Changes after Amendment Act, 2005 in The Hindu Succession Act, 1956

The Hindu Succession (Amendment) Act, 2005

Changes brought after the Amendment Act of 2005

a)     Abolition of Survivorship and retention of notional partition

b)     Daughter has now made coparcener by birth

c)     Abolition of Pious Obligation

d)     Deletion of provisions exempting application of act to agricultural holdings

e)     Introduction of 4 new heirs in class I category

These changes are discussed below:

1.     Abolition of Survivorship and retention of notional partition

Survivorship (Old law) – if a person dies then his property was distributed among the surviving male heirs of the person and the widow of the died person has not received the share in his property.

But after the commencement of The Hindu Women’s Right on Property’s Act, 1938, the widow got the limited interest (inalienable) in the property of the died person up to she survives and after the death of the widow then the property was devolved.  

And after the commencement of The Hindu Succession Act, 1956, survivorship applied where male Hindu died leaving behind the undivided interest in coparcenary property and did not leave behind any class I female heir or son of predeceased daughter but if any of abovementioned person is living then the notional partition was applying there.

After the 2005 amendment the doctrine of notional partition will apply wholly without any condition and the doctrine of survivorship was abolished.   

Notional Partition – a presumption is created that the partition of the property was taken place just before the death of a person and the property will divide according to the rules of succession.

2.     Daughter has now made coparcener by birth 

Daughter has now become the coparcener by birth, she can claim his right in the coparcenary property upon partition. But if the partition was already taken place before 20th December, 2004 by the registered document or decree of the court then the daughter can’t claim his right or she cannot claim the reopening of the partition.   

In case of Prakash v. Phulwati (2016),[1] the Supreme Court held that daughters will be considered as coparcener only when her father was alive on the date of enforcement of the act i.e. 9th September, 2005. 

In case of Danamma v. Amar (2018),[2] the Supreme Court took a contrary view from the case of Prakash v. Phulwati (2016), and held that sec, 6 confers coparcenary right in favor of daughters from the date of their birth and not from the date of enforcement of the act and therefore daughters can claim her share in the coparcenary property even if the father was not alive on the date of the enforcement of the act.

In case of Vineeta Sharma v. Rakesh Sharma (2020),[3] the Supreme Court held that Amendment act is retrospective in nature. It confers coparcenary right to daughter from the date of birth and not from the date of enforcement of the act. Thus, daughter will be considered coparcener by birth. Secondly, since the coparcenary right is by birth, it is not necessary that the father should be living on the date of enforcement of the amendment act. Thus, irrespective of the fact whether father is alive or died on 9th September, 2005, the daughter can claim her share in property through partition.

3.     Abolition of Pious Obligation

Obligation on male members within the 4 degrees that if a have to pay off the debt if a person’s father, grandfather or great grandfather has taken debt for religious or pious purpose. If the debt was not paid, then the creditor can file the suit for the recovery of his debt. But now this obligation is removed after the amendment. If the debt was taken after the commencement of this 2005 act, i.e. 9th September, 2005, then the creditor has no right to claim such debt taken for pious obligation. But if the debt was taken before the 9th September, 2005 then the creditor can claim it from the son, grandson, or great grandson, but only from those who born before 9th September, 2005.

4.     Deletion of provisions exempting application of act to agricultural holdings

The 2005 Amendment Act has deleted the provisions which made Hindu Succession Act inapplicable for succession of agricultural holdings. Now the Hindu Succession Act will apply on both agricultural as well as non-agricultural holdings. However, if the agricultural holding in respect of which succession is to take place is located in the state which has passed a specific law dealing with inheritance of agricultural land, then that specific law shall prevail over Hindu Succession Act.

5.     Introduction of 4 new heirs in class I category

By the Hindu Succession Act, 2005, the following persons have been added as heirs in the branch of predeceased daughter-

·       Son of a pre-deceased daughter of a pre-deceased daughter.

·       Daughter of a pre-deceased daughter of a pre-deceased daughter.

·       Daughter of a pre-deceased son of a pre-deceased daughter.

·       Daughter of a pre-deceased daughter of a pre-deceased son. 

References

[1] AIR 2016 SC 769.

[2] (2018) 3 SCC 343.

[3] Civil Appeal No. 32601 of 2018.