Previous head administrator Jawaharlal Nehru advocated the reason for ladies” entitlement to acquire property and notwithstanding the hardened obstruction from universal segments of Hindus, the Hindu Succession Act was instituted and came into power on June 17, 1956.
Numerous progressions were achieved that gave ladies more noteworthy rights however they were still denied the significant coparcenary rights. In this manner, a considerable lot of the states sanctioned their own laws for division of familial property. In what is known as the Kerala model, the idea of coparcenary was annulled and as per the Kerala Joint Family System (Abolition) Act, 1975, the beneficiaries (male and female) don’t gain property by birth however possibly hold it as occupants as though a parcel has occurred. Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra (1994) likewise sanctioned laws, where little girls were conceded ”coparcener” rights or a case on tribal property by birth as the children.
In 2000, the 174th report of the fifteenth Law Commission proposed revisions to address the oppression ladies, and this report frames the premise of the bill which has now been cleared by the Union bureau.
Recent amendments in Hindu Succession Act, 1956
The wordings of Section 6 of Hindu Succession Act, 1956 are as follows:-
“When a male Hindu dies, after the commencement of this Act, having, at the time of his death, an interest in a Mitakshara coparcenary property, (then) his interest in the property shall devolve by survivorship, upon the surviving members of the coparcenary, and not in accordance with this Act:
Provided that, if the deceased had left him surviving, a female relative, specified in Class I of the Schedule, or a male relative specified in that Class, who claims through such female relative, (then) the interest of the deceased, in the Mitakshara coparcenary property, shall devolve by testamentary or intestate succession, as the case may be, under this Act, and not by survivorship.
Explanation I.—For the purposes of this section, the interest, of a Hindu Mitakshara coparcener, shall be deemed to be the share, in the property, that would have been allotted to him, if a partition of the property had taken place, immediately before his death, irrespective of whether he was entitled to claim partition or not.”
Through the wordings of this section, it can be seen that only the male member of the family was considered as coparcener and has right over the property also. In any case females are not entitled to inherit the ancestral property of her father except in some exceptional cases i.e. when the particular female falls under Class I of the schedule. And even if the female is entitled also as such in the provided case it does not mean that damage is entitled for property from birth.
The wordings of Section 6 of Hindu Succession (amendment) Act, 2005 are as follows:-
New Sec. 6 : Devolution of interest in coparcenary property.-
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth, become a coparcener, in her own right, in the same manner as the son;
(b) have the same rights, in the coparcenary property, as she would have had, if she had been a son;
(c) be subject to the same liabilities, in respect of the said coparcenary property, as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that, nothing, contained in this sub- section, shall affect or invalidate any disposition or alienation, including any partition or testamentary disposition of property, which had taken place before the 20th day of December, 2004.
(2) Any property, to which a female Hindu becomes entitled, by virtue of sub- section (1), shall be held by her, with the incidents of coparcenary ownership, and shall be regarded, notwithstanding, anything contained in this Act, or any other law for the time being in force, as property, capable of being disposed of by her, by testamentary disposition.
(3) Where a Hindu dies, after the commencement of the Hindu Succession (Amendment) Act, 2005, (then) his interest, in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act, and not by survivorship, and the coparcenary property shall be deemed to have been divided, as if a partition had taken place, and,-
(a) the daughter is allotted the same share, as is allotted to a son;
(b) the share of the pre- deceased son or a pre- deceased daughter, as they would have got, had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre- deceased daughter; and
(c) the share of the pre-deceased child of a pre- deceased son or of a pre- deceased daughter, as such child would have got, had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre- deceased son or a predeceased daughter, as the case may be.
Explanation.—For the purposes of this section, the interest, of a Hindu Mitakshara coparcener, shall be deemed to be the share, in the property, that would have been allotted to him, if a partition of the property had taken place, immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great- grandson, for the recovery of any debt, due from his father, grandfather or great- grandfather, solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson, to discharge any such debt:
Provided that, in the case of any debt, contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 , nothing contained in this sub- section shall affect–
the right of any creditor, to proceed against the son, grandson or great- grandson, as the case may be; or
(b) any alienation, made in respect of, or in satisfaction of, any such debt, and any such right or alienation shall be enforceable, under the rule of pious obligation, in the same manner and to the same extent, as it would have been enforceable, as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.- For the purposes of clause (a), the expression ‘son’, ‘grandson’ or ‘great- grandson’ shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 .
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation.- For the purposes of this section, ‘partition’ means any partition, made by execution of a deed of partition, duly registered under the Registration Act, 1908 (16 of 1908 ), or partition effected by a decree of a court.
Despite the fact that the rights, under new subbed Section 6 can be asserted with impact from ninth September 2005, its arrangements are of retroactive application; as they present advantages, which depend on the predecessor occasion.
The ‘prospective statute’ works from the date of its sanctioning presenting new rights. The ‘retrospective statute’ works in reverse, and it removes or debilitates ‘vested rights’, which were obtained under then existing laws. Furthermore, ‘retroactive rule’ is the one, which doesn’t work reflectively. It works in future. Be that as it may, its activity depends on the character or status, which emerged prior.
According to this explanation and the amendment made in 1956 Act it could be understood well that the females were now given equal right as that to males but the only condition which was there was, at the time of partition of the property or when the females were to be given part of the property at that time both the daughter and the coparcener are needed to be alive at that point of time.
Amendment made in 2020
The judgment which had been passed in the case of Vineeta Sharma v. Rakesh Sharma on 11th August, 2020 further discusses about the amendments made in 2005. Here in this case, at the point when a daughter, who is asserting and requesting an offer in the coparcenary, is alive on ninth September 2005, at that point there is no trouble of translation, regardless of the reality, whether a coparcener has passed on before the beginning of the Amendment Act. The coparcener and the daughter need not to be compulsorily be alive, as on the date of the revision.
In the event that it is to be deciphered that, coparcener and daughter both ought to be alive, at that point it will nullify the point and goal of the corrected arrangements. Prior, the arrangements of Hindu law regarded a child as a coparcener by birth; presently, females are given similar rights since birth. Be that as it may, on the off chance that the segment has been affected by allots and limits and is enough demonstrated, at that point the girl of coparcenary can’t look for parcel of previously isolated property.
So, from the above mentioned amendments and the explanation three are few things which need to discuss and ask these questions from the legislatures. The amendments had been made but there are still some drawbacks which are needed to be looked upon and these are:-
Firstly, If it had been said that the females have equal rights that of males/sons in the family then one thing can be observed that , the females are getting the property from two sides i.e. as the female is also entitled to get the property form the share of her husband as well as from her father. So, here in this case in the first had itself, the discrimination is done with the males.
Secondly, as the heirs are entitled to get the property from their father as has every right to ask for that but this is not the case in the property which is gained by the female from her father or Husband. As during the lifetime of mother no daughter or son can claim right in that property.
So, from these two contentions it could be observed that, the females are getting advantage under the name of discrimination made against them. One thing can also be noted that, this discrimination should not named as gender based. As when the first amendment had been made in 1956 Act it was not at all needed as the laws enacted at the time only was legitimate not at all discriminatory.