Hindu Succession Amendment Act 2005

HINDU SUCCESSION AMENDMENT ACT 2005

• Changes brought about by Hindu Succession (Amendment) Act 13 of 2005 (39 of 2005)
  Let’s see today what changes came in Hindu Succession Act, 1956 by the Amendment in 2005:
  Section 4 clause (2) of the principal Act omitted, where it was declared that the Act shall not effect 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 inspite of such holdings.

• Section 6 of the principal Act which deals with the devolution of interest of a coparcener and rule of survivorship, is recasted 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 son. Now, any reference to Hindu Mitakshara coparcener will deemed to include reference to a daughter of a coparcener. However, this Section will not affect any disposition or alienation including any partition or testamentary disposition of property that took place before 20th December, 2004. 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 daughter is allotted, the same share as allotted son. The share of pre-deceased son or a predeceased daughter as they would have got, had they been alive at the tie of partition, shall be allotted to the surviving child or such pre-deceased son or as such of pre-deceased son or as such of pre-deceased daughter, as case may be.
  Similarly, the share of a pre-deceased child or a pre-deceased 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 pre-deceased daughter as the case may be.

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

•  The archaic Doctrine of Pious Obligation has been abrogated under section 6 clause (4). However, this provision is not applicable if the debt is contracted before the commencement of the Act. As a general rule, this amendment was not applicable in case the partitions effected before 20th day of December, 2004.
•  Section 23 has been omitted under the Amendment Act. This section disentitled a female heir to seek partition of dwelling house until the male heirs choose to divide.
•  Section 24 has been omitted under the Amendment Act. The pre-existing 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.

It is submitted that the above amendment has to come so late in the day, Mitakshara Law in the context of globalization is slowly losing its relevance and it is an anachronism. It may also be noted that when there is unrestricted right of succession women discrimination continues.

Author: Ananya Pandey,
Law student 3rd b.a.llb marathwada mitra mandal's shankarrao chavan law college