Devolution of interest of coparcenary property for daughters.
1[6. Devolution of interest in coparcenary property. —(1) On and
from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a
Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener
shall,—
(a) by
birth become a coparcener in her own right in the same manner as the son;
(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 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 of a coparcener:
Provided
that nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition
of property which had taken place before the 20th day of December, 2004.
(2) Any
property to which a female Hindu becomes entitled by virtue of sub-section (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
testamentary disposition.
(3) Where
a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005*, 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;
(b) the
share of the pre-deceased son or a pre-deceased daughter, as they would have
got had they been alive at the time of partition, shall be allotted to the
surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the
share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such child would have got had he or she been alive at the time of
the partition, shall be allotted to the child of such pre-deceased child of the
pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation.
—For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been
allotted to him if a partition of the property had taken place immediately
before his death, irrespective of whether he was entitled to claim partition or
not.
(4) After
the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall
recognise any right to proceed against a son, grandson or great-grandson for
the recovery of any debt due from his father, grandfather or great-grandfather
solely on the ground of the pious obligation under the Hindu law, of such son,
grandson or great-grandson to discharge any such debt:
Provided
that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall
affect—
(a) the
right of any creditor to proceed against the son, grandson or great-grandson,
as the case may be; or
(b) any
alienation made in respect of or in satisfaction of, any such debt, and any
such right or alienation shall be enforceable under the rule of pious
obligation in the same manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been
enacted.
Explanation.
—For the purposes of clause (a), the expression “son”, “grandson” or
“great-grandson” shall be deemed to refer to the son, grandson or
great-grandson, as the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act, 2005*.
(5)
Nothing contained in this section shall apply to a partition, which has been
effected before the 20th day of December, 2004.
Explanation.
—For the purposes of this section “partition” means any partition made by
execution of a deed of partition duly registered under the Registration Act,
1908 (16 of 1908) or partition effected by a decree of a court.]
Statement
of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]
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 Mitakshara 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.
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.
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