CHAPTER 5

The Hindu Succession (Amendment) Act, 2005: Fundamental Changes Done In

1956 Act

The Hindu Succession (Amendment) Act, 2005

No doubt, The Hindu Succession Act, 1956 had brought significant changes in the
social and economic life style of the Hindu women and conferred upon them an
absolute ownership on the property possessed by her on the commencement of the
Act. However, this Act could not remove completely the persisting inequalities
against women. When the Hindu Succession Act was passed in 1956, the Mitakshara
coparcenary system was retained in spite of protest by the All India Women‘s
Conference.

Therefore, the Hindu Succession Act, 1956 has undergone a lot of change by virtue of
The Hindu Succession (Amendment) Act, 2005 (39 of 2005). Section 6 of the said
Act has been totally replaced by a new provision. This new provision has wide
sweeping ramification on the Hindu Joint Family.

This amendment is based on the recommendations of the 174th Report of the law
Commission on „Property Right of Women-Proposed Reforms under Hindu Law‟
under the Chairmanship of Justice B. P. Jeewan Reddy dated 5th May 2000. This
commission recommended for the removal of anomalies and ambiguities with regard
to property rights of Hindu women under the Act of 1956. As per the view of the Law
Commission, the exclusion of daughters from participating in coparcenary property
ownership merely by reason of sex was unjust. Therefore, this Amending Act gives
full- fledged property rights to daughters in ancestral property along with sons.398

Pursuing the recommendation of 174th law commission, the Hindu succession

(Amendment) Bill was introduced in the parliament on 20 December 2004 and was
passed by the Rajya Sabha on 16 August 2005 and the Lok Sabha on 29 August 2005
respectively. The primary aim of the amendment was to remove gender inequalities
under the Act, as it stood before the amendment. The amendment also became
necessary in view of the changes made in Hindu Succession Act, 1956, in five Indian

398
Supra note 311 at 402.

196
states namely, Kerala, Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra. The
Bill received President‘s assent on 5 September 2005 and it came into force on 9th
September 2005.399

It is noteworthy that while in Kerala, the joint family concept and the pious obligation
of the son to pay his father‘s debts were abolished but the other four states retained
both, additionally, introducing an unmarried daughter as a coparcener. The present
Act incorporates changes that are a combination of the Andhra and the Kerala model.
It retains the concept of joint family and introduces daughters as coparceners but
abolishes the pious obligation of the son to pay the debts of his father. Besides these
basic changes, it amends the concept of coparcenary, abolishes the doctrine of
survivorship, modifies the provisions relating to devolution of interest in Mitakshara
coparcenary, the provisions relating to intestate succession, the category of class I
heirs, rules relating to disqualification of heirs and marginally touches the provision
relating to testamentary succession. The primary changes introduced by the Act have
been discussed in detail under the following headings.

1. Deletion of Provisions Exempting Application of the Act to Agricultural

Holdings.

With respect to the application of the Act, s 4(2), Hindu succession Act 1956,
provided:

Section 4(2) - For the removal of doubts it is hereby declared that nothing contained
in this Act shall be deemed to affect the provision of any law for the time being in
force providing for the prevention of fragmentation of agricultural holdings or for
fixation of ceilings or for the devolution of tenancy rights of such holdings. Thus, if
there was law that dealt with

(i) Prevention of fragmentation of agricultural holdings or

(ii) Fixation of ceilings or
(iii) Devolution of tenancy rights of such holdings

then such property and to the interests in such property the Hindu succession Act did
not apply. At the same time, if a particular state did not have any such law, then the

399
Supra note 295 at 278.

197
Hindu succession Act applied by default. It was only when express provision existed
with respect to devolution of agricultural property owned by an individual or held by
him as tenant of the respective state government (the ownership of the land vesting
with the state, with the tenant having heritable cultivating rights) that the Hindu
Succession Act 1956, did not apply.

By deleting s. 4(2) confusion has been created, as the legislature has not provided any
express provision that states or confirms the application of Hindu Succession Act to
agricultural property over and above any state law that also deals with the same.
These laws, which provide for prevention of fragmentation of agricultural holdings,
fixation of ceilings and devolution of tenancy rights, apply to the inhabitants of the
states uniformly, in respective of their religion. For example, the whole of the
agricultural land (unless otherwise provided) would be subject to a uniform law, and
the religion of the land owner or the tenant, as the case may be, will be of no
consequence. The deletion of s. 4(2) and an implied presumption that after the
amendment, the Hindu Succession Act applies to all kinds of property including rights
in agricultural land would mean that now diversity would exist State in agricultural
property. All inhabitants of a particular State, to whom Hindu Succession Act does
not apply, such as non Hindus, would still be governed by the State laws, while
property of those subject to Hindu Succession Act would devolve in a different
manner. An exception, therefore, would be created in favour of Hindus, generally
diversifying the application of laws governing agricultural property.

The second point of confusion due to deletion of s 4(2) and absence of a provision
extending the application of Hindu Succession Act over agricultural land, even if a
parallel law enacted by a State exists, is with respect to the conflict that may arise
over Central or State legislations that are diverse in content. Inheritance and
succession are subjects specified in list III, Entry (v) while land is a state subject.
Whether the centre is competent to legislate on agricultural land is a matter of dispute.
Normally, if there is a subject on which both the Centre as well as the State can
legislate, in case of conflict, the centre should be competent to legislate on it. This
confusion is bound to crop up paving way for immense litigation in this area.400

400
Supra note 295 at 279-280.

198
2. Abolition of Doctrine of Survivorship In Case Of Male Coparceners.

The Amending Act, by a specific provision, abolishes the incidents of survivorship

one of the primary incidents of coparcenary when a male coparcener dies. Section
6(3) states.

Section 6(3) - where a Hindu dies after 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. Thus, the traditional
concept of coparcenary, where coparcenary property was held with incidents of
survivorship, stands abolished expressly by the legislature401.

3. Devolution of Interest in Coparcenary Property: Introduction of

Daughter as Coparcener in the Mitakshara Coparcenary Property.

Section 6 402 of the 1956 Act deals with devolution of interest of a male Hindu in
coparcenary property and recognizes 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

401
Supra note 295 at 280.
402
―When a male Hindu dies after the commencement of this Act, having at the time of his death an
interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship
upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female in that class who claims through such
female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by
testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1 - For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property had taken place immediately before his death, irrespective of
whether he was entitled to claim partition or not.
Explanation 2 - Nothing contained in the proviso to his section shall be construed as enabling a person
who has separated himself from the coparcenary before the death of the deceased or any of his heirs to
claim on intestacy a share in the interest referred to therein.

199
fundamental right of equality guaranteed by the Constitution. Having regard to the
need to render social justice to women, the states of Andra Pradesh, Tamil Nadu,
Karnataka and Maharastra 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, 1975.403

The Hindu Succession (Amendment) Act, 2005 had brought several changes to
remove gender discriminatory provisions in the Hindu Succession Act, 1956 and one
of the major changes is that in a Hindu Joint Family, the exclusive prerogative of
males to be coparceners has been changed altogether and the right by birth in the
coparcenary property has been conferred in favour of a daughter as well. This radical
change has fundamentally altered the character of a Mitakshara coparcenary. Before
the central enactment, four Indian States has brought in a similar change, i.e.
introduction of daughters as coparceners. At present, instead of only the son having a
right by birth, any child born in the family or validly adopted will be a coparcener and
would have an interest over the coparcenary property. Thus, the traditional concept
that only males could be members of the coparcenary and ‗no female could ever be a
coparcener nor could own coparcenary property‘ is no longer the law. According to s.
6(1) of the Amendment Act, 2005: ……….in a joint family governed by the
Mitakshara Law, the daughter of a coparcener shall-

a) by birth becomes 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 20th day of December, 2004.

403
Supra note 311 at 407-408.

200
According to this provision, the discrimination against daughter has been brought to
an end, as her rights and liabilities are the same as that of a son. This also means that a
daughter is now capable of acquiring an interest in the coparcenary property, demand
a partition of the same, and dispose it of through a testamentary disposition. Further,
daughters would not only be empowered to form a coparcenary along with their other
siblings (irrespective of gender), but would also be competent to start a joint family
herself. She can even be a karta, throw herself acquired earnings into the joint family
fund, something that was not possible before the amendment. The rule that females
cannot form or start a joint family on their own but can continue it even on the death
of a male member in the family but provided they have the capacity to add a male
member to it by birth or through adoption, stands abrogated now. In other words, all
the prerogatives and uniqueness of a son‘s position in the family is available to a
daughter as well.404

Two classes of females -

Section 6(2) makes it very clear that a female Hindu would be entitled to hold
property with the incidents of coparcenary ownership. Therefore, a distinction has
been created between female members of joint family in relation to their rights over
the joint family property. The two classes of females are one, who are born in the
family i.e. daughters, sisters posses a right by birth in the coparcenary property and
secondly, those who become members of this joint family by marriage to the
coparceners. Their rights over the joint family property continue to be the same, like
maintenance out of its funds, a right of residence in the family house, etc405.

Marital Status of Daughter

It is noteworthy that under the Andhra Pradesh, Tamil Nadu, Karnataka and
Maharashtra amendments to the Hindu succession Act 1956, daughters of
coparceners, who were married on the day the amendment, could not become
coparceners. Only daughters who were unmarried on such date could become
coparceners. Besides, as the legislature provided that their coparcenary rights were
identical to that of sons, their future marital status did not divest them of coparcenary

404
Supra note 295 at 282.
405
Id. at 283.

201
rights. They continued to be coparceners even after marriage and even their children
had a right by birth in the coparcenary property. Daughters who were married on the
date of enforcement of amendments did not get the benefit under the amendments. In
fact, this provision creating distinction between the rights of a married and unmarried
daughter was also challenged in Karnataka High court in a case, and the court had
justified the distinction and exclusion of a married daughter on the ground that it was
based on a sound policy of the legislature. A contrary stand would have created chaos
in the society and would have disturbed settled claims and titles. Under the present
amendment, a daughter of a coparcener is included as a coparcener herself without
any reference or limitation with respect to her marital status. Therefore, after 9th
September 2005, a daughter who was married even before this date, would be a
coparcener. It is interesting to note that the married daughter after marriage would
nevertheless be a member of coparcenary, with an entitlement to seek partition of the
joint family property in her own right. To that, nothing contained in this sub-section
shall affect or invalidate any disposition or alienation including a partition or
testamentary disposition effected before 20th December 2004406.

This was necessary so that settled rights should not be disturbed. However, a joint
family where a daughter has been married before 20 December 2004, and the male
members have not effected a partition, would now have to share this property with
their married sisters, as the daughter, irrespective of their marital status, have become
coparceners. Thus, the amendment gives the right to daughters from 2005 and not
merely to daughters who were born after 2005.407

The Karnatka High Court 408 has observed that section 6(1) (c) still reeks of
discrimination in the sense that this section makes a daughter subject to the same
liabilities of the said coparceners‘ property as a son yet by virtue of proviso, any
disposition or alienation including any partition or testamentary disposition of
property which had taken place before 20th day of December, 2004 has been saved.
The court is of opinion that the avowed objective of the amendment was to create
rights between a son and a daughter of a coparcener, still this lacunae is left.

406
Supra note 295 at 283.
407
Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik, 2008 Ori.133.
408
Miss R. Kantha v. UOI, 2010 Kar 124.

202
In G. Sekar v. Geetha409 the Supreme Court has held that both the Acts (1956 and
2005) do not seek to reopen vested rights where succession had already taken place.
In this regard, the Act of 2005 is prospective in nature.

4. Property Held by Daughters with Incidents of Coparcenary Ownership.

The amendment clarifies that the joint family property would be held by the
daughters, as they have become coparceners with incidents of coparcenary ownership.
Section 6(2) of the Amendment Act 2005 states:

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, as property capable of being disposed of by her by testamentary
disposition.

Thus, according to s. 6(2) a female would hold the property with incidents of
coparcenary ownership. The legislature has neither explained nor provided anywhere
as to what these incidents of coparcenary ownership are. Thus the natural step would
be to seek their explanation under the classical law under which there are two basic
incidents of coparcenary ownership.410

First, that each coparceners holds the property with the incidents of unity of
possession and community of interest, i.e., all coparceners jointly have the title to the
property and joint possession of the property. Till the time a partition takes place, no
one can predict what his share is.

Secondly, all coparceners hold the property with incidents of doctrine of survivorship
i.e., on the death of the one coparcener, his interest in the coparcenary property is
taken by the surviving coparceners and not by his heirs. Does this mean that the
doctrine of survivorship would apply in case of female coparceners and not male
coparceners, as the legislature expressly provides, that the female coparceners, would
hold the property with incidents of copoarcenary, survivorship being one of such
basic incidents, or does it means that if the female coparceners would hold property

409
AIR 2009 SC 2649.
410
Supra note 295 at 287.

203
with incidents of coparcenary, survivorship being one of such basic incident or does it
mean that if the legislature has abolished that application of doctrine of survivorship
for male coparceners, and female coparceners would hold the property and they share
exactly in the same manner as the male, it stands abolished for them too? By the
abolition of the doctrine of survivorship in case of male coparceners by an express
provision, the legislature has created confusion. It is a fundamental rule in laws
relating to inheritance and succession that the term his does not include her. This must
have been the reason why the legislature amended s.30 of the Act to add her after him.
The use of the term his interest and not his or her as has been used in s 30, clearly
suggests that it is only in case of an undivided male Hindu dying that doctrine of
survivorship would not apply and if a female coparcener dies, the doctrine of
survivorship may apply.411

5. Retention of the Concept of Notional Partition.

The amendment retains the concept of notional partition but modified its application.
Prior to this amendment, notional partition was effected only if the undivided male
coparcener had died leaving behind any of the eight class I female heirs or the son of
a predeceased daughter and did not apply generally in every case of death of a male
coparcener. The present amendment makes application of notional partition in all
cases of intestacies. Section 6 (3) of the Amendment Act states:

Where a Hindu dies after the commencement of the Hindu succession Act, 2005, his
interest in the property of 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.412

From the language of the section, two things are clear. First, the doctrine of
survivorship stands abolished in case of male coparceners, and secondly, in all cases
where a Hindu male dies, his interest in the Mitakshara coparcenary would be
ascertained with the help of a deemed partition or a notional partition.

411
Supra note 295 at 288.
412
The Hindu Succession Act, 1956, s. 6

204
6. Calculation of Shares while Affecting a Notional Partition.

The present Act provides in detail the calculation of shares while affecting a notional
partition. Section 6(3) provides.

a) The daughter is allotted the same share as is allotted to the son.

b) The share of the predeceased son or predeceased daughter, as they would have
got had they been alive at the time of the partition, shall be allotted to the
surviving child of such predeceased son or of such predeceased daughter; and
c) The share of the predeceased child of a predeceased son or of a predeceased
daughter as such child would have got had he or she been alive at the time of
the partition shall be allotted to him as if a partition has taken place
immediately before this death, irrespective of whether he was entitled to claim
partition or not.

At present if a minor child dies, irrespective of the sex, his or her share would be
calculated after effecting notional partition and such share would go by intestate or
testamentary succession, as the case may be413.

7. Devolution of Coparcenary Interest Held by a Female.

According to the amending Act, a female coparcener would hold the property with
incidents of coparcenary ownership, but does not specify how the property would
devolve if she dies. If a Hindu female seeks partition of coparcenary property gets her
share, marries and then dies, who would succeed to this interest, her husband or her
natal family members? This question is very significant in case of females, as in
accordance with the rules of intestate succession, her property that may be available
for succession is divided into three specific categories:

(i) Property that she may have inherited from her parents;
(ii) Property that she may have inherited from her husband and/ or father in law;
and
(iii) Any other property414.

413
Supra note 295 at 289.
414
Ibid.

205
Coparcenary interest is acquired by a daughter by birth and thought it comes from the
family of her father, it is not an interest that she has inherited from her parents. In
such a case, it will obviously be covered by the third category, i.e., any other property
or general property. In such a situation her heirs would be her husband, her children
and children of predeceased children. It would also mean that if she dies issueless
after seeking partition, her husband would succeed to her total property including the
interest that she had in the coparcenary property. Similarly, if she dies without
seeking partition, then her share would be ascertained by affecting a notional
partition, and the share so calculated would be taken by her husband as her primary
heir 415 . This interpretation seems contrary to s. 6(3) which in the first instance
provides that if a Hindu dies after the commencement of the Hindu Succession 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, not by survivorship and the coparcenary property shall be deemed to have
been divided as if a partition had taken place. By using the term his interest and not
his or her interest a doubt has already been created whether this section applies at all
when a female coparcener dies. Assuming that it does apply to a female coparcener as
well, then the interest would go by intestate succession in absence of a will, as per
which the husband would take the property along with her children or children of
predeceased children.416

The substance of S 6(3) (b) and (c), however, lends support to the argument that s. 15
of the Act does not apply to the interest of a female coparcener and her interest goes
only to her children. It clearly provides, that where a partition takes place and one of
the child is already dead, but has left behind a child or child of a predeceased child,
the share of the predeceased son or a predeceased daughter as they would have got
had they been alive at the time of the partition shall be allotted to the surviving child
of such predeceased son or predeceased daughter. So, if a female coparcener dies
without seeking partition then partition would take place, her share will be allotted to
her surviving children, and the husband even if alive, will not get any share. This is in
contrast to s 15, where the spouse succeeds along with the children of a female. A

415
Supra note 295 at 289.
416
Ibid.

206
contradiction has been introduced between the first part of s 6(3) and sub cl. (b) and
(c).417

8. Separation of Son during the Lifetime of Father.

Under the old law, if a son sought partition during the lifetime of father, and separated
from the family after taking his share, the remaining family continuing and
maintaining the joint status, on the death of the father neither such separated son nor
any of his heirs, were eligible to take any claim out of the share of the father.

For example:

S1 W1 S2

SS

A Hindu family comprises of father F, and his two sons S1 and S2. S1 is married and
has a wife W1 and a son SS. S1 seeks partition in 2000, takes his one third share in
the joint family property and goes out of the family. The father dies in 2003. His share
in the remaining joint family property would have gone to S2 and S1 would not be
taken into account at all.

In the same illustration, if S1 died in 2001 and then the father dies in 2003, even then
neither W1 nor SS would have any claim over the undivided share of the father in the
joint family property. However, after the amendment and with the abolition of the
doctrine of survivorship in the same situation, if S1 seeks partition and takes his share
and goes out of the family, S2 and F remaining joint, on the death of F, in October
2005 the doctrine of survivorship will not apply and the undivided share of the father,
calculated after effecting a notional partition would go straight away by intestate
succession as per which both S1 and S2 would share equally. This means that a
separated son after having taken his share from the joint family property would again
claim a share if and when any member of the coparcenary dies intestate418.

417
Supra note 295 at 289-290.
418
Ibid.

207
In the same illustration and in the second situation contemplated above where the
separated son dies before the father and leaves behind his widow and son, these heirs
were incapable to inherit the share of the father as they would be deemed to be dead.
However, after the Amendment when S1 dies, W1 and SS alone will inherit his
property that he had taken out of the joint family property and now when F dies, then
again both of them would take a share out of his property in the capacity of widow of
predeceased son and son of a predeceased son. It appears not only anomalous but
inequitable too.419

9. Abolition of Pious Obligation of Son to Pay the Debts of Father.

One of the features of classical Hindu law that imposed upon a son, grandson or great
grandson the liability to pay their father‘s debts has been abrogated by the present
Amendment. The emphasis to pay the father‘s debts was so strong that if the son had
to pay his and his father‘s debts, it was provided that he should pay his father‘s debts
first to free him from a leading a life of bondage in the next life. At the same time as a
logical rule the debts contracted before the enforcement of the amendment are subject
to the rules of classical Hindu law. It is the date of contracting of debts that would be
decisive to determine as to which law would apply whether prior to the amendment or
subsequent to it420.

Section 6(4) states: After the commencement of the Hindu succession Act 2005, no
court shall recognize 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 obligations under the Hindu law of such son,
grandson or great grandson to discharge any such debt:

Provided that in case of any debt contracted before the commencement of the Hindu
Succession 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 debts and any
such right or alienation shall be enforceable under the rule of pious obligation

419
Supra note 295 at 290.
420
Id. at 291.

208
 in the same manner and to the same extent as it would have been enforceable
as if the Hindu Succession 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
Act, 2005421.

At present the repayment of debts contracted by any Hindu would be his personal
responsibility and the male descendants would not be liable to the creditor.

10. Abolition of Special Rules Relating to Dwelling House.

One of the major gender discriminatory provisions under Hindu Succession Act, 1956
was S. 23, which specified special rules relating to devolution of a dwelling house.
Section 23, as it stood before it was abrogated, provided.

Section 23 - Where a Hindu intestate has left surviving him or her both male and
female heirs specified in class 1 of the schedule and his or her property includes a
dwelling house wholly occupied by members of his or her family then
notwithstanding anything contained in this Act, the right of any such female heir to
claim partition of the dwelling house shall not arise until the male heirs choose to
divide their respective shares therein, but the female heir shall be entitled to a right of
residence therein422.

Provided that where such female heir is a daughter, she shall be entitled to a right of
residence in the dwelling house only if she is unmarried or has been deserted by or
has separated from her husband or is a widow. Under this section, the right of female
class I heirs was limited to a right of residence in the dwelling house. Their ownership
did not vest in them a right to have the house partitioned and specifying of their
shares, till the male heirs chose to destruct their joint status themselves423. In case the
female heir was a married daughter, her ownership was without even a right of
residence unless she was unmarried, widow or was deserted by or separated from her

421
The Hindu Succession Act, 1956, s.6
422
Supra note 295 at 292.
423
Id. at 293.

209
husband. In other words, her marital status and her relations with her husband had a
direct reflection on her need to have a residence in her own property.

In Hindu law, dwelling house has been given a special position that the Smritikars
laid down the partition should not ordinarily be made of a dwelling house. Therefore,
the legislature for enacting this provision was to defer the actual partition of the
dwelling house that was actually and wholly in occupation of the male heirs until they
themselves chose to destruct their joint status. Thus, the fragmentation of the dwelling
house at the instance of male heirs only was permissible despite the fact that they
might be the owners of a fractional share. For example, on the death a Hindu father
his wife W, four daughters D1, D2, D3, D4 and a son S inherited his house. Here, the
son was the owner of only one sixth of the house, yet it was only who at whose
instance the house could be partitioned. Even if all the remaining five co sharers
wanted to demarcate their shares, they could not do so. Further if all the daughters
were married, the son though was the owner of one sixth the house had a legal right to
occupy the share of all of his sisters without their consent.424

Interpreting the Amendment Act in Rathnakar Rao Sindhe v. Leela Ashwath425with

respect to partition of the dwelling house, the court held that a female heir can claim
partition against male heir and the restriction put on the right of a female heir to claim
partition in respect of the dwelling house ceased to be effective from 9-9-2005 in the
light of omission of Section 23 by the Amendment Act, 39 of 2005. The effect of
omission of Section 23 of the Act would apply to all proceedings whether original or
appellate involving adjudication of rights of parties and pending as on 9-9-2005 or
initiated after that date.

The Kerala High Court has held that it is a personal right and not a heritable right so
after coming into force of Amending Act of 2005 if that heir dies, his right is taken
away even in a pending litigation. The legal representatives of the deceased male heir
have no right.426

424
Supra note 295 at 293.
425
AIR 2007 (NOC) 941 (Karn), See also; Santosh Kumar v. Baby, AIR 2007 Ker 214; Kaushalaya Bai
Biharilal Pateriya v. Hiralal Bhagwandas Gupta, AIR 2007(NOC) 136 (Bom.).
426
Supra note 311 at 448. See also S. Narayanan v. Meenakshi, AIR 2006 Ker.143.

210
The provision will apply only when some heirs are males and some are females. But it
will not apply if all heirs are male or females.427 The Orissa High Court takes the view
that the restriction will not apply if there is only one male member and others are
female members. 428 But the Madras and Andhra Pradesh High Courts held that
section 23 applies even where there is only one male heir of the intestate. 429 The
restriction does not apply if there are agnate male heirs and cognate male heirs
(daughter‘s son). The Bombay High Court has held in Fulsing Ramsingh v. Durga
Bai430, that where a coparcener died intestate leaving only a daughter as Class I heir,
the bar of section 23 would not be applicable and she would have a right to partition.

The restriction on partition is imposed only on the female heirs and not on male heirs.
If a male heir chooses to partition the dwelling house, female heirs cannot prevent
him from doing so and they will be entitled to their share. 431 If this house is partially
rented out, the restriction under this section will not apply.

This section has not been happily drafted. To point out one such flaw: ―intestate has
surviving him or her both male and female heirs specified in Class I of the
schedule…‖ we know that the schedule one deals with Class I and Class II heirs of a
Hindu male and not of a Hindu female. Then what is the significance of ―surviving
heirs‖? This it is submitted refers to Entry (a) of the heirs of Hindu female under s. 15
of the Act.432 Dwelling house does not include tenanted house.433

11. Deletion of Section 24.

Under the old law, the general rules of succession in S. 24 clarified the position of the
three specific widows, who were eligible to inherit the property of the intestate. These
three widows were widow of predeceased son, widow of a predeceased son of a
predeceased son and brother‘s widow. The first two were class I heirs, while the third
was a class II heir.

427
Prabati v. Laxmi Devi, (1970)36 Cut. LT 415.
428
Hemlata v. Uma, 1975 Ori. 208.
429
Janabai v. T.S. Palani, 1981Mad 62.
430
AIR 1997 Bom 201.
431
Usha v. Smriti, 1988 Cal.115.
432
Supra note 311 at 449.
433
Narshimaha v. Susheela, (1996) 3 SCC 644.

211
Sec 24 as it stood before the deletion provided as follows -Certain widows
remarrying may not inherit as widows - Any heir who is related to an intestate as
the widow of a pre deceased son, the widow of a pre deceased son of a pre deceased
son or the widow of a brother shall not be entitled to succeed to the property of the
intestate as such widow, if on the date the succession opens she has re-married.

These widows could inherit as such only when they had not remarried on the date the
succession opened. If they had remarried, they would have ceased to be widows of the
respective relatives of the intestate and would not have been eligible to inherit the
property of the intestate. For example a Hindu family comprises of father F and two
sons S1 and S2 and a grandson SS.

W1 (S1) S2

W2 (SS)

Both S1 and SS are married to W1 and W2 respectively. S1 and SS died during the
lifetime of F. on the death of F, all the three heirs, S2, W1 and W2 would inherit the
property. S2 is taking one half and W1 and W2 are taking one fourth each. However,
if any of these two heirs W1 and W2 remarry before the death of F then she would be
ineligible to inherit the property of F. Only on the death of F, the succession would
open, and on this date if they were already married they would cease to be the widows
of the son and the grandson respectively and would not be counted as heirs. Similarly,
if a person dies leaving behind a brother‘s widow who is a class II heir, she can inherit
the property as such widow only if she had not remarried on the date of opening of
succession434.

Section has been deleted by the amending Act. However, it does not mean that the
situation and the eligibility criteria have changed. Even without S 24 being on paper,
the situation with respect to these widows has remained the same. Section 24 was
superfluous and its deletion therefore, would not alter the situation at all. One has to
understand that under the Hindu Succession Act, 1956, two categories of relatives are
recognized as heirs to the intestate. One who were related to the deceased through

434
Supra note 295 at 294.

212
blood and second who were related to the deceased through marriage, i.e., who
entered the family of the deceased through marriage to the male members. The
disqualification of remarriage is attached to those heirs who entered the family by
marriage, became widows on the death the respective male members to whom they
were married, and went out of the family again by a remarriage. Marriage or
remarriage of blood relatives such as daughters, sister, mother is of no consequence
but remarriage of son‘s widow, son‘s, son‘s widow or brother‘s widow would mean
that they cease to be members of the intestate‘s family and their inheritance rights
would be created in the family they are married into. After remarriage, they would
neither be related to the intestate as blood relatives nor by marriage and therefore
would not be eligible to be his heirs at all435.

12. Eligibility of Female Coparcener to make a Testamentary Disposition.

The introduction of daughters as coparceners and creation of rights in their favour that
are same as that of the son has been recognized in S. 30 of the Amending Act as well.
A female coparcener is empowered to dispose of her undivided share in the
Mitakshara coparcenary through a Will. Section 30 specifically provides for
substitution of words ‗disposed of by him or her‘ in place of ‗disposed by him‘. It
should be remembered that under the classical law, a coparcener was not empowered
to make a testamentary disposition of his undivided share in Mitakshara coparcenary,
and it went by survivorship to the surviving coparceners. Permissibility of
testamentary disposition of undivided share would have defeated the application of
doctrine of survivorship and therefore, such disposition was void. The Hindu
Succession Act, 1956, for the first time provided competency to an undivided
coparcener to make a valid bequest of his share in Mitakshara coparcenary and the
present Act extends this competency to a female coparcener as well.436

13. Introduction of Four New Heirs in Class I Category.

The schedule of the principal Act has been amended and four new heirs have been
added to the class I category. This change has been brought into only in case of a male
intestate while the category of heirs to a female intestate has not been touched at all.

435
Supra note 295 at 294.
436
Id. at 295.

213
These four heirs were previously class II heirs and were excluded both in presence of
the class I heirs and the father of the intestate. Presently, as their placement has been
changed, they inherit along with class I heirs and would exclude the father in their
presence. These four heirs can broadly be described as the great grand children of the
intestate, three through the daughter and one through the son, and more specifically
are son of a predeceased daughter of a predeceased daughter, daughter of a
predeceased daughter of a predeceased daughter, daughter of a predeceased son of a
predeceased son and daughter. This brings the number of class I heirs now to 16
instead of 12, and now 11 female heirs and five male heirs together form the class I
category. However, there are two flaws. First, not all the great grand children have
been treated equally437.

It appears that there was undue haste on part of the legislature to get the amendment
through which the second flaw is also apparent. This second mistake and a very
curious one is that all these newly introduced heirs were class II heirs prior to their
elevation to the class I category. They were specified in the class II category in entry
(ii) and (iii) respectively. Normally, if an heir is placed in one class and is elevated,
his name would be deleted from the former category where he was placed and will
now appear in the new category to which he now belongs. The name of the heirs
cannot and should not appear simultaneously at two places or in two different
categories, more so when one excludes the other. Strangely enough, they continue to
occupy their place as class II heirs even after their elevation to class I. Their names
now appear both as class I and class II heirs. This anomaly is strange, and piece of
faulty legislative drafting as while the schedule was amended to include these new
heirs in class I strangely enough, the class II category was not modified and these four
heirs continue to be both in class I as well as in class II category. The legislature
should have amended both class I heirs and class II categories together, when they
lifted these four heirs from class II. Their appearance in class II category is now
redundant and should be deleted438.

437
Supra note 295 at 295.
438
Id. at 296.

214
 Property Right of Married Daughter.

As to the right of a married daughter, in Subbayyajoga Naik v. Narayanai439, it was

held that daughter being Class I heir is entitled for share in the property of father and
marriage before twenty years back is immaterial. The solitary question involved in
Naraini Bai (Smt.) v. State of Haryana440, was as to whether the Government could
deny payment of compensation in relation to parents who were killed during 1984
riots to their married daughter? The High Court found that in section 8 of the HSA,
the Parliament has not made any distinction between an unmarried daughter and a
married daughter Thus, the High Court held that a married daughter is also a Class I
heir entitled to succeed to the property of her deceased –Father who had died intestate
in terms of section 8 of the Act. Section 15(1) (a) of the Act also categorically shows
that property of a female Hindu dying intestate shall devolve firstly upon the sons and
daughters (including the children of any predeceased son or daughter) and the
husband. Thus, the petitioner, though a married daughter, is entitled to succeed to the
property of her deceased mother. The Amending Act also added 441 in the schedule of
the Hindu Succession Act,1956, new heirs viz. 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.

Coparcenary Right of Daughter: Prospective or Retrospective Effect of Section 6

of HSA, 1956 As Amended By Amendment Act, 2005

The prospective or retrospective operation of Section 6 of the HSA, 1956, as

amended by the Amendment Act, 2005, had been an issue with different High Courts
but has now finally been settled by the decision of the Supreme Court‗s two-judge
Bench, AK Goel and Anil R Dave JJ, in Prakash v. Phulavati442. While discussing the
operation of the amendment the Court made it clear that the text of the amendment
expressly provides for prospective application as the right conferred on a ―daughter
of a coparcener is ―on and from the commencement of Amendment Act, 2005.

439
AIR 2004 Karn 430.
440
AIR 2004 P&H 206.
441
Added by The Hindu Succession Amendment Act, 2005 (Act 39 of 2005), s. 7
442
Prakash and others v. Phulavati and others, AIR 2016 SC 769.

215
Further, the Court held that there is neither any express provision for giving
retrospective effect to the amended provision nor necessary intention to that effect.
Speaking about retrospective application, the Court ruled that even social legislation
could not be given retrospective effect unless so intended by the legislature.

In the present case, the Court noted that the Amendment Act, 2005 had expressly
made the amendment applicable on and from its commencement, and the proviso
keeping dispositions, alienations or partitions prior to 20 December 2004 (the day the
Bill was tabled for the first time in Parliament) unaffected, did not lead to the
inference that the daughter could be coparcener prior to the commencement of the
Amendment Act, 2005. The Court stressed the need to read harmoniously the
―Explanation with the substantive provision being limited to a transaction of
partition effected after 20 December 2004. It categorically laid down that the object of
giving finality to transactions prior to the said date was not to make the main
provision retrospective in any manner. The Explanation could not be permitted to
reopen any partition which was valid when effected. Finally it has settled the issue
that the rights under the amendment are applicable to surviving daughters of living
coparceners as on 9 September 2005 – the day commencement of Amendment Act,
2005 – irrespective of when such daughters were born. Disposition or alienation,
including partitions which had validly taken place before 20 December 2004 as per
law, is to remain unaffected but the partition effected thereafter is only to be governed
by the Explanation.

Thus, the Supreme Court has finally settled for the prospective application of the
Amendment Act, 2005. It has further ruled that statutory notional partition443 is not
required to be registered as it does not fall within the traditional concept of partition.
The literal interpretation of the Court, though it appears to be logical, has resulted in
giving limited rights to daughters in coparcenary property. A daughter born after 9
September 2005 becomes a coparcener by birth in ancestral property where property
has not been partitioned. A daughter born before 9 September 2005 does not become
coparcener in ancestral property if property had been validly partitioned in accordance
with accepted modes of partition before 20 December 2004. The accepted modes of

443
Notional partition means the assumption that partition had taken place before the death of a
coparcener and that a share is reserved for him which passes by rules of intestate succession

216
partition under classical Hindu law were by way of notice, filing of suit, appointment
of arbitrator, oral partition, family arrangement, making a will of undivided share, etc.
As per the Amendment Act, 2005, after 20 December 2004 only those partitions are
recognized which have been done either by way of registered deed or by decree of
Court, i.e. after the said date, a daughter having a right in coparcenary property could
claim reopening of a partition if the partition has not been done either by way of
registered deed or by decree of court. The issue of the prospective or retrospective
effect of Section 6 had also come before the single judge of the Bombay High Court
in Ashok Gangadhar Shedge v. Ramesh Gangadhar Shedge444 Due to doubt about the
correctness of the decision rendered by the Division Bench of the Bombay High Court
in Vaishali Satish Ganorkar v. Satish Keshavrao Ganorkar445, the single judge Bench
in Ashok Gangadhar Shedge requested that the matter be referred to a larger Bench.
The issue was then referred to a larger Bench in Badrinarayan Shankar Bhandari v.
Omprakash Shankar Bhandari 446 . The issue involved in Vaishali Satish Ganorkar
was whether a daughter, who was born before 9 September 2005 could claim to be
coparcener when her father remained alive on and after 9 September 2005. The
Division Bench comprising of Mohit S Shah CJ and Mrs Roshan Dalvi J held that on
and from 9 September 2005, the daughter of a coparcener would become a coparcener
by virtue of her birth in her own right just as a son would be, and she would have the
same rights and liabilities as that of a son. Emphasizing the words used in the
provision such as ―shall be, ―on and from and that vested rights could not be
unsettled by imputing retrospectivity upon legislation by judicial interpretation or
construction, the court ruled in favour of prospective application.

Disagreeing with the view expressed by the Division Bench of the Bombay High
Court in Vaishali Satish Ganokar the single judge RG Ketkar J, in Ashok Gangadhar
Shedge went on to hold that even if the daughter of a coparcenar has by birth become
coparcenar in her own right and she has the same rights in the coparcenary property as
she would have had if she had been a son, the same shall not affect or invalidate any
disposition or alienation including any partition which is duly registered under the
Registration Act, 1908 or effected by the decree of a court or testamentary disposition

444
Ashok Gangadhar Shedge v. Ramesh Gangadhar Shedge, 2014 (4) Bom CR 797.
445
2012 (5) Bom CR 210.
446
AIR 2014 Bom 151.

217
of property which had taken place before the 20 December 2004. Considering that the
Amendment Act, 2005 is for giving equal rights to daughters in the Mitakshara
coparcenary property as those of sons, the Court observed that by excluding a
daughter from participating in the coparcenary ownership not only contributed to
discrimination against her on the ground of gender, but also has led to oppression and
negation of her fundamental right of equality guaranteed by the Constitution. An
appeal against the order of the Division Bench in Vaishali Satish Ganokar was
dismissed by the Supreme Court but at the same time the Supreme Court held that the
question of law would be kept open for consideration. The Full Bench consisting of
MS Shah CJ and MS Sanklecha and MS Sonak JJ, was constituted in the case of
Badrinarayan Shankar Bhandari on the reference in the Ashok Gangadhar Shedge
case. The questions of law which were referred before the Full Bench were: Whether
Section 6 of the HSA, 1956 as amended by the Amendment Act, 2005 is prospective
or retrospective in operation; and whether it applies to daughters born before the
commencement of the HSA, 1956 or is limited in application to daughters born after
the commencement of the amended Act. The Full Bench went into the history and
development of Hindu Law, the Law Commission Report, the Report of the Standing
Committee of Parliament and the Statement of Objects and Reasons of the Bill
introduced in Parliament to find out the true intent of the Parliament in amending
Section 6 of HSA, 1956 by the Amendment Act, 2005. The court ruled that a bare
perusal of the first part of the new provision showed it to have prospective application
to grant coparcenary rights by birth only to daughters born on or after 9 September
2005, whereas the later part of the provision showed the retrospective intent of the
legislature by granting rights to daughters who were born before the amendment but
were alive on the date of coming into force of the amendment. Hence, if a daughter of
a coparcener had died before 9 September 2005 she had not acquired any rights in the
coparcenary property and so her heirs had no rights in the property.

The Court laid down two conditions necessary for applicability of the amended
Section 6:
(a) The daughter of the coparcener (daughter claiming benefit of amended Section
6) should be alive on the date of the amendment coming into force; and
(b) The property in question must be available on the date of the commencement
of the Amendment Act, 2005 as coparcenary property.

218
Before the Supreme Court ruling of Prakash, the Bombay High Court‗s decision in
Badrinarayan brought in some clarity and entitled daughters to enjoy their
coparcenary share. The progressive approach of the Bombay High Court was
considered by various High Courts for ruling in favour of daughters. The dilemma
about the applicability of Section 6 of the HSA, 1956 as amended by Amendment
Act, 2005 has now been settled after the decision of the Supreme Court in Prakash.
Even after the Supreme Court‗s ruling as regards a daughter‗s right in coparcenary
property, the question remains to be answered about the status and share of a child of
a living daughter, particularly when a share in coparcenary property is to be reserved
for a child of a predeceased daughter. If the right of a daughter is restricted before a
certain date then one fails to understand the significance of the birth right given to a
daughter born before 20 December 2004.

In Pravat Chandra Patnaik v. Sarat Chandra Patnaik447, it was held that daughter
whenever born to be treated as a coparcener from the year 2005. It cannot be said that
daughters who are born only after 2005 will be treated as coparceners. The
Amendment Act is prospective in nature as much as partition prior to amendment
cannot be reopened. In Smt. Bagirathi & Ors v. S. Manivanan & Anr448 it was held
that even though the intention of amended provision is to confer better rights on the
daughters but it cannot be stressed to the extent of holding that succession which had
opened prior to coming into force of the amended Act are also required to be
reopened. Section 6 amended by The Hindu Succession (Amendment) Act, 2005
cannot be given retrospective effect.

Recently, in the case of Danamma @ Suman Surpur & Anr v. Amar & Ors,449 the
Hon‘ble SC through A.K.Sikri J. on the issue of whether the daughters (appellants)
could be denied their share on the ground that they were born prior to the enactment
of the 2005 amendment Act and therefore cannot be treated as coparceners? Alternate
question is as to whether, with the passing of the Hindu Succession (Amendment)
Act, 2005, the appellants would become coparcener ―by birth‖ in their ―own right in

447
AIR 2008 Ori.133.
448
AIR 2008 Mad. 250.
449
AIR 2018 SC.

219
the same manner as the son‖ and are, therefore, entitled to equal share as that of a
son?

The court by following its earlier judgment 450 held that the rights under the
amendment are applicable to living daughters of living coparceners as on 9-9-2005
irrespective of when such daughters are born. The court also held that disposition or
alienation including partitions which may have taken place before 20-12-2004 as per
law applicable prior to the said date will remain unaffected. Any transaction of
partition effected thereafter will be governed by the Explanation.

However, the Amendment Act, 2005 raises other issues. Neither HSA, 1956 nor the
Amendment Act, 2005 has defined the meaning of the terms ―coparcenary,
―coparcenary property, ―survivorship, ―partition etc. Continued reliance on the
classical meaning of the concepts of a coparcener and his rights and duties,
coparcenary property, partition, rules of devolution of coparcenary property on
partition etc, has brought in more ambiguity, particularly due to the inclusion of
daughters. The Court has also not emphasized the need to define the different terms
used under the classical Hindu law.

Thus, the amending Act of 2005 is a total commitment for the women empowerment
and protection of women‗s right to property. This amending Act in a patrilineal
system, like Mitakshara school of Hindu law has opened the door for the daughters to
have the birth right in the family property like the son. The age–old tradition of
investing the whole share of the property of a Hindu who died intestate to his male
heirs only has come to an end ultimately. By the New Succession law, the female
heirs became equally eligible to inherit the equal share of the property as their male
counterparts. In other words the effect of the Hindu Succession Act, 2005 is two
folds:

 Women became active members of the coparcenary property and enjoyed the
right of partition of the ancestral dwelling house. In other words, they became
the Karta which was limited to the male heirs only before the promulgation of
the new Act.

450
Prakash & Ors v. Phulavati & Ors, (2016) 2 SCC 36.

220
 Women became entitled to enjoy the right to property fully, no matter whether
she inherits the property from her parents or her in laws.

Hence, the Hindu Succession (Amendment) Act, 2005 has brought a revolutionary
change in the Hindu Succession law by making the women Karta of the joint family
property. Women, therefore, can manage the property as the male heirs were doing
since ages. However, if we see historically, such power of women is not new. The
Dharma Shastra says that:

―Alienation can be done by the wife of an absent or the widow of a dead manager, of
family property belonging to numerous minors, unable to enter into contractual
relationships in their own persons, yet reasonable for maintaining dependents and
carrying the various burdens of the family.‖

Thus, by the amendment act women were elevated to the position of full property
owners. Though Hindu succession (Amendment) Act, 2005 grants right of inheritance
of agriculture land to all Hindu women, a study has shown that there appears to be
significant gap between women‘s legal rights and their actual inheritance of land as
only 34% of women on the Andhra Pradesh sample had inherited parental land, even
when women gained equal inheritance right more than 20 years ago in that state.
Despite positive steps having been taken by legislature under HSA, 1956 in arming
daughters with coparcenary rights, recognizing the ownership rights of females in
property, laying down her heirs for devolution of her property and even granting her
partition rights in dwelling house, the enactment is still infected with various voids
perpetuating inequality on the basis of sex against the mandate of Constitution.451

Hindu Succession Amendment Act 2005: Critical Analysis

Practical Difficulties In The Implementation Of The 2005 Amendment Act.

Even after the inception of the new Act in 2005, discrimination against women
towards succession has not been fully wiped out. The reasons are both sociological
and historical in nature, namely:

1. Increase the cases of female foeticide- Most of the Hindu orthodox families
don‘t accept that the portion of their joint property should go to the daughter
451
Supra note 248 at 501.

221
 who will take it in another house after marriage. So, before facing of this type
of situation, they even do not hesitate to kill the female child in womb itself.
2. Increase the conflict between relations- Still in the modern society; daughter
is considered the member of another family. That‘s why most of the Hindu
families do not want to give share to the daughters and if they demand, this
result the breaking of relation of brother and sister or the joint family.
3. Women are considered elements to bring more property to in-laws‘ family by
way of dowry. The language of the Dowry Prohibition Act, 1961 gives enough
scope to convert stridhan into dowry in camouflaged ways.
4. Abolition of doctrine of survivorship creates unequal rights between surviving
coparceners vis-a-vis each other, which is contrary to the basic concept of
coparcenary. Here, no purpose seems to be served by the abolition of this
doctrine.
5. The new Succession Act 2005 gives women rights over their parental
property. Possibilities of dowry harassment increase as the women may be
pressurized to demand family property not for themselves but because of the
greed of their-in-laws.
6. The new Law may tempt the in-laws to practice the heinous custom of bride
burning or Sati in order to remove the women from the list of legal successors
of the landed property.
7. The new Law makes women eligible for the position of Karta of joint family
property. But many Hindu families, where women are severely discriminated
against, may not allow women to use the new law.
8. The amendment Act has prospective effect. It means that it applies to the girl
child born after the passing of the Amendment Act and not to others who are
already born. Therefore, this Act is for the future and not for the present. This
is a great anomaly in the Act as it gives right to those who are yet to born
instead of those who are fighting for it.
9. No doubt, position of women has been improved by the 2005 amendment Act
by conferring birth right in the coparcenary property but their position
remained same after marriage as this Act is silent on the right of women in the
joint family property of her in-laws.
10. The statement and object of the Amendment Act 2005 is to bring the universal
umbrella for strengthening the property rights of women but the States
222
 amendment made before 2005 still appears in the statute book. Both these
provisions stand in different manner. Section 29-A of the State Amendments
starts with a non obstante clause “Notwithstanding anything contained in
section 6 of this Act” which shows that section 6 has no application in these
states. As a result of this, one is not sure as to which section is to be made
applicable to a given situation.
11. The Amendment Act of 2005 has abolished application of the rule of
survivorship in any manner but reading of section 29-B of the States
Amendment seems the retention of rule of survivorship in these particular
States, however, with some exceptions. These discrepancies create difficulties
in the application of the 2005 Act in the territories of these States.

The question arises, here, when a Hindu daughter marries a person belonging to
another faith and converts to the said religion, whether she would have the same
rights of partition, succession of ancestral property as she would have before such
marriage. The amendment is silent on this point.

Therefore, after making the study, the researcher can say that even though the
legislature has conferred right upon the women but the work has not yet done. Efforts
should be made from the grass-root level to remove the difficulties in the way of
implementation of the Act in proper way and to remove the flaws from the Act. If the
society and legislature really want to achieve the real object behind the amendment,
then some serious efforts should be done from both the sides to get positive results
from it.

***********************

223