REPORT ON GUEST LECTURE

FAMILY LAW II - PSDA

Submitted to: Ms. HONEY SHARMA Submitted by: EESH JHAMB

BBALLB Section & Semester: 4K
Enrollment no: 03717703521

VIVEKANANDA SCHOOL OF LAW AND LEGAL STUDIES

(VSLLS)
VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES
DELHI
2023
 HINDU SUCCESSION LAWS IN INDIA

Inheritance is defined as the passing of the title of the property to the legal heirs at the death of
the head of the family. In India, the inheritance laws are governed by different religious
personal laws. For Hindus, there is a Hindu Succession Act of 1956 covering Buddhist,
Jains, Sikhs and Arya Samaj.

Section 6 of the Hindu Succession Act, 1956 talks about the property division between the
coparceners in a Joint Family under the Mitakshara Hindu School. Before the amendment in
2005, only the male descendant can have the share in the Joint Hindu Family property about
Section 6. The daughter does not have any claim on the same. Their share was only limited
to the stridhan.

Amendment made in Section 6 by Hindu Succession (Amendment) Act, 2005 passed by

the Parliament of India:

After the recommendation made in the 174th Law commission report on “Property Rights of
Women - Proposed Reforms under Hindu law”, the Hindu Succession (Amendment) Bill 2005
was introduced in the Parliament. The Amendment Act passed by the Parliament
incorporates a combination of Andhra and the Kerala model. The basic outline of the
Amendment Act is that it retains the concept of the Joint Hindu Family and introduces
daughters as coparceners. The Act abolishes the concept of pious obligation in which the son
is liable to pay the debt of his father.

Abolition of Doctrine of Survivorship

Another important amendment was made in section 6 sub clause 3 of the Hindu Succession
Act of 1956. Prior to the amendment the share of each coparcenary used to get changed on the
death and birth in the family. If there is a birth in the family then the share of each
coparcenary would decrease and if there is death of any coparcener then the share of each will
increase. The same used to happen due to the doctrine of the survivorship and in the 2005
amendment the same was removed. Therefore, as for the present law if the Hindu male dies
in a family, then his undivided interest in the Mitakshara coparcenary would not be governed
by the rule of survivorship. The same shall be governed by the testamentary or an intestate
succession.

Daughters as a Coparceners in the Joint Hindu Family

Amendment was made in section 6 of the Hindu Succession Act 1956 and a new provision
provided daughters to become coparceners of the Joint Hindu Family property by birth and
acquiring similar rights and liability to that of a son. The rights which women got in the
property depended on the status of the women in the family and her marital status, if the same
is a daughter be it married or unmarried or deserted. The same also takes into account the kind
of property to be dealt with whether it is ancestral, or self-acquired or a matrimonial
property.

The changes have been sought to be made on the touchstone of equality, thus seeking to remove
the perceived disability and prejudice to which the daughter was subjected. The daughters are
coparceners along with their male counterpart and is entitled and equal share in the coparcenary
property. The daughters are allowed to ask for the partition of the property and dispose it off
through a testamentary disposition.

1. What has been the position of women after The Hindu Succession (Amendment)
Act 2005 vis-à-vis the take of Judiciary?

Indian Parliament passed the Hindu succession Amendment Act 2005 to give equal rights to
daughters of share in the joint Hindu family property ultimately, they were also the coparcener.
Following are the questions which arose after the 2005 amendment and has been interpreted
by the different courts across the India since then:

1. Whether the amendment is retrospective, or it is prospective in nature?

2. Whether it applied to cases where the succession had already opened before the 2005
Amendment?

3. What would be the effect of the daughter being declared to be a coparcener by birth,
would her right to a share date back to the date of her birth, or would it apply to only
a female born after 2005?

Supreme Court ruling in Prakash and Ors vs Phulvati and Ors

The Supreme Court gave two basic clarifications with regard to the 2005 amendment made
in Section 6 of the Hindu Succession Act 1956. Firstly, the court held that if a partition has taken
place before 20th December 2004, then the daughter cannot seek a petition for a partition again.
Secondly the court held that a daughter can be called a coparcener if her father is alive on the
date 9th September 2005. And the act or the amendment is not applicable retrospectively, that
is the daughter can be a coparcener from 9th September 2005 and not from her birth. Also,
the
Supreme Court of India laid a precondition that if the daughter wanted to claim any right
then the father must have been alive at the time the enforcement of Amendment Act 2005 was
done. The reason behind the same was if the father had already died it is presumed that the
Succession had already taken place and the estate or his property have already been shared or
vested to his legal heirs as per the law which was in enforce prior to 2005.

Supreme Court take in the case of Danamma v. Amar

The Supreme Court held that the rights under the amendment are applicable to the living
daughter irrespective of the date on which they are born. Further the Court held that a
Section 6 is applicable to the daughter of a coparcener and the daughter by the virtue of her
birth own right in the same manner as the son. Further the court explained that the new
provision of Section 6 is same for daughter as well as son therefore in regard to a right as a
coparcener will be applicable to them equally by birth.

Final Verdict in the case of Vineeta Sharma v. Rakesh Sharma

The larger bench of the Supreme Court by referring to the various concept of the Hindu law
like the coparcenary and the Joint Hindu Family and also the obstructed and unobstructed
heritage came to a conclusion that it is not necessary for the father to be alive on 9th September
2005 in order for a daughter to inherit the property as a coparcener.

The bench explains the concept of obstructed heritage and unobstructed heritage with reference
to section 6 of the Act. In section 6 the right is given by the birth and therefore it is the
unobstructed heritage. Hence as per section 6 if the father of the daughter need not be alive
at the time of the enforcement of the amendment, she can claim her share in the partition.

The court also had dealt with the applicability of the amended section via the Amendment Act
2005. The Supreme Court held that the same is retroactive in nature based on the characteristic
or event which happened in the past or requisites which had been drawn from antecedent event.
Also, a reading of section 6(4) provides that the Act cannot be retrospective in nature.
 REPORT

Vivekananda School of Law and Legal Studies (VIPS-TC), organized a guest lecture regarding
“Hindu Succession Laws: Practical Aspects” on May 30 th, 2023 in the institute premises. The
address was delivered by Adv. Hitendra Nahata, who is currently practicing law in the High
Court of Delhi; to students of fourth semester enrolled in the BALLB and BBALLB
programmes, aspiring to learn about the pragmatic application of various laws of succession in
Hindu personal law.

In his opening remarks, Adv. Nahata laid emphasis upon the history of succession laws in India
and the role of the 174th report of the Law Commission of India on property rights of women
in removing gender inequalities under the Hindu Succession Act, 1956 which also formed
the basis of the 2005 Amendment and ultimately led to the subsequent Hindu Succession
(Amendment) Act, 2005. He claimed that the 2005 amendment has not been fully implemented
and in reality, there is no recognition of women rights when it comes to succession; while it
is high time, we should ensure that we are equal.

As the session progressed further, the dignitary highlighted various ambiguities and vacuums
present in the current Act which debarred women from claiming their share in the property and
maintaining their “equal” status as proposed by the amendment. While talking about section
6 of Hindu Succession (Amendment) Act, 2005, Adv. Nahata mentioned how even though wife,
widow and mother form part of the same sex yet their rights are not recognized as those of
daughters. It was also noted that in section 6 (1)(a) there is a vacuum regarding whether
“daughters” include illegitimate and adopted daughters as well or not. Moreover, while section
6 (1)(c) says that both sons and daughters are subjected to the same liabilities of the joint family
property, it is contradicted by section 6 (4) as it is silent towards role of daughters regarding
pious obligations as this clause has been diluted in favour of sons, grandsons, and great
grandsons. Clause (5) of section 6 is deemed problematic as well with respect to the date of
partition. The adviser also threw light on the fact that when section 8 is read in consonance
with section 15 one can infer that there exists a difference in rules of partition and devolution
of property for males and females since different sets of persons are included in both these
sections in case of intestate documents.

Many such irregularities and equivocations were underlined throughout the seminar while
going back and forth between the origin of women’s property rights in 1937 and its status in
the present date. Moving towards the end of the lecture, the landmark judgements of Prakash
V. Phulavati, the Vishaka Judgement. Vineeta Sharma V. Rakesh Sharma were discussed along
with an interactive session analysing the concepts of notional partition. Stridhan, legal heirs
in Class I Schedule and their right to seek partition, etc. The guest lecture was concluded
with a Q&A round followed by the vote of thanks delivered by Dr. Ankita Kumar Gupta.