A CRITICAL ANALYSIS OF THE 174TH REPORT OF THE LAW

COMMISSION OF INDIA

Subject: Family Law

Submitted to: Dr. Anju Tyagi

Submitted by: Siddharth Priyadarshi Sharma

Roll No.: 71

Class: 2nd Year, 4th Semester

2014

National Law University, Delhi

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 TABLE OF CONTENTS

Introduction…………………………………………………………………………2

Chapter 1: The Law Pre-2005.......................................................…………..……….4

Chapter 2: An Analysis of the Recommendations of the 174th report…………….…6

Chapter 3: Consequences of the 174th Law Commission Report …………………...9

Conclusion…………………………………….................…………………….....…12

Bibliography……………………………………………………………….....……..14

TABLE OF CASES

Pravat Chandra Pattnaik and AIR 2008 Orissa 133 10

Others vs. Sarat Chandra
Pattnaik and Another
Sugalabai v. Gundappa A. ILR 2007 KAR 4790 11
Maradi and Others

INTRODUCTION

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The issue of women’s rights in terms of succession has been a hotly debated subject for a
very long time now. Ever since the early ages, women were not given equal rights in the
property of the joint family. This was most often seen in Hindu Joint Families. In India, most
of the Hindu Joint Families follow the Mitakshara school of law. Under this school, the
women hardly ever received a major portion of the property. In fact, most of their property
rights were severely curtailed. Under the Hindu Succession Act, 1956, females were granted
ownership of all property acquired either before or after the signing of the Act, abolishing
their “limited owner" status.

However, it was not until the 2005 Amendment that daughters were allowed equal receipt of
property as with sons. Finally, they were granted the status of coparceners, an entitlement
which had been so far reserved only for the male progeny of a family.

The initiative for granting expanded property rights to women had been going for a long time
but was given a huge impetus with the publishing of the 174 th Law Commision Report by the
15th Law Commission of India titled “Property Rights of Women: Proposed Reforms Under
the Hindu Law”.

The purpose of the project is to critically analyse the said 174th law commission report.

Research Questions –

1. Whether the recommendations of the Commission played a major part in the changes
brought about under the Hindu Succession (Amendment) Act, 2005?
2. Whether the 174th report of the Law Commission missed any other relevant provisions
regarding the property rights of women?

Research Methodology

The researcher has followed the doctrinal method of research. The primary source of the
information is the 174th law commission report. Apart from that, scholarly articles and books
have been referred to. The researcher has also referred to the existing legislation and case law
to find out the present position of law.

Chapterization –

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1. The Law Pre-2005 – The first chapter of the project will deal with the position of the
law as it was before the 2005 amendment act, i.e., during the time when this report
was published. The purpose is to paint a picture of the law as it was so that it may be
better contrasted with the law as it is now after the report and the amendment.
2. An Analysis of the Recommendations of the 174 th report – The second chapter will
go through the relevant recommendations presented by the law commission in the
174th report. The report in itself is extremely long and comprehensive and therefore
the researcher shall limit himself to certain relevant recommendations only.
3. Consequences of the 174th Law Commission Report – The third chapter shall deal
with the fallout of the report. This shall mostly deal with the legislative changes, both
which were incorporated and those which weren’t. Apart from that it shall also deal
with the relevant case law in this matter.

The conclusion will then present the answers to the research questions and will sum up
the research project. It will also incorporate certain suggestions regarding further changes
in the law which may be made to make it more equal and fair for all.

CHAPTER 1

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 THE LAW PRE-2005

Matters of succession were usually decided by uncodified laws in a Hindu Joint Family
traditionally. These laws usually did not recognise the property rights of the women.
However, in 1956, the Hindu laws were finally codified by the legislature. The Hindu
Succession Act was enacted to amend and codify the law relating to intestate or unwilled
succession, among Hindus. The Act laid down a uniform and comprehensive system of
inheritance and applied to persons governed by both the Mitakshara and Dayabhaga schools.
It was hailed for its consolidation of Hindu laws on succession into one Act. The Hindu
woman's limited estate was abolished by the Act. Any property possessed by a Hindu female
was to be held by her absolute property and she was given full power to deal with it and
dispose it off by will as she likes.

However, the act did not grant full property rights to women. This was most notable in
section 6 of the act which read –

“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, 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,  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.”

The law commission itself in its report has concentrated most on this section of the Hindu
Succession Act. In the introduction itself, the report mentions –

“Discrimination against women is so pervasive that it sometimes surfaces on a bare

perusal of the law made by the legislature itself.  This is particularly so in relation to
laws governing the inheritance/succession of property amongst the members of a Joint
Hindu family. It  seems  that  this  discrimination  is  so  deep  and systematic  that  it 
has  placed women at the receiving end.”1

1
174th Law Commission Report : Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000.

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Even though, the Hindu Succession Act of 1956, gave women much needed and traditionally
absent rights in property matters of the joint family, the major question which arose was
whether they had been given an equal right, or whether the provisions of the 1956 act were
just an eyewash. On the surface of it, it may seem that women do get equal right in a majority
of things, especially since their rights are no longer restricted to limited estate but in fact they
now had full power to own and dispose off their property.

However, their restriction from coparcenary property was still a bone of contention for many.
The provisions regarding succession in the Hindu Code  Bill, as  originally  framed  by  the 
B.N. Rau  Committee  and piloted  by  Dr.Ambedkar,   was   for   abolishing   the Mitakshara
coparcenary with its concept of survivorship and the son's right by birth in a joint family 
property and substituting it with the principle of inheritance by succession.2

There were other areas too in the act which seemed to deny women their legitimate rights in
terms of joint family property. As per section 23 of the Act married daughter is denied the
right to residence in the parental home unless widowed, deserted or separated from her
husband and female heir has been disentitled to ask for partition in respect of dwelling house
wholly occupied by members of joint family until the male heirs choose to divide their
respective shares therein. 3

These provisions had been identified as major sources of disabilities thrust by law on woman.
It is in this backdrop that the 174th Law Commission Report came out with its
recommendations. There will be a special focus on section 6 and section 23 of the 1956 act in
this project as those were the two sections which underwent the most drastic and radical
change after the 2005 amendment alongwith being the sections which most affected the
property rights of women in a Hindu Joint Family.

CHAPTER 2

AN ANALYSIS OF THE RECOMMENDATIONS OF THE 174TH REPORT

2
Ibid.
3
The Hindu Succession Act, 1956.

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As already mentioned in the earlier chapters, the Law Commission realised that the biggest
problems in terms of the Hindu Succession were the inequal rights granted to sons and
daughters. In discussing section of the act, the commission says –

“In the Hindu system, ancestral property has traditionally   been  held by a joint  Hindu 

family consisting of male coparceners. Coparcenary as seen and discussed earlier in the
present work is a narrower body of persons within a joint family and consists of father, son,
son's son and son's son's son.  A coparcenary can also be of a grandfather and a grandson,
or of brothers, or an uncle and nephew  and  so  on.   Thus ancestral
property continues to  be   governed   by   a   wholly partrilineal  regime,  wherein 
property  descends  only through the male line...

...The  patrilineal assumptions of a dominant male ideology are clearly reflected in the laws

governing a Hindu female who dies intestate.  The law in her  case in markedly different 
from those governing Hindu males.  The property is to devolve  first  to  her children and
husband:  secondly, to her husband's heirs; thirdly  to  her  father's  heirs,  and  lastly,  to
her mother's heirs.”4

The Report then goes on to point to the inequalities in section 23 of the 1956 act which was
regarding the right of residence of a married daughter in her parents’ home. This right was
restricted only to those daughters who were widowed, deserted or separated from their
husbands. This section further denied any other daughter from asking for her share in the
house if it was occupied by males.5

In this regard, the commission remarked –

“The main object of the section is said to be the primacy of the rights of the family against
that of an individual by imposing a restriction on partition. Why is it that
this right of primacy of family is considered only in the case of a female member of the
family?”6

The report also raised questions about the power of a coparcener to will away his property
under section 30 of the act. Any Hindu may dispose of by will or other
testamentary disposition any property capable of disposition (including    his   undivided  
interest in a Mitakshara coparcenary property as  per   the   explanation)   in accordance with
4
174th Law Commission Report: Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000.
5
Hindu Succession Act, 1956.
6
174th Law Commission Report: Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000.

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the provisions of the Indian Succession Act, 1925.  This is ironical as this included the
testamentary right of his daughter by succession.  It can also defeat a widow's right. There
is thus a diminution in the status of a wife/widow.

The report also discusses the idea of females being coparceners. In particular, it discusses the
state amendments brought about in Tamil Nadu, Maharashtra, Karnataka and Andhra
Pradesh. However, the report questions the practicality of the move by naming the major
problem – a female coparcener remains a member of the natal family while also being a part
of the marital family.7

Even though, the report points out certain short comings of the amendments in the state, they
are very supportive of the move to make daughters coparceners in the Joint Family Property.
In furtherance of this view, the report further suggests that section 23 of the act should be
deleted altogether so as to make the rights of the daughter as a coparcener real in spirit and
content.8

To gauge the popular public opinion on this matter, the report had conducted a survey using a
11 question questionnaire. These questions dealt with a variety of subjects like whether the
coparcenery system in mitakshara families should be retained, whether daughter should
become karta, right to residence of daughters and widows etc. The results showed that a
majority of the respondents, who numbered 67, were in favour of expanding the property
rights of the women. Also, a surprising number of respondents were in favour of abolishing
the mitakshara system of coparcenaries.

Based on the study of the existing law and the responses recorded in the questionnaire, the
commission through this report made a number of recommendations.

The commission was not in favour of following any one state model as all of them had
certain inherent flaws. What they did propose was an amalgam of the models adopted in
Kerala and Andhra Pradesh. This involved giving the status of coparceners by birth to
daughters, maintaining a distinction between daughters who were married after the
commencement of the amendment and those who were married after the amendment and
removing the doctrine of pious obligation from sons.9

7
174th Law Commission Report: Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000.
8
Ibid.
9
174th Law Commission Report: Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000.

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The report further recommended that section 23 of the Hindu Succession Act be scrapped as
it imposes unfair restrictions on daughters regarding their dwelling homes. The report further
said that even though a lot of concerns have been raised about the father’s ability to will away
his property, thereby depriving either his daughters or his heirs in general of their inheritance,
they do not believe that any change is required in the provision of law.

CHAPTER 3

CONSEQUENCES OF THE 174TH LAW COMMISSION REPORT

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The law commission at the end of its 174th report drafted a model amendment legislation
which they recommended be used to amend the Hindu Succession Act. This amendment was
supposed to introduce two major changes – firstly, elevate the status of daughters to
coparceners and secondly to remove section 23 from the act entirely.

These recommendations were made in 2000. However, the amendment act did not see the
light of the day till 2005 when the Hindu Succession Amendment Act, 2005 was passed.

The amendment act introduced both the changes that were suggested by the report. The old
section 6 of the 1956 act was replaced by a new and more comprehensive section which gave
the daughters equal rights as the sons as coparceners of the joint family property. The
struggle for women to have absolute property rights was finally almost completed.

The amendment act also removed section 23. In the statement of objects and reasons of the
amendment act, it was stated that –

“Section 23 of the act disentitles a female heir to ask for partition in respect of a dwelling
house wholly occupied by a joint family until the male heirs decide to divide their shares
therein. It is proposed to omit the said section so as to remove the disability on female heirs
contained in that section.”

The significant change of making all daughters (including married ones) coparceners in joint
family property - has been of a great importance for women, both economically and
symbolically. Economically, it can enhance women's security, by giving them birthrights in
property that cannot be willed away by men. In a male-biased society where wills often
disinherit women, this is a substantial gain.

Also, as noted, women can become kartas of the property. Symbolically, all this signals that
daughters and sons are equally important members of the parental family. It undermines the
notion that after marriage the daughter belongs only to her husband's family. If her marriage
breaks down, she can now return to her birth home by right, and not on the sufferance of
relatives. This will enhance her self-confidence and social worth and give her greater
bargaining power for herself and her children, in both parental and marital families.

Although most people welcome this step, certain reservations have also been expressed by
people regarding the effect it has on other female heirs. By retaining the Mitakshara Joint
Property system, making daughters coparcenors will decrease the shares of other Class I

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female heirs, such as the deceased widow and mother, since the coparcenary share of the
deceased male from whom they inherit will decline.10

Because of this, many people have instead advocated for the abolition of the mitakshara
coparcenery system altogether. However, if such a move takes place, the power of the male to
will away the property needs to be restricted so that the right of the heirs and the females to
inherit can be preserved.11

Certain scholars have brought out into limelight the significant transformation in the status of
women through Hindu Succession Act 1956 to amended Act 200561. Post 2005, daughter
would be a member of two Hindu joint families and also her children.12

They have been of the opinion that the legislative steps taken to improve the position of a
Hindu woman have been reformative in nature and in terms of her ability to acquire property
and that a Hindu woman has come a long way from the late 19th century to the present day,
at least on paper.13

In terms of case law, even after passing of the Amending Act and substitution of S. 6, a
number of questions were raised in the legal circles as to whether the Amending Act was
prospective or retrospective and whether a daughter born before coming into force of the
Amending Act i.e., 9th September 2005 was entitled to benefit under the newly incorporated
S. 6 of the Act. There were divergent views and conflicting arguments.

In Pravat Chandra Pattnaik and Others vs. Sarat Chandra Pattnaik and Another 14, the Orissa
High Court had occasion to consider the effect of the Amending Act and the new S. 6 of the
Act. The Court held that the Amending Act was enacted to remove the discrimination
contained in S. 6 of the Act by giving equal rights and liabilities to the daughters in the Hindu
Mitakshara Coparcenary property as the sons have. It creates a substantive right in favour of
the daughter. The daughter got a right of coparcener from the date when the amended Act
came into force i.e., 9-9-2005.

10
“Land Mark Step to Gender equality”, Bina Agarwal, The Hindu, 25/9/05 accessed at
http://www.thehindu.com/thehindu/mag/2005/09/25/stories/2005092500050100.htm
11
“Mapping Women’s Gains In Inheritance And Property Rights Under The Hindu Succession Act, 1956”,
Lawyer’s Collective Women’s Rights Initiative, accessed at http://www.lawyerscollective.org/files/LCWRI
%20INHERITANCE%20REPORT.pdf
12
Family Law Lectures Family Law II , Dr. Poonam Pradhan Saxena, Second Edition, LexisNexis –
Butterworths Wadhwa.
13
Ibid.
14
AIR 2008 Orissa 133

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In Sugalabai v. Gundappa A. Maradi and Others, 15 the Court held that as soon as the
Amending Act was brought into force, the daughter of a coparcener becomes, by birth, a
coparcener in her own right in the same manner as the son. Since the change in the law had
already come into effect during the pendency of the appeals, it is the changed law that will
have to be made applicable to the case. The daughter, therefore, by birth becomes a
coparcener and that there is nothing in the Amending Act to indicate that the same will be
applicable in respect of a daughter born on and after the commencement of the Amending
Act.

However, questions still persist over section 30 of the Succession Act. Section 30 of the
Hindu Succession Act allows any Hindu to dispose off his property including his share in the
Joint Family Property by will. As has been pointed by women's organizations/ groups and
activists this Section can and has been used to disinherit women. It has been recommended
that a limitation should be placed on the right to will. Such a provision would be similar to
the provision in Muslim law which allows a person to will away only 1/3 of his property.16

CONCLUSION AND SUGGESTIONS

ILR 2007 KAR 4790

15

“Whether Amendments Made To The Hindu Succession Act Are Achieving Gender Equality?”, Romit
16

Agrawal, accessed at www.legalserviceindia.com.

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Since time immemorial the framing of all property laws have been exclusively for the benefit
of man, and woman has been treated as subservient, and dependent on  male  support. The
right to property is important for the freedom and development of a human being.17

After the 1956 Hindu Succession Act, the right to property of females was recognized to a
noticeable degree. But it was the recommendations and the effect of the 174th report of the
Law Commission of India, which actually brought this issue to the forefront and enabled the
passage of the amendment act which ensures that women get full property rights when it
comes to ancestral coparcenary property.

Empowerment of women, leading to an equal social status in society hinges, among other
things, on their right to hold and inherit property. These amendments can empower women
both economically and socially and have far-reaching benefits for the family and society.

In terms of the research questions, the answer to both is in the affirmative.

The 174th Law Commission Report was instrumental in the construction of the 2005
Succession Act amendment. The two major recommendations of the commission were the
two major points of focus of the amendment act. The said objective of ensuring that women
have an equal right to coparcenary property was effectively achieved by the legislature by
employing the suggestions of the commission.

As far as the question of possible oversight on the part of the commission exists, the
researcher believes that they committed very near to gross oversight by not recommending a
change in section 30 of the Hindu Succession Act.

The problem from this section is twofold. Firstly, it goes against the grain of the entire
commission’s report. The entire idea behind that report was to ensure daughters get an equal
share in coparcenary property. However, if the extent of testamentary succession is not
controlled then there is a very real possibility that a karta or male member may will away his
entire property so as to disinherit his daughter or his heirs in general.

To combat such a situation, it would be preferable to follow the system applicable in Muslim
Law and some other countries which places a maximum cap on the amount of property which
can be left for a person through the will. That is the only way to ensure that all heirs,
especially the female heirs, are not unjustly robbed off their inheritance.
17
174th Law Commission Report: Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000.

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Several legal reforms have taken place since independence in India, including on equal share
of daughters to property. Yet equal status remains elusive. Establishment of laws and
bringing practices in conformity is necessarily a long, drawn out process. The government,
the legislature, the judiciary, the media and civil society has to perform their roles, each in
their own areas of competence and in a concerted manner for the process to be speedy and
effective.

BIBLIOGRAPHY

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Books –

 Family Law Lectures – Family Law II, Dr. Poonam Pradhan Saxena, Second Edition,
LexisNexis – Butterworths Wadhwa.

Legislation –
 The Hindu Succession Act, 1956.
 The Hindu Succession (Amendment) Act, 2005.

Reports –
 174th Law Commission Report, Property Rights of Women: Proposed Reforms Under
the Hindu Law, 2000.

Newspapers –
 The Hindu

Websites –
 www.lawyerscollective.org
 www.legalserviceindia.com
 www.manupatrafast.in
 www.thehindu.com

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