Family law -2 Mid-1 Answers

Short questions:
1. Concept of Property:

Meaning and Definition of Property

Meaning of property
In general sense, property is any physical or virtual entity that is owned by an individual or jointly
by a group of individuals. An owner of the property has the right. Human life is not possible
without property. It has economic, socio-political, sometimes religious and legal implications. It
is the legal domain, which institutes the idea of ownership. The basic postulate of the idea is the
exclusive control of an individual over some ‘thing’. Here the most important aspect of the
concept of ownership and property is the word ‘thing’, on which a person has control for use. To
consume, sell, rent, mortgage, transfer and exchange his property. Property is any physical or
intangible entity that is owned by a person or jointly by a group of people. Depending on the
nature of the property, an owner of property has the right to consume, sell, rent, mortgage,
transfer, exchange or destroy their property, and/or to exclude others from doing these things.
[1]
There are some Traditional principles related to property rights which includes include:
1. Control over the use of the property.
2. Right to take any benefit from the property.
3. Right to transfer or sell the property.
4. Right to exclude others from the property.

Definition of property
There are different definitions are given in different act as per there uses and needs. But in the
most important act which exclusively talks about the property and rights related to property
transfer of property act 1882 has no definite definition of the term property. But it is defined in
some other act as per their use and need. Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as:

“Property” means property of any kind, whether movable or immovable, tangible or intangible,
and includes any right or interest in such property.

Section 2 (11) of the Sale of Good Act, 1930 defines property as:

“Property” means the general property in goods, and not merely a special property.

Theories behind concept of property:-

There are many theories which have been evolved for the purpose of understanding the
concept of property properly.

Those theories are as follows:

1. Historical Theory of Property:

2. Labour Theory (Spencer):

3. Psychological Theory (Bentham):

4. Functional Theory ( Jenks, Laski):

5. Philosophical Theories–
(i) Property as a means to Ethnical Ends

(ii) Property as an End in itself

Historical Theory of Property

According to the Historical theory, the concept of private property had grown out of collective
group or joint property. In the words of Henry Maine, “Private property was chiefly formed by the
gradual disentanglement of the separate rights of individual from the blended rights of the
community.

Earlier property did not belong to individuals, not even to isolated families, but the larger
societies composed on patriarchal mode. Later with the disintegration of family- individual rights
came into being.

Roscoe Pound also pointed out that the earliest form of property was group property. It was
later on that families were partitioned and individual property came into being.

Labour Theory (Spencer)

The theory is also known as ‘positive theory’. This theory insists on the fact that labour of the
individual is a foundation of property. This theory says that, a thing is the property of a person,
who produces it or brings it into existence. The main supporter of this theory is Spencer, who
developed it on the principle of equal freedom. He says that property is the result of individual
labour. Therefore, no person has a moral right to property which he has not acquired by his
personal effort.

Psychological Theory (Bentham)

According to this theory, property came into existence on account of acquisitive instinct of man.
Every individual desires to own things and that brings into being property.

According to Bentham, Property is altogether a conception of mind. It is nothing more than an

expectation to derive certain advantages from the object according to one’s capacity.

Roscoe Pound also supports Bentham and observed that the sole basis of conception of
property is the acquisitive instinct of individual which motivates him to assert his claim over
objects in his possession and control.

Functional Theory ( Jenks, Laski)

The theory is sometimes also known as ‘sociological theory of property’. It implies that the
concept of property should not only be confined to private rights but it should be considered as a
social institution securing maximum interests of society. Property is situated in the society, has
to be used in the society.

According to Jenks, no one can be allowed an unrestricted use of his property, to the detriment
to others. He said that the use of property should conform to the rules of reason and welfare of
the community.
According to Laski, Property is a social fact like any other, and it is the character of social facts
to alter. Property has further assumed varied aspects and is capable to further change with the
changing norms of society.

Property is the creation of the State

The origin of property is to be traced back to the origin of law and the state. Jenks observed that
property and law were born together and would die together. It means that property came into
existence when the state framed laws. Property was nowhere before law.

According to Rousseau, “It was to convert possession into property and usurpation into a right
that law and state were founded”.

The first who enclosed a piece of land and said- ‘this is mine’- he was the founder of real
society.

He insisted on the fact that property is nothing but a systematic expression of degrees and
forms of control, use and enjoyment of things by persons that are recognized and protected by
law. Thus the property was the creation of the state.

Philosophical Theories –
Property as a means to Ethnical Ends

In the opinion of Aristotle, Hegel and Green, Property has never been treated as an end, but
always as a means to some other end. According to Aristotle, it may be a means to the end of
good life of the citizens, further in the opinion of Hegel and Green, it may be a means to the
fulfillment of the will without which individuals are not full human. According to Rousseau,
Jefferson, Friedman, it may be a means as a pre-requisite of individual freedom seen as a
human essence.

Similarly the outstanding critics of property like Winstanley, Marx have denounced it as
destructive of human essence, a negative means in relation an ontological end.

2. who is karta:

Karta
In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very important position. There is
no office or institution in any other system of the world can be compared with it. He is a person
with limited power but he possess such vast power with in ambit of joint family which nobody
enjoys.

Who is a Karta:-
Karta means manager of joint family and joint family properties. He is the person who takes care
of day to day expenses of the family looks after the family and protects the joint family
properties.

Who can be a Karta:-

It is a presumption that ordinarily senior most male member is the Karta and Karta is always a
member in the family no outsider or stranger can become a Karta.
The senior most male member so long as he is alive may be, aged, infirm or ailing continues as
Karta. By his death Kartaship will pass on to next senior most male member.
In the presence of senior most male member a junior cannot act as Karta but if all coparcener
agree, a junior also can become a Karta.

Karta owes his position by consent or agreement of all coparceners.

Female Member:-
Generally female member cannot become Karta but in exceptional circumstances female also
can act as Karta.

Nagpur High Court held the view that mother even though not a coparcener, in the absence of
adult male member can act as Karta.

In Commissioner of Income Tax Vs. Seth Govind Ram, the Supreme Court held mother or any
female member could not be Karta of joint family and therefore cannot alienate joint family
property.

Position of Karta:-
Karta is sui generis (of its own kind) the relationship between him and members is not like
principal or agent or like partners in a partnership firm.
He stands fiduciary relationship with other members but he is not a trustee, nobody can
question what he spent unless charges of misappropriation.

When any coparcener charges of improper alienations made by Karta, burden of proof lies on
him to prove such are malafide act of Karta.

Powers of Karta:-
With in joint family Karta has vast powers with limitations.
1) Power of management:- He is the head of the family, his management powers are absolute.
He may manage the family affairs and family property and business the way he likes for the
benefit of estate, no one can question his management.

2) Right to Income:- It is general rule that all members who works or do business out of joint
family property must hand over income to Karta. It is for Karta to allot funds to the members and
look after needs and requirements, so long as family remains joint, no member can ask for any
specified share in the income.

3) Right to representation:- He represent the family, represents the family in all matters, legal,
social and religious. He can enter into any transaction on behalf of the family, his acts are
binding on the entire joint family.

4) Power to compromise:- He has power to compromise all disputes relating to family property
or their management. He can compromise pending suits, family debts, and other transactions.
However if his act is not bonafide can be challenged in a partition.

5) Power to refer a dispute to arbitration:- Karta has power to refer any dispute to arbitration
and Arbitrator’s award is binding on all the members.

6) Power of acknowledgement and to contract debts:- Karta has power to acknowledge on

behalf of the family any debt due to the family, also has power to pay debt or to make pack
payment of debt.
He has power to contract debts for the family such debts incurred in the ordinary course of
business are binding on entire joint family.

Even Karta when takes loan or execute promissory note for family purpose or for family
business joint family is liable to pay such loan.

7) Power to enter into contract:- Karta has power to enter into contract and such contract is
enforceable against the family.

8) Power of alienation:- Nobody in the family has power to alienate joint family property.
However Karta has power of alienation under 3 circumstances.
a) Legal necessity
b) Benefit of estate.
c) Indispensable duties.

Kartas Liabilities:-
Karta has vast powers same time his position is fiduciary and has lot of responsibilities and
liabilities.
1) Liable to maintain:- Karta is responsible to maintain all the members of joint family. If he
improperly excludes any member from maintenance, he can be sued for maintenance and also
arrears of maintenance.

2) Liability to render accounts:- As long as family remains joint, Karta is not supposed to keep
accounts, but when partition takes place at that time he is liable to account for family property. If
any of the coparcener is not satisfied with his account can institute a suit against Karta to
discover the truth and to know any misappropriation is made by Karta.

3) Liability to recover debts due to the family:- Kartas should realize all debts due to the family
with in reasonable time but should not allow them to bar by limitation.

4) Liability to spend reasonably:- As Karta of joint family has control over the income and
expenditure of the family, he is custodian of surplus income. However he should spend family
funds reasonably and for the purpose of the family.

5) Liability not to alienate coparcenary property:- Unless it is for benefit of family, estate or for
necessity Karta cannot alienate joint family property without the consent of all the coparceners.

3. Classification of property:

Introduction
“Property is intended to serve life, and no matter how much we surround it
with rights and respect, it has no personal being. It is part of the earth man
walks on. It is not a man.”

-Martin
Luther King, Jr

The word ‘property’ is derived from the Latin word ‘proprietary’ and the
French comparable ‘proprius’ which implies a thing owned. The concept of
property and ownership is closely associated with one another. There is
often no property without possession and no possession without property.
The concept of property possesses a significant place in human life since it’s
impossible to measure the extent of ownership without property.

The property includes an exceptionally more extensive meaning in its real

sense. It not only includes the money and only the other tangible things but
it also includes intangible rights which are considered as a source of income
or wealth. The interest which a person has in lands and chattels to the
exclusion of others and it is proper to enjoy and to lose certain things most
supremely as he pleases, provided he makes no utilization of them
precluded by law.

The sea and the air, cannot be appropriated; one may appreciate them, but
no one has an exclusive right over it. When things are fully our own, or
when all others are prohibited from intruding with them, or from interfering
around them, no individual other than the proprietor, who has this exclusive
right, can have any claim either to use them, or to prevent him from
disposing of them as he satisfies.

And the reason behind is that the property, considered as an exclusive right
to things, contains not as it were a right to utilize those things, but a right to
a range of them, either by exchanging them for other things or by giving
them away to any other individual, without any consideration, or even
throwing them away.

Classification of Property
Classification of Property means Property is divided into different forms
which are known by different names and all the different properties have
their own characteristics, features, and way of conducting its property.
According to Article 220 of Hindu Law, Property is classified into two types:
(1) Joint Hindu Family Property (2) Separate Property. Joint-family
Property is also known as ‘Coparcenary Property and this property consists
of (a) Ancestral Property (b) Property jointly acquired by the members of the
Joint family. (c) Separate property of a member “thrown into the common
stock.” (d) Property acquired by all or any of the coparcener with the aid of
joint family funds.

There is a lot of division and classification in Property. Before the enactment

of Hindu law, there were two principal schools
i.e. Mitakshara and Dayabhaga. Mitakshara School divides the property
into two categories and the first one is Unobstructed Property and the
second one is Obstructed Property. Further, after the enactment of Hindu
law and the decline of both principal school, the Property is divided into two
parts i.e. Joint Family Property and Separate Property under Hindu law.

Obstructed property
The property to which right accrues not by birth but on the passing of the
final owner is called obstructed property. It is called obstructed since the
accrual of the right to it is obstructed by the existence of the final owner.
Hence the property devolving on parents, brothers, nephews, uncles, etc.
upon the passing of the last owner, is obstructed property. These relatives
are not vested intrigued by birth. Their right to it arises only on the passing
of the last owner.

In this way, any property acquired by a male Hindu from relations other
than father, father’s father and father’s father’s father would be called
obstructed heritage. The owner of this property holds the property as
Separate and absolute one and there is no chance of combining property.

Obstructed property rights gained by the owner after the succession of the
final owner but there are some exceptional cases where the ownership
passes by survivorship. The exception cases were mentioned below:

 Two or more than two sons, grandsons, and great-grandsons succeeding

as heirs to the separate property of their paternal ancestor take as joint
tenants with survivorship.
 Two or more grandsons of a daughter who is a member of a joint family
succeed as heirs to their maternal grandfather as joint tenants with the
right of survivorship.
 Two or more widows succeeding as heirs of their husband take as joint
tenants with survivorship rights.
 Two or more daughters succeeding as heirs of their father take as joint
tenants.
These are the only 4 conditions or exceptional circumstances in which
ownership of the obstructed property transfers to another before the
succession of the previous owner.

Illustration

An acquired the certain property from his brother who passed on issueless.
The acquired property within the hands of A will be a discouraging legacy for
the children of A. The children of A will acquire the property from A as it
were after his passing.

Unobstructed property
The property in which an individual secures and is intrigued by birth is called
unobstructed property. It is called unobstructed since the accrual of the right
to it isn’t obstructed by the presence of the owner. Hence property inherited
by a Hindu from his father, grandfather, and great grandfather is
unobstructed heritage as regards his claim male issues, that is, his sons,
son’s and son’s child. These rights arise on account of their birth in the
family and the male descendants in whom the property vests, are called
coparceners. Thus, the hereditary property in the hands of the final male
owner is unobstructed.

Illustration

‘A’ acquired certain property from his father. Two children born to A, M and
N are coparceners with A. M and N will procure an interest by birth within
the hereditary property of A. Thus the property within the hands of A is
unhindered legacy, as the presence of the father is no obstacle or obstacle to
his children procuring an intrigued by birth within the property.

It is seen that the distinction between obstructed and unobstructed property

is recognized by the Mitakshara School and according to Dayabhaga School
all the properties should be considered as Obstructed property because no
one can inherit the property just after the birth or no one can have interest
in another’s property by birth. This difference of thought of both the school
demarcates Obstructed and Unobstructed Property.
Ancestral property
Ancestral Property is also known as Self-acquired Property after the partition
in a Joint Hindu family. As the name suggests Ancestral Property this
property is automatically inherited to next-generation people. This Ancestral
property was inherited till 3 generations or it is also considered as a part of
Coparcenary property as it also includes property descended from father,
great grandfather. Self-acquired property and the ancestral property is part
of Separate property as above discussed.

Separate Property is the second category of property under Hindu law in

which the property is inherited by the other members of non-blood
relations.

In the case, Gurdip Kaur vs. Ghamand Singh Dewa Singh, 1965, the
dictionary meaning of Ancestral Property is “Property which has been
inherited from the ancestors” was accepted by the Court. It was also held
that a property inherited from a father, father’s father or great grandfather
is ancestral property.

A question arises that ‘who can acquire ancestral property?’ This was
answered in the case of Arshnoor Singh vs. Harpal Kaur, 2019, it was held
by the Hon’ble Supreme Court that “Under Mitakshara law, whenever a male
ancestor inherits any property from any of his paternal ancestors up to three
degrees above him, then his male legal heirs up to three degrees below him,
would get an equal right as coparceners in that property.”

After the amendment and enforcement of the Hindu Succession Act in 2005,
women were also allowed to enjoy the Self-acquired property or Ancestral
property with equal rights but this right on the ancestral property was not
earlier provided to the Women. Now, women and men have equal rights
over their ancestral property. There are some incidents of Ancestral property
which are mentioned below:

 The Ancestral Property should be for 4 generations old or we can say that
ancestral property should be continued for four generations and should be
inherited from generation to generation.
 The Ancestral Property should not be divided by the members and when
the division takes place, the property becomes the self-acquired property.
 In the Ancestral Property, the person has the right or interest in the
property right from birth.
  The ancestral property rights are controlled by per strip and not through
per capita.
 The Shares in the ancestral property is first determined for each
generation and then subdivided for the successive generation.

Joint family property

Joint family or coparcenary property is that property in which every
coparcener has a joint interest or right and over that property, the
coparcener has a joint possession. Or we can also say that the joint family
property is the property which is jointly acquired by the member of the
family with the aid of ancestral property.

Joint family Property defines as if any member of joint family property

acquired in his own name in the presence of an ancestral nucleus. In V.D.
Dhanwatey v. CIT, 1968, it was held that “The general doctrine of Hindu law
is that property acquired by a Karta or a coparcener with the aid or
assistance of joint family assets is impressed with the character of joint
family property. To put it differently, it is an essential feature of a self-
acquired property that it should have been acquired without assistance or
aid of the joint family property. It is therefore clear that before an
acquisition can be claimed to be separate property, it must be shown that it
was made without any aid or assistance from the ancestral or joint family
property.”

Many times it is believed that property possessed by members of a joint

family is a Joint family property. In the case of Srinivas Krishna Rao Kango
vs. Narayan Devji Kango, 1954, it was held that “The Hindu law upon this
aspect of the case is well settled. Proof of the existence of a joint family does
not lead to the presumption that any property held by any member of the
family is joint, and the burden rests upon anyone asserting that any item of
property was joint to establish the fact.

Some considered Coparcenary property and Joint family property as two

different things but actually both are same under Hindu law.

The basic difference which is considered and said that both are different is
that in joint family property, both males and females are considered as
members whereas, In coparcenary, only male members are considered as a
member. Female members have no right or interest in the property by birth
in a Joint family but In Coparcenary, all members have equal right or
interest in the property by birth.
These little differences make people think that both Joint family property and
coparcenary are two different concepts otherwise it is considered as the
same under Hindu law.

4. Hindu Joint Family And Mitakshara Coparcenery

Mitakshara coparcenary is one of the Hindu law schools that governs the succession of property
in a Hindu family. The Mitakshara school of thought holds that the son, grandson, and
grandson's son have a right to the family property through birth. Where as a combined Hindu
family is an inescapable and basic idea in Hindu family law, which is today governed by the
Hindu Succession Act of 1956. It is quite frequent in Hindu society. For a Hindu, it is a never-
ending process; if it is halted in one generation due to partition, it will re emerge in the next. This
rule validates the premise that every Hindu family is a Joint Hindu family.

According to Rukhmabai v. Lala LaxmiNarayan and Rajagopal v Padmini, a family is

regarded to be a joint family if it is joint in concerns of food, worship, and estate. Even if a family
does not share food and worship, i.e. if they live separately, they are still considered a Joint
Hindu family if they share the estate. A Joint Hindu Family, as found in the case of Chhotey Lal
and Ors. v. Jhandey Lal and Anr., is neither a business nor a juristic person because it lacks
an independent legal entity from its members. It is a unit that is represented in all matters by the
family's Karta.

A joint family, according to the Oxford Dictionary, is an extended family made up of two or more
generations and their spouses who live together in a single residence. Likewise, the Hindu Joint
Family consists of a common ancestor, his lineal male descendants, and their wives, daughters,
and so on. So. while a common ancestor is required for the formation of a joint family, this does
not imply that a common ancestor is required for its continuation; rather, if a common ancestor
dies, there is always an addition to the lower link of the Family. So, just when an upper
connection is lost, the Joint Family is not over.

Mitakshara Copercenery
The term 'Coparcenary' is used in Hindu succession law. It is a smaller division or organisation
inside a Joint Hindu Family that only deals with property issues, specifically the coparcenary
property of a Joint Hindu Family.

Mitakshara School:

1. Benaras School,
2. Mithila School,
3. Maharashtra School, and
4. Dravida School are some of the schools in Benaras.
Composition:
Coparcenary, as opposed to Joint Hindu Family, consists of all male lineal descendants of the
last holder of the property up to three generations. The coparcenary is made up of up to three
generations, namely son, son's son, and son's son's son, with the senior-most member
designated as the 'last holder.' There can be any number of male members in a given
generation. Every coparcenary member is linked to another via blood or legal adoption.

As stated in Sudarshan v. Narasimhulu, it is a well-established law that no one can become a

coparcener through marriage or other arrangement to become a coparcener because
coparcenary is a legal formation. The Hindu Succession Act of 1956 prohibited the appointment
of any female members.

Who can be coparceners:

To begin a coparcenary, the presence of the senior-most male member is essential, just as it is
in a Joint Hindu Family. A coparcenary must have at least two male members in order to
establish and even survive. In a coparcenary, top links are removed and lower links are added
to the chain, just like in a joint Hindu family, as long as there are at least two male members
(coparceners), retaining the status of a joint family.

A male member born within three generations of the property's last holder (for a total of four
generations) immediately becomes a coparcener, i.e. it is a right by birth in the family property.
When does it comes to end ( termination) The death of all male members of the family or the
lone surviving coparcener, or the division of the family, terminates the coparcenary.

Essentials:

 A coparcenary requires the presence of property. If a son acquires his father's property
during his father's lifetime, that property is inherited as Joint family property by his son
after his father's death, and this is maintained in perpetuity.
 Prior to 2005, only men may be coparceners.
 A coparcener's insane son is also a coparcener, although he lacks the right to apply for
partition.
 Coparcenary property is subject to the rule of survivorship, which means that when a
coparcener dies, his part in the joint family property falls to the surviving coparceners
rather than following the law of succession. There is a variation in the number of
coparceners due to the constant addition and deletion of coparceners during birth and
death.

Illustrations:

 'A,' for example, has two sons, B and C.

 They will each receive one-third of the share in the case of a division.
 If 'B' dies, the shares of 'A' and 'C' grow to one-half each, while 'B' is divided among the
remaining Coparceners.
  If 'A' has two more sons, 'D' and 'E,' and the estate is split among A, C, D, and E, each
will receive one-fourth of the estate.
 Coparcenary within a coparcenary can exist in the same way as many coparcenaries
can exist within various branches of a family.

Coparcenary under Mitakshara school of joint familyThe coparcener obtains a birth right to the
property of the Joint Family, however the main issue is that.The rate of interest at which they
can be purchased will be erratic and unpredictable. That is, until the divide in the middle is done.

The combined family's property portion will not be formed or determined. The interests of people
will ebb and flow, and Because birth and death might happen in the family, each person's share
can be unpredictable will have an impact.

Case law:
The court ruled in Moro Vishwanath v. Ganesh Vithal that a partition could be claimed by
someone who is one more than four degrees removed from the acquirer, but not by someone
who is one more than four degrees removed from the last owner. This is due to the fact that the
coparcenary extends four degrees beyond the previous owner. The Court stated the principle
using the following examples:

Figure 1: Assume A, the original owner, and his lineal descendants, B (son), C (grandson), and
D (grandson) form a family (great-grandson). D has two sons, E and F, and E also has two
sons.

Essay questions:
1.. explain the succession of hindu male dying interstate under
provisions of hundu succession act 1956
Succession implies the act of succeeding or following, as of events, objects, places in a series.
In the eyes of law however, it holds a different and particular meaning. It implies the
transmission or passing of rights from one to another. In every system of law provision has to be
made for a readjustment of things or goods on the death of the human beings who owned and
enjoyed them.

Succession, in the sense of the partition or redistribution of the property of a former owner is, in
modern systems of law, subject to many rules. Such rules may be based on the will of a
deceased person. However, there are cases in which a will cannot be expressed and
eventually, there needs to be some broadly accepted rules upon which the property shall
devolve upon those succeeding him. There can be no doubt, however, that these rules primarily
are the characteristics of the social conditions in which that individual lived. They represent the
view of society at large as to what ought to be the normal course of succession in the
readjustment of property after the death of a citizen.
Succession of A Hindu Male Dying Intestate Under The Hindu
Succession Act:

Sections 8 to 13 of the Hindu Succession Act, 1956 lay down the general rules as to the order of
succession when a Hindu male dies intestate. Section 8 lays down certain rules of succession
of property of a Hindu male who dies intestate after the commencement of the Act. These rules
are to be read along with the Schedule as well as other Sections pertaining to the same
(Sections 9 to 13).

Section 8 lays down as follows:

Section 8: General rules of succession in the case of males. - The property of a male Hindu
dying intestate shall devolve according to the rules set out in this chapter:
(a) firstly, upon the preferential heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no preferential heir of Class I, then upon the preferential heirs being the
relatives specified in class II of the Schedule;
(c) thirdly, if there is no preferential heir of any of the two classes, then upon his relatives being
the agnates specified in Section 12; and
(d) lastly, if there is no agnate, then upon his relatives being the cognates specified in Section
13.

Thus, Section 8 groups the heirs of a male intestate into four groups and lays down that the
property first devolves upon the heirs of Class I of the Schedule. They are the son, daughter,
widow, mother, son of a predeceased son, daughter of a predeceased son, son of a
predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son
of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased
son and widow of a predeceased son of a predeceased son. All these heirs inherit
simultaneously. If heirs of Class I are not available, the property goes to the enumerated heirs
specified in Class II of the Schedule, wherein an heir in a higher entry is preferred over an heir
in a lower entry.

In the absence of heirs of Class I and Class II, the property devolves on the agnates and
cognates of the deceased in succession. Now, one person is said to be the agnate of the other
if the two of them are related by blood or adoption wholly through the males. Similarly, one
person is said to be the cognate of the other if the two of them are related by blood or adoption,
but not totally through males, i.e. there has to be some intervention by a female ancestor
somewhere.

Now, the term 'property' includes all those properties of the deceased intestate that is heritable
under the Act. It includes his self-earned property as also his share in the Mitakshara
coparcenary if he is survived by any of the female heirs or daughter's son as mentioned in Class
I of the Schedule. It also includes the property that he might have inherited from his grandfather
or father after the Act came into force.

(A) Heirs In Class I:

i. The adopted children (sons or daughters) are also to be counted as heirs.

ii. The children born out of void or voidable marriages are considered to be legitimate by virtue
of Section 16, and hence they are entitled to succession.
iii. The widow is also entitled to property along with the other heirs and in case there is more
than one widow, they will inherit jointly one share of the deceased's property, which is to be
divided equally among them.
iv. The widow is entitled to inherit from her deceased husband's property even if she remarries
after his death.
v. The widow of the predeceased son will inherit with the other heirs. However, her right along
with rights of the children of the predeceased son will exist to the extent of the share of the
predeceased son, had he been alive. However, if she remarries before the death of the
intestate, then she is not entitled to the property.
vi. The daughter inherits simultaneously along with the other heirs in her individual capacity.
Moreover, even if she is married, she is entitled to such property.
vii. The mother also succeeds to her share along with other heirs by virtue of Section 14. It has
been held in Jayalakshmi v. Ganesh Iyer that the unchastity of the mother is no bar as to her
inheriting from her son. Even if she is divorced or remarried, she is entitled to inherit from her
son. Here the term mother also includes an adoptive mother. Moreover, if there is an adoptive
mother, the natural mother has no right to succeed to the property of the intestate. A mother is
also entitled to inherit the property of her illegitimate son by virtue of Section 3(i)(j).

(B) Heirs In Class II:

i. All heirs in Class II take cumulatively and not simultaneously, i.e. they succeed in the order of
Entries I to IX, as held in the case of Kumuraswami v. Nanjappa . An heir in the higher entry
excludes all the heirs in the lower entries.

ii. The father in Entry I includes an adoptive father. However, a father is not entitled to any
property from the illegitimate son as opposed to the mother. However, he is entitled to share
from children born out of void or voidable marriage under Section 16. Also, a step mother is not
entitled to inherit from the step son.

iii. All brothers and sisters inherit simultaneously. Here the term 'brother' includes both a full and
a half brother. However, a full brother is always preferred to a half brother (according to Section
18). Uterine brother is not entitled to the intestate's property. However, when the intestate and
his brother are illegitimate children of their mother, they are related to each other as brothers
under this entry.
(C) Agnates:

A person is said to be the agnate of another if the two of them are related by blood or adoption
entirely or wholly through males [Section 3(1)(a)]. What is to be noted is that agnates of the
intestate do not include widows of lineal male descendants because the definition of agnates
does not include relatives by marriage but only relatives by blood or adoption. Since these
widows would be relatives by marriage hence they will not fall under the definition of agnates
and hence, they will not be entitled to inherit in this capacity.

Moreover, there is no limit to the degree of relationship by which an agnate is recognized.

Hence, an agnate however remotely related to the intestate may succeed as an heir. Also, this
relationship does not distinguish between male and female heirs. There is also no distinction
between those related by full and half blood. However, uterine relationship is not recognized.

(D) Cognates:

A person is said to be the cognate of another if the two of them are related by blood or adoption,
but not entirely through males [Section 3(1) (c)]. It does not matter if the intervention in the line
of succession is by one or more females. As long as there is at least one female intervening, it
is a cognate relationship. As in agnate relationship, cognate relationship is also not based on
marriage and only on blood or adoption. Hence widow or widowers of those related by cognate
relationship do not fall under this category and hence they are not entitled to succeed on this
ground.

Section 9. Orders of succession among heirs in the Schedule. - Among the heirs specified in the
Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those
in the first entry in Class II shall be preferred to those in the second entry; those in the second
entry shall be preferred to those in the third entry; and so on in succession.

Section 9 explicitly points out the order of succession between the Class I and the Class II heirs
and also among the Class II heirs interse.

According to this Section, Class I heirs may be termed as preferential heirs of the intestate
because the property first devolves upon them on the death of the intestate. All the Class I heirs
succeed simultaneously and there is no question of any preference or any priority among them.
However, when there is no Class I heir, the property devolves upon the Class II heirs
enumerated in the Schedule in the nine Entries.

However, there is one basic distinction between the Class I and the Class II heirs. While all the
heirs in Class I inherit the property simultaneously, each of the entries in Class II constitute
distinct and separate groups of heirs. Heirs in higher entries inherit in priority, but there I no
such concept of priority among the heirs in Class I. For example, if a Hindu male dies intestate
leaving behind his widow, two sons, son of a predeceased son, widow of another predeceased
son, two daughters and son of a predeceased daughter, all of them will inherit simultaneously
because all of them are heirs in the Class I of the Schedule. However, if another Hindu male
dies intestate leaving behind his sister and his brother's son, the sister being an heir in Entry II
of Class II will get preference over his brother's son who is an heir in Entry IV of Class II.

Section 10. Distribution of property among heirs in Class I of the Schedule.- The property of an
intestate shall be divided among the heirs in Class I of the Schedule in accordance with the
following rules:
Rule 1- The intestate's widow, or if there are more widows than one, all the widows together,
shall take one share.
Rule 2- The surviving sons and daughters and the mother of the intestate shall each take one
share.
Rule 3- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of
the intestate shall take between them one share.
Rule 4- The distribution of the share referred to in Rule 3-

i. among the heirs in the branch of the pre-deceased son shall be so made that his widow (or
widows together) and the surviving sons and daughters get equal portions; and the branch of
his predeceased sons gets the same portion;

ii. among the heirs in the branch of pre-deceased daughter shall be so made that the surviving
sons and daughters get equal portions.

Sections 8 and 9 explicitly declare the law that the preferential heirs enumerated in Class I take
simultaneously and to the exclusion of all other heirs in Class II or otherwise. The Sections do
not mention any priority among them, but it nowhere follows that every individual heir who
succeeds as a heir in Class I is entitled to an equal share of the property along with other heirs
of the Class. The computation of the share of each is done in accordance with Section 10 which
may constitute the Statute of Distribution applicable to heirs in Class I. It should also be noted
that the Act tries to put the males and the females on equal footing. So it allots the shares to the
males and the females pari passu.

The object of Section 10 is to deal with the amount of shares each person will be entitled to
when there are more than one to inherit simultaneously. The widow, the son, the daughter and
the mother will inherit to the property. However, this does not mean that each one of them will
get 1/4th of the property. The four rules given in this Section are explanatory to the extent of
understanding how much share each one will get.

The rules are:

1) The widows, if there are more than one, shall take together only one share and [read with
Section 19(b)] inherit that share equally as tenants-in-common and not joint tenants.

2) When there are more than one son, each son will get a share and similarly each daughter will
get a share and mother will also get a share. Thus this is based on the Principle of Equalization.
3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall
be entitled to take together a share of the property of their father or mother as the case maybe,
and divide them equally among themselves. The family of the predeceased son would be
entitled to one part that the predeceased son would have been entitled to, had he been alive.
Same thing applies to a predeceased daughter. Thus these heirs succeed to the intestate's
property not as per capita but as per stripe.

4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a

predeceased son of a propositus, she will take the share of the predeceased son equally with
her sons and daughters.

The four rules in Section 10 are to be read in consonance with Section 19 which gives the two
basic rules in case there is more than one heir succeeding to the property of the intestate.

The rules are:

(a) save as otherwise expressly provided in the Act, per capita and not per strip.
(b) as tenants-in-common and not as joint tenants. This is subject to any express provision to
the contrary.

Section 11. Distribution of property among heirs in Class II of the Schedule.- The property of an
intestate shall be divided between the heirs specified in any one entry in Class II of the
Schedule so that they share equally.

This Section provides that when there are more than one heirs in one entry of Class II,
they shall inherit equally. For example, Entry III contains four heirs:
(a) the daughter's son's son
(b) the daughter's son's daughter
(c) the daughter's daughter's son
(d) the daughter's daughter's daughter.

Thus according to this Section, they all share equally. It should be noted that the legislation
does not lay down any rule of discrimination between any male or female. If two heirs are
enlisted in the same entry, then irrespective of their sex, they share equally. All the heirs in each
one of the entries stand aequali jura and take per capita subject to the only exception that full
blood is preferred over half-blood.

In the case of Arunachalathammal v. Ramachandran, it was contended that the different heirs
mentioned in one entry (in this case Entry I of Class II) are subdivisions of that particular entry
and they do not inherit simultaneously but here again there is a question of preference i.e. the
first subdivision inherits and then in its absence, the later. The question arose because there
were, in his case, one brother and five sisters of the intestate and no other heir and the brother
contended that in a brother being in subcategory (3) of entry I, was to be preferred over sister
who was in subcategory (4) of entry I and thus he was entitled to the full property. However the
same was negated and it was held that all heirs in an entry inherit simultaneously and there is
no preference to an heir in a higher subcategory within an entry to an heir in a lower
subcategory in the same entry. Thus we find that the equality is between every individual heir of
the intestate and not between the sub-division in any particular entry. In fact, the court went on
to say that there were no subdivisions in any entry in Class II. They were just roman numerals
representing the heirs in the entry.

Section 12. Order of succession among agnates and cognates.- The order of succession among
agnates or cognates, as the case may be, shall be determined in accordance with the rules of
preference laid down hereunder:
Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who
has fewer or no degree of descent.
Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take
simultaneously.

This Section deals with the order of succession among agnates and cognates. Agnates come
within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). The
question of succession of cognates come only when there are no cognates and the question of
succession of agnates and cognates come only when there are no heirs in Class I and Class II.

Rule 1 lays down that out of two agnates or two cognates as the case maybe, the one with the
fewer or no degree of ascent shall be preferred. Rule 2 lays down that where the degree of
ascent is the same or none, the one with fewer or no degree of descent shall be preferred. Rule
3 lays down that in case of a tie even after applying Rules 1 and 2, they shall take
simultaneously.

In accordance with the above three rules, the agnate and cognate relationship maybe
categorized as follows:

Agnates:

(a) agnates who are descendants, for example, son's son's son's son and son's son's daughter.
(b) agnates who are ascendants, for example, father's father's father and father's father's
mother.
(c) agnates who are collaterals, i.e. who are related to the intestate by degrees of both ascent
and descent, for example, father's brother's son and father's brother's daughter.

Cognates:

(a) cognates who are descendants, for example, son's daughter's son's son and daughter's
son's son's son.
(b) cognates who are ascendants, for example, father's mother's father and mother's father's
father.
(c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent
and descent, for example, father's sister's son and mother's brother's son.

In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be
preferred to a lower subcategory i.e. descendants shall be preferred over ascendants who in
turn shall be preferred over collaterals.

Section 13. Computation of degrees.

1) For the purpose of determining the order of succession among agnates or cognates,
relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or
degrees of descent or both, as the case may be.
2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
3) Every generation constitutes a degree either ascending or descending.

Section 13 lays down the rules for computation of relationship between the intestate and his
agnate and cognate heirs. This relationship is traced from the intestate to the heir in terms of
degrees of relationship with the intestate as the starting point. There is no discrimination or
preference between male and female heirs.

The second rule states that the computation of the degrees of ascent and descent are to be
made inclusive of the intestate. The relationship is to be traced from the propositus on terms of
degrees with a propositus as terminus a quo, i.e. the first degree.

However, the order of succession among agnates and cognates is not determined merely by the
total number of degrees of ascent and descent. It is subject to and regulated by Section 12 of
the Act.

The following are examples of rules of computation of degrees:

(a) The heir to be considered is the father's mother's father of the intestate. Hence there is no
degree of descent but there are four degrees of ascent represented by (i) the intestate, (ii) the
intestate's father, (iii) that father's mother and (iv) that mother's father.

(b) The heir to be considered is the son's daughter's son's daughter of the intestate. Hence
there is no degree of ascent but there are five degrees of descent represented by (i) the
intestate, (ii) the intestate's son, (iii) that son's daughter, (iv) that daughter's son and (v) that
son's daughter.

(c) The heir to be considered is the mother's father's sister's son (i.e. the mother's father's
father's daughter's son) of the intestate. He has four degrees of ascent represented in order by
(i) the intestate, (ii) the intestate's mother, (iii) that mother's father and (iv) that father's father
and two degrees of descent i.e. (i) the daughter of the common ancestor and (ii) her son (the
heir).

What is to be remembered is that when degrees, both of ascent and descent, are to be
computed in case of collateral, the degrees of ascent computed from the intestate are inclusive
of him, but in counting the degrees of descent from the ancestor, only generations of descent
are computed, that is, the ancestor does not constitute a degree of descent.
Succession of A Hindu Female Dying Intestate Under The Hindu
Succession Act

The great ancient lawgivers Manu and Baudhyana had described the good woman as a
profoundly non-autonomous self, ruled by father in childhood, by husband in youth, by son in old
age. In the 19th century debates, on the contrary, she came to be re-envisaged as a person
with a core of inviolate autonomy, possessing a cluster of entitlements and immunities, even
when the family, the community or religion refused to accept them. The demand for the new
laws stemmed from an understanding about Indian a necessary, autonomous core of female
personhood that the state must underwrite.

Under the Hindu law in operation prior to the coming into force of the Act, a woman's ownership
of property was hedged in by certain delimitations on her right of disposal and also on her
testamentary power in respect of that property. Doctrinal diversity existed on that subject.
Divergent authorities only added to the difficulties surrounding the meaning of a term to which it
sought to give technical significance. Women were supposed to, it was held and believed, not
have power of absolute alienation of property. The restrictions imposed by the Hindu law on the
proprietary rights of women depended upon her status as a maiden, as a married woman and
as a widow. They also depended upon the source and nature of property. Thought there were
some fragmented legislation upon the subject (regard being made to the Hindu Woman's Right
to Property Act, 1937), the settled law was still short of granting a status to woman where she
could acquire, retain and dispose off the property as similar to a Hindu male. The Hindu
Succession Act, 1956 and particularly Section 14 brought substantial change, thus, upon the
aspect of a right of a Hindu female over her property and thereby settled the conflict.

Section 15. General rules of succession in the case of female Hindus

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in
Section 16,-
(a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the husband;
(b) Secondly, upon the heirs of the husband ;
(c) Thirdly, upon the mother and father;
(d) Fourthly, upon the heirs of the father; and
(e) Lastly, upon the heirs of the mother

(2) Notwithstanding anything contained in Sub-Section (1), -

(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the
absence of any son or daughter of the deceased (including the children of any pre-deceased
son or daughter) not upon the other heirs referred to in sub-Section (1) in the order specified
therein, but upon the heirs of the father; and

(b) Any property inherited by a female Hindu from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of the deceased (including the children of any
predeceased son or daughter) not upon the other heirs referred to in sub-Section (1) in the
order specified therein, but upon the heirs of the husband.

This Section propounds a definite and uniform scheme of succession in the property of a female
Hindu who dies intestate after the commencement of the Act. The rules laid down under this
Section are to be read with Section 16. This Section groups the heirs of a female intestate into
five categories as laid in sub-Section (1).

However sub-Section (2), similar to the scheme of Section 14, is in the nature of an exception to
the general rule as laid in sub-Section (1). The two exceptions are, if a female dies without
leaving any issue then,

(i) in respect of property inherited by her from her father or mother, that property will devolve not
according to the order laid down as in sub-Section (1) but upon the heirs of her father, and

(ii) in respect of the property inherited by her from her husband or father-in-law, that property will
not devolve according to the order laid down in sub-Section (1) but upon the heirs of her
husband.

It is important to note that the two exceptions herein referred are confined to only the property
inherited from the father, mother, husband and father-in-law of the female and does not affect
the property acquired by her by gift or other by other device. The Section has changed the
entire concept of stridhana and the mode and manner of acquisition of property by the female,
which earlier determined how the property would be inherited, has been changed and amended
by the Section. Considering Section 17, it is important to note that Section 16 does not apply to
persons governed by Marumakkattayam and Aliyasantana laws.

As specified in the beginning of the sub-Section (1), in the devolution of heritable property of a
female intestate, those in a higher entry are preferred to those in a lower entry.

The order of succession, as by the effect of rules under Section 15 can be summarized
as follows:
(1) the general order of succession laid down in entries (a) to (e) in sub-Section (1) applies to all
property of a female intestate however acquired except in case of property inherited by her from
her father, mother, husband or father-in-law.

(2) In case of a female intestate leaving a son or a daughter or a child of a predeceased son or
of a predeceased daughter, that is leaving any issue, all her property, howsoever acquired,
devolves on such issue regardless of the source of acquisition of the property and such issue
takes the property simultaneously; and if the husband of the intestate is alive they take
simultaneously with him in accordance with entry (a). In such a case, sub-Section (2) does not
apply.

(3) In case of a female intestate dying without issue but leaving her husband, the husband will
take her property, except property inherited by her from her father or mother which will revert to
the heirs of the father in existence at the time of her death.

(4) In case of female intestate dying without issue property inherited by her from her husband or
father-in-law (the husband being dead), will go the heirs of the husband and not in accordance
with the general order of succession laid in sub-Section (1).

(5) In case of a female intestate dying without issue property inherited by her from her father or
mother will revert to the heirs of the father in existence at the time of her death and not in
accordance with the general order of succession laid down in sub-Section (1).

Section 16. Order of succession and manner of distribution among heirs of a female Hindu.- The
order of succession among the heirs referred to in Section 15 shall be and the distribution of the
intestate's property among those heirs shall take place according, to the following rules, namely:
Rule 1.- Among the heirs specified in sub-Section (1) of Section 15, those in one entry shall be
preferred to those in any succeeding entry and those including in the same entry shall take
simultaneously.

Rule 2.- If any son or daughter of the intestate had predeceased the intestate leaving his or her
own children alive at the time of the intestate's death, the children of such son or daughter shall
take between them the share which such son or daughter would have taken if living at the
intestate's death.

Rule 3.- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d)
and (e) of sub-Section (1) and in sub-Section (2) to Section 15 shall be in the same order and
according to the same rules as would have applied if the property would have been the father's,
the mother's or the husband's as the case maybe, and such person had died intestate in respect
thereof immediately after the intestate's death.

Rule 1 explicitly declares that among the heirs enumerated in entries (a) to (e) of Section 15,
those heirs referred to in prior entry are to be preferred to those in any subsequent entry and
those included in the same entry are to succeed simultaneously.

Rule 2 states that in case of the children of a predeceased son or daughter, they shall not take
per capita with the son and daughter of the intestate but shall take per stripes i.e. the children
and the predeceased son or daughter shall succeed to the property of the intestate as if the
predeceased son or daughter was alive at the time of inheritance.

Rule 3 is applicable only when succession is in terms of entry (b), (d) or (e) of Section 15(1).
This rule 3 is to be invoked when under rule 1 the heirs of the husband or the father or the
mother are to be ascertained for purpose of distribution of property.

Hindu Succession
2.

Amendment Act, 2005

The worth of a civilization can be judged by the position that it gives to
women. Since Vedic times, the status of women in Indian society was always
considered secondary and substituted to that of male members of society or
family. Even in our ancient texts like Manusmriti, it mentions “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”. This could be
the most probable cause of why women’s right to inheritance was not
recognized by the laws over a long period.

Though the Constitution of India enshrines the principle of equality in

chapters III, IV and IVA among its provisions, it can be always debated they
have women been treated equally in the eyes of the laws? This gender
disparity has manifested itself in various forms, and especially with regard to
effective rights in the property. The inheritance law was of subsequent
nature and, more broadly, applied to property owned in absolute
seventy only as distinct from joint family property. The central notion of the
Hindu joint family is a shared male ancestor with his linear descendants.
Sons acquired equal interest with the father in their ancestral property as
co-participants even under early Hindu rule.

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 to 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 a 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 birthright 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. And even females can be holders of that
position managing the affairs of the Family.

So by this Mitakshara School created a differential position of daughters in

the family barring them from similar treatments as that of sons, and reason
could be traced back to ancient concepts of the status of women. Even the
courts are reluctant to interfere in family matters as they are exclusive in
nature. But, there are several occasions where the judiciary has interfered in
order to protect the individual’s rights. As no personal law can be held above
the Constitution of India and if any, such provision is held void and therefore
will not be made applicable.
And by way of state amendments brought in by the States 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 the 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 sons. This change brought in
the act was based upon the recommendations of the 174th Law Commission
Report on women’s rights to property under Hindu law advocating the
changes to be brought in the code to ensure equal treatment of both
genders.

History of the Hindu Succession Act, 1956

The Hindu Succession Act of 1956 was passed with the understanding that
women’s rights are significant and protected by Articles 14 and 15 of
the Indian Constitution, and that no individual laws may conflict with such
provisions. It led to reforms in women’s property rights, giving them
complete ownership over the restricted rights in the property they inherited.
The Act’s Sections 6 and 8 dealt with the transfer of ownership of
a Mitakshara coparcenary property and the transfer of ownership of male
Hindus themselves, respectively. The Hindu Succession Act, as actually
written by the B.N. Rau Committee and guided by Dr. Ambedkar, called for
doing away with the Mitakshara coparcenary and its notion of survivorship
as well as the son’s birthright in joint family property and replacing it with
the principle of inheritance by succession. The Mitakshara coparcenary was
kept in the Act with men serving as coparceners after these plans were faced
with a wave of conservative opposition from the Constituent Assembly.

As a result, the Act continued to follow the rule of survivorship with the
exception that the focus would pass through testamentary or intestate
succession in cases where the deceased had left behind a female relative
under Class 1 of Schedule 1 or a male relative belongs to that Class who
comes under such a female relative. The speculative separation to determine
the deceased’s attention in a Mitakshara coparcenary shows that the
decentralisation by survivorship still had a spot in the Act with regard to the
deceased coparcener’s intrigue. It is thus obvious that there was no
interruption in the whole coparcenary as intended by the lawmakers.
The Hindu Succession Act of 1956 was passed with the understanding that
women’s rights are significant and protected by Articles 14 and 15 of
the Indian Constitution, and that no individual laws may conflict with such
provisions. It led to reforms in women’s property rights, giving them
complete ownership over the restricted rights in the property they inherited.
The Act’s Sections 6 and 8 dealt with the transfer of ownership of
a Mitakshara coparcenary property and the transfer of ownership of male
Hindus themselves, respectively. The Hindu Succession Act, as actually
written by the B.N. Rau Committee and guided by Dr. Ambedkar, called for
doing away with the Mitakshara coparcenary and its notion of survivorship
as well as the son’s birthright in joint family property and replacing it with
the principle of inheritance by succession. The Mitakshara coparcenary was
kept in the Act with men serving as coparceners after these plans were faced
with a wave of conservative opposition from the Constituent Assembly.

As a result, the Act continued to follow the rule of survivorship with the
exception that the focus would pass through testamentary or intestate
succession in cases where the deceased had left behind a female relative
under Class 1 of Schedule 1 or a male relative belongs in that Class who
comes under such a female relative. The speculative separation to determine
the deceased’s attention in a Mitakshara coparcenary shows that the
decentralisation by survivorship still had a spot in the Act with regard to the
deceased coparcener’s intrigue. It is thus obvious that there was no
interruption in the whole coparcenary as intended by the lawmakers.

Findings of the 174th Report of the Law

Commission of India
The Hindu Succession Amendment Act of 2005 was enacted as a result of
the suggestions made in the Law Commission’s 174th Report regarding
Hindu women’s property rights. In actuality, the Commission had brought
the matter up on its own initiative because of the blatant discrimination that
occurred in the Mitakshara coparcenary. The Commission noted that
property rules have been established for men’s benefit ever since the dawn
of civilisation. Hindu women were disallowed to use their property in an
attempt to dominate them, enslave them, and keep them reliant on men.
Women in joint families had only maintenance rights. On the other hand,
since he is a coparcener, a son is given birth rights to the family’s property.
The coparcenary system, which excludes women, continued the legacy of
male domination in inheritance. The Commission called attention to this
injustice and asserted that it constitutes constitutional fraud. The
Commission suggested amending Section 6 of the Hindu Succession Act
1956 based on these results.
The Hindu Succession Amendment Act of 2005 was enacted as a result of
the suggestions made in the Law Commission’s 174th Report regarding
Hindu women’s property rights. In actuality, the Commission had brought
the matter up on its own initiative because of the blatant discrimination that
occurred in the Mitakshara coparcenary. The Commission noted that
property rules have been established for men’s benefit ever since the dawn
of civilisation. Hindu women were disallowed to use their property in an
attempt to dominate them, enslave them, and keep them reliant on men.
Women in joint families had only maintenance rights. On the other hand,
since he is a coparcener, a son is given birth rights to the family’s property.
The coparcenary system, which excludes women, continued the legacy of
male domination in inheritance. The Commission called attention to this
injustice and asserted that it constitutes constitutional fraud. The
Commission suggested amending Section 6 of the Hindu Succession Act
1956 based on these results.

Changes brought by the Hindu Succession

Amendment Act
The Hindu Succession (Amendment) Bill, 2004 was introduced with the idea
of bring two major changes in the then-existing Hindu Succession Act, 1956
(hereinafter referred to as the Act). 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:

Section 4(2)
The said section shall be omitted as the said provision provided that the act
shall not override the provisions laid down in any other act to avert the
division or fragmentation of the agricultural or sealing the ceiling or creation
of tenancy rights in spite of such holding. Since this section excluded rights
on agricultural lands from its purview and was regulated by the State- level
tenure laws, it was creating a discriminatory in favour of women as the
women were not getting any entitlement or interest in the agricultural lands.
So with the removal of this provision, the women’s interest in agricultural
land as that of men is ensured.
Section 6
Another significant change which became a milestone in the history of
women’s rights in property was the deletion of the old provision under
Section 6 of the act and the insertion of a new provision. With this new
provision, the daughter becomes coparceners in the property of the Joint
Hindu Family by birth, acquiring similar rights and liabilities to that of a son.
As women’s right to property i.e. undivided property was quite alienated and
highly fragmented in the Hindu law. Not dwelling deep into the ancient and
medieval practices and sticking to the recognition brought in by the
legislature by way of introduction to laws protecting the same. Property
rights of Hindu women vary depending on the status of the woman in the
family and her marital status as whether the woman is a daughter, married
or unmarried or deserted; wife or widow or mother. It also depends on the
kind of property one is looking at whether the property is hereditary/
ancestral or self-acquired, land or dwelling house or matrimonial property.

So women were not allowed to inherit any property either from their
husband or father, and would possibly possess the stridhan. And their
existed two types of stridhan, first being the sauadayika, these are gifts from
relatives of both sides (parents and husband), over which she had full
absolute ownership and had rights of disposal, and second being the non-
sauadayika, which included gifts from strangers and property acquired by
self-exertion, mechanical art, and so forth as a married woman, over which
she had limited rights on such property and cannot alienate it without the
consent of her husband.

This confusion of women’s limited rights on certain was settled by Privy

Council mentioning that the property with limited rights as women’s
estate whereby the female owner takes it as a limited owner only. This right
of women in property was first recognized by the legislatures only with the
enforcement of The Hindu Women’s Rights to Property Act, 1937. But only
one type of women i.e. widow’s right got recognition where any Hindu dies
intestate leaving her, then she can claim partition as a male owner. Though
this right was limited in nature i.e. she requires consent of male members in
order to dispose of this women’s estate. This would be definitely seen as a
milestone in the history of women’s property rights, though it was limited in
scope and subjugated the women’s status mere to her matrimonial relation
making it base for such claim in property.

So to overcome the abnormalities created by the abovementioned Act, the

legislatures finally introduced an act named ‘The Hindu Succession Act,
1956’. But still, the Act was not adequate enough to recognize the
coparcenary of daughters in the Joint Hindu Family. So this created a
disadvantage for the daughter as they don’t have a right to seek
partition. But with the changes brought in by the amendment of 2005, the
daughter became a coparcener, getting all rights of the coparcener including
the right to seek partition for her share in the Joint Hindu Property.

And by virtue of this new provision all the alienation or partition or

testamentary partition affected before the 20th December 2004 will not be
affected.

Section 23
Another landmark change brought in with this amendment was the omission
of section 23 of the Act, which clearly discriminated against the female heirs
to seek any partition in the dwelling house that the intestate left before the
male heir chose to do so. This is the most evident form of prejudice created
by the Hindu Succession act prior to 2005, as the female rights were
restricted to dwell in that house that too only in case of she being
unmarried, separated, deserted or a widow and became contingent on the
whim and fancies of the male members of the family.

Section 24
The said section was also omitted with the amendment brought in 2005,
which discriminated three category of women related to the intestate as the
widow of a predeceased son, the widow of a predeceased son of a
predeceased son, or the widow of a brother, by virtue of their remarriage on
account of the opening of the succession. This was laid down on the principle
that the widow is the surviving half of her husband and the virtue of her
remarriage ceased to be the same. And by way of this, her right in the
property was divested. But certain other kinds of widow as that of
intestate’s own wife have not been divested even after remarriage to have
right in property of her deceased husband. Now as the constitutional
pronouncements made it clear that equality is the essence of the justice and
legislative system. But still, inequality was persistent in the act before the
2005 amendment.

As a claimed fact the first two categories of discriminated widow i.e. widow
of a predeceased son and the widow of a predeceased son of a pre-deceased
son from part of Class I heir and the third category of widow i.e. widow of
the brother forms a part of an agnate. That means by virtue of being such
they inherit the property immediately after the death of the intestate, and
their rights get invested accordingly. And once her right is invested in that
property, she becomes an absolute owner as per section 15 and after a such
investment of property by means of she being the heir of the deceased, it
cannot be divested by any further event. Therefore, in order to correct this
problematic situation creating disadvantages to certain categories of women
under section 24 of the Act, it was omitted.

Section 30
Under section 30 of the Act, the substitution of words from “disposed by
him” to “disposed by him or by her” was done, in order to make it gender-
neutral which is the objective of this amendment.

And, certain additions were done to the schedule under the subheading of
class I heir, in order to give equal treatment to lineal descendants of the
daughters as to that of a son.

Hence, the introduction of The Hindu Succession (Amendment) Bill, 2004

which further got enforced in 2005 became the turning point of the turmoil
of sexual discrimination existing in the Hindu Law.

Status before and after the Hindu

Succession Amendment Act, 2005
Let’s discuss the daughters’ coparcenary rights under the Hindu Succession
Act of 1956 and their status following the 2005 Amendment:

Status before the amendment

The first law to include women in the inheritance and associated laws was
the Hindu Law of Inheritance Act, 1929. This Act provided three female heirs
—a son’s daughter, a granddaughter, and a sister—the ability to inherit
property. The Hindu Women’s Rights to Property Act, 1937, was one of the
key pieces of the statute that gave women access to property ownership in
the years that followed. After many protests against discriminatory laws on
women’s rights, this particular Act of 1937 was approved. Once it was in
effect, it changed the laws governing coparcenary, separation, property,
inheritance, and even adoption. The Act of 1937 also gave widows the
opportunity to prosper alongside their sons and claim an equal share of their
estate. Even though this law was passed, a daughter essentially had no
inheritance rights. It was not enough to establish equitable rights for men
and women.

The Hindu Succession Act, which was passed in 1956, was somewhat
centred on the guarantee of equality as stated in Article 14 of the Indian
Constitution. The former Hindu Women’s Right to Property Act’s restricted
property rights were eliminated with the adoption of this Act. This Act aimed
to improve the status of women in society by granting them the ability to
inherit a portion of their father’s estate. Through this law, daughters were
recognised as the father’s legal successors and were granted the opportunity
to inherit his separate property. However, despite this Act, women were not
granted any rights to inherit ancestral property or obey the norms of
succession. Only the men were given the status of coparceners at birth and
were therefore legally entitled to inherit the family’s property. This clause
maintained the disparity between daughters and sons.

Status after the amendment

As previously said, the old laws did not promote equality of rights between
sons and daughters, so it was decided that they needed to be changed.
Women’s rights to the estate were the subject of reform recommendations in
the Law Commission Report of 2000. The Law Commission identified every
part and clause prejudicial to men and suggested making considerable
modifications.

The Hindu Succession (Amendment) Act, 2005 was passed solely to increase
the rights of daughters and women to property and bring them to par with
male family members. The inclusion of daughters as coparceners was the
significant modification brought about by this amendment. So, as a result of
the 2005 Amendment, the daughter of the family, whether she is married or
not, is granted the same rights to the joint family property as the sons do.
The daughters now share the same obligations and rights as the sons. To do
this, Section 6 of the 1956 Act was changed. It also stated that female
family members might now serve as the family’s Karta. Daughters were now
treated similarly as coparceners.

The Supreme Court has further dispelled any lingering questions about the
retrospectivity of the Amendment Act of 2005 with its ruling that daughters
have a right to coparcenary property regardless of whether or not the father
was alive at the time of the 2005 Amendment, taking one more step toward
gender equality. Women have benefited greatly from the impending shift
that will make all daughters co-owners of joint family property, both
figuratively and monetarily.
Judicial pronouncements

Income Tax v. G.S. Mills (1966)

In this case, the Supreme Court debated whether women might hold the role
of a family head. The Court determined that the widow could not be a
member of the family, but this does not exclude women from being
members of joint families. This case is relevant before the enactment of the
amended act of 2005 as there was the legislation of the Hindu Succession
Act of 1956 and its provisions were applicable at that time as well.

Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar (2012)

The Hindu Succession Amendment will not be applicable in this case,
according to the Bombay High Court, unless the daughter is born after 2005.
However, a contrary stance has been adopted on this issue in a later, larger
bench judgement, prompting the Court to directly mention the requirement
that the daughter and her father be alive on the day of the amendment.

Facts

Due to the father’s failure to repay the bank for the loan he obtained, the
bank now has the right to confiscate the property as compensation for the
loan’s default. The Daughters have asserted their claim to a two-thirds piece
of the land. The Daughters plan to keep two-thirds of the property and give
the bank the third as payback for the debt. Since they were born prior to the
amendment, the legal question is whether women have a coparcenary right
to property.

Judgement

According to the ruling, the presumption against retrospectivity does not

apply to acts that have a declaratory nature. Since declaratory statutes are
only declared, they may therefore be retroactive. Consequently, the
presumption against removing vested rights would not be relevant. In the
HSA’s modified Section 6, the words “must become” are now a coparcener.
Prior to the law going into force, vested rights cannot be removed by
becoming a coparcener.
Badrinarayan Shankar Bhandari v. Om Prakash Shankar Bhandari
(2014)
The primary question, in this case, is whether the Hindu Succession
Amendment Act of 2005 should apply to events that occurred before the
amendment, even though it is clearly stated that the Hindu Succession Act
should have a prospective impact rather than a retroactive effect.

Effects of amendment brought in the act

upon the interest of women in the property
This amendment was enforced on September 9, 2005 and created a history
in the terms of women’s rights to property under Hindu Law. The impact of
this amendment was that the secondary or substituted position to which the
women were usually subject under Hindu law was removed and created
similar rights or positions of a daughter that of a son. As per section 6,
daughters were recognized as coparceners since birth, thereby she exercises
all rights of a coparcener and by virtue of that she can also become a Karta,
if she is the senior-most member of the family.

With the recent Judicial pronouncement and interpretation given by the

Courts upon the amendment questions related to the implication of this
amendment and how it would affect the position of women and property
after the enforcement becomes clear and distinct. As the daughters born on
or after 9th September 2005 accrue an interest in the ancestral property by
virtue of becoming a coparcener as that of son. Though the question of the
effect of this amendment whether would be retrospective or prospective in
nature is in dispute for a long time. As the Bombay High Court in the case
of Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar &
Ors. The Division bench observed that the act should be applied
retrospectively unless explicitly mentioned as the words “on and from” in
Section 6 (1) of the Act after the amendment shows its prospective nature.
And they held that the daughters born on or after 9th September 2005 will
only be considered as coparceners and those who are born prior to the
aforesaid date will devolve an interest in the coparcener property only after
his death by means succeeding his interest.

But this view was disputed by the Full Judge bench of the same court in the
case of Shri Badrinarayan Shankar Bhandari & Ors. v. Ompraskash Shankar,
where the court observed that for the implication of amended section 6(1) of
the Act, there are two prerequisite conditions. Firstly, the daughters claiming
benefit under Section 6 of the Act must be alive on the date of enforcement
of the amendment act. And, secondly, the property in question must be
available as the coparcenary property on the date of enactment of the
amendment. The Court held that the amendment is retroactive in nature and
will be applicable to all those daughters who were born prior and after
17th June 1956 but before 9th September 2005. However, it is conditioned
to only one fact at the time of the commencement of the 2005 Amendment,
the daughter was alive. As when the Principal Act was enforced, it was
applicable to all Hindus born prior to or after 17th June 1956, but was
contingent on the fact that the person was alive at the time of such
enforcement. The Parliament will enact this amendment and has specifically
used the word “on and from”, so to make sure that the already settled rights
in terms of coparcenary property won’t be disturbed by a claiming as an heir
to a daughter who had passed away before this amendment came into force.
Therefore, the daughters born prior to 9th September 2005 will be covered
under this amendment subject to the given conditions.

This view of the amendment being applied retrospectively in order to ensure

the best interest of the daughters was also upheld the Supreme Court in the
case of Danamma @Suman Surpur v. Amar Singh, the Hon’ble court held
that the amendment is applicable to all living daughters of living coparceners
as on 9th September’ 2005 and cannot be disputed further for its
implication. Though the disposition either in form of partition or alienation
secured before 20th December 2004 by the application of law won’t be
affected.

Now the same court in the case of Ganduri Koteshwaramma & Anr.
v. Chakiri Yanadi & Anr., held that a preliminary order passed by the Court
in regard to a partition suit does not prejudice the rights of daughters
conferred by the amendment. As far as partition suits are concerned, it
becomes final only with the passing of the final decree. Therefore, the court
may make necessary amendments in the preliminary decree in order to
restore the rights conferred by the law. Hence, it can be concluded that a
suit for partition was filed before 2005, but was pending before the Court for
its final decree. Then in such suits, the daughter’s right to the property is
also created by the virtue of her being alive after the amendment was
enforced.

Lacunae in the Hindu Succession

Amendment Act
There are additional oddities that exist in the Hindu Succession Amendment
Act:
Coparcenary is still a major male prerequisite
The law, without a doubt, stipulates that the male coparcenary’s property
will be divided equitably between all males and female descendants upon his
death; but the law places the male heirs on a higher footing by stipulating
that they shall possess an extra autonomous share in a coparcenary
property should be in relation to what they possess equally with female
descendants; the premise of a coparcenary, in and of itself, is that of a
unique male membership club and should be abolished.

Such abolition required the partial restriction of freedom of choice. Many

European nations (Germany, Italy, Austria, etc.) regularly impose these
limitations. However, as they are frequently left out of the will, women may
not inherit anything. Even if it’s not the ideal option, keeping the Mitakshara
system and making daughters coparceners does at least give women
guaranteed interests in joint family property because the 2005 Act does not
affect bequest autonomy. When a Hindu woman passes away intestate, her
property passes first to her husband’s descendants, then to her husband’s
father’s descendants, and eventually solely to her mother’s heirs. As a
result, the property of the intestate Hindu woman is protected by the lien of
her husband.

Another justification for a national law is the possibility of two Kartas, one
being a son and the other being a daughter, if a joint family owns property
in two states, one of which is subject to the Amending Act and the other is
not. There will also be issues with how the Amending Act will be applied
geographically. As a result, the demand for a Uniform Civil Code or all-India
Act is more pressing.

The 2005 Act’s implementation remains a challenging issue. Just a few of the
many actions required to carry out the change incorporated in the Act
include:

 Legal literacy campaigns.

 Initiatives to raise public understanding of the benefits of women owning
property for the entire family.
 Assistance with legal and social issues for women attempting to claim
their rights.
Decrease in shares of other classes
Making daughters coparceners will reduce the shares of other Class I female
heirs, including the deceased’s mother and widow, because the coparcenary
portion of the deceased male from whom they acquire, will diminish. The
prospective portion of the widow will now be equal to the shares received by
the son and daughter in states where the wife receives a share upon
division, such as Maharashtra. However, in cases where the wife does not
receive a portion of the divide, such as in Tamil Nadu or Andhra Pradesh, the
widow’s prospective portion will be less than the daughter’s.

Shortcomings
Even though the amendment has produced positive benefits, it still has
certain flaws. The amendment has not been able to fully accomplish its
objectives and has caused a great deal of confusion and disruption. The
inclusion of Section 15 is the amendment’s error and casts doubt on the
issues of gender equity and women’s empowerment. Section 15 only
acknowledges women in terms of their relationships with men, such as
wives, daughters, etc. As a result, it undermines a woman’s uniqueness and
individuality.

Another problem with the amendment is that it primarily concentrates on

daughters and wives, daughters-in-law, and sisters who are not included in
its scope. Another problem with the amendment is its lack of clarification
regarding whether the aforementioned legislation will trump and overturn
state laws or not. A provision of Section 4(2) that the amendment has
removed exempted agricultural land from coparcenary property.
Consequently, since agricultural land is included in the State List, a difficulty
develops.

Conclusion
The status of Hindu women was always subjected to male members of the
family even in Dharmashastras. And that’s why when the Hindu Succession
Act was enacted in 1956; the legislators didn’t feel any need for giving rights
to daughters in the property of the Father, since the notion of a daughter
being part of another family after her marriage and should not have right to
inherit anything from her father’s property.
But with the 2005 amendment, the equality ensured under the Constitution
was reestablished and the provisions granted the equality in status of son
and daughter in a Joint Hindu Family. Though the certain ambiguity still
exists in regards to the validly adopted daughters, as this term is nowhere
mentioned in the amended Act and her rights in regards to inheritance of her
father’s property. Also the children of the daughter will be treated as
coparceners in the same sense as that of son’s children, as the status of son
or daughter has been equally under section 6 of the Act.

Hence, it is the most eminent achievement in the backdrop of where Hindu

women were situated in the society before this amendment came into being.

Collected By : SHAIK DAVOOD, MBA, B.ed (LLB).

Cell No: 9618068037