S.

5 Hindu Succession (Amendment)Act,2005

By
Kavita Singh
Associate Professor
NLIU, Bhopal
• 15 Law Commission in 174th Report (4th May, 2000)
suggested conferring equal rights to daughters in
coparcenary property.
• Consequently, The Hindu Succession (Amendment) Act,
2005 was passed, which came into force on 9th
September, 2005.
 Changes Brought about by HS(Amendment)Act,2005

• The Act introduced daughters as coparceners irrespective of their

marital status. A daughter will continue to be a member of her
father’s family even after her marriage.
• Children of such a daughter shall also become members of their
father’s family as well as their mother’s family.
• The Act abolishes the doctrine of survivorship in case of male
coparceners who die as members of undivided Mitakshara
Coparcenary i.e. interest of deceased Mtk. Coparcener will now
devolve by testamentary or intestate succession and not by
survivorshop.
• It retains the concept of notional partition but modifies the
conditions of its application.
• A female coparcener like a male coparcener can also execute a
will of her undivided share in the Mitakshara coparcenary
Mitakshara coparcenary after HS (Amendment) Act,2005
Illustration
X─ W
│
S1 W S1 ─ S2 ─ D1 ─ D2

Partition takes place on 01.06.2007. The respective

shares of the coparceners are as followes –

X= 1/6 S1= 1/6 D1=1/6

W=1/6 S2=1/6 D2=1/6
 In the illustration given in the previous slide, assuming ‘X’ died
on 20.09. 2008.
Now, under S.6(3) of the HS (Amendment) Act,2005 ,‘Notional
Partition’ will be applied. (*Plz. Read the section from the Bare
Act). The final shares of various members who are entitled to get a
share after applying ‘Notional Partition’ are as followes –
X = 1/6 (exclusive share) S1= /16 + (*1/30) D1 = /16 + (*1/30)
W = /16 + (*1/30) S2 = /16 + (*1/30) D2 = /16 + (*1/30)
 Hence by applying ‘Notional Partition’, all the surviving
coparceners get 1/6 as their partition share and 1/30 as their
inheritance share. When further simplified, it comes out to be 1/5
each.
Effect of Central amendment on State Amendments WRT
Matters That Appear Contradictory

• Subject matter of succession is in the Concurrent List. Hence

both Union and States are competent to legislate upon it.
• In case of contradiction between the two, the Union legislation
shall prevail.
 Two Contradictions Are There

1. While all the four states introduced unmarried daughters

as coparceners and excluded married daughters , the Central law
(Amendment) made all daughters as coparceners irrespective of
their marital status.
In view of Art. 154(1) of the Indian Constitution, state laws
inconsistent with the Central laws shall be inoperative paving way
to the operation of Central Laws. Thus all daughters in all these
four states would be coparceners.
 Pushpalatha N.V. v. V.Padma AIR 2010 Kar. 124

Court Held – All daughters irrespective of their marital

status are coparceners in the same manner as sons .
 Sugalabai v. Gundappa A. Muradi (2007) 6 AIR Karn. 27

Court Held – S.6A (d) of the Hindu Succession

(Karnataka Amendment) Act,1990 is repugnant to the
Hindu Succession (Amendment) Act,2005. All pending
matters would necessarily be considered in the light of
Hindu Succession (Amendment) Act,2005.
2. Female coparceners are capable of challanging alienation and
reopen partitions effected post the conferment of rights in their
favour by the state enactments but later taken by the central
amendment e.g. in Tamil Nadu, an unmarried daughter was made
coparcener in 1989. She could therefore acquire an interest in the
coparcenary property and could also challlange an alienation effected
by the Karta without her consent. However the amendment of 2005
provided that a daughter cannot challenge alienation effected prior to
December 20, 2004 i.e. a right conferred upon a daughter by state
law has been taken away retrospectively by the Central Law.
 R. Kantha v. UOI AIR 2010 Karn. 27

The Court Held –

In such cases, if the central amendment shall prevail over the

state State Amendments, the consequences would go against
against the very spirit of the Central Amendment. Thus the
Central provisin taking away the rights of the daughters to
challenge the alienations effected prior to 20th December,2004 is
inoperative and ultra vires the principles of gender parity under
the constitution.
 Prospective Operation of S.6 HS (Amendment) Act, 2005

 G. Sekhar v. Geetha and Others AIR 2009 SC 2649

Issue – Whether a Statute having a prospective operation will

affect the pending proceedings or not?
Court Observed –

“ It depends upon the nature, text and context of the statute.

i.e. it must be ascertained that whether a litigant has obtained a
vested right as on the date of institution of the suit, which is
sought to be taken away by operation of a subsequent statute.
 A repeal of provision of an enactment is followed by fresh
legislation by an amending Act. Such legislation is prospective in
operation and does not affect substantive or vested rights of the
parties under the repealed law unless made retrospective either
expressly or by necessary implications. There is a presumption
against the retrospective operation of a statute and further a
statute is not to be construed to have a greater reteospective
operation than its language renders necessary.”
 Om Prakash and Others v. Phulwati and Others. 2015(4) RCR (Civil)
952
The Supreme Court of India held –
1. An amended section has prospective effect unless either expressly
or by necessary implication it is retrospective.
2. Contention that amendment should be read as retrospective being a
piece of social legislation cannot be accepted.
3. Rights under amendment are applicable to living daughters of
living coparceners as on 9th September,2005 irrespective of when
such daughters are born.
4. Disposition or alienation including partition which may have taken
place before 20th December, 2004 as per law applicable prior to the
said date will remain unaffected.
 Right of Unmarried Daughters when Only Preliminary Decree But No
Final Decree is Passed
 S. Narayana Reddy v. S. Sai Reddy (1991) 3SCC 647
Facts- Partition suit was filed in 1972 which was grnted by passing of the preliminary
decree in 1973. Before passing of the final decree, the Hindu Succession (A.P.
Amendment) Act,1985 was passed making unmarried daughters as coparceners. In
light of this amendment, the daughters claimed their partition share in the property.

The Court Held that rights stand in case where only preliminary decree has been
passed and final decree of partition was yet to be passed.
 P. S. Sairam v. P.S. Rama Rao Pisey MANU/SC/0085/2004

The Supreme Court reitrated the same point i.e. right of an

unmarried daughter to claim a share in their independent right at
the time of notional partition.
 Prema v. Nanje Gowda & Others (2011) 6SCC 462

Partition suit filed by the appellant was decreed by a Preliminary

Order. In view of the State Amendment Act, apellant prayed for
amendment in the decree claiming a larger share for herself.
The Court Held –
“ Utill and unless a final decree is passed, and the allotees of the
shares are put in possession of the respective property, the
partition is not complete.
The preliminary decree which determines shares does not bring about
the final partition – for – pending the final decree – the shares
themselves are liable to be varied on account of the intervening
events.
The partition that the legislature has in mind in the present case is
undoubtedly a partition completed in all respects and which has
brought about an irreversible situation. A preliminary decree which
merely declares shares which are themselves liable to change does not
bring about an irreversible situation. Hence, unless a partition is
effected under the final decree, the daughters cannot be deprived of
the benefits conferred by the Act. The legislation is a beneficial
legislation having an object of benefitting women - therefore a liberal
interpretation is needed”
THANK - YOU