Rights of Women in Hindu Joint and Coparcenery property after 2005 Amendment

Effects of recent Judicial Pronouncements

Of all the evils for which man has made himself responsible, none is so degrading, so shocking
or so brutal as his abuse of the better half of humanity; the female sex.-Mahatma Gandhi.
Introduction
1. The rights and obligations of a Hindu are determined by Hindu Law. Law, as understood by
the Hindus, is a branch of dharma. Hindu Law has the most ancient pedigree of any known
system of jurisprudence. Its ancient framework is the law of the Smrities. Dharma is an
expression of wide import and means the aggregate of duties and obligations, which can be
religious, moral, social and legal. Hindu system of law has the most ancient pedigree of the known
system of law; it is about 6000 years old and passed through various phases. Originally, the sources
came to subserve the needs of pastoral people and now it has come to sub-serve the needs of
modern welfare society.The sources, from which knowledge of Hindu Law is to be derived, are

the indices of dharma . It would be convenient to classify the various sources under the following
two heads
1) Ancient Sources :
a) Sruti-"what is heard".
b) Smriti-"what is remembered".
c) Digests and Commentaries
d) Custom.
2) Modern Sources :
a) Judicial Decisions
b) Legislation
c) Equity, Justice and Good Conscience.
1) Ancient Sources :
a) Sruti : Sruti, literally means that which was heard, this word has taken from the word Sru
i.e. to hear. Manu has defined Sruti as follows By Sruti or what was heard from above (from
God) is meant the Veda. Sruti or Veda are believed to contain the very words of Deity (God). It
is the paramount and primary sources of Hindu Law. They are supposed to be the divine
utterances to be found in the four Vedas, the six vedangas and the eighteen Upanishads. They are
mostly religious in character and the means of attaining true knowledge and Moksha or
salvation.
Four Vedas are (i) Rigveda (praise of forces of nature), (ii) Yajurveda (Rituals etc.), (iii)
Samveda (Prayers), (iv) Atharvaveda (Magic, spell and incantation).
Six vedangas are
i) The Siksha or orthography
ii) The Kalpa or treatises dealing with rituals
iii) The Vyakaran or Grammar
iv) The Chandas or prosody
v) The Jyotish or Astronomy
vi) Nirukta or Lexicon.
b) Smrities : They are utterances and precepts of the Almighty, which have been heard and
remembered and handed down by the Rishis (sages) from generation to generation. The smrities
are divided into Primary and Secondary Smrities contained in Dharma Sutra (Prose) and
Dharmashastras (Poetry).

Gautama, Baudhyana, Apastamba, Harita, Vasistha and Vishnu are thechief Dharma Sutra writers
and Manu, Yajnyavalkya, Brihaspati and Narada belong to Dharamashastra. The exact number of
smrities is not definitely known, but Manu Smriti is the earliest one.
Although Smrities deal with rules of morality and religion, they are more secular than the
Sruties.
c) Commentaries and Digests : After the Smrities, the next step in the development of Hindu
Law was the composition of a number of commentaries (tika) and Digests (Nibandha) based
upon the Smrities. The commentaries is to interpret the law as laid down in the Smrities. The
writing of a particular Smriti is called commentary while the writing on different smrities is
called Digests. There are number of commentaries but main are
(i) Daya Bhaga by Jimutavahana
(ii) Mitakshara by Vijnamshwara
The last of the commentaries is by Nanda Pandit on the VishnuDharmasutra called the
Vaijayanti. The commentaries are now considered to be more authoritative than the original texts
themselves.
d) Custom : When human being came to live in groups, it was but natural that they should, for
harmonious group life, conform to certain patterns of human behaviour. In course of time, a
pattern of behaviour emerged and is called usage or custom. There are three types of custom
namely
(i) Local Custom : Such customs belong to some particular locality, State or District and they
are binding on the inhabitants of such place.
(ii) Class Custom : These customs are of a caste of a sect of the community or of the followers
of a particular profession or occupation, such as agriculture, trade, mechanical art and the like.
(iii) Family Custom : These customs relate to a particular family.
Essentials of Customs :
a) Ancient.
b) Invariable and continuous.
c) It should be certain.
d) Reasonable.
e) It should not be immoral.
f) Must not be opposed to public policy.
g) It must not be forbidden by any express enactment of the legislature. The following are
examples of customs, which the courts have refused to recognise
a) A caste custom, authorizing a wife to abandon her husband, and marry again without his
consent.
b) A custom permitting a husband to dissolve his marriage without the consent of the wife by
paying a fixed sum of money.
c) A custom in South India, according to which a man could marry his daughters daughter.
2) Modern Sources :
a) Judicial Decisions : During British regime in this country Hindu law was administered by
British Judges with the help of Hindu Pandits because they interpreted the Sanskrit texts for them
to apply it to the dispute and to arrive at a decision. So the decision of the higher courts become a
law for the lower courts. The latest instance of which is the Supreme Court decision in Lohar
Amrit v. Doshi Jayantilal (1960), on sons pious obligation to pay fathers debts where
Gajindragadkar, C.J. following certain dictas of the Privy Council held that the debt should be
tainted to the knowledge of the creditor. Today the doctrine of Stare decisis is part of Indian Law.

Supreme Courts decisions are binding on all courts, though Supreme Court is not bound by its
own decisions. The decisions of State High Courts are bindings on all subordinate courts of their
respective states though decisions of the one High Court is not binding on other High Courts.
b) Legislation : It has been an important factor in the development of Hindu Law. Most of them
are in the direction of reforming Hindu Law and some of them supersedes Hindu Law. Prior to
the British rule it was difficult to find fixed principles of law on several areas so British
Government passed certain Acts which have effect of changing the religious nature of Hindu law
at several instances.
Some important legislations are
i) The Indian Majority Act, 1875.
ii) The Transfer of Property Act, 1882.
iii) The Guardians and Wards Act, 1890.
iv) The Indian Succession Act, 1925.
v) The Child Marriage Restraint Act, 1929.
vi) The Special Marriage Act, 1954.
vii) The Hindu Marriage Act, 1955.
viii) The Hindu Minority and Guardianship Act, 1956.
ix) The Hindu Succession Act, 1956.
x) The Hindu Adoptions and Maintenance Act, 1956.
xi) Hindu Succession (Amendment) Act, 2005.
c) Equity, Justice and Good Conscience : In the absence of any specific law in the Smriti, or in
the event of a conflict between the Smritis, the principles of justice, equity and good conscience
would be applied. In other words, what would be most fair and equitable in the opinion of the
Judge would be done in a particular case. The Supreme Court has observed in Gurunath v.
Kamlabai1 in the absence of any clear Shastric text, the courts have the authority to decide cases
on principles of equity, justice and good conscience.
SCHOOLS OF HINDU LAW
Schools of Hindu Law emerged with the emergence of the era of commentaries and
Digests. The commentator put his own glass on the ancient texts and his authority having
been received in one and rejected in another part of India.
Originally Hindu Law was applied to the whole of India but subsequently it divided into two
main schools and some sub-schools
1. Mitakshara
a) Benaras School
b) Mithila School
c) Maharastra or Bombay School
d) Dravida or Madras School
e) Punjab School
2. Daya Baga.
.
Mitakshara School : The Mitakshara School (literally meaning a concise work) is a running
commentary on the code of Yajnavalkya, written by Vijnaneshwar (11th Century) and prevails in
all parts of India as a Supreme authority except in Assam and Bengal. But in some matter
Mitakshara prevails even in Assam and Bengal as a very authority on all questions in respect of
which Daya baga is silent. The Mitakshara is not merely a running commentary on the

Yajnavalkya Smriti but it is also a digest of practically all the leading Smritis, and deals with all
titles of Hindu Law. It may also be noted that the Mitakshara is the orthodox school. The
Mitakshara Schools is divided into five sub-schools prevailing in different parts of India. These
different school have the same fundamental principles and acknowledge the supreme authority of
the Mitakshara, but differ in matters of details, especially in the matters of adoption and
inheritance. These five sub-schools are namely
1. The Benaras School : Excepting in Mithila and the Punjab, this schools prevails in the whole
of Northern India including Orissa. The main commentaries or authorities of this schools are
Viramitrodaya, Nirnayasindhu, Dattaka Mimansa, Vivada Tandava, Subodhini and Balam-Bhatti.
2. Mithila School : This school prevails in Tirhoot and North Bihar. The traditional boundaries
of Mithila are in the North, the Nepal Border, on the South, the Ganges, on the east the river
Koshi, and on the west, the river Gandak. The main authorities are Vivada Ratnakar, Vivada
Chintamani, Smriti Sara or Smrityarthasara and Madana Parijata.
3. Bombay or Maharastra School : This school prevails in almost whole of the State of
Bombay including Gujarat, Karana and the parts where the Marathi language is spoken as the
local language. The main commentaries are Vyavhara Mayukha, Viramitrodaya, Nirnaya
Sindhu, and Vivada Tandava.
4. Dravida or Madras School : This school prevails in Southern India especially in Chennai
State. The main authorities are Smriti Chandrika, Parasara Madhaviya, Saraswati Vilasa and
Vaijayanti.
5. Punjab School : This school prevails in East Punjab and chiefly governed by customs. The
main authorities are Viramitrodaya and Punjab customs.
Dayabaga School : The Dayabaga School which is followed mainly in Bengal, is not a
commentary on any particular code, but is a digest of all the codes and written by jimutavahana
in 12th Century. The Dayabaga is digest on leading Smritis and deals only with partition and
inheritance. The Dayabaga or the Bengal school as it is sometimes called is the reformist school
of Hindu Law. This school is considered to be a dissident school of the old Benaras School and
this school propagated enlightened doctrines and theories. The Dayabaga School is not divided
into any sub-schools. The authorities of this school are Dayabaga, Dayatatva, Daya-sangraha,
Viramitrodaya and Dattaka-Chandrika.
Differences between the Mitakshara and the Dayabaga Schools : There two school's of law
differ in two main matters
1. in some matters connected with the joint family system and
2. in the rules of inheritance.
In the Mitakshara system, the right in the family property is acquired by birth, a family is a unit
and individual rights are not recognised and females have no rights of succession to family
property. This right pass to the male members by survivorship.
In Dayabaga system, the property are acquired by inheritance or by will. The share of a deceased
coparcener goes to his widow where there is no nearer heir.
The fundamental points of difference between the Mitakshara and Dayabhaga Schools of law
may be summarised as follows

Mitakshara

Dayabhaga

1) As regards Joint Property

Right to property arises by birth (of the
claimant); hence the son is a co-owner with the
father in ancestral property. After the
commencement of the Hindu
succession
(Amendment Act, 2005, the daughter of a
coparcener is also a coparcener.

Right to property by death (of the last owner);

hence son has no right to ancestral property
during father's lifetime.
b) Father has absolute power of alienation,
and so cannot claim partition or even
maintenance.
c) The interest of every person would, on his
b)Father has a restricted power of alienation, death, pass by inheritance to his heirs, like
and son can claim partition even against the widow or daughers.
father.
c) The interest of a member of the joint family
would, on his death, passed to the other
members by survivorship. Section 6 (3) of the
Hindu Succession Act, as substituted by the
Hindu Succession (Amendment Act, 2005
abolishes the principle of survivorship.
2)As regard Alienation
Members of joint family cannot dispose of Any member of joint family may sell or give
their shares while undivided
away his share even when undivided.
3) As regards Inheritance
a)The principle of inheritance is consanguinity a)The principle of inheritance is spiritual
(i.e., bloodrelationship).
efficacy (i.e., offering of pindas).
b) But cognates are postponed to
b) Some cognates, like sister's sons are
agnates.
preferred to many agnates.
4) As regards Doctrine of Factum
Valet
A fact cannot be altered by hundred texts. It is Doctrine of factum valet is fully recognised.
recognised to a very limited extent.
Besides the above points, the other basis of difference between Mitakshara and Dayabaga
arose out of their differences in the meaning of the word "Sapinda".
SCHOOLS OF HINDU LAW AND LAW PRIOR TO THE HINDU SUCCESSION ACT,
1956.
There are two schools of Hindu Law namely Mitakshara School and Dayabhaga School.
The Dayabhaga School (even known as Bengal School of Hindu Law) prevails mostly in Bengal
area, while Mitakshara School prevails in the rest parts of India. Both schools differ in two main
particulars, namely, the law of inheritance and the joint family system. Mitakshara school
recognizes two modes of devolution of property, namely, survivorship and succession. The rules
of survivorship applies to the joint family property and the rules of succession applies to property
held in absolute severalty by the last owner. However the Dayabhaga school recognizes only one
mode of devolution and that is succession.

. The Bombay school of Mitakshara recognizes not only the widow, daughter, mother,
father's mother and father's father's mother as heirs but also sister, father's sister. The law of
inheritance by female heirs is not uniform. Males succeeding take the property absolutely, while
succeeding females take limited estate in the property. If a separated Hindu under Mitakshara
dies leaving behind a widow and a brother, the widow succeeds to the property as his heir. But
the widow, being a female, does not take the property absolutely. She is entitled only to the
income of the property. She can neither make a gift of the property nor can she sell, unless there
is a legal necessity. Even after her death, the property will not pass to her heirs, but to the next
heir of her husband.
A joint Hindu family consists of all persons lineally descended from a common ancestor
and includes their wives and unmarried daughters. However, a Hindu coparcenary is a much
narrower body than the joint family and includes only those persons, who acquire by birth an
interest in the coparcenary property. They are the sons, grandsons and great grandsons. The
cardinal doctrine of Mitakshara school that property inherited by a Hindu from his father, father's
father or father's father's father is ancestral property that means unobstructed heritage as regards
his male issues. A property inherited by a Hindu from other relations is his separate property.
Hon'ble Supreme Court has laid down the incidents of coparceneryin the case of
Hardeo Rai Vs. Shakuntala Devi and Ors. reported in AIR 2008 Supreme Court 2489 and it
is held that, The incidents of coparcenership under the Mitakshara law are :
first, the lineal male descendants of a person up to the third generation, acquire on birth
ownership in the ancestral properties of such person;
secondly that such descendants can at any time work out their rights by asking for partition;
thirdly that till partition each member has got ownership extending over the entire property
conjointly with the rest;
fourthly, that as a result of such coownership the possession and enjoyment of the properties is
common;
fifthly, that no alienation of the property is possible unless it be for necessity, without the
concurrence of the coparceners,
and sixthly, that the interest of a deceased member lapses on his death to the survivors.
The most important of the coparcenary is that a female can not be a coparcener under
Mitakshara school. Even a wife, though she is entitled to maintenance out of her husband's
property, and has to that extent an interest in his property, is not her husband's coparcener. A
mother is not a coparcener with her son. There can be no coparcenery in between a mother and a
daughter. While considering the position of a woman in the family, a reference must also go to
the concept of stridhana. It can be described thus, a property which was given by the father,
mother, husband or by a brother at the time of wedding before the nuptial fire and a gift.
Stridhana is the absolute property of a woman and she may dispose of at her pleasure.
The position of a female member in the joint Hindu family was minimal in nature. She
had no independant rights and was mostly dependant on the male counterparts of the family. She
had no absolute rights in the joint family much less in the coparcenery, wherein she was not even
recognized. But certain enactments in the pre independence era did try to change this poor
scenrio and important amongst them are,
a. The Hindu Widow's Remarriage Act, 1856
A Hindu widow can not remarry under the cutomary Hindu Law. But this enactment brought a
radical change in this situation and removed the obstacle in the way of remarriage. This Act also

provides that on her remarriage, she will forfeit her right and interest in the estate and the estate
would pass to the next heirs of her deceased husband, as if she were dead. This was one of the
major reason for the failure of this .
b. The Indian Succession Act, 1925
This enactment modified the Hindu Law to some extent and Section 57, 214 and schedule III
deals with the Will executed by a Hindu and prescribe certain formalities in respect thereto. The
provisions of this Act are made applicable to the Wills and codicils made by any Hindu on or
after 01.09.1870 within the territories of Bengal and within the original jurisdiction of the High
Courts of Judicature at Madras and Bombay.
c. The Transfer of Property Act, 1882
This Act supersedes the customary Hindu Law as to transfer of property.
d. The Hindu Inheritance (Removal of Disabilities) Act, 1928
This Act was intended to remove the difficulties in the way of a Hindu relating to inheritance and
enables him to receive share in partition.
e. The Hindu Law of Inheritance (Amendment) Act, 1929
The Act admits the son's daughter, the daughter's daughter, the sister and the sister's son as heirs
next after father's father and before the father's brother.
f. The Hindu Women's Rights to Property Act, XVIII OF 1937
It gave new rights of inheritance to widows, and strikes at the root of a Mitakshara coparcenery.
It gave better rights to Hindu women in respect of property but gave her a limited estate, which is
held by her only during her lifetime and it then reverts back to her husband's heirs. She had no
right to dispose of such property.
g. The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946.
This enactment involved certain rights in Hindu married woman to claim separate residence and
maintenance in given circumstances.
These are some of the instances, which show attempts of law makers in the preindependence
era to codify the vast and vivid Hindu Law. But these attempts were not enough to recognize the
rights of the female Hindu in a family. Even after these enactments a female Hindu had no
independent and substantial rights barring few or to say fewer instances provided under the
above mentioned codified parts. They had minimal impact in uplifting the basic women's right in
the family. Post independence era did witness major overhaul in the system. While considering
the rights of women, a reference to Article 14, 15 and 16 of the Constitution of India is a must
and crucial. Article 14 guarantees equality before law and equal protection of the law. Article 15
prohibits the discrimination on the ground of religion, race, caste, sex and place of birth. Article
16 as well guarantees equality of opportunity and prohibits discrimination in matters of
employment. Still there was something missing and that came with certain major enactments.
The Hindu Succession Act, 1956
An Act to amend and codify the law relating to intestate succession among Hindus . This
preamble of the present Act speaks only of the law relating to intestate succession. The Act
applies to Hindus and received the assent of the President on 17th June 1956. The enactment
brought some radical changes in the law of succession without abolishing the joint family and
the joint family property. It does not interfere with the special rights of those who are members
of Mitakshara Coparcenery. Section 6 of the Act recognizes the rights upon the death of a
coparcener of certain of his preferential heirs to claim an interest in the property.
Every coparcener is held to be entitled to the share upon partiton. A wife can not
demand partition but if a partition does take place, she is entitled to receive share equal to that of

her son and can enjoy the same separately even from her husband. Section 6 of the Act provided
that the devolution of interest will be by survivorsip. However it also came with a proviso that if
such Hindu has left surviving female relative specified in Class I or a male relative specified in
that class, who claims through such female relative, his interest shall devolve by testamentary or
intestate succession and not by survivorship. It created the theory of notional partition.
. As such section 6 and 8 of this Act gave rights to the female relative of a Hindu to some
extent and she was entitled to succeed the interest inthe property. Section 14 of the Act has one
of the path breaking provision, whereby the female Hindu was given the absolute ownership in
the property acquired before or after the commencement of this Act. Any movable or immovable
property acquired by a female Hindu by inheritance or partition or in lieu of maintenance or by
Gift or by her own skill or in any other manner was included in the scope of this section. The
rights of female Hindu were tried to be recognized by this effort. Hon'ble Supreme Court in the
case of V. Tulasamma vs. Sesha Reddy reported in AIR 1977 Supreme Court 1944 held that,
a Hindu widow is entitled to maintenance out of her deceased husband's estate irrespective
whether that estate may be in the hands of male issues or coparceners. She can follow the estate
for her right of maintenance, even if it is in the hands of third person having notice of her rights.
But still it was a long way to go. The Act does not recognize the female Hindu as a
coparcener nor does it gives any right to her to seek partition. Her rights were still limited.
Section 23 of the Act further put an embargo on the rights of a female Hindu, wherein it is
provided that she is not entitled to claim partition in the dwelling house, until the male heirs
choose to divide their respective shares. She was given only a right of residence in such dwelling
house that too when she is unmarried or deserted by her husband or is a widow.
The enactment did provide certain rights to female Hindu and did recognize her role to
some extent. But still it did not give the female Hindu the status of coparcener and she was still
relying on the male counterparts in the family.
The Hindu Succession (Maharashtra Amendment) Act, 1994 (40 of 1994)
Five States in India had amended the law relating to coparcenary property. Four States
namely Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka conferred upon daughters a
birth right in coparcenary property.
The State amendments of Maharashtra, Andhra Pradesh, Tamil Nadu, and Karnataka
The language of these amendments is identical. The amendments of Tamil Nadu, Andhra
Pradesh and Karnataka are prospective. The Maharashtra Amendment added to the Principal Act
(the Hindu Succession Act) a new Chapter IIA entitled "Succession by Survivorship".
Despite its incorporation in a law relating to succession (the Hindu Succession Act), and
reference to "succession" in the title of the Chapter, the Amendment confers rights upon
daughters inter vivos and deals with matters of property irrespective of death of any person or of
succession.
Under Section 29A added by the Amendment, the daughter of a coparcener shall by birth
become a coparcener in her own right in a joint Hindu family governed by Mitakshara law, and
shall have the same rights and be subject to the same liabilities, as if she would have been a son.
In the event of partition, she shall be allotted the same share as that of the son, and if she is dead
at the time of partition, her children will be allotted her share. She shall hold such property with
incidents of coparcenary ownership, and shall be entitled to dispose of it by will. Adaughter
married before 22.6.1994 (the date of operation of the Act) hasbeen excluded from these
benefits. Nor are partitions effected before22.6.1994 to be reopened. And partitions effected on

or after 22.6.1994and before 15.12.1994, if not effected according to the provisions of

theAmendment, shall be rendered null and void.
Under Section 29B, if such daughter having share in Mitakshara coparcenary dies leaving
behind a child or a child of a predeceased child, the share in coparcenary property held by her at
the time of her death shall pass by testamentary succession if she has made a will disposing it,
else by intestate succession. If she does not have these relatives, the share shall pass by
survivorship to other coparceners.
The policy of these State Legislatures to confer upon daughters the hitherto denied right in
coparcenary property has been lauded widely, yet the amendments have been criticised for
ambiguous language and interpretational difficulties. Doubts have also been expressed regarding
their constitutionality, particularly in the exclusion of daughters married before such amendment
came into force. So this exclusion of married daughters again became a big hurdle for the female
Hindu and still their rights were not fully recognized.
The 174 th Report of the Law Commission of India and the Hindu Succession Amendment
Act of 2005
The Principal Act did not provide any independent right to the daughter in respect of
partition and to demand the partiton. The daughter would only be able to get a share in father's
share and the same would arise only on the death of her ancestor. This led to gender
discrimination and daughters were left out from enjoying the coparcenary property being
violative of Article 14 and 15 of the Constitution of India. Realising the dichotomy and gender
discrimination, Law Commission of India undertook the study of provisions of Hindu Law with
regards to the Laws of inheritance and with regards to the rights of daughters. An apprehension
was also raised that a whole generation of woman contemporary to passage of this important
enactment will lose out all their property rights.
The Law Commission of India submitted its 174th report to the Government of India on
5th May 2000 and it is in respect of Property Rights of Women : Proposed Reforms under the
Hindu Law. It started with,
Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of
the law made by the legislature itself. This is particularly so in relation to laws governing the
inheritance/succession of property amongst the members of a Joint Hindu family. It seems that
this discrimination is so deep and systematic that it has placed women at the receiving end.
Recognizing this the Law Commission in pursuance of its terms of reference, which, interalia,
oblige and empower it to make recommendations for the removal of anomalies, ambiguities and
inequalities in the law, decided to undertake a study of certain provisions regarding the property
rights of Hindu women under the Hindu Succession Act, 1956. The study is aimed at suggesting
changes to this Act so that women get an equal share in the ancestral property.
Keeping this background in mind, the Hindu Succession Amendment Act, 2005 was
enacted to enlarge the rights of a daughter, married and unmarried both and to bring her at par
with a son or any male member of a joint Hindu family governed by the Mitakshara law. It also
sought to bring the female line of descent at an equal level with the male line of descent,
including children of predeceased daughter of predeceased daughter. By the way of the
Amendment Act, the daughter of a coparcener has been admitted in coparcenary and after the
commencement of the Amendment Act, the daughter is a coparcener in her own right. The
daughter now has the same rights and liabilities in the coparcenary property as the son. This
means that a daughter along with a son is liable for debts of joint family. The daughter is also

entitled to dispose of her share of the coparcenery property or her interest thereof by way of a
will.
The statement of objects and reasons for amending the Principal Act is as follows :
STATEMENT OF OBJECTS AND REASONS
The Hindu Succession Act, 1956 has amended and codified the law relating to
intestate succession Hindus and gave rights which were till then unkonwn in relation to women's
property. However, it does not interfere with the special rights of those who are menbers of
Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a
deceased male in certain cases. The Actlays down a uniform and comprehensive system of
inheritance and applies, inter alia, to persons governed previously by the Murumakkattayam,
Aliyasantana and Nambudir 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, Parathana 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.
Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary
property and recognizes the rule of devolution by survivorship among the menbers of the
coparcenary. The retention of the Mitakshara coparcenary property without including the females
in it means that the females cannot inherit in ancestral property as their male counterparts to. 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 of 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.
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 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.
Section 6 of the Amendment Act has an overriding effect, so far as the partition of a
coparcenary property and succession of interest of deceased member (male or female) is
concerned. It also supersedes all customs and usages or Shashtric Law in this regard. The
amended Section 6 has an overriding effect so far as the constitution of coparcenary is
concerned. The basic concept of coparcenary is that only male members of a joint Hindu family
can constitute a coparcenary completely excluding the female members of the family. This
concept has not been substantially modified with the amendment of Section 6. However,
although the daughter has been included as a coparcener by way of this amendment, the wife,
mother and widow are still standing in queue for their admission in the coparcenary.
Recent Judicial Pronouncements and their effects
Judicial pronouncements of Hon'ble Supreme Court and Hon'ble High Courts are of vital
importance, as they lay down the interpretation of the enactment and the intention of the

legislature. Some of the most important recent judicial pronouncements are discussed to
ascertain the actual effects of the Amendment Act of 2005.
Hon'ble Supreme Court in the case of Ganduri Koteshwaramma Vs. Chakiri Yanadi
reported in AIR 2012 SC 169 , held that, The new Section 6 provides for parity of rights in the
coparcenary property among male and female members of a joint hindu family on and from
September 9, 2005. The Legislature has now conferred substantive right in favour of the
daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener
by birth in her own rights and liabilities in the same manner as the son. The declaration in
Section 6 that the daughter of the coparcener shall have same rights and liabilities in the
coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on
and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a
coparcener as if she had been a son.
Hon'ble Bombay High Court in the case of Ms. Vaishali Satish Ganorkar & Anr. Vs.
Satish Keshorao Ganorkar & Ors. reported in AIR 2012 Bombay 101. It was held that,
Ipso facto upon the passing of the Amendment Act in 2005 all the daughters of a coparcener in a
coparcenary or a joint HUF do not become coparcener . the daughters who are born after such
dates would certainly be coparceners by virtue of birth, but, for a daughter who was born prior
to the coming into force of the amendment Act she would be a coparcener only upon a
devolution of interest in coparcenary property taking place. Until a coparcener dies and his
succession opens and a succession takes place, there is no devolution of interest and hence no
daughter of such coparcener to whom an interest in the coparcenary property would devolve
would be entitled to be a coparcener or to have the rights or the liabilities in the coparcenary
property along with the son of such coparcener. A reading of Section as a whole would,
therefore, show that either the devolution of legal rights could accrue by opening of a succession
on or after 9 September, 2005 in case of daughter born before 9 September, 2005 or by birth
itself in case of daughter born after 9 September , 2005, upon them.
However another bench of Hon'ble Bomabay High Court, in various appeals before it,
disagrred with the law laid down by the Hon'ble Bombay High Court in the Vaishali Ganorkar's
case and referred the matters to a bench of two or more Judges by formulating questions of law.
Hon'ble Bombay High Court constituted a full bench on the said reference and proceeded to
decide the questions of law raised in the said matters. Hon'ble Bombay High Court in that case of
Badrinarayan Shankar Bhandari and others Vs. Omprakash Shankar Bhandari reported
in 2014(5) Mh.L.J. 434 differed from the view taken by the Division Bench in Vaishali
Ganorkar's case. It was observed that, if a daughter born prior to amendment will get right only
on the death of her father, it will postpone the conferment of valuable property rights on crores of
daughters, who may also lose everything upon the father and other coparceners disposing of the
property in the lifetime of father. The legislature did not and could not have intended such
eventuality.
The Hon'ble Bombay High Court in Bhandari's case cited supra observed that, the clause
(b) in amended Section 6 was not referred to in Vaishali Ganorkar's case. It was also observed
that, A bare perusal of sub section (1) of section 6 would, thus, clearly show that the legislative
intent in enacting clause (a) is prospective i.e. daughter born on or after 09/09/2005 will become
a coparcener by birth, but the legislative intent in enacting clauses (b) and (c) is retroactive,
because rights in the coparcenary property are conferred by clause (b) on the daughter who was
already born before the amendment, and who is alive on the date of Amendment coming into
force. Hence, if a daughter of a coparcener had died before 09/09/2005, since she would not have

acquired any rights in the coparcenary property, her heirs would have no right in the coparcenary
property. Since section 6(1) expressely confers right on daughter only on and with effect from
the date of coming into force of the Amendment Act, it is not possible to take the view being
canvassed by learned counsel for the appellants that heirs of such a deceased daughter can also
claim benfits of the amendment.
Two conditions necessary for applicability of Amended section 6(1) are: (i) The daughter of
the coparcener (daughter claiming benefit of amended section 6) should be alive on the date of
amendment coming into force; (ii) The property in question must be available on the date of the
commencement of the Act as coparcenary property.
Hon'ble Bombay High Court in this judgment held that, amended Section 6 of the Hindu
Succession Act is retroactive in the nature. Hon'ble Bombay High Court also considered the
applicability of the amended provision to daughter born prior to 17.06.1956 and after 17.06.1956
but prior to 09.09.2005. It was held that, it is imperative that the daughter who seeks to exercise
such a right must herself be alive at the time when the Amendment Act, 2005 was brought into
force. The Principal Act was applicable to all Hindus irrespective of their date of birth, when it
came into force. The date of birth was not a criterian for the application of the Principal Act. The
only requirement is that when the Act is being sought to be applied, the person concerned must
be in existence or alive. So, to ensure the rights which are already settled the Parliament has
specifically used the word On and from the commencement of Hindu Succession (Amendment)
Act, 2005.
It was observed and laid down that, the Amendment Act applies to all daughters born
prior to 09.09.2005 and who are alive on the date of commencement of that Act i.e. on
09.09.2005. The case of coparcener who died before 09.09.2005 would be governed by
preamended Section 6(1) of the Act. It is only in case of a coparcener on or after 09.09.2005 that,
the amended Section 6(3) of the Act would apply. The provisions of amended Section 6(3) do not
and cannot impligned upon or curtail or restrict the rights of daughters born prior to 09.09.2005.
Sub section (1) and (2) of amended Section 6 and sub section (3) operate in two different fields.
The ratio has paved way to many women, who are aspiring to assert their rights in coparcenery
property. It has given a huge relief to the daughters to fight with the discrimination on the ground
of gender and the consistent oppression and negation of their fundamental right of equality.
To conclude,
I raise up my voice not so I can shout but so that those without a voice can be heard, we cannot
succeed when half of us are held back. Malala Yousufzai
APPLICATION OF HINDU LAW
Before the advent of Muslims in India, the term 'Hindu' had no creedal connotation. Then it had a
territorial significance but today, it has not. Prior to the codification of some branches of Hindu
Law in 1955-1956, Hindu had not been defined. Thus, at the stage of codification we had
reached a stage when it was easier to indicate a Hindu negatively a person who was not a
Muslim, Christian, Parsi or Jew was a Hindu. The term 'Hindu' is a general term, it denotes all
those persons who profess Hindu religion either by birth or by conversion to the Hindu faith. Till
this day there is no precise definition of the term 'Hindu' available either in the statute or in any
judicial pronouncement. But it is easy to state the various categories of persons to whom Hindu
Law applies. The persons to whom Hindu Law applies may come in the following three
categories
A) Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e. Hindus by religion.

B) Any person who is born of Hindu parents (when both the parents or one of the parents is a
Hindu, Jain, Sikh or Buddhist by religion) i.e. Hindus by birth.
C) Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any
other law.
A) Hindu by Religion : In this category two types of persons fall
a) Those who are originally Hindus, Jains, Sikhs or Buddhist by religion, and
b) Those who are converts or reconverts to Hindu, Jain, Sikhs or Buddhist religion.
Any person who follows Hindu religion in any of its from or development, either by practising it
or by professing it, is a Hindu. However it is difficult to describe what is Hinduism.
Swaminarayana Sampradaya : This sampradaya prevails in Maharastra and Gujarat, founded
by Shajanand (called later Swami Narayan) was a brahimin by birth and he was the pupil of
Ramanuj. The follower of this Sampradaya were called Satsangi. In Yagna - Purusdasji v
Muldas2. a question arose whether the follower of this Sampradaya came with in the perview of
Hindu or not. Their main argument was that the Swaminarayan Sampradaya, being a non-Hindu
sect and the temple being also a non-Hindu temple, the Harijans had no right to enter it. This
Sampradaya is different from Hindu Religion. So the provisions of Hindu Law are not applied
on this temple. The Supreme Court decided that this Sampradaya is not differ from Hindu
Religion and the provisions are applied on this temple also.
Converts and Reconverts to Hinduism : The ceremonies of a conversion is prescribed by the
religion to which the conversion is sought. The Dharmashastra did not prescribe any ceremony
for conversion to Hindus Under Hindu Law, a person does not lose his faith by mere
renunciation of it or by mere professing it or practising it. Thus, if a person, Christian by faith,
becomes an admirer of Hinduism, so much so that he starts practising and preaching it, he does
not thereby become a Hindu. A non Hindu may renounce his religion and become Hindu by
conversion by any of the following three methods
1) If he performs the ceremony of conversion prescribed by the caste or community to which he
converts. Among the Hindus, it is only the Arya Samajists who prescribed a ceremony of
conversion, known as sudhi.
Morarji vs Administrator General, Madras
An European girl named Mena Renda, converted into Hindu through ceremonies, got married
with Morarji. On her death, living behind a lot of property, the question was whether she was
Hindu or not. The Court decided that she was Hindu.
2) If he express an intention to become a Hindu and actually lives as a Hindu and the community
or caste into the fold of which he is converted, accepts him as a member of that community or
caste.
Perumal vs Poonuswami
A Hindu bay named Perumal got married with a Christian girl named Annapajam. Their marriage
were held by Hindu ceremonies by their wedlock a child was born named Poonuswami. Perumal
and Annapajam's relation's were broken due to some reason so Poonuswami filed a suit
through her mother. Perumal argued that the son was illegal as their marriage was illegal due to
the Christian girl. The Supreme Court decided that marriage as well as son was legal.
Smt. Marthamma vs Moonuswami
A Christian teacher named Marthamma got married with Hindu Student, named Moonuswami
after becoming Christian. Later on Moonuswami reconverted into Hinduism and married with a
Hindu girl. Marthamma argued that Moonuswami is a Christian and their is no provision of

reconversion into Hinduism. The Court decided that reconversion is possible and marriage is
legal one.
3. If he declares that he is a Hindu and lives as a Hindu Mohandas vs Dewanwan
B) Hindu by Birth : A child whose both the parents were Hindu, Sikhs, Jain or Buddhists at the
time of his birth, is regarded as Hindu. If one of the parents is Hindu and the other is Jain, Sikh
or Buddhist, then also the child will be Hindu. It makes no difference that such child does nor
does not profess, practise or have faith in the religion of its parents. If after the birth, both or one
of the parentsthe exercise of parental right the child is also converted into the religion in which
the parent or parents have converted (In case of legitimate child this right is on father, and in
illegitimate case is on the mother).
A person will be Hindu if at the time of his birth one of the parents was Hindu and the child is
brought up as a member of the tribe, community, group or family to which Hindu parent
belonged at the time of his birth. If both the parents of a child are not Hindu and the child is
brought up as a Hindu, the child will not be Hindu unless become converted Hindu.
C) Who are not Muslims, Christians, Parsis or Jews : Any person who is not a Muslims,
Christians, Parsis or Jews and who is not governed by any other law, is governed by Hindu law,
unless it is proved that Hindu law is not applicable to such a person (Raj Kumar vs Barbara7).
Those persons who are atheists or who believes in all faith, or in conglomeration of faiths, may
fall under this class. A Muslim who has renounced his religion and did not adopt any other
religion will be considered as Hindu.
Applicability : It was the old belief that the Hindu Law applies only to those who are the
followers of the rigid orthodox traditions of Hindu religion but the case of Ram Bhagwan Koer v
F.C. Bose8 has settled a rule that a Hindu does not cease to be governed by Hindu Law because
of the lapse from orthodox Hindu practice or by deviation from its central doctrines.
Under the Codified Law : Section 2 of the Hindu Marriage Act 1955, provides that the Act
applies to the person listed below (and similar provisions are also made in the other enactments
of Hindu Law)
1) Application of Act This Act applies
a) to any person who is Hindu by religion in any of its forms of developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
b) to any person who is a Buddhist, Jaina or Sikh by religion; and
c) to any other person domiciled in the territories to which this Act extends, who is not a Muslim,
Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been
governed by the Hindu law or by any custom or usage as part of that law in respect of any of the
matters dealt with herein if this Act had not been passed.
Explanation The following persons are indus, Buddhists, Jainas or Sikhs by religion, as the case
may be
a) any child, legitimate, or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or
Sikhs by religion;
b) any child, legitimate, or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh
by religion, and who is brought up as a member of the tribe, community, group or family to
which such parent belongs or belonged; and
c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall
apply to the members of any Schedule Tribes within the meaning of clause (25) of Article 366 of

the Constitution, unless the Central Government, by notification in the Official Gazette,
otherwise directs.
3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person
who, though not a Hindu by religion is, nevertheless, a person to whom this Act applies by virtue
of the provisions contained in this section.
The following persons are Hindus, Buddhists, Jain or Sikh by religion
1. Any child legitimate or illegitimate, both of whose parents are Hindus, Jain, Sikhs or
Buddhists by religion.
2. Any child legitimate or illegitimate, one of whose parents is a Hindu, Jain, Sikhs or Buddhists
by religion and who is brought up as a member of the tribe, community group or family to which
such parents (either the father or mother) belongs or belonged and
3. Any person who is a convert or reconvert to the Hindu, Jain, Sikh or Buddhists religion.
Person to whom Hindu Law Applies (Uncodified Law) :
1. Hindus by birth and also to Hindus by conversion in any of its forms or developments
including Brahmans, Arya Samajists etc.
2. Illegitimate children whose parents are Hindus.
3. Illegitimate children born of a Christian father and a Hindu mother and brought up as Hindus.
4. Buddhists, Jain, Sikhs and Nambudry Brahmans except, so far such law is varied by custom
and to lingayats who are considered as Shudras.
5. Sons of Hindu dancing girls of Naik caste converted to Mohammedanism where the sons are
taken into the family of Hindu grandparents and are brought up as Hindus.
6. A Hindu by birth who having renounced Hinduism, has reverted to it after performing the
religions rites of expiation and repentance, or even without a formal ritual or re-conversion when
he was recognised as a Hindu by the community.
7. Brahmos and Arya Samajists, and to Santhals of Chhota Nagpur, and also to Santhals of
Manbhum except so far as it is not varied by custom.
8. A Hindu who has made a declaration that he is not Hindu for the purpose of Special Marriage
Act 1872 and
9. A person who is born a Hindu and has not renounced the Hindu religion, does not cease to be a
Hindu merely because he departs from the standard of orthodoxy in matters of diet and
ceremonial observances.
JOINT FAMILY
Joint Hindu Family : A joint and undivided Hindu family is the normal condition of Hindu
society. A joint Hindu family consists of all persons who are descended from a common ancestor,
and includes their wives and unmarried daughters. On marriage, a daughter ceases to be a
member of her father's family, and becomes a member of her husband's family.
Ordinarily an undivided Hindu family is joint not only in estate but also in food and worship.
However the existence of joint estate is not absolutely necessary to constitute a joint family, and
it is possible to have a joint Hindu family which does not own any estate. But, if joint estate
exists and the members of that family become separate in estate, the family ceases to be joint.
Hindu Coparcenary : A Hindu coparcenary is a much narrow body than a joint family. It
includes only persons who acquire by birth an interest in the joint or coparcenary property. Such
persons are the sons, grandsons and great grandsons of the holder of the property for the time
being. It includes three generations of males (in unbroken descent) next to the holder of the
property.

Before the Hindu succession (Amendment) Act, 2005, Mitakshara Coparcenary consisted of only
male members and females were not members of it. Hindu succession (Amendment) Act, 2005
has substituted Section 6 of the Hindu Succession Act and has made the daughter of a Mitakshara
coparcener, a coparcener in her own right in the same manner as the son and the same rights
subjects to the same liabilities as that of a son.
Joint Hindu Family Property or Corarcenary :
1) Ancestral Property : A property which is inherited from a father, father's father or father's
father's father. The property can be acquired by son, grandson, great grandson and also by a
daughter. The property inherited from any person, male or female other than the three immediate
ancestors, is not ancestral property.
2) Property Jointly Acquired by the Members of the Joint Family : Where property has been
acquired by the members of joint Hindu family by their joint labour either in a business or in
profession, with the aid of joint family property it becomes joint-family or coparcenary property.
It was also held by Bombay High Court that property acquired by the joint labour of the
members, evern without the aid of joint-family funds, is presumed to be joint family property in
absence of any indication of an intention to the contrary.
3) Property Acquired with the Aid of Joint-Family Funds : Property acquired with the aid and
assistance of joint-family property is also joint. Thus accumulations of income, i.e. rent etc. of
the joint-family property, property purchased out of such income, the proceeds of sale or
mortgage of such property, and property purchased out of such proceeds are also joint-family
property.
4) Property Thrown into the Common Stock : If any member of a joint-Hindu family has
voluntarily put his self-acquired property into the joint funds with the intention to abandoning all
separate claims to it, would be joint Hindu-property.
Separate or Self-Acquired Property : Property which is not joint is called separate or selfacquired property. A Hindu, even, he be joint, may possess separate property. He is the sole
owner of such separate property and has exclusive possession and ownership over it.
1) Property acquired by his own exertion and not by joint labour with other members.
2) Property inherited from any person other than his father, grandfather or great grandfather.
3) Property obtained by as a share of partition provided he has no issue.
4) Property obtained by gift of ancestral movable property made by the father through affection.
5) Property obtained by grant from the Government.
6) Marriage gift.
The Hindu Gains of Fearing Act, 1930 : Prior to this Act, income earned by a member of joint
family by the practice of a profession or occupation requiring a special training imparted at the
expenses of the joint family property was considered to be joint family property.
Rights of Coparceners :
1) Community of interest and unity of possession.
2) Share of Income.
3) Joint possession and enjoyment.
4) Right to restrain improper acts.
5) Right of maintenance and other necessary expenses.
6) Right to enforce partition
7) Right to account
8) Right to alienation.
Manager (Karta) : Property belongs to a joint family is ordinarily managed by the father or

another senior male member of the family. Under Hindu Law the manager of a joint family is
called the Karta. But such a senior member may give up his right of management, and a junior
male member of the family may be appointed as the Karta with consent of the other members.
But a minor member of the family cannot be a Karta in the absence of any major member, the
court may appoint a guardian for the whole of the joint family property. He is not the partner,
principal or agent of the family, it is more like that of a trustee.
Power of the Karta :
1) Power over the income and expenditure.
2) Power to manage joint-family business.
3) Power to contract debts.
4) Power to acknowledge debts.
5) Power to start a new business.
6) Power to refer disputes to arbitration.
7) Power to compromise.
Duties and Liabilities of the Karta :
1) Duty to render accounts
2) Duty to realise debt due to the family
3) Duty to spend reasonably
4) Duty not to start a new business without the consent of the coparceners
5) Duty not to alienate coparcenary property without legal necessity or for he benefit of the
estate.
Alienation of Coparcenary Property : Under Hindu Law only the following persons have the
power to alienate the coparcenary property.
1) Alienation by the manager or Karta
2) Alienation with the consent of all the coparceners
3) Alienation by the father as Karta
4) Alienation by the sole surviving coparcener.