THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

Presented by Guided by

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 1. Brief on the Act
The Hindu Succession (Amendment) Act, 2005, an amendment to the Hindu
Succession Act, 1956, received the assent from President of India on 5
September 2005 and was given effect from 9 September 2005. It was
essentially meant for removing gender discriminatory provisions regarding
property rights in the Hindu Succession Act, 1956. It was a revolutionary step
in the field of Indian legislation regarding rights of women in India.

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 2. Introduction and Background
There are two eminent schools of Hindu Law namely the Mitakshara and the
Dayabhag governing the inheritance practices among the Hindus. So prior to 2005,
under the Mitakshara law, the male descendants acquires a right in property by the
way of coparcenary, whereas the female born out in the same Joint Hindu Family
was not granted any of such rights of inheritance, their right of ownership was
restricted to the stridhan. By virtue of this, every coparcener has a right to ask for
partition and inherit the property of the Joint Hindu Family. Though, inheritance by
succession of the individual property would be granted to both male and female
members of the family. Whereas under the Dayabhag law, no such distinction
existed both the two genders, as there is no birth right upon the property till the
Karta or last holder of the property is alive, as he/she acts as the sole owner, and
only after the person’s death the property can be inherited by both male and female
successors.

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 3. What brought the change
By way of State amendments brought in by the state of Andhra Pradesh, Tamil Nadu, Karnataka and
Maharashtra To the Act, the existing launch of gender disparity was resolved by granting equal status
to daughters as that of the sons in the Joint Hindu Family much earlier than 2005. And on the other
hand, with the enactment of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the State of
Kerala has totally abolished the right to property by birth of males and put an end to the Joint Hindu
family system.

But only after 2005, the Hindu Succession Amendment Act was brought in by the parliament
rectifying the status of daughters in the Joint Hindu family, granting them equal rights as that of son.
This change brought in the act was based upon the recommendations of the 174th law commission
report on women’s right in property

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 4. The Start of The Change

The bill was introduced in 2004, suggesting two changes,

first being, bring a new section in place of the existing Section 6 in order to give equal
rights to the daughters as to the sons and second being omission of section 23 which
disentails the female rights to ask for partition in a dwelling house occupied by the
intestate family with the male heirs initiating it. And finally, in 2005, certain changes
were brought in to the Hindu Succession Act, 1956 by way of this amendment. These
changes were brought in:

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 5. The amendments
1. Section 4 clause (2) of the principal Act was omitted, where it was declared that the Act shall not affect the
provision of any law providing for prevention of fragmentation of agricultural holdings or the fixation of
ceilings or for the devolution of tenancy rights in spite of such holdings.

2. The Archaic Doctrine of Pious and obligation has been abrogated under section 6 clause (4). Pious obligation in
a general understanding is a son’s liability to pay off his father’s debts. Here when talking about the debt it only
refers to vyavaharika debt i.e., debts conducted for legal purposes only which excludes avyavaharika debts i.e.
debts taken for immoral and unethical purposes.

3. Section 23 has been omitted under the Amendment Act. This section disentitled a female heir to seek partition
of a dwelling house until the male heirs choose to divide.

4 Section 24 has been omitted under the Amendment Act. The preexisting section provided that any heir who is
related to an intestate as the widow of pre-deceased son or the widow of a brother shall not be entitled to
succeed to the property of intestate as such widow, if on the date the succession opens she has remarried.

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 6. Focus on Section 6
Section 6 of the principal Act which deals with devolution the interest of the female coparcener and rule of survivor­
ship, is re-casted and modified. From the commencement of the Hindu Succession (Amendment) Act 2005, with
reference to joint family governed by Mitakshara Law, the daughter becomes coparcener by birth and has all rights
in the same manner as the son. She has the same rights and liabilities in the said coparcener’s property as that of a
son.

Now, any reference to Hindu Mitakshara coparcener will be deemed to include references to a daughter of a
coparcener. The incidence of coparcenary ownership shall automatically follow. It was also provided that after the
commencement of amendment Act, if a Hindu dies having interest in the joint family pro­perty governed by
Mitakshara Law. It shall devolve by testamentary or intestate succession under this Act and not by survivorship and
coparcenary property shall be deemed to have been divided as if the partition had taken place; and the daughter is
allotted, the same share as allotted to a son.

The share of 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 or such pre-deceased son or as such of pre-deceased daughter, as
case may be.
Similarly, the share of a pre-deceased child or a pre­deceased son or a pre-deceased daughter, as such child would
have got had he or she had been alive at the time of partition, shall be allotted to the child of such pre-deceased
child of the pre-deceased son or a pre-deceased daughter as the case may be.

Thus, complete justice is sought to be extended in so far as daughter is concerned as an heir.

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7. The biggest hurdle and criticism, resolved

While the impact and effect of the amendment have been largely positive, a shortcoming of The
Act has made it difficult for the courts to determine whether The Act is retrospective or
prospective in nature.

However, between the verdicts of the Hon'ble Supreme Court in the case of Prakash v.
Phulavati and Danamma v. Amar, there was considerable ambiguity on whether the 2005
amendment was retrospectively applicable or prospectively applicable. When the occasion
presented itself before a three member bench of the Hon'ble Supreme Court in Vineeta Sharma
v. Rakesh Sharma & Ors. , the Apex Court finally concluded that the verdict in the Prakash v.
Phulavati, did not interpret the law correctly and that the 2005 amendment act was applicable
retroactively, thus laying to rest an enduring controversy regarding the date of conferment of the
benefits of the 2005 amendment.

As the previous judgements were given by division benches, hence the 3 judge bench
decision in the Vineeta Sharma case overruled them and established the amendments at
retrospective.

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 8. The Problems
Flaw in the amendment arises due to the lack of clarity as to whether the said act will override and
supersede the state laws or not. Section 4(2), which has been omitted by the amendment provided
for exemption of agricultural land from coparcenary property. Thus, the problem arises, as
agricultural land falls under the ambit of the State list.

Another flaw in the said amendment is the retention of Article 15 and it acts as a black mark on
the issues of gender parity and women empowerment. The said section recognises women only on
the basis of her relationship with a man, i.e. wife, daughter, etc. Therefore, it compromises the
individuality and identity of a woman.

The Hindu categorically criticesed the amendment last year due to the lack of awareness among
the women, especially in rural areas, and called it a “paper law” for the lack of the right exercised
by women in real life from the time of amendment

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 9. Succession charter

The property of male Hindu dying intestate shall devolve as per the provisions given
below:-
• Firstly amongst the heirs specified in Class I of the schedule.
• If no heirs of class I exists than amongst the heirs of Class II.
• If no heirs in both classes then amongst agnates of the deceased.
• Lastly, if no agnates then amongst the cognates of the deceased.

Title of project Month - Year

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 12. Conclusion
According to the Census, the median family size in urban areas has dropped below four. This is
part of a larger trend of reduction in family size over the years and shows just how irrelevant joint
families have become. Even the Hindu Code Bills committee expressed the same opinion in its
1944 report. BN Rau, the chair of the committee (and who would later play a pivotal role in
drafting the Constitution of India), noted that the institution of a Hindu joint family is outdated and
should be abolished.
After the amendment in 2005, the right of the female class-1 heir became absolute. She could
ask for partition of the dwelling house, regardless of how many male heirs there are or if they
want partition or not. It could be drawn out from the case laws, that even pending suits during
the time of the amendment would be governed by the new law.
This new law has bestowed upon women new rights and has got them one step closer to
achieving total equality in all aspects.

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