Table of Contents

TABLE OF AUTHORITIES.............................................................................2

INTRODUCTION..............................................................................................4

ANALYSIS OF HINDU SUCCESSION ACT, 1956.......................................4

STATE AMENDMENTS...................................................................................6

LAW COMMISSION RECOMMENDATIONS.............................................6

THE HINDU SUCCESSION AMENDMENT BILL 2005.............................6

MAJOR CHANGES INTRODUCED...............................................................7

1. Deletion of Section 4(2) of the 1956 Act...................................................7

2. Changes to Section 6 of the 1956 Act.......................................................8

3. Repeal of Section 23..................................................................................8

4. Amendment to Section 30.........................................................................8

CONTRADICTION BETWEEM STATE AND CENTRAL

AMENDMENT...................................................................................................9

CRITICISM OF THE 2005 AMENDMENT.................................................10

CONCLUSION.................................................................................................11

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 TABLE OF AUTHORITIES

Cases

Ashok Gangadhar Shedge v. Ramesh Gangadhar Shedge (2014) 4 Bom CR 797.

Commissioner of Income Tax v. Govindram Sugar Mills, A.I.R. 1966 S.C. 24
Pushpalatha N.V. v. Padma AIR 2010 Kart 124.
R Kantha v. Union of India AIR 2010 Kart 27.
Rathnakar Rao Sindhe v. Smt. Leela Ashwath 2006 SCC Online Kar 749.
State of Orissa v. M.A. Tulloch &Co., A.I.R. 1964 S.C. 1284.
Sujata Sharma v. Shri Manu Gupta & Ors., 2010 SCC Online Del 506
Sunil Gupta v. Nargis Khanna, 2011 SCC Online DEL 3767.
Swaran Lata v. Shri Kulbhusan Lal, 2014 SCC OnLine Del 499

Statutes

Hindu Succession Act, 1956.

The Constitution of India, 1950.
The Hindu Succession (Andhra Pradesh Amendment) Act, 1986
The Hindu Succession (Karnataka Amendment) Act, 1994.
The Hindu Succession (Maharashtra Amendment) Act, 1994
The Hindu Succession (Tamil Nadu Amendment) Act, 1989
The Hindu Succession Act, 1956

Other Authorities

Manu Chapter IX.3: Manusmriti: The Laws of Manu, in Sacred Books of the East 56 (G.
Buhler trans. 1886) (available at https://www.sacred-texts.com/hin/manu/manu09.htm)
(last assessed 3rd of April. 2021).
The Hindu, Equal Rights for Women in Parental Property, Aug 17, 2005

Books

Dr. Paras Diwan, Family Law 464 (2013).

Flavia Agnes, Family Law: Volume 1: Family Law And Constitutional Claims
P. Pradhan Saxena, Family Law II

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P.K. Das, Universal’s handbook on Hindu Succession 12 (2011, 3rd Ed.).
Urusa Mohsin (Dr.), Women's Property Rights in India.

Journal Articles

I. Jaising, An Uncertain Inheritance: A Critique of the Hindu Succession(Amendment) Bill,

20 (2) Lawyer's Collective
B. Sivaramayya, Coparcenary Rights to Daughters: Constitutional and Interpretational Issues.
B. Sivaramayya, The Hindu Succession (Andhra Pradesh Amendment) Act 1985: A Move in
the Wrong Direction, 30 (2) Journal of The Indian Law Institute
Bindu Jindal, Are Agricultural Rights of Women in Agricultural Land a Mirage?, IJLLJS
Deborati Halder; K. Jaishankar, Property Rights of Hindu Women: A Feminist Review of
Succession Laws of Ancient, Medieval, and Modern India, 24 Journal of Law & Religion
I. Jaising, An Uncertain Inheritance: A Critique of the Hindu Succession(Amendment) Bill,
20 (2) Lawyer's Collective
Indira Jaising, , “Mapping Women’s Gains in Inheritance and Property Rights under the
Hindu Succession Act, 1956, a report by lawyers collective women’s rights initiative
J.S. Sidhu "Equal Rights for Women", The Tribune
Status of Women Under Hindu Succession Act, 1956 by Suman Gupta,
Virender Kumar, "The Hindu Succession Act : Ending Gender Bias", The Tribune
Virendra Kumar, Crucifying The Concept of Mitakshara Coparcenary at The Altar of Income
Tax Law, Journal of Indian Law Institute, Vol 53 Issue 3 (July-Sept 2011).

UN Documents

UN Report 1980, World Conference of the United Nations Decade for Women: Equality,
Development and Peace. http://www.un.org/womenwatch/daw/beijing/copenhagen.html

Reports

7th Report on Parliamentary Standing Committee, Dated 13th May 2005.

Law Commission of India, Property Rights of Women: Proposes Reforms Under Hindu Law,
Report No. 174 (May, 2000).

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 LITERATURE REVIEW

Family Law by Dr Paras Diwan (Allahabad Law Agency 2013) – Book – This book
gives a thorough understanding of the laws relating to coparcenary, joint Hindu family, etc.
This book is concise yet comprehensive as it covers both Hindu and Muslim aspects of
marriage, divorce, adoption, maintenance, etc. even Christian and Parsi laws are stated under
broad heading. The better organisation of this book provides a better comparative
understanding between the different personal laws being practised in India.

Flavia Agnes, Family Law: Volume 1: Family Law And Constitutional Claims (Oxford
University Press)– Book – As suggested by the name, this book is great for an analytical
study of family law. The book prescribes itself to the historical aspects, legislative and
perpective of the topic. The book mostly deals with the topics of family law II and the topics
has been dealt in great details. Constitutional aspect of family law through case laws,
commission reports and relevant deates also forms an important dicussion in this masterpiece.

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 INTRODUCTION

“Women make up half of the world's population and one-third of the labour force, but they
earn just one-tenth of global income and own less than 1% of global land. In addition, they
are in charge of two-thirds of all working hours.”1 In India, Hindu women are treated in a
similar manner. Despite her status as an architect of culture, a keeper of the home, and a
supporter of human destiny, she was mostly ignored when it comes to property
rights succession. Women's property rights are addressed in a variety of ways in ancient texts.
In the ancient text of Manusmriti, Manu writes “Her father protects her in childhood, her
husband protects her in youth and her sons protect her in old age; a woman is never fit for
independence”.2 Whatever the ancient texts prescribe, it is undeniable that the interpretation
of these laws and the prevalent tradition posed a significant impediment to women's property
rights.

The Indian constitution, which is the country's supreme legal text, stipulates that the state
must take certain steps to ensure gender equality within the country. Part III covers
fundamental rights, while Part IV covers directive principles of state policy and Part IVA
covers fundamental duties. When read together, the provisions not only give women equality,
but also encourage the state to take positive discrimination action in their favour. 3 Though
Hindu women's property/ succession rights were extremely gender discriminatory under
personal rule, many legislative and other steps have been taken to ensure that the above-
mentioned cherished principles of the constitution are upheld through subsequent statute
amendment. Hindu women's property rights were substantially altered as a result of the
Hindu Succession (Amendment) Act, 2005.

Research Question

Whether the Hindu Succession (Amendment) Act 2005 brought an end to the gender-based
discrimination in the Hindu Succession Act?
1
UN Report 1980, World Conference of the United Nations Decade for Women: Equality,
Development and Peace. http://www.un.org/womenwatch/daw/beijing/copenhagen.html
2
Manu Chapter IX.3: Manusmriti: The Laws of Manu, in Sacred Books of the East 56 (G. Buhler
trans. 1886) (available at https://www.sacred-texts.com/hin/manu/manu09.htm) (last assessed 26th of
Sept. 2018).
3
Article 15(3), 39(a)(d), Article 42 and Article 51A(e), The Constitution of India, 1950.

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6|Page
Research Methodology

The research methodology adopted for the project is primarily the analysis of various case
laws of Supreme Court and various High Courts. Beside these, some help has also been taken
from the books, internet sources, newspaper articles and discussion sessions held on the topic.

ANALYSIS OF HINDU SUCCESSION ACT, 1956

The Hindu Succession Act of 1956, which took effect on June 17, 1956, established the
modern Hindu law of succession that applied to all Hindus. 4 The act's overriding influence
over Shastric, Customary, Statutory, or any other law that existed in the country prior to the
act's inception was expressly stated in Section 4 of the act. The rule of succession was based
on the principles of propinquity, which meant that proximate members in a relationship
should be given priority. The act's section 6 deals with the interest devolution of a coparcener
who dies intestate. The act declared women to be the sole owners of any land they owned at
the time the act was passed.5 The act also abolished the principle of Stridhana, allowing
women to obtain and keep property on an equal footing with men. 6 Though widely regarded
as a gender-neutral law that gave sons and daughters equal inheritance rights, the act actually
contained several gender discriminatory clauses. The Mitakshara coparcenary system was
retained, but females were excluded from its scope. 7 Coparcenary refers to a Hindu joint
family with only male members, such as the father, son, son's son, and son son's son. 8
Women's non-inclusion as coparceners in joint family property under the Mitakshara scheme
has been widely criticised as being in violation of India's constitution, which guarantees equal
rights to men and women. This means that under the current law, if a joint family is split,
each male coparcener gets his share and the female coparcenary gets nothing. 9 In essence, a
female member could only inherit property as a class-I heir, while a male member could
inherit as a Mitakshara coparcenary in addition to being a class-I heir10.
4
Dr. Paras Diwan, Family Law 464 (2013).
5
Section 14(1), The Hindu Succession Act, 1956.
6
J.S. Sidhu "Equal Rights for Women", The Tribune, July 9th, 2006.
7 th
7 Report on Parliamentary Standing Committee, Dated 13th May 2005.
8
Law Commission of India, Property Rights of Women: Proposes Reforms Under Hindu Law, Report
No. 174 (May, 2000).
9
P.K. Das, Universal’s handbook on Hindu Succession 12 (2011, 3rd Ed.).
10
Virendra Kumar, Crucifying the Concept of Mitakshara Coparcenary at The Altar of Income Tax
Law, Journal of Indian Law Institute, Vol 53 Issue 3 (July-Sept 2011).

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Furthermore, unless the male members of a joint family wished to split their respective
shares, a female heir had no right to claim division of the dwelling house. 11 Another point of
contention was a man's testamentary right to will away his entire property, depriving women
of privileges they had previously under those schools of Hindu law.12

STATE AMENDMENTS

Although the 1956 Act had some flaws in terms of gender disparity, states like Andhra
Pradesh13, Karnataka14, Maharashtra15, and Tamil Nadu16 modified the Hindu Succession Act,
1956 to fulfil the constitutional mandate of equality. They included the daughters' right to
succeed property in the coparcenary succession, as well as their right to assert partition.
These amendments were brought in separately by the states because the issue of intestacy and
succession was covered by Entry 5 of List III of the Seventh Schedule, and hence was only
applicable within the states. However, there was still a need for national legislation to ensure
uniformity across the country.

LAW COMMISSION RECOMMENDATIONS

The law commission of India took suo moto cognizance of the matter in order to remove
contradictions and ambiguities about Hindu women's property rights. 17 The aim was to
combat a systemic and patriarchal law that heavily favoured men over women when it came
to succession rights. The commission aimed at recommending equal distribution of ancestral
property among male and female heirs. The move proposed was a combination of the Andhra
and the Kerala model on property rights of women. It was observed that exclusion of women
from participating in coparcenary property was unjust and unfair. Women's social and
economic conditions have long been a source of concern, and they can only be improved by
providing them with equal opportunities and rights from birth 18. To ensure equitable

11
Sunil Gupta v. Nargis Khanna, 2011 SCC Online DEL 3767.
12
P.K. Das, Universal’s handbook on Hindu Succession 12 (2011, 3rd Ed.).
13
The Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
14
The Hindu Succession (Karnataka Amendment) Act, 1994.
15
The Hindu Succession (Maharashtra Amendment) Act, 1994.
16
The Hindu Succession (Tamil Nadu Amendment) Act, 1989.
17
Ashok Gangadhar Shedge v. Ramesh Gangadhar Shedge (2014) 4 Bom CR 797.

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distribution of land, not only for separate or self-acquired property, but also for the undivided
share of the deceased's coparcenary property, a radical reform was required.19

THE HINDU SUCCESSION AMENDMENT BILL 2005

The Hindu Succession Amendment Bill, 2004 was introduced in the winter session of
parliament in response to the Law Commission's recommendations. The bill was passed by
both houses of parliament and entered into force on September 9, 2005, after receiving
presidential assent.20 It effectively destroyed the old Hindu law by giving equal coparcenary
rights to both male and female members.21 This was an audacious legislative effort to break
free from conventional inertia and placed both son and daughter on an equal basis when it
came to testate and intestate succession.22 The amendment also made a number of other
amendments to the current legislation, which will be discussed later.

MAJOR CHANGES INTRODUCED

The central amendment to the Hindu Succession Act of 2005 made some significant
amendments to the 1956 parent act. It also addressed the gaps in the state amendment that
were not addressed. The consequence of the amendment has also modified the son's pious
duty to pay off his father's debt. No court will now proceed against a son or grandson for
failing to pay his father's debt on the basis of pious duty. 23 There were a number of other
major changes, which are described below.

1. Deletion of Section 4(2) of the 1956 Act

Prior to the 2005 Amendment, Section 4(2) exempted agricultural lands from its
implementation, as well as the setting of a land holding ceiling. The amendment removed a
highly gender biased clause that exempted substantial interest in ancestral agricultural land

18
Law Commission of India, Property Rights of Women: Proposes Reforms Under Hindu Law,
Report No. 174 (May, 2000).
19
P.K. Das, Universal's Handbook on Hindu Succession 18 (2011).
20
The Hindu, Equal Rights for Women in Parental Property, Aug 17, 2005, Available at
https://www.thehindu.com/2005/08/17/stories/2005081705461200.htm.
21
Urusa Mohsin (Dr.), Women's Property Rights in India 143 (2010)
22
Virender Kumar, "The Hindu Succession Act : Ending Gender Bias", The Tribune, 8th April, 2006.
23
Section 6(4), Hindu Succession Act, 1956.

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from its implementation. Devolution rules listed in state level tenurial rules were to regulate
such land.24 A simple examination of these state laws reveals that male line of descent was
given priority, and women were ranked last in the order of heir. However, the 2005
amendment placed agricultural land on par with other property and gave Hindu women the
same legal inheritance rights as men.25

2. Changes to Section 6 of the 1956 Act.

The substitution of section 6 of the parent act was the most notable reform made by the 2005
amendment. By granting woman’s equal rights by birth, the amended section made the
female member a beneficiary in the Mitakshara coparcenary land. Unlike in the past, where
the female had only a share of the deceased man's notional division, today both male and
female have equal rights and responsibilities when it comes to property succession26.
Preferential care for male members was considered sacred, as was the giving of ‘Shradha' for
the spiritual benefit of the ancestors. Women, however, can now become a Karta of the
family and serve the family as its head, thanks to the amendment. 27 She has the right to
contest the Karta's alienation of property for reasons other than legal obligation, 28 as well as
argue division of joint family property. Since women lacked the rank of coparcener, the
Supreme Court of India barred women from acting as Karta in 1966. 29 Women may now be
Kartas because such discrimination no longer exists.

3. Repeal of Section 23.

Section 23 of the Act was another highly gender biased clause of the parent Hindu succession
statute. It made it impossible for any woman to say partition in a dwelling house. The 2005
amendment repealed the provision, making sex-based discrimination illegal. Furthermore, the
amended clause has been held to extend to all original and appellate proceedings requiring
adjudication of parties' rights that were pending on the date of the amendment's
implementation or initiated after that date.30 The abolition of this provision was specifically
intended to help women who are subjected to abuse or other forms of brutality in their
24
Bindu Jindal, Are Agricultural Rights of Women in Agricultural Land a Mirage?, IJLLJS, Vol 1
Issue 7.
25
Indira Jaising, , “Mapping Women’s Gains in Inheritance and Property Rights under the Hindu
Succession Act, 1956, a report by lawyers collective women’s rights initiative, at pp. 12-13.
26
P. Pradhan Saxena, Family Law II, 338 (2007 2nd Ed.)
27
Flavia Agnes, Family Law: Volume 1: Family Law And Constitutional Claims (2011).
28
Sujata Sharma v. Shri Manu Gupta & Ors., 2010 SCC Online Del 506.
29
Commissioner of Income Tax v. Govindram Sugar Mills, A.I.R. 1966 S.C. 24
30
Rathnakar Rao Sindhe v. Smt. Leela Ashwath 2006 SCC Online Kar 749.

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husband's home.31 As a result of the repeal of the provision, both son and daughter now have
equal rights to their natural family home.

4. Amendment to Section 30
Prior to the 2005 amendment, testamentary succession under section 30 of the Hindu
Succession Act, 1956 was limited to only male members of the family. He might have
preferred to leave his property to everyone, including a share in the undivided Mitakshara
coparcenary, by simply writing a will in their name. In such a scenario, the property will pass
to the beneficiary of the will upon the testator's death, according to the conditions set out in
the will and the law of inheritance. To make the clause gender neutral, the amendment
removed the term "disposed of by him" and replaced it with "disposed of by him, or by her,"
giving the daughter the same rights as a son to dispose of her share of the property by making
a legal will in anyone's name. Both Hindu male and Hindu female have the same right of
testamentary disposition as a result of the amended section 30 of the Act, and hence the
amended clause is in line with the constitutional philosophy of equality of status.

CONTRADICTION BETWEEM STATE AND CENTRAL

AMENDMENT

Though the central amendment of 2005 and numerous state amendments introduced before it
had the same goal in mind, namely to add uniformity and equality to property succession,
there were some inconsistencies between the provisions of both amendments. Notably, the
state of Andhra Pradesh took the lead in obtaining better rights in coparcenary property for
daughters, followed by other states such as Tamil Nadu, Karnataka, and others. These
amendments were made with the power bestowed by the concurrent list of the seventh
schedule of the Indian constitution, and therefore both the centre and the states had equal
jurisdiction over the subject matter. However, since the authority of the union parliament is
broader in this regard, the central enactment will prevail over state amendments in terms of
precedence or supremacy of rule.32

There were two major inconsistencies between the central and state amendments to the Hindu
Succession Act 1956 in this case. To begin with, all state amendments only granted

31
Status of Women Under Hindu Succession Act, 1956 by Suman Gupta, 2007 AIR (J) 65 72.
32
State of Orissa v. M.A. Tulloch &Co., A.I.R. 1964 S.C. 1284.

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coparcenary rights to unmarried daughters, leaving married daughters out. On the other hand,
the 2005 central amendment ignored this and included all daughters, regardless of their
marital status. In response to this inconsistency, the Karnataka High Court ruled that all
daughters, regardless of their marital status, are coparceners in the joint family property. 33
Even after getting married, a daughter may now claim rights to her ancestors' lands.34 The
second inconsistency concerned the ability of female members to contest alienation and
reopen partitions that had occurred since the state amendment conferred rights on them. This
right was bestowed by state amendments as of the date of the amendment's implementation.
The central amendment, on the other hand, specified that daughters could not contest
alienation that occurred before December 20, 2004. This meant that the central amendment
retroactively revoked the power given by the state amendment.35 This inconsistency was also
stopped by the Karnataka High Court, which declared the central legislation ineffective and
in violation of gender equality standards.36

CRITICISM OF THE 2005 AMENDMENT

While the amendment is a bold move and an incredibly positive effort toward ensuring
gender equality in the future, there are some criticisms that need to be addressed.

The first complaint is that the amendment only applies retroactively to partitions that
occurred prior to the amendment's implementation. The amendment states that any partitions
that have already existed prior to the amendment's implementation cannot be questioned later,
and the coparceners' share will not be affected. 37 However, partitions that are not completed
by the effective date of the amendment will be subject to the new law's provisions. Daughters
will be included in the partition as a coparcener, resulting in a substantial reduction in the
individual shares of the previous coparceners.38

33
Pushpalatha N.V. v. Padma AIR 2010 Kart 124.
34
Deborati Halder; K. Jaishankar, Property Rights of Hindu Women: A Feminist Review of
Succession Laws of Ancient, Medieval, and Modern India, 24 Journal of Law & Religion 663 (2008)
35
Poonam Pardhan Saxena (Dr.), Family Law Lectures, Family Law II 269 (2011).
36
R Kantha v. Union of India AIR 2010 Kart 27.

37
Swaran Lata v. Shri Kulbhusan Lal, 2014 SCC OnLine Del 499
38
B. Sivaramayya, Coparcenary Rights to Daughters: Constitutional and Interpretational Issues,
(1997) 3 S.C.C. (J.) 30.

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Another point of contention is the impact on the deceased's widow's share of the estate. 39
When a daughter becomes a coparcener, the widow's share decreases because she can only
inherit from the quantum of her husband's share that is eligible for notional partition 40. Critics
of the move argue that justice for one group of women cannot be achieved at the expense of
another.41

These objections, however, do not seem to be true since it applies equally to all daughters and
hence does not prejudice the rights of any particular class. In their capacity as coparceners,
those wives who have had their share reduced may still demand it from their respective
fathers.

CONCLUSION

The 2005 amendment to the Hindu Succession Law is unquestionably a bold move toward
reinforcing Hindu women's rights and restoring their long-lost esteemed stature and grandeur.
It has made other reforms to promote gender equality, such as equalising the inheritance
rights of sons and daughters. However, there still exists certain unanswered questions with
regards to other ambiguous provision of the Hindu Succession Act, 1956. For instance, under
Section 15(1)(a), the heirs of the husband of the deceased Hindu women, dying intestate, can
inherit.42 This simply means that property inherited by a daughter by inheritance would pass
to her husband and his successor. Some sociologists argue that the amended clause is a covert
dowry, and that it may be the cause of the skyrocketing dowry death rate. For personal gain, a
married woman could be forced to claim partition of her ancestral land.

As a consequence, when applying these clauses to the facts of the case, the courts should take
a more comprehensive approach and not only focus on the words of the clause, but also
consider the meaning behind the amendment. The onus is also on society to successfully
enforce the law and raise consciousness about it. Only then would women in society be able
to reap the full benefits that the amendment provides.

39
B. Sivaramayya, The Hindu Succession (Andhra Pradesh Amendment) Act 1985: A Move in the
Wrong Direction, 30 (2) Journal of The Indian Law Institute 166 (1988).
40
I. Jaising, An Uncertain Inheritance: A Critique of the Hindu Succession(Amendment) Bill, 20 (2)
Lawyer's Collective 8 (2005).
41
I. Jaising, An Uncertain Inheritance: A Critique of the Hindu Succession(Amendment) Bill, 20 (2)
Lawyer's Collective 10 (2005).
42
Section 15(1)(a), The Hindu Succession Act, 1956.

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