The Hindu Succession (Amendment) Bill, 2004

’6. (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2004, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) also by birth become a coparcener in her own right; the same manner as the son here;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) 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 coparcener shall be deemed to include a reference to a daughter: Provided that nothing contained in this sub-section shall apply to a daughter married before the commencement of the Hindu Succession (Amendment) Act, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by will or other testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2004, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and — (a) the daughter is allotted the same share as is allotted to a son… (etc.)

STATEMENT OF OBJECTS AND REASONS

The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property.

However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases.

The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws.

The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion.

In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of a male hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakashara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution.

Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on ‘‘Property Rights of Women: Proposed Reform under the Hindu Law’’.

5. The Bill seeks to achieve the above objects.

H. R. BHARDWAJ.
The 16th December, 2004.

For the full text of the Bill, visit:
http//:rajyasabha.nic.in/legislative/amendbills/personal—law/LV—2004.pdf

Salient elements of the bill as it stands passed:

1. The Hindu Succession (Amendments) Bill 2004 was passed in Lok Sabha on August 29, allowing women to have equal rights as men in all property, including agricultural land.

2. Daughters would also be on par with sons in joint family property. Bringing agricultural land on par with other property is a victory for campaigners as it was not included in the original Bill introduced on December 20, 2004 in Rajya Sabha. Section 4 (2) which exempts agriculture land from the Hindu Succession Act (1956) was abolished.

3. Now, the amended Hindu Succession Act overrides any gender discriminatory clauses in state level tenurial laws currently in place. The states where tenurial laws did not favour women were Haryana, Punjab, Himachal Pradesh, Delhi, Uttar Pradesh and Jammu and Kashmir. In southern states, it was much better with the tenurial laws being silent on devolution. Kerala had abolished the joint family property system.

4. The other significant benefit has been to make women coparcenary (right by birth) in Mitakshara joint family property. The female heir only had a deceased man’s notional portion. With this amendment, both male and female will get equal rights.