HYDERABAD

A FINAL REPORT
ON

Implications of the amendments brought by

2005 Amendment act

By
Amarnaadh Reddy Kaipu
21FLICHH020062

Faculty Guide:
Prof. Astha Srivastava,
Assistant Professor,
ICFAI law school.

Date of Submission: 31-08-2022

1|P a ge
 TABLE OF CONTENTS

S.no Topic Page no

1 Abstract 3
2 Introduction 4-5
3 A Daughter's position prior to the 2005 amendment to the 6
Hindu Succession Act
4 A Daughter’s position after enactment of The Hindu 7-8
succession amendment act 2005
5 Applicability of Section 6 on Daughters whose father was 8-9
dead before The Hindu Succession amendment act 2005
came into force:
6 Conclusion 9

2|P a ge
 ABSTRACT

The long-lasting gender disparities existing in the Hindu succession act of 1956 were
ultimately addressed by the Hindu succession amendment act of 2005. My article deals
with the implications of the amendments brought by the 2005 amendment act. In later
parts of my report, I will discuss the provisions amended in the parent legislation, i.e.,
The Hindu succession act of 1956. I will also discuss the daughter's position before the
Hindu succession amendment act 2005 passed.

The further parts of my report will shed light on the daughter's position after the
Hindu succession amendment act of 2005 passed. I included various landmark
judgments, which cleared various doubts in people's minds. Multiple parts of this article
contain views of different schools of Hindu law, such as Mitakshar and Dhayabaag law.
This article also contains information regarding the difficulty in the practical
implication of this amendment act. This article also contains a summary of the latest
judgment, which answered the anomaly in Section 6 of The Hindu succession
amendment act 2005: "Whether women have the right to ancestral property if her father
is not alive at the time of such act was passed?".

The purpose of this research article is to convey to the interested person the
whole result of the study in sufficient detail and to determine the validity of the case
conclusions. The principal objective is to present a fair and unbiased account of all sides
of this topic. I also discussed the effect of The Hindu succession amendment act of 2005
on society. I added my opinion and views on this legislation in this article.

3|P a ge
 INTRODUCTION

"A lady is never fit for autonomy. Her father safeguards her in childhood, her husband
secures her in youth, and her sons secure her in old age."1

This quotation is adequate to describe the situation of women. In olden days people
tend to think narrowly, assuming that if a woman cannot defend herself, how can we expect
her to take on some responsibility for something to look after and protect? In Indian society,
the Mitakshar law forbids women from being Class I heirs and coparceners, consequently
women were not allowed to have interest in property as males does by birth. The justification
given in Mayne’s law is that women are unable to deliver such advantages to the departed as
male members do by offering Pinddan during shrad of departed.2

Women were discriminated against for inheriting property, unlike male coparceners.
Son will have an interest in joint family by birth under Mitakshar law. Since Female were not
allowed to be part of coparcenary, they cannot have interest in Hindu joint family property.
There is much more discrimination against women, and women can't fight for their right to
level up them. Earlier, women were only seen as wives, mothers, and daughters to manage and
run households, to nurture and give birth to children. But Now-a-days, women have rights from
womb to tomb. They attained these rights by going through a great deal of hardship. A woman
has the right to live a good life, so the state should take affirmative action to wipe out the
injustice against women.

Change is inevitable. Since society is dynamic, so should the law. When conflicts such
as gender justice and female rights arose from time to time, the question of rights in the property
of both males and females has been measured, and great importance has been given to females.
Such importance has been shown to the society by amending the parent legislation, i.e., the
Hindu succession act 1956, and bringing the Hindu succession amendment act 2005 into force,
which gives the authority to the daughter to be the coparcener. The significant accomplishment
of this amendment lies in including all daughters, especially married daughters as coparceners
in the joint family property. It is completely inappropriate to see that women, after marriage,
will be a part of other families and lose their connection and rights to be a member of the former
Hindu Joint Family. The Constitution of India also talks about Gender equality in the Preamble

1
Manusmriti: The law of Manusmriti
2
Mayne’s, Treatise on Hindu Law & Usage

4|P a ge
and Part III, IV of the Constitution. The Constitution also gives power to the state to take proper
measures so that women can't be discriminated against anymore and make policy and laws in
favour of women to uplift their position.3 I will discuss more amendments brought through The
Hindu succession amendment act of 2005 in later parts of this article. Section 4(2), Section 6,
Section 23, Section 24 and Section 30 of The Hindu Succession Act of 1956 have been
amended and incorporated as The Hindu succession amendment act of 2005.

Section 4(2): Prior to 2005 agricultural land inheritance was governed by state level tenurial
laws but not through the Hindu succession act which resulted in bias against women. Post 2005
such provision was omitted which ensured equality between men and women. 4, 5

Section 6: Devolution of Interest in coparcenary property

Prior to 2005, Daughters could not become coparceners. So, they could not have any interest
in the joint family property. Post-2005, a new provision was substituted in place of the old
one, which provided both sons and daughters with the same rights and liabilities in joint
family property by birth and ensured equality. So, daughters were allowed to be coparceners
through this legislation. 4, 5

Section 23: Prior to 2005, Daughters had only the right to residence in their parent's dwelling
house, subject to the condition that such daughter should be unmarried, deserted, or widowed.
They had no right to claim partition. But post-2005, such provision was omitted. So, daughters,
whether married or unmarried, will have the right to residence in their parent's dwelling house,

and such daughters were also entitled to claim partition in such dwelling house.4

Section 24: Prior to 2005, if the husband died intestate, his wife, i.e., the widow, is not
entitled to inherit intestate property if she is remarried on the date of succession. After 2005
such provision was omitted. She can therefore inherit the intestate property despite having
remarried. 4

I discussed the amendments made to The Hindu succession act of 1956 in brief and in later
parts of my report I am going to discuss the in detail.

3
The Constitution of India, art.14.
4
The Hindu Succession (amendment) Act, 2005 (Act 39 of 2005), ss. 4(2), 6, 23, 24.

5|P a ge
A Daughter's position prior to the 2005 amendment to the Hindu Succession Act:

In the Mitakshar Law, females cannot inherit property. In which only male coparceners are
allowed to inherit property. After the death of the coparcener, his wife cannot ask for partition
to hold the share of his husband because, after her husband's death, the property devolved over
the remaining coparcener by the Right of Survivorship. Females are only allowed to get
maintenance. However, in the Dhayabaag Law, women's positions are favourable compared to
Mitakshar Law because widows of male cohabitants who have no sons inherit their property
after their husband's death during her lifetime. After such widow's death, the property will
return to the Hindu Joint Family property. She can't alienate property to anyone because of the
prevalence of the concept of "The limited estate." Women are not allowed to be coparceners
through birth, adoption, or blood at that time.

The Hindu Women's Right to Property Act of 1937 was passed by the legislature, granting
women in Hindu Joint Families a few more rights. This legislation makes it easier for widows
to use the concept of limited ownership. In which she can ask for partition but not as a
coparcener and can hold limited ownership over her husband's property. But she cannot have
an interest in agricultural land. It creates inequality among women, a loophole in the 1937 act.
She can use limited ownership for maintenance purposes only. Widow's undivided interest
keeps on fluctuating. The little ownership concept is limited to a specific condition. If she dies
or remarries, the property goes back to the father. Women do not receive coparcenary rights
under this legislation.

After that, the legislature passed another legislation, the Hindu Succession Act, 1956, which
overturned the Mitakshar coparcenary and removed the doctrine of Survivorship. This act
introduces the notion of fictitious partition. If one coparcener dies, it will be presumed that
there will be a Notional Partition. This legislation makes it easier for widows to use the concept
of limited ownership. This deed introduces the notion of fictitious partition. It will be assumed
that there will be a Notional Partition if one coparcener passes away. Without requesting
partition, this hypothetical division occurs. His wife and kids receive this portion. After that,
Maharashtra and Karnataka allowed women as coparceners full-time in 1994.

Above all, the legislation failed to give the full Right of coparcenary by birth, blood, and
adoption to the women over Hindu Joint Family property. After the 1956 act, women's position
is little better than women under Mitakshar Law and Dayabhaag Law.

6|P a ge
A Daughter’s position after enactment of The Hindu succession amendment act 2005:

15th Law Commission of India was appointed to suggest amendments to Hindu Succession
Act, 1956. The 174th Report submitted by the Commission suggested many amendments to
the parent legislation to ensure equality. Hindu Succession (Amendment) Act of 2005 came
into force on 9th Sep 2005, which completely changed the daughter's position in Hindu Joint
Family. This amendment omitted Section 4 (2), Section 23, Section 24 were omitted, and
Section 6 was amended.

 Section 4(2):

Section 4(2): Prior to 2005, agricultural land inheritance was governed by state-level tenurial
laws but not through the Hindu succession act, resulting in a bias against women. Post-2005
such provision was omitted, which ensured equality between men and women. It was a
significant step to get rid of the long-lasting inequality that existed between men and women.5
However, there existed an ambiguity with this omission as it has not exactly declared whether
this amendment will supersede the state-level tenurial laws. This anomaly was cleared in
Nirmala v. Govt. (NCT of Delhi), in which it held that the omission of Section 4 (2) would
result in the Hindu Succession Act's provisions taking precedence over the Delhi Land Reform
Act.6

 Section 6: Devolution of Interest in coparcenary property

Prior to 2005, Daughters could not become coparceners. So, they could not have any interest
in the joint family property. Post-2005, a new provision was substituted in place of the old one,
which provided both sons and daughters with the same rights and liabilities in joint family
property by birth and ensured equality. So, daughters were allowed to be coparceners through
this legislation.

Under Section 6 (1), a daughter is entitled to:

 be a coparcener by birth, like a son

 same rights in the joint family property like a son
 same liability in respect of joint family property like a son7

5
The Hindu Succession (amendment) Act, 2005 (Act 39 of 2005), s. 4(2)
6
2017 SCC OnLine Del 7207
7
The Hindu Succession (amendment) Act, 2005 (Act 39 of 2005), s. 6(1)

7|P a ge
Thus, the deep-rooted inequality that existed in Hindu society was taken care of by amending
this Section. In any circumstance, a daughter taking birth in Hindu Joint Family is sufficient to
be part of the coparcenary. Other females entering a Hindu Joint Family through marriage are
not considered part of the coparcenary but have a right to maintenance. Though females are
ensured equality under Section 6, a question arose about whether a female can be Karta.
Different views were expressed in various judgments.

In Sushila Devi Rampura v. Income tax Officer, “It was held that where the male members
are minors, their expected guardian is their mother. She can represent the Hindu Undivided
Family for income tax assessment and recovery.”8

In CIT v. Seth Govindram Sugar Mills, “The Supreme Court held that a widow could not be
Karta of the Hindu Joint Family, though she can be a Manager/Karta of a Hindu Joint Family
for the Income-tax assessment.”9

In Mrs. Sujata Sharma vs Shri Manu Gupta “The Delhi high court held that while females have
equal rights to Hindu joint family, they also have the right to manage the same property as
Karta. Eldest is a daughter then she becomes the Karta. It is immaterial whether she is married
or not.”10 The equality of daughters in Hindu undivided families has been firmly established in
this judgement. Daughters will hold the same place in the Hindu Undivided Family property
as a son.

Applicability of Section 6 on Daughters whose father was dead before The Hindu
Succession amendment act 2005 came into force:

Although women were granted equal rights and liabilities to the joint family property, but the
position of women whose father was dead before the act came into force was not clear. I am
going to discuss two earlier judgements on this topic and a recent judgement too. The
judgments given in 2 earlier cases are quite contrary to each other on this topic. On the top of
that both judgements were delivered by a two-judge bench. So, one has no overriding power
over other which created a lot of confusion for lower courts. The latest judgement given in
2020 got rid of such ambiguity.

8
AIR 1959 Cal
9
1965 57 ITR 510
10
2015 SCC Del 14424.

8|P a ge
In Prakash & Ors Vs Phulavati &Ors, Supreme court held that “The rights of coparcener under
amendment act 2005 are applicable to living daughters of living coparceners as on 9/9/2005
irrespective of the birth date of daughters.”11 Simply it meant that Daughters of coparceners
who died on or before 9/9/2005 are not entitled to be a coparcener.

In Danamma vs Amar, Supreme court held that “Partition is not complete with passing of
preliminary decree &attains finality on final decree. If father had died before 2005 & prior
suit is pending by male coparcener for partition, female coparcener is entitled to share in
partition”12 Simply what it meant is completely against the judgement given in the above case.

In Vineeta Sharma vs Rakesh Sharma, Supreme court held that “Under the amendment, the
daughter of the coparcener shall by birth become a coparcener in her own right in the same
manner as the son.”13 So, it can be concluded that daughters of dead coparceners are
coparceners.

Conclusion:

The Constitution of India enshrines the principle of gender equality in its Preamble and Parts
III, IV and IVA. In addition to guaranteeing women's equality, the Constitution gives the State
the authority to implement measures that positively discriminate in favour of women. Despite
the legal guarantee of equality, women in India had experienced numerous injustices. Women
were not eligible for a share of the joint family property before to the 1937 passage of the Hindu
Women's Right to Properties Act, and progression was determined by survivorship. The rule
of survivorship stated that upon the death of a member of a joint and undivided family, his
portion of the joint family property would be transferred to the surviving coparceners, which
included only the male members of the family. A female coparcener was treated equally with
a male coparcener under Section 6 of the Amendment Act of 2005.The major achievement is
that all daughters, especially married daughters, are included as co-owners of joint family
property, and that her obligations under the Mitakshar coparcenary are equivalent to those of
"son."

11
(2016) 2 SCC 36
12
(2018) 3 SCC 343
13
(2020) 9 SCC 1

9|P a ge