Legal Article

Salient features of Hindu Succession (Amendment) Act, 2005

Shivendra Pratap Singh

Advocate

High Court Lucknow

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Published on: 30 Nov, 2023

The Hindu Succession (Amendment) Act, 2005, marked a significant overhaul of the Hindu Succession Act of 1956, specifically targeting gender-based disparities in property rights. The amendment introduced several noteworthy features aimed at promoting equality, particularly for daughters within the framework of ancestral property rights.

The phrase ‘ancestral property’ is commonly heard, yet its precise meaning often eludes many. Although no statute explicitly defines this term, the Courts have consistently clarified its interpretation. In straightforward terms, ancestral property refers to an inheritance passed down through up to four generations of male lineage – encompassing one’s father, grandfather, and great-grandfather by birth.

One of the pivotal changes brought about by the amendment is the recognition of daughters as coparceners in ancestral property. Prior to this reform, daughters did not hold the status of coparceners and were consequently devoid of equal rights to ancestral property.

Furthermore, the amendment ensures that daughters now share the same rights and responsibilities as sons concerning ancestral property. This implies an entitlement to an equal share in the ancestral property alongside other coparceners, eliminating the gender-based distinctions that previously existed.

According to Mitakshara Law, the entitlement to ancestral property is inherent from birth, with the crucial condition that the property remains undivided to retain its ancestral status. It’s important to note that ancestral property excludes self-acquired property, gifts, and partition deeds from its purview.

Crucially, the amendment operates retrospectively, extending its application to all living daughters, regardless of their birthdate. Even if a father passed away before the enactment of the amendment, daughters are empowered to claim their rightful share in the ancestral property.

In modifying the Mitakshara coparcenary system, the amendment dispensed with the notion of a “notional partition.” Consequently, a daughter’s right in the ancestral property is now established by birth, obviating the necessity for a formal partition process.

Section 6 of the Hindu Succession Act underwent a substantial amendment to explicitly incorporate daughters as coparceners, ensuring their rightful place in the devolution of interest in coparcenary property.

The amendment further abolished the concept of a limited estate for females, a restriction that had previously curtailed a woman’s interest in the property. This removal guarantees that women, including daughters, enjoy full ownership rights without any encumbrances.

Recognizing the practicalities of familial arrangements, the amendment acknowledges consensual partition. This provision allows coparceners to amicably divide the property through mutual agreement, offering an alternative to formal legal partitions.

In essence, these legislative changes were instituted to foster gender equality in matters of inheritance and property rights within the Hindu community. By ensuring that daughters attain equal rights and status as coparceners in ancestral property, the amendment aligns with constitutional principles of equality and non-discrimination.