The Hindu Succession (Amendment) Act, 2005 which was passed from Rajya Sabha on 16th August, 2005, and from Lok Sabha on 29th August, 2005 and later assented by President of India, on September 5, 2005, has widely affected the concept of Mitakshara Hindu coparcenary. Hindu Succession Amendment Act, (2005) has totally damaged the concept of Mitakshara coparcenary because the daughter has been treated like a son under the Hindu Succession Amendment Act of 2005.
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She becomes entitled to a share in coparcenary by birth. She by birth becomes a coparcener in her own right in the same manner as the son she is not only conferred the coparcenary right as the son; she has been given all the right possessed by son in the coparcenary and similarly she is also bound by the similar liabilities as a son. The major achievement lies in including all daughters especially married daughters, as coparcener in joint family property.
ADVERTISEMENTS:
The 2005 Act does not touch separate property (except broadening the Class I heirs). But it includes daughters as coparceners in the Mitakshara joint family property, with the same rights as sons to shares, to claim partition and (by presumption) to become Karta (Manager), while also sharing the liabilities.
In addition, the Act makes the heirs of predeceased sons and daughters more equal, by including as Class I heirs two generations of children of predeceased daughters, as was already the case for sons. The main significant change making all daughters (including married ones) coparceners in joint family property is also of great importance for women, both economically and symbolically. Economically it can enhance women’s security by giving them birth rights in property that cannot be willed away by man. In a male-biased society where wills often disinherit women, this is a substantial gain.
Also, as noted, women can become Kartas of the property. Symbolically, all this signals that daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband’s family. If her marriage breaks down, she can return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.
Giving married daughters coparcenary rights from the start is unusual. Except Kerala which abolished joint family property and together, in other state-level amendments of Hindu Succession Act, viz., Tamil Nadu, Andhra Pradesh, Karnataka and Maharashtra—only daughter’s unmarried when the amendments were passed got coparcenary rights. Notably, however, they retained this right on subsequent marriage, and fear of extensive litigation by such married daughters have proved false.
ADVERTISEMENTS:
Under the 2005 Amendment Act, married daughters will also benefit by the deletion of Section 23 of Hindu Succession Act, 1956, since now they will have residence and partition rights in the parental dwelling house. In particular, women facing spousal violence will have somewhere to go. The only negative aspect is that allowing partition could increase the vulnerability of elderly parents. A preferred alternative would have been to bar both sons and daughters from seeking partition during their parents life-times, if the family had only one dwelling.
In Nagammal v. N. Desiyappan, the Madras High Court held that unmarried daughters of Hindu coparcener shall become coparcener by birth and unmarried daughters of deceased are to be treated equally with son and is entitled to equal share. After the amendment Act, also the right of married daughter to seek partition is absolute right and not subjected to any riders.
However, unamended Section 6 of the Act was a bar to female owning the property. Therefore by the virtue of the said section a woman remained a limited owner. Since after the amendment of Section 6 a woman has been given full coparcenary rights as a coparcener like son and she is entitled to equal share and has all the rights to dispose of her property by way of sale or testamentary disposition. Hence she has become full owner of the property possessed by her whether acquired by her before or after the Act.
Recently in Nilamdhaba Das v. Janaka Kumari Devi, the Court upheld that, after passing of the Hindu Succession Amendment Act, 2005, any partition after 20th December, 2004, devolution of interest in coparcenary property the daughter is entitled to half share in the suit property because the daughter is coparcener in the family by birth, she is entitled to allotment of the share in a coparcenary property equal with the son.
Remaining Anomalies:
ADVERTISEMENTS:
Some anomalies also persist. One stems from retaining the Mitakshara joint property system. Making daughters coparceners will decrease the shares of other Class I female heirs, such as the deceased’s widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra, the widows potential share will now equal the son’s and daughter’s.
But where the wife takes no share on partition, as in Tamil Nadu or Andhra Pradesh, the widows potential share will fall below the daughters. Abolishing the Mitakshara system altogether would have been more egalitarian, as some of us had suggested. But such abolition needed to be devolved with partially restricting the right to will (say to 1/3 of the property). Such restrictions are common in several European Countries. Otherwise women may inherit little, as will often disinherit them.
However, since the 2005 Act does not touch testamentary freedom, retaining the Mitakshara system and making daughters coparceners, while not the ideal solution, at least provides women assured shares in joint family property (if we include land holdings, the numbers benefiting could be large).