Index

S.No. Title Page No.

1. Introduction 1
2. Overview 1-2
3. Changes brought about by the Hindu Succession (Amendment) 2-3
Act, 2005
4. Rights of Female over Interest of Property according to Hindu 3-4
Succession Act, 1956 and Hindu Succession Act, 2005
5. Conclusion 4
6. Bibliography 6
Introduction
The Hindu Succession Act came into force on 17 th June, 1956 with the basic objective of providing a
comprehensive and uniform scheme of intestate succession for Hindus. Prior to the enactment of this Act,
different religious communities were governed by different succession laws, and within the Hindu
community itself, there was a wide divergence with respect to application of inheritance laws. There were
three broad categories, besides the co-existence of a number of sub-communities. The Mitakshara law of
inheritance governed by those Hindus who were subject to Mitakshara law and those following the
Dayabhaga law, were subject to the Dayabhaga law of inheritance. In addition, Hindus adhering to the
matriarchal system to the Dayabhaga law of inheritance. In addition, Hindus adhering to the matriarchal
system were subject to different rules. Besides these three major categories, the sub-schools of Mitakshara
had variations at the local level, region-wise. In addition to this, a number of tribal communities following
Hindu religion, were observing their own distinct rules of succession.

The HinduSuccession (Amendment) Bill was introduced in the Parliamenton 20th Decemeber, 2004 and was
passed by the Rajya Sabha on 16th August, 2005 and the Lok Sabha on 29th August, 2005 respectively. Based
on the recommendation of the 174th Report of the Law Commission on ‘Property Rights of Women-
Proposed Reforms under Hindu Law’, its primary aim was to remove gender inequalities under the Act, as it
stood before the amendment. The amendment had also become necessary in the light of changes in Hindu
Succession Act, 1956, in five Indian states, namely Kerala, Andhra Pradesh, Tamil Nadu, Karnataka and
Maharashtra. The Bill received President’s assent on 5 th September, 2005 and it came into force on 9 th
September, 2005.

Overview
The Act applies only in case of intestate succession by Hindus. The Act applies to Hindus, Jains, Sikhs,
Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew. Any person who becomes a
Hindu by conversion is also covered by the Act. The Act overrides all Hindu customs, traditions and usages
and specifics the heirs entitled to such property and the order or preference among them.

The scheme of the Act in the matter of succession to the property of a Hindu dying intestate (after the
coming into force of the Act) is to lay down a set of general rules for succession to the property of a male
Hindu in ss 8-13, including rules relating to ascertainment of the shares and portions of the various heirs,
which may be described as the statute of distribution. It is part of this scheme, to enact in ss 15-16, separate
general rules affecting succession to the property of a female intestate. Section 17 provides for certain
modificatins and changes in the general scheme of succession to the property of male and female Hindus in
relating to persons hitherto governed by the Malabar and Aliyasantama law.

Section 4 of the Act is of vital importance and gives overriding effect to the provisions of the Act. It
abrogates all the rules of the law of succession hitherto applicable to Hindus, whether by virtue of any text or
rule of Hindu Law or any custom or usage having the force of law, in respect of all matters dealt with in the
Act. The Act also supersedes any other law, contained in any Central or State Legislation in force
immediately before it came into operation in so far as such legislation is inconsistent with the provision
contained in the Act.

Changes brought about by the Hindu Succession (Amendment) Act, 2005

This amending Act of 2005 is an attempt to remove the discrimination as contained in the amended section 6
of The Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary
property as the sons have. Simultaneously section 23 of the Act as disentitles the female heir to ask for
partition in respect of dwelling house wholly occupied by a joint family until male heirs choose to divide
their respective shares therein, was omitted by this Amending Act. As a result the disabilities of female heirs
were removed. This is a great step of the government so far The Hindu Code is concerned. This is the
product of 174th Report of the Law Commission of India on “Property Rights of Women: Proposed reform
under the Hindu Law”. According to the amending Act of 2005, in a Joint Hindu Family governed by the
Mitakshara Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in
the same manner as the son heir. She shall have the same rights in the coparcenary property as she would
have had if she had been a son. She shall be subject to the same liabilities and disabilities in respect of the
said coparcenary property as that of a son and any reference to a Hindu Mitakshara coparcenary shall be
deemed to include a reference to a daughter. This provision shall not affect or invalidate any disposition or
alienation including partition or testamentary disposition of property which had taken place before 20 th
December, 2004.

Further any property to which female Hindu becomes entitled by virtue of above provision shall be held by
her with the incidents of coparcenary ownership and shall be regarded, as property capable of being disposed
of by her by will and other testamentary disposition. The provision was also made that where a Hindu dies
after the commencement of The Hindu Succession (Amendment) Act of 2005, his interest in the property of
a Joint Hindu Family governed by the Mitakshara Law, shall devolve by testamentary or intestate succession
under the Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as
if a partition had taken place. Further the daughter is allotted the same share as is allotted to a son. The
provision was also made that the share of the predeceased son or a predeceased daughter as they would have
got, had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased
daughter. Further the share of the predeceased son or a predeceased daughter as such child would have got,
had he or she been alive at the time of the partition, shall be allotted to the child of such predeceased child of
the predeceased son or a predeceased daughter. The most important fact is that the interest of a Hindu
Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him,
if a partition of the property had taken place immediately before his death, irrespective of whether he was
entitled to claim partition or not. This amending Act of 2005 has also clear provision that, after
commencement of the amending Act of 2005, no court shall recognize any right to proceed against a son,
grandson or great grandson for the recovery of any debt due from his father, grandfather or great grandfather
(on the ground of the pious obligation under the Hindu law), of such son, grandson or great grandson to
discharge any such debt. But, if any debt contracted before the commencement this amending Act of 2005,
the right of any creditor, to proceed against son, grandson or great grandson, shall not affect or any
alienation relating to any such debt or right shall be enforceable under the of pious obligation in the same
manner and to the same extent as it would have been enforceable as if Hindu Succession (Amendment) Act
of 2005 had not been enacted. Further for the purpose of creditors right stated above the expression son,
grandson or great grandson shall be deemed to refer to the son, grandson or great grandson who was born or
adopted prior to the commencement (9th September, 2005) of the amending Act of 2005. Such provisions
shall not be apply to a partition which has been done before 20 th December, 2004. Sections 23 and 24
omitted. Likewise special provisions relating to rights of dwelling house and the disentitlement rights of
widow’s remarrying, respectively omitted from the Act. The amending Act also in the schedule of the Hindu
Succession (Amendment) Act of 2005 added new heirs viz, son of a predeceased daughter, son of a pre
deceased daughter, daughter of a pre deceased son. Thus the amendment of Hindu Succession (Amendment)
Act of 2005 is a total commitment for the women empowerment and protection of women’s right to
property. This amending Act in a patrilineal system, like Mitakshara school of Hindu’s law opened the door
for the women, to have the birth right of control and ownership of property beyond their right to sustenance

Rights of Female over Interest of Property according to Hindu Succession

Act, 1956 and Hindu Succession Act, 2005
The Hindu Succession Act 1956 reformed the personal law of Hindus and conferred upon Hindu women
absolute and full ownership of property instead of limited rights to property as evident from Section 14(1) of
the Act which provides that any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as a full owner thereof and not as a limited owner. 
Section 14 enumerates different methods by which woman may have acquired property or would acquire
property and states that ‘property’ includes both movable and immovable property acquired by a female
Hindu by inheritance or devise, or at partition, or in lieu of maintenance or arrears of maintenance, or by gift
from any person whether relative or not, before, at or after her marriage, or by her own skill or exertion, or
by purchase or by prescription, or in any other manner whatsoever, and also such property held by her as
stridhana immediately before the commencement of this Act
Section 14 (1) confers an absolute right on the widow who acquired the property on the death of her husband
prior to the commencement of the Act and was enjoying only a limited estate under the customary Hindu
law. However, it will convert only those women’s estate into full estate provided the ownership of property
is vested on her and she has possession of the estate concerned when the Hindu Succession Act 1956 came
into force.
If the Mitakshara coparcener died leaving behind a female heir of Class I or a male heir claiming through
her, then the interest would devolve by testamentary or intestate succession in accordance with the Act and
rule of survivorship is inapplicable (Proviso to Section 6). This meant that Hindu females could not inherit
ancestral property by birth right and was excluded from joint family coparcenary under Mitakshara system.
For instance, if a joint family property was divided, then each male coparcener took his share and female got
nothing.
Section 23 of the Act of 1956 effects the proprietary position of female Hindu, as it provides that if a
dwelling-house wholly occupied by the members of the family of the deceased devolves on both male and
female heirs, then “the right of any such female heir to claim partition of the dwelling-house shall not arise
until the male heirs choose to divide their respective shares therein”. The section further provides that “the
female heir shall be entitled to a right of residence therein”, but “if such female heir was a daughter, she
shall be entitled to a right of residence only if she was unmarried or has been deserted by or has separated
from her husband or is a widow”.
Section 24 of the Principal Act deals with the women’s property rights. It was laid down under this section
that any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased of
a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as
such widow, if, on the date the succession opens, she has remarried. This section imposes remarriage as a
ground for disqualification in respect of three categories of widows, viz.,
1. Widow of a predeceased son;
2. Widow of a predeceased son of a predeceased son;
3. Widow of a brother.
After the commencement of Hindu Succession (Amendment) Act, 2005, a Joint Hindu Family governed by
the Mitakshara Law, the daughter of a coparcener becomes a coparcener in her own right, the same way as
the son heir. She enjoys the same tights as that of a son in the coparcenary property. She is subject to same
liabilities and disabilities in respect of the said coparcenary property as that of a son and any reference to a
Hindu Mitakshara coparcenary shall be deemed to include a reference to a daughter.

Further any property to which female Hindu becomes entitled by virtue of above provision shall be held by
her with the incidents of coparcenary ownership and shall be regarded, as property capable of being disposed
of by her by will and other testamentary disposition. Further the daughter is allotted the same share as is
allotted to a son.

Conclusion
By the whole study, it can be concluded that women play a significant role in the life of every individual
human being. Securing her better birthrights would mean giving better future to our own society, family and
to every individual. Developed societies/Nations are developed because they have always taken keen interest
in providing equal rights to women with that of men. Developing societies/Nations are developing because
they understand the need of the hour and in every possible way trying to give women better rights.

The statute progressively confers absolute ownership rights to women over all the property owned and
possessed by them, the fundamentality of control and heirship have been reversed by the legislation in that
the individuality of woman has, consequently, have been affected detrimentally.

Bibliography

Books

 Dr. Poonam Pradhan Saxena, Family Law II (LexisNexis, 3rd edn. 2011)