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The Hindu Succession Act, 1956

   

The author is senior partner, ZEUS Law Associates, a corporate commercial law firm having specialisation is real estate transaction and litigation work

The Hindu Succession Act, 1956, is an act which codifies and governs the law relating to intestate succession amongst Hindus. This act brought about many significant changes in the classical law of succession amongst Hindus. However, it had one major drawback - it retained the ancient concept of Mitakshara coparcenary, which exclusively allows males to become members of a mitakshara coparcenary. (Mitakshara, one of the two schools of Hindu Law, dictated that a son, son's son, great grandson and great great grandson had a right by birth to ancestral property or properties belonging to the father and that their interest was equal to that of the father. The group having this right was termed a coparcenary). Therefore, females did not stand to inherit ancestral property unlike their male counterparts.

It was felt by the legislature that non-inclusion of daughters was resulting in discrimination against women. Gender discrimination in law against daughters meant denial of the fundamental right of equality to women, as envisioned by the Constitution of India.

Necessary changes in the law were then brought about by the Hindu Succession (Amendment) Act, 2005 which came into force on September 9,2005 (Amendment Act). Under the amendment act, daughters were accorded the status of members of mitakshara coparcenary. With this amendment, daughters have been given rights of inheritance in mitakshara coparce-nary property, thus ensuring that both sons' and daughters' rights of inheritance are at par.

The amendment act lays down that in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth, become a coparcener in her own right. She will also have the same rights and liabilities in the coparcenary property as a son. Thus, on and from September 9,2005, a daughter is entitled to a share in Mitakshara coparcenary property and is recognised a coparcener. Also, where a Hindu dies after the commencement of the amendment act, his interest in the Mitakshara coparcenary property shall be deemed to have been divided as if a partition had taken place, where a daughter is allotted the same share as a son.

These rights conferred on daughters in Mitakshara coparcenary property are absolute, except under two specific circumstances — (a) where the disposition or alienation including any partition of property has taken place before December 20, 2004; and (b) where testamentary disposition of property (that is, under a will) has been made before December 20,2004. These statutory provisions and principles were recently reiterated by the Supreme Court in the case of Ganduri Kotesh-waramma and Another vs Chakiri Yanadi and Another, decided on October 12, 2011.

Regarding inheritance of property which is owned by a Hindu woman, in the absence of her will, succession of her property shall be governed by Hindu Succession Act, 1956.

If a Hindu woman leaves behind a will, succession of her property shall be in accordance with her desire stated in the will.

Meaning of Coparcenary is the concept whereby two or more people inherit a title equally between them as a result of which none can inherit until all but one have renounced their right to the inheritance. This could arise when a title passes through and vests in female heirs in the absence of a male heir. Before they could inherit, each of the females heirs would be an heir presumptive. After they inherited, since the title could not be held by two people simultaneously, two daughters (without a brother) who inherited in this way would do so as co-parceners. In these circumstances, the title would in fact be held in abeyance until one of them renounced for herself and her successors in favour of the other. In England and Wales, passage of a title in this fashion is effected under the rules laid down in the Law of Property Act 1925.

The term coparcenary is not in use in the United States, joint heirship being considered as tenancy in common.

It is common in Hindus in India, whereby members of a (Joint) Hindu Undivided Family (HUFs) usually hold assets available through inheritance. The HUF have a corporate body like structure (evolved over thousands of years), whereby the liability of each member (co-parcenar) is limited to their undivided share in HUF. The head of the family (known as Karta, either the senior-most male member or the eldest son of the decreased karta or anybody else from the family nominated as such), is vested with authority to control decisions related to HUF. His liability towards the HUF creditors, is however, unlimited.

   
1   Cross border Joint Ventures (JV) ( Government Agencies )
  SC accepts CEC recommendations for auctioning iron ore in Ktk(Milestone)

2   The Hindu Succession Act, 1956 ( Government Agencies )
  It was felt by the legislature that non-inclusion of daughters was resulting in discrimination against women. Gender discrimination in law against daughters meant denial of the fundamental right of equality to women, as envisioned by the Constitution of India.

 
 
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