The Hindu Succession Act, 1956 was enacted to amend and codify laws relating
to intestate or unwilled succession among people belonging to religious groups
such as Hindus, Buddhists, Jains, and Sikhs. Enacted on 17 June, 1956, this Act
lays down a uniform and comprehensive system consolidating both inheritance and
succession and combines all the aspects of Hindu succession and brings them
within its scope.
Background of the Act
Before sanctioning of the Hindu Succession Act, 1956, the people of Hindu
Community were covered under Shastric and Customary law, varying from region to
region. Dayabhaga school of law was pervasive in Bengal and the nearby areas,
whereas on the other hand Mitakshara school of law was pervasive in the rest of
India. Under the Mitakshara School of Hindu Law, women in a joint Hindu family
had no right of inheritance to property and were merely conferred the right of
maintenance or sustenance.
In a Hindu Joint Family, the properties of the family were held as a coparcenary
property with only the male members of the family, who were conferred the right
to the property by virtue of birth and such interest in the coparcenary property
kept varying depending upon the death or birth of a male member. The property of
a male coparcener passed by survivorship rule, on his death in the Mitakshara
School of Hindu Law. No female was regarded as a member of the coparcenary
though, she was a member of the Hindu Joint family.
The Hindu Law of Inheritance, 1929 was the earliest piece of legislation,
bringing women into the scheme of inheritance. It conferred inheritance rights
on three female heirs : son's daughter, daughter's daughter and sister, which
created limited restriction on the rule of survivorship in practice earlier.
The Constitution of India came into force on 26 January 1950 which incorporated
Articles 14, 15(2) & 15(3) along with 16 which removed discrimination against
women and made equal treatment of women as a part of the fundamental rights. To
achieve this objective, the Parliament enacted the Hindu Succession Act, 1956.
A small Hindu law Committee known as Rau Committee was constituted by the
Government with B.N Rau, a judge of Calcutta High Court as its Chairman and
three other lawyers as its members which toured the country and gathered
evidence from representative bodies and leaders of the Communities in the
country. The Committee was accompanied by the assistance of leading lawyers and
The Committee advocated a Hindu Code, which was a blend of the finest elements
of the various schools of Hindu law prevalent in the Country. The Code
recognized the equality of status of men and women before the law with
appropriate obligations and rights. The Principal act however, did not provide
any rights to the daughters in terms of the partition of the property or any
rights to demand partition of the property or even claim a share in the
The only conferred right was to get a share in the father's share in the
coparcenary property and the same would arise only on the death of her ancestor
(coparcener). Though the Act claimed to be enacted to amend and codify the
intestate laws among Hindus and gave rights of testamentary disposition to Hindu
males in respect of his properties including his coparcenary share, Section 6 of
the Act retained substantially the Rule of survivorship
This Section also provided that the right of the male Hindu at the time of his
death in the coparcenary property would devolve by survivorship but the proviso
provided that if the deceased coparcener has any female relatives specified in
Class I of the Schedule to the Act, then the property will devolve by
succession. Here is where the question on gender inequality comes into the
Post the Enactment of the Hindu Succession Act, 1956
The Hindu Succession Act, applied to Mitakshara and Dayabhaga schools, along
with persons in certain parts of Southern India, who were previously governed by
the Marukkatayam, Aliyasantana and Nambudri systems of Hindu Law in India. When
the Act came into force, it provided for the devolution of interest in
coparcenary property under Section 6 which pronounced that at the death of a
male Hindu, who had an interest in a Mitakshara coparcenary property, his
interest would devolve by survivorship and not according to rules of succession
laid down in the Act. The two systems of inheritance to the separate or
self-acquired property of a male dying intestate, prevailing under Mitakshara
and Dayabhaga Schools before the passing of the Act was abolished and a uniform
system was introduced under Section 8 of the Act.
Prior to the passing of the Act, the Mitakshara School recognized three classes
of heirs namely Gotraja Sapindas, Samanodakas and Bandhus. Similarly, three
classes of heirs, viz. Sapindas, Sakulyas and Bahndus were recognised by the
Dayabhaga school. The Act abolished these classifications and divided the heirs
into four classes, Heirs of Class I, Heirs of Class II, Agnates and Cognates.
The Hindu women's limited estate was abolished by the Act, and Section 14 stated
that any property possessed by a Hindu woman, howsoever acquired, was to be held
by her as her absolute property, and she was given full power to deal with it
and dispose of it by will as she wished. Under the uncodified law earlier,
succession to stridhan varied according to a woman being married or unmarried
and if married, then according to the form of marriage. It also varied according
to the source of stridhan.
Further, the rules of descent of different schools also varied. All of this was
abolished and Section 15 of the Act laid down a uniform scheme of succession of
property of female Hindus who died intestate after the commencement of the Act.
Apart from other positive changes that the Act made, the most important change
was that the mode of succession was made plain and simple and several doubts
cast by conflicting opinions of the Privy Council and the various High Courts
Irrespective of all the changes made and the procedures and systems being made
uniform, the Act was still lacking equality with reference to male and female
heirs and their rights especially because of Section 6 of the Act which
incorporated the Survivorship rule and did not recognize females as coparceners
. This meant that even the codified law did not address the conventional
discrimination against women.
Although few colonial-era laws recognised and thereby conferred some limited
rights of inheritance on the daughters in respect of intestate, non-coparcenary
property in the Hindu Law of Inheritance (Amendment) Act, 1929 and on the
widows, whose right to succeed to husband's property was equated to that of the
son in the Hindu Women's Rights to Property Act, 1937 yet women were denied
A Hindu joint family consists of lineal descendants of a common ancestor. In
other words, a male head and his descendants, including their wives and
unmarried daughters. A coparcenary is a smaller unit of the family jointly
owning a property. A coparcenary comprises propositus
, i.e a person at
the top of a line of descent, and his three lineal descendants : sons, grandsons
and great-grandsons. Coparcenary property is named thus because the co-ownership
is marked by unity of possession, title and interest
Section 6 of the Act made provision of devolution of interest in a coparcenary
property of a person who died intestate. The law stated that in case of a person
dying intestate leaving only male heirs, the coparcenary property was to be
devolved according to his male heirs viz. sons, grandsons and great-grandsons.
Such devolution was to be inherited by only male heirs that were not more than
three degrees to the coparcener.
This was defined as the survivorship rule. It was absolutely rare for a family
to be complete without a female heir but in instances where this occurred, the
law had no effect. Therefore, the said property of the coparcener was to be
divided equally among the male heirs and in terms of survivorship and females
especially the wife of coparcener was not entitled to any share in the
devolution of the property. Simply, the section regarded the males as
coparceners but daughters and female heirs were not regarded as coparceners.
This formed the basis of the Amendment of 2005.
Why was an Amendment needed?
As per the Law Commission Report, coparcenary constituted a narrower body of
persons within a joint family and consisted of father, son, son's son and son's
son's son. The ancestral property continued to be governed by a wholly
patrilineal arrangement, where the property descended through the male line only
because it was only the male members of a Joint Hindu Family who had an interest
by birth in the coparcenary property, in contradiction with the absolute or
separate property of an individual coparcener, which devolved upon surviving
coparceners in the family, according to the rule of devolution by survivorship.
Since a woman was not entitled to be a coparcener, she was not conferred the
right to a share in the ancestral property by birth. Section 6 of the Act,
although did not interfere with the special rights of those who are members of a
Mitakshara coparcenary yet without abolishing joint family property, recognised
the right upon death of a coparcener, of certain members of his preferential
heirs to claim an interest in the property that would have been allotted to such
coparcener if a partition of the joint family property had in fact taken place
immediately before his death.
Thus Section 6 of the Act, in the process of recognising the rule of devolution
by survivorship among the coparceners, made an exception to this rule in the
proviso. According to the proviso, if the deceased left a surviving female
relative specified in Class I of the Schedule I or a male relative specified in
that Class who could claim through such a female relation, the interest of a
deceased in Mitakshara coparcenary property would devolve by testamentary of
intestate succession under the Act and not as survivorship.
Thus non-inclusion of women as coparceners in the joint family property under
the Mitakshara system as reflected in section 6 of the Act relating to
devolution of interest in coparcenary property, had been under criticism for
being violative of the equal rights of women guaranteed under the Constitution
in relation to property rights. This meant that the females could not inherit
ancestral property like the males could. If a joint family got divided, each
male coparcener was entitled to his share and females, nothing.
Only when one of the coparceners would die, a female would get a share of his
interest as an heir to the deceased. Further as per the proviso to section 6 of
the Act, the interest of the deceased male in the mitakshara coparcenary
devolved by intestate succession firstly upon the heirs specified in Class I of
Schedule I. Under this Schedule there existed only four primary heirs, namely
son, daughter, widow and mother.
For the remaining eight, the principle of representation would go up to two
degrees in the male line of descent. But in the female line of descent, it would
go only upto one degree. Thus the son's son's son and the son's son's daughter
would be entitled to a share but a daughter's daughter's son and daughter's
daughter's daughter would not.
Again as per section 23 of the Act married daughter was denied the right to
residence in the parental home unless widowed, deserted or separated from her
husband and female heir was disentitled to ask for partition in respect of
dwelling house wholly occupied by members of joint family until the male heirs
chose to divide their respective shares therein. These provisions were
identified as major sources of disabilities thrust by law on women.
Another controversy was the establishment of the right to will the property. A
man had full testamentary power over his property including his interest in the
coparcenary. On the whole the Hindu Succession Act gave a weapon to a man to
deprive a woman of the rights she earlier had under certain schools of Hindu
Law. The legal right of Hindus to bequeath property by way of will was conferred
by the Indian Succession Act, 1925.
The Amendment of 2005
On September 9, 2005, the Hindu Succession Act, 1956 was amended. Earlier, once
a daughter was married, she ceased to be part of her father's Hindu undivided
Family or the Joint Hindu Family. According to Hindu Succession Amendment Act,
2005, every daughter, married or unmarried, was to be considered as a member of
her father's Hindu Undivided Family and could even be appointed as 'karta' (who
manages) of his Hindu Undivided Family property. The amendment granted daughters
the same rights, duties, liabilities and disabilities that were earlier limited
A coparcenary could earlier comprise a son, a father, a grandfather, and a great
grandfather however the amendment recognised the women of the family as
coparcener. Under the coparcenary, the coparceners acquire a right over such a
property by birth. The coparceners' interest and share in the property
fluctuates on the basis of the number of members according to the birth and
death of such members in the coparcenary.
Both ancestral and self-acquired property can be regarded as a coparcenary
property. However, in case of ancestral property, it is equally shared by all
members of the coparcenary, whereas in case of a self-acquired property, the
person is free to manage the property according to his own will. According to
the law, a coparcener could file a suit demanding partition of the coparcenary
property but not a member. Thus, the daughter, as a coparcener, could now demand
the partition of her father's property.
Thus to point out, the act amended:
The provision which excluded daughters from coparcenary property
The amended provisions of section 6(1) provide that the daughter is conferred
with certain rights. Section 6(1)(a) makes a daughter a coparcener “in her
and "in the same manner as the son.
", by birth. Section
6(1)(a) contains the concept of the unobstructed heritage of Mitakshara
coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same
rights in the coparcenary property "as she would have had if she had been a
The conferral of right is by birth, and the rights are given in the same manner
with incidents of coparcenary as that of a son and she is treated as a
coparcener in the manner similar with the same rights as if she had been a son
at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the
provisions are of retroactive application i.e they confer benefits based on the
antecedent event, and the Mitakshara coparcenary law would be considered to
include a reference to a daughter as well as a coparcener.
At the same time, the legislature provided savings by adding a proviso that any
disposition or alienation, if there be any testamentary disposition of the
property or partition which has taken place before 20.12.2004, the date on which
the Bill was presented in the Rajya Sabha, shall not be invalidated.
Daughter of a coparcener shall by birth become a coparcener in the same
manner as the son:
Section 6(4) makes a daughter liable in the same manner as that of a son. The
daughter, granddaughter, or great granddaughter, as the case may be, is equally
bound to follow the pious obligation under the Hindu Law to discharge any such
debt. The proviso saves the right of the creditor with respect to the debt
contracted before the commencement of Amendment Act, 2005. The provisions
contained in section 6(4) also make it clear that provisions of section 6 are
not retrospective as the rights and liabilities are both from the commencement
of the Amendment Act.
Coparcener property shall be allotted to the daughter as is allotted to sons if
a Hindu dies
A daughter is entitled to demand a partition of the Hindu Undivided Family
The proviso to section 6(1) and section 6(5) saves any partition effected before
20.12.2004. However, Explanation to section 6(5) recognises partition effected
by execution of a deed of partition duly registered under the Registration Act,
1908 or by a decree of a court. Other forms of partition have not been
recognised under the definition of 'partition' in the Explanation.
A daughter is also entitled to dispose of her share in the coparcenary property
at her own will.
If a female coparcener passes away before partition, then the heirs of such a
coparcener would be eligible for allotment assuming that a partition had taken
place immediately before her death.
The confusion arose and continued regarding the interpretation of Section 6 of
the Hindu Succession Act.
The confusion was over the issue of whether the amended section of the Hindu
Succession Act demanded the father to be alive on or after the date of the
enforcement of the Amended Act for it to be applicable to the females. The
question was that if the father was dead before such commencement, i.e before
9th September 2005, will a daughter still be regarded as a coparcener to his
property in such cases. Two cases created an era of confusion on the
interpretation of Section 6 of the Hindu Succession (Amendment) Act 2005.
Prakash v. Phulavati 
In the case of Prakash and others v. Phulavati
(2016), the bench of the
Apex court comprising Anil Dave J. and A.K Goyal J. opined that “The rights of
coparceners under amendment act 2005 are applicable to living daughters of
living coparceners as on 9th September 2005, irrespective of the birth date of
daughters.” It meant that if a coparcener (father) passed away prior to
September 9, 2005, then in such cases the living daughter of the coparcener
would have no right in the coparcenary property.
Whilst the correctness of this view was debatable, it ensured certainty in
proceedings before the courts. If a daughter made a claim for partition of joint
family property, her father ought to be alive as of September 9, 2005; if not,
she was not entitled to any share in the coparcenary property.
The apex court drew the distinction between the Section 6 of Hindu Succession
Act and the Amendment Act and said that even after the act expressly not
mentioning the retrospective application, it would not be appropriate to
consider it as social legislation and apply it retrospectively. Section 6 is not
retrospective in operation, and applies when both coparceners and his daughter
were alive on the date of commencement of Amendment Act, September 9th 2005.
The provision contained in the Explanation to section 6(5) provided for the
requirement of partition for substituted section 6, to be a registered one or by
a decree of a court, and can have no application to a statutory notional
partition on the opening of succession as provided in the unamended Section 6.
The notional statutory partition is deemed to have taken place to ascertain the
share of the deceased coparcener which is not covered either under the proviso
to section 6(1) or section 6(5), including its Explanation. The registration
requirement is inapplicable to partition of property by operation of law, which
has to be given full effect. This judgement gave a picture to the interpretation
of Section 6 of the Act. The Controversy rose further after the famous judgement
in Danamma v. Amar.
Danamma v. Amar 
The Supreme Court in this case held that if the father passed away prior to date
September 9, 2005 (the date on which amendment came) and a prior suit is pending
for partition by a male coparcener, the female coparceners will be entitled to a
share (Although same was not entitled in Phulavati's case
case was peculiar. The father (male coparcener) passed away in 2001 and
thereafter one of the sons initiated proceedings for partition of joint family
property in the year 2002. The son claimed that the daughters were not entitled
to a share in the joint family because according to the precedent, the daughter
was not entitled to the same if the father passed away prior to coming into
force of the Amendment Act 2005.
The Trial Court and the High Court accepted the contention and relying on the
precedent concluded that the daughters were not entitled to a share in joint
family property. This conclusion was in consonance with Phulavati's case. The
decision was then challenged before the Supreme Court. The Supreme Court
considered Phulavati's case and agreed with the findings, yet applied a
different principle to grant relief to the daughters.
The Supreme Court applied the principle that partition is not complete with
passing of a preliminary decree and attains finality only with the passing of
the final decree. The Supreme Court held that although the suit was filed in the
year 2002, the preliminary decree was passed in the year 2007 and therefore, the
daughters were entitled to the benefit of the Amendment Act.
While holding so, the Supreme Court relied on Ganduri Koteshwaramma & Anr. v
Chakiri Yanadi & Anr
 , where the Court held that as per the amended
Section 6 of the Hindu Succession Act, the daughter's rights in a coparcenary
property are not lost merely because a preliminary decree has been passed in a
suit for partition. In doing so, the Supreme Court lost sight of possibly the
most important finding in Phulavati's case, which is that it is only female
coparceners whose father was alive as of 09.09.2005 who are entitled to the
benefit of the Amendment Act.
The amended provisions of Section 6 confer full rights upon the daughter
coparcener. Any coparcener can claim a partition in the coparcenary property and
it includes the daughters. The father, in the said case, died in the year 2001,
leaving behind two daughters, two sons, and a widow. Coparcener's father was not
alive when the amended section 6 came into force, still the daughters, sons and
the widow were directed to have 1/5th share apiece.
These two judgements had confused the Courts as well as the people governed by
the Law in question. This Confusion was finally cleared in Vineeta Sharma v.
Rakesh Sharma & Ors.
The Landmark Judgement of Vineeta Sharma v. Rakesh Sharma & Ors
The Court was to verify the correct interpretation of Section 6 of the Hindu
Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 in
view of the conflicting verdicts rendered in: Prakash v. Phulavati, and
Danamma v. Amar
In Vineeta Sharma v. Rakesh Sharma & Ors
one of the questions, for
instance, was that:
- Since daughters were declared coparceners in 2005, for the first time,
can a daughter assert those rights even in cases where a partition had
already taken place prior to 2005?
- Would the result be any different, if that partition was merely an oral
- Would such an oral partition be sufficient to deprive the daughter of
- Also, there were doubts as to whether it was necessary for the father of
a daughter to be alive in 2005 (when the amendment came in) for the daughter
to be able to successfully seek her share and assert her rights as a
- Or could she seek a partition even if her father had passed away before
The Vineeta Sharma verdict operates on the premise
that the intent of Section 6 of the Act as amended by the 2005 amendment, was to
neither confer its benefits to female successors prospectively nor for that
matter retrospectively, but it was to confer benefits retroactively.
legislation applies retroactively when it prescribes benefits conditional upon
an eligibility, that may arise even prior to the passing of such legislation.
While explaining the concept of retroactive application vis-à-vis the 2005
amendment, it was held that the 2005 amendment makes available to female
successors, the benefit of succession on par with that of her male counterparts
based on an antecedent event, i.e., her birth.
Furthermore, the court also
remained cognizant that under the Act, a distinction must be drawn between the
right to claim a share versus the extent of the share that can be claimed. A
coparcener's right to claim a share in the coparcenary property remains stable
although the specific share available to the coparcener fluctuates with births
and deaths in the family and becomes determined only at the time of partition.
Thus the court held that the notional partition under the proviso to the unamended Section 6 of the Act only affects the extent of share that can be
claimed by a coparcener but does not affect the right to claim a share in the
In the Prakash v. Phulavati case
, the court had held that the notional partition
prescribed by the proviso to Section 6 of the unamended Act leads to severance
of coparcenary property in the event of the predecessor coparcener's demise
prior to the 2005 amendment and therefore no coparcenary property is left
available to be partitioned at the hands of the daughter claiming under the 2005
However, in the Vineeta Sharma case, the Apex Court concluded that
the notional partition prescribed by the said proviso to Section 6 is intended
only affect the computation of the share of the deceased coparcener when he was
survived by a female heir (as specified in Class I of the Schedule to the Act)
or by a male relative of such female heir and such notional partition does not
finally determine the rights and liabilities of the male and female successors
itself, which can only be undertaken either through a registered partition deed
or through a decree of partition drawn by court.
Contrary to the assumption of the Apex Court in the Prakash v. Phulavati
verdict, in the
judgement, the Apex Court has held that in view
of the express language of Section 6 (1) (a), the requirement for a female
successor to claim coparcenary rights is not at all dependant on the predecessor
coparcener being alive as on the date the 2005 amendment comes into force.10
The intention of Section 6 of the Amended Act is to elevate the nature of the
female successor's right to succession from that of obstructed heritage to
unobstructed heritage, which the court had not considered in the Prakash v.
The Apex Court finally concluded that the verdict in the Prakash v. Phulavati
did not interpret the law correctly and that the 2005 amendment act was
applicable retroactively, thus laying to rest an enduring controversy regarding
the date of conferment of the benefits of the 2005 amendment.
While the Vineeta Sharma verdict is indeed laudable for achieving the noble and
necessary objective of gender equality and gender justice, the fact that the
controversy took close to 15 years to be finally settled reflects the long
journey towards justice.
During this time, not only have several women (who are entitled to claim under
Section 6 of the Amended Act) been left without the fruits of their share in the
coparcenary property and therefore subjected to significant financial distress,
but there are also several persons who may have very well acted upon the law
established by Prakash v. Phulavati
verdict and created third party
interests in coparcenary property after it was partitioned in accordance with
earlier Section 6 of the unamended Act.
The patriarchal law that was prevailing prior to 2005 traced its origins to the
age-old belief that women would belong to another family by marriage, and were
not deserving of family property. By upholding the rights of daughters to be as
equal as sons, the court has extended women the respect and right due to them.
This judgement has however left all the third party interests vulnerable to
litigation while at the same time, provided justice belatedly to the women who
are the intended beneficiaries of this law. By granting women equal right in the
property of a Hindu Undivided family with retrospective effect, the Supreme
Court has removed the last vestiges of gender discrimination in coparcenary
rights under the Hindu Succession Act that had lingered on despite a change in
While the end effect of this latest verdict is no doubt an excellent development
and progress in the right direction, it also highlights the debilitating impact
on the financial security of women by such belated outcomes and on the real
estate economy, if real estate transactions are frequently subject to such
fluctuations in law.
One hopes that in the days to come, the Indian judiciary not only continues to
incline in favour of progressive values in keeping with its rich traditions, it
does so with speed and at the same time provides predictability and clarity for
investments in all areas including real estate.
- (2016) 2 SCC 36
- (2018) 3 SCC 343
- (2011) 9 SCC 788
- Civil Appeal No. 32601 of 2018
Award Winning Article Is Written By: Ms.Shrija Verma
Authentication No: SP31319607684-30-920