INTRODUCTION:

The word coparcener has been used very widely in relation to the Hindu law and the HUF. In
relation to HUF property, a coparcener is a person who acquires a right in the ancestral
property by birth and a person who has a right to demand partition in the HUF property.
Within the joint family there is a narrower body called the Coparcenary. This includes the
eldest male member + 3 generations. For example: Son – Father – Grandfather – Great
Grandfather. This special group of people are called coparceners and have a definitive right
in ancestral property right since the moment of their conception. Earlier only a Son/Son’s
son/Son’s son’s son were coparceners.Now daughters are equally coparceners after 2005.
They can get their share culled out by filing a suit for partition at any time. A coparcener’s
interest is not fixed it fluctuates by birth and deaths in the family. A daughter has been given
partition right in the Hindu Undivided Family (HUF) with effect from September 2005 by an
amendment to Hindu law by the Government.

Classical Law
The two main schools of Hindu law are Mitakshara school and Dayabhag school. The
Mitakshara law is applied in whole of India except the states of Bengal and Assam where the
Dayabhag system is followed.

The Mitakshara Coparcenary recognizes 2 modes of devolution of property which are

survivorship and succession. The principle of survivorship applies to joint family coparcenary
property whereas succession applies only to separate property. Females are absolutely
excluded from the Mitakshara coparcenary.

On the other hand, Dayabhaga recognizes only succession as the mode of devolution. Here no
member of the family has a right by birth and every member holds his property as a tenant in
common and on his death the property passes on to his heirs.

Now while bringing in the Hindu Succession Act, 1956 the legislature had the option to
assimilate Dayabhag and Mitakshara law in the sense that in Mitakshara also no member has
a right by birth and on the death of the member the property passes to his heirs. This method
would have given equable treatment to the nearest female heirs of a coparcener. But the
legislature chose to retain the Mitakshara Coparcenary and to confer on the daughters and the
other female members mentioned in class I of the schedule (widow, mother, daughter of a
pre-deceased son, daughter of a pre-deceased daughter, widow of a pre-deceased son,
daughter of a pre-deceased son of a pre-deceased son, widow of a pre-deceased son of a pre-
deceased son), the right to share the undivided interest of the deceased coparcener through
intestate succession. This disentitled the female members from the right of joint ownership of
the ancestral property thus keeping them out of the Coparcenary which led to inequality
against them. 

Can a Hindu woman become a coparcener?

Since the Hindu Succession (Amendment) Act, 2005 gives coparcenary right to a daughter
equal to the right of a son and she can also demand partition in respect of the assets of the
joint family, it should logically follow that the amounts so received by her on partition should
be treated as belonging to the Hindu Undivided Family under her management, if not as
karta, so that the income from such assets so received need not be clubbed with her personal
income. As otherwise, there is no real equality between her and her brother. She can claim a
separate status for assets received from the Hindu Undivided Family distinct from her
personal status.

The fact that the daughter is given equal right as the son does not make her a coparcener.
What is amended is Hindu Succession Law and not the Hindu law in all other respects.
Further, she is a member of the father's family before marriage and husband's family after
marriage. There is no change in law in this respect. The property, which she inherits from her
father's joint family cannot be mixed with her husband's joint family. She cannot also start an
independent joint family. The property, which she will inherit under the amended law, will
become her absolute personal property. Even prior to amendment, she was recognised as the
absolute owner of the property to which she succeeds. Merely because there is a tax
advantage in having dual status of both individual and joint family for her brother, it does not
follow that she is discriminated against. In fact, she is in a better position because she has
absolute right over the property, while her brother takes his share of joint family property
subject to the rights of the other family members. As karta, he merely manages the property
of the joint family of which he is the karta and does not have absolute right over such
property. In fact, it may even be argued that there is reverse discrimination in favour of the
daughter in view of her absolute right notwithstanding the tax aspect. A Hindu joint family
comprises all persons lineally descended through males from a common ancestor including
their wives and unmarried daughters. Whereas a Hindu Mitakshara Coparcenary is a body
narrower than a Hindu joint family and consists only of males of upto 4 generations who
acquire an interest in the Coparcenary property or the joint family property by birth with a
unity of possession. The person having interest in the coparcenary property is known as a
coparcener.

Coparcenary property consists of the ancestral property and not the separate property of a
coparcener. Ancestral property is the property inherited by a Hindu from his father, father’s
father or father’s, father’s father whereas the property inherited from any other relation or the
self-acquired property of the person is his separate property.

Important Amendments

To remove this inequality many states came up with amendments. States of

Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka inserted provisions
wherein the daughter was made a coparcener by birth in the joint family
property in her own right in the same manner as the son. This scheme was
followed by the central legislature which passed the Hindu Succession
Amendment Act, (2005). This act made the daughter a coparcener by birth. It
also omitted Section 23 of Act which dis entitled a female heir to ask for
partition in respect of a dwelling house, wholly occupied by a joint family, until
the male heirs choose to divide their respective shares therein. Thus this
amendment removed the discrimination against females. 

Hindu Succession Amendment Act, (2005) and females as coparceners

The most significant amendment made by the Hindu Succession Amendment

Act, (2005) was to make the daughter a coparcener by birth in her own right.
The term Mitakshara Coparcener now includes daughters in it. A daughter now
has the same rights in the Coparcenary property as that of a son and is subject to
the same liabilities as that of a son in respect of the said Coparcenary property.
For example if the coparcenary property is subject to some debts then on
partition the female as a coparcener would also be liable to pay the debts over
her share of the property and thus is subject to the same sets of liabilities as that
of a son in respect of the said property.  Also any property which a daughter
obtains under the amended section will be held by her with the incidents of
Coparcenary property and she can dispose it off by the testamentary disposition.
This act also abolishes survivorship and the only modes of devolution now
followed are testamentary or intestate succession. Further in case of notional
partition the daughter is allotted the same share as is allotted to a son. This act
also removes the obligation of a son, grandson or great grandson to pay the
debts of his father, grandfather or great grandfather solely on the ground of his
pious obligation thus bringing equality amongst sons and daughters.

The Hindu Succession Act, 2005 applies to all daughters including those who
are married, but this act does not apply to daughters married before the
commencement of the Hindu Succession Amendment Act, 2005. Moreover, the
provisions of the amendment act do not apply in case where the partition of the
joint Hindu family has already been effected before 20th December 2004.

Supreme Court - on the effect of the 2005 amendment to The Hindu Succession
Act

Indian Parliament enacted the Hindu Succession (Amendment) Act, 2005 ("the
Amendment Act" or "the 2005 Amendment") so as to confer equal right to a
daughter to a share in Hindu joint family property by deeming a daughter to be
a coparcener. However, the question as to whether this amendment was
retrospective in nature or prospective in nature, whether it applied to cases
where the succession had already opened before the 2005 Amendment, what
would be the effect of the daughter being declared to be a coparcener by birth,
would her right to a share date back to the date of her birth, or would it apply to
only a female born after 2005, were all questions which have vexed the Courts
for the last 10 years. Different views were taken by different High Courts.

The Supreme Court judgment in Prakash and Ors vs Phulvathi and

Ors {2015(6) Kar L J 177; 2015(11) SCALE 643} seeks to put a rest to these
questions. The Supreme Court has categorically held that the Amendment Act is
prospective in nature. Therefore, it is only from 09/09/2005 onwards that the
daughters would be considered as coparceners and have an equal share as that
of sons in joint family property. However, this does not mean that the daughter
has to be born after 2005. The daughter may have been born at any time prior to
2005 but the daughter must be living in 2005 for her to claim a share. This
would imply that if a daughter has died prior to 2005, her legal heirs cannot
claim that they should be having a larger share on the basis that the daughter,
had she been alive, would have had an equal share in the joint family properties.

The Supreme Court has added one more caveat to the above entitlement. Since
the enactment provided that a daughter of a male coparcener, on and from the
commencement of the Amendment Act of 2005, would be entitled to equal
share in the joint family properties, the Supreme Court found that as a pre-
condition for the daughter to claim a right, even her father must have been alive
when the Amendment Act of 2005 came into force. The Supreme Court
reasoned that if the father had died prior to 09/09/2005, succession would
already have opened to his estate and his property or his interest in joint family
property would already have stood shared or vested in his legal heirs as per the
law which was in force before the 2005 Amendment and the intention of the
lawmakers could not have been to disturb the succession which had already
opened prior to 09/09/2005 and to enlarge her share retrospectively. The
position would be the same irrespective of whether there has been an actual
partition or not after the death of the father, in as much as the law would
provide for a notional partition on the death of the father.

Therefore it would emerge that while there can be no doubt that a daughter born
after the 2005 amendment would be a coparcener and have an equal share as
that of a son, in joint family property ( provided her father was living as at the
date of the 2005 Amendment coming into force), as regards a daughter born
prior to the 2005 Amendment, she would have to be living and her father also
would have to be living as on the date of the 2005 Amendment for her/her legal
heirs to claim a share in joint family property as a coparcener. However even if
these conditions were satisfied, if there has been an alienation or disposition or
transfer of any joint family property or a registered partition thereof prior to
20th December 2004, that would not be affected by the daughter's claim as a
coparcener after the 2005 Amendment.

HISTORICAL BACKGROUND
The Constitution of India grants equality to all persons irrespective of religion,
race, cast, sex or place of birth. The Constitution provides for gender equality as
part of Fundamental Rights which are enforceable by law. The State grants not
only grants equality to women but also empowers the state to take positive
discrimination in favor of women. However, even after more than sixty four
years of enforcement of Constitution gender equality has not been achieved in
its true sense. Discrimination against women can be seen not just socially but
also in the laws made by the legislature itself. One such example is in the
relation to women rights of property. Post-independence the laws relating to
intestate succession in Hindus are governed by the Hindu Succession Act, 1956.
This Act was enacted to lay down a uniform system of inheritance and also to
ensure equality between sons and daughters. However, in respect to create
gender equality this act failed miserably. For instance, this Act provided for
coparcenary rights only in favor of male members.

Section 6 of the Hindu Succession Act, 1956 states that- “When a Hindu male
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”. Since a woman could not be a coparcener, she
was not entitled to a share in the ancestral property by birth. However, there is
an exception to this rule which also serves as another gender bias. The
exception is that the interest of the deceased in the Mitakshara coparcenary shall
devolve by intestate succession if the deceased had left surviving a female
relative specified in the Class I of the Schedule or a male relative specified in
that class, who claims through such female relative. In order to understand how
this provision operates as gender bias, it is necessary to look at Section 8 of the
Hindu Succession Act, 1956 which deals with the general rules of intestate
succession. As per Section 8, the property of a male Hindu dying intestate shall
devolve firstly, upon the heirs, being the relatives specified in Class I of the
Schedule. However, there are only four primary heirs in the Schedule to Class I,
namely, mother, widow, son and daughter.The principle of representation goes
up to two degrees in the male line of descent, but in the female line of descent it
goes only up to one degree. “Accordingly, the son’s son’s son and son’s son’s
daughter gets a share but a daughter’s daughter’s son and daughter’s daughter’s
daughter do not get anything. A further infirmity is that widows of a pre
deceased son and grandson are Class I heirs, but the husbands of a deceased
daughter or granddaughter are not heirs”.

It is evident from the analysis of the above sections that the Hindu Succession
Act, 1956 by retention of the Mitakshara coparcenary with only males as
coparceners violates the Constitutional provisions guaranteeing equality to
women. The exclusion of women from coparcenary just on the basis of sex is
unfair and unjust. To create an equal society, women should be given equal
property rights so that their basic economic needs can be taken care of which
will in long run help in creating a balanced society.
Keeping all these factors into consideration, the Hindu (Amendment)
Succession Act, 2005 was enacted. One of the primary objective of this Act as
stated in the Parliamentary Standing Committee Report was to “remove the
discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by
giving equal rights to daughters in the Hindu Mitakshara coparcenary property
as the sons have”.

Property Right of Women in Vedic Age:

During this age the Brahmins occupied the highest position in the socio-
religious hierarchy and they for legalizing their superiority adopted the method
of relying upon dharamsastras. The sources of these dharamsastras were
supposed to be Hindu religious texts like the Vedas and Smritis, approved
customs and good conscience. The Vedas were religious hymns, perhaps 3000
years old, and the Samritis were collection of rules of conduct and explanatory
principle based on Vedas. The Samritis comprised texts, such as Manu Samriti
which was written between 300 BC and 300AD and later on commentaries and
digests. An important digest on all the samritis written by Jimutvahana in 12th
Centaury was 3 J. Dancan. M. Derret, A Critique of Modern Hindu Law, N. M
Tripathi Pvt. Ltd, Bombay (1970), p. 193. 4 Ibid., p. 194. 39 Dayabhaga which
got much acceptance in Bengal. The Mitakshara which was again written in
12th Century is a running commentary on one of the samritis called
Yajanavalika written by Vijnaneshwara which was accepted in the rest of India.
Later on these two (digest and commentary) emerged as two different schools
known by the name Mitakshara and Dayabhaga. These two schools differed on
the subject of inheritance5 . Regarding the position of women in early Vedic
society, women occupied the same position as the man. There was complete
gender equality in all spheres of life and women enjoyed great respect,
significant rights and privileges. A girl was free to get herself educated just as
boys in those days. During the Vedic period, studies started after the thread
ceremony, which was called 'Upnayana Samskara'. In Rig Veda it was
mentioned that who wore sacred thread were considered capable of performing
many responsible jobs. Many statements in the Vedic literature indicate clearly
that women were undergoing Upnayana Samskara, studied Holy Scriptures and
recited Mantras. With regard to the institution of marriage, women had also an
effective say in the selection of her life partner. The famous system of marriage
by ‘Svayamvara’ had its origin in Vedic literature. It was intended that man
cannot perform various religious ceremonies alone. For the performance of
religious rites and ceremonies the presence of wife was must. A man was
believed to be incomplete so long as he does not have a wife. The wife wass
said to be her husband’s ‘Ardhanagini’ i.e. half of the man. So for as the
property rights of females are considered the Rig Veda speaks about the
individual proprietorship, the sons dividing their father's property after the
demise of father, unmarried daughter staying in father's home also have a share
of a father's property. In Vedic literature the unmarried daughter had the right to
get a share of her paternal wealth, but the brothers did not partition their
paternal property with their married sisters. Similarly the position of the
daughter's son was also recognized for religious ceremonies. It was said that
sonless father honoring the sonin-law goes to the grandson born of the daughter.
Again where the daughter was the only child of the family, she can perform
funeral rites of her father. This gives her 5 Jana Matson Everett, Women and
Social change in India, Heritage Publishers, New Delhi (1978), p. 142. 40 right
to inherit the property also but if she has brother the general opinion of
Dharamsastras was that sisters should not get share in father's property6 .
During the Vedic period the husband and wife were treated as joint owners of
the household. The husband was required to take a solemn vow at the time of
marriage that he would never contravene the economic rights and interests of
his wife. On the basis of this joint ownership theory of husband and wife in the
household, it was concluded in the Apastamba Dharmasutra that the wife was
entitled to incur normal expenditure on the household during her husband's
absence. Along with this joint ownership theory, another important fiction i.e.
the fiction of identity between the husband and wife also gave females right to
inheritance. Brihaspati7 , on the basis of this fiction, declared that a widow to be
entitled to succeed the estate of a sonless husband in preference of all other
heirs. So if husband and wife are treated as one and there is joint ownership the
question naturally arises as to how, in Hindu Law, the wife was deprived of her
right of ownership and inheritance on the death of her husband. On this
question, Kane's statement concisely summaries the position. Apastamba
postulated the identity of husband and wife in the religious matter. But this
identity of the husband and wife was not accepted by the ancient sages for
secular or legal purposes. Later on with the passage of time there was a slow
recognition by the Hindu law writers of women’s right of inheritance as a
natural corollary of her joint ownership8 . But the theory of joint ownership of
the husband and wife in the household gave only minor advantages to the wife.
She was given the right over her husband's property to enjoy it as a usufruct and
not as her absolute property. Thus it did not, however, secure for her equality
with the husband in the ownership of the property. In Vedic times widow was
not given right to inherit her husband's property. It seems that the Vedic texts
were definitely opposed to giving this right to her. Baudhayana states that the
Vedas declared no inheritance to a widow. Taittiriya samhita allowed her no
share in her deceased husband property. Apastamba also reject the widow as
successor of her husband's property. But he mentioned one exception to it.
According to him a childless widow was entitled to succession to her 6 P.C Jain,
Heritable Rights of Hindu female: General survey, Journal of legal Studies,
University of Rajasthan, Vol. 28 (1997-98), p. 3. 7 Brihaspati, 25, 46-52 quoted
in Samriti chandrika, Oriented Library Series No 48, Mysore Govt. 673. 8 B.
Sivaramayya, Matrimonial property Law in India, Oxford University Press,
New Delhi, (1999), p. 4. 41 husband' estate. But as it is known in Vedic times
the practice of Niyoga was prevailing so it can be said that widows without sons
were very few. Thus, a woman as maiden, as a wife and as widows enjoyed
very limited legal and economic status during Vedic times. She was not on
equal footing with men. But looking at her social status and prevailing
circumstances of Vedic times, it can be concluded that the legal status occupied
by women at that time was by no means embarrassing. The theory that Hindu
women are excluded from inheritance was started with the text of Baudhayana,
the reputed founder of one of the schools of Black Yajurveda. He was
responsible for not giving heritable rights to women. He could never regard
women as capable of possessing an independent status. According to him
women were not known to be eligible for freedom. In support of his views he
contends: The father protects woman in her childhood; the husband during her
youth; the son in the old age; woman ought not to have freedom. This
apparently has no bearing on women's rights of succession. But Baudhayana
further propounds that a women is not entitled to inherit property. In order to
support his ideas, he brings Veda to his aid. Replying on the text of the Veda to
the effect that women are devoid of senses and thus they are not the sharers in
property. Thus he concludes that the Vedas declared no inheritance rights to
women. The later commentators and digest writers such as Haradatta, King
Partap Rudra Deva the author of Saraswati Vilasa, Mitra Mishra the author of
Virmitrodaya have also adopted the same base for excluding the women from
inheritance rights. Though, later on it was presumed by the scholars that the
Vedic text cited by Baudhayana has nothing to do with the inheritance rights of
the women. They are of the opinion that Baudhayana cited this text only to
support his own view as to the capacity of women to inherit9 . Further the low
status of women is attributed to the Manusamriti. Dr. Ambedkar traces the low
status of women to Manu's Manusamiriti which instructed the menfolk not to
allow women to have unbridled rein in any walk of life. Manu observed: A
wife, a daughter and a slave have no property. The wealth, which they earn,
belongs to their owners. Thus Manu was deadly against the welfare and giving
dignified status to the women at every stage of their lives. According to him,
they could never enjoy an independent status in the society. As a child they
should be 9 P.C Jain, Heritable Rights of Hindu female: General survey, Journal
of legal Studies, University of Rajasthan, Vol. 28 (1997-98), pp. 3-6. 42 under
the direct control and supervision of her father. The father could give her in
marriage to anyone without her consent and authority. After being married, she
should live under the direct supervision and control of her husband. As a
widow, her son could exercise his authority over her. She was deprived of
freedom and personal property10. Generally, she had only one right i.e. right to
maintenance in the family and not inheritance or ownership rights. Although
within this framework an exception to inherit the property was made in the case
of an appointed daughter. Her right was almost universally acknowledged by
the ancient legislators of India. In this regard, there is one aspect which deserves
special mention. Gautama gave caution to his followers not to marry a woman
who had no brothers. He said "some declare that a daughter becomes an
appointed daughter solely by the intention of the father. Through fear of that, a
man should not marry a girl who has no brothers."11 Thus, if a person married a
girl who has no brother, the consequence is fatal to his family. Because his sons
are all transferred to the family of his wife's father and he has no claim upon his
own children. There is no other shocking thing to a Hindu man than the idea of
being deprived of a son. Similarly Apastamba included the daughter as an heir.
He says "if there is no male issue, the nearest Kinsman (sapinda) inherits; or in
default of kindred, the preceptor; or failing him, the disciple or the daughter
may take the inheritance."12 Sankha also declares the mother's and eldest wife's
right of succession. He stated that “the wealth of man, who departs for heaven
having no male issue, goes to his brothers. If there is none, his father and
mother take it; or the eldest wife or kinsman, a pupil or a fellow student.”13
Thus it may be said that Gautama included the widow, Apastamba- the daughter
and Sankha- the mother and the eldest wife, in their enumeration of heirs. But it
can also be said that Gautama and Apastamba did so with great reluctance.
Further their incorporation of widow and daughter in the list of heir has served
no useful purpose, because they introduced widow and daughter as heirs after
the long list of other kindred relations and strangers. In reality, it could never
happen that the deceased would be a person who never belonged to a spiritual
brotherhood, or never 10 S.S Azmi, Dr Ambedkar as pioneer for the upliftment
of status of women in B.R Ambedkar on federalism, Ethnicity and gender
justice, edited by Nazeer H.Khan, Deep and Deep Publications, New Delhi
( 2007), p. 192. 11 Gautama, Ch. XIX. 12 Apastamba, II, 14. 13 Sankha, cited
in Mitakshara ch II, sec. 1, 7. 43 had teacher, or a pupil, or a priest. In the
presence of anyone of these persons, the widow or the daughter could not
inherit. Thus even though the widow and the daughter were included in the list
of heirs, it was never intended by heart to give them property by way of
inheritance. In this manner, women were callously excluded from inheritance.
Thus most of these samritis were restrictive in the areas of rights of females.
Most of these Hindu religious text treated woman as dependent, requiring
protection and considering them incapable of exercising independent authority.
However there were exceptions to this restrictiveness within customary laws.

Passing of Hindu Succession (Amendment) Act, 2005:-

The subject matter of the law of succession falls in entry 5 of the concurrent list
of the Seventh Schedule to the Constitution. Therefore, Parliament as well as
the State Legislatures is competent to enact laws in this area. Thus the
amendments brought by the five states i.e. Kerala, Andhara Pardesh, Tamil
Nadu, Karnatka and Maharashtra is perfectly valid. But the problem arises if
any other state brings some another model of legislation in this field, there is a
likelihood of having still more diversity in the law. Because already three types
of law are existing in this area i.e. (i) the Hindu Succession Act, 1956 (ii) Kerala
Model (iii) Andhara Model. This would also result in non-adherenece to the
directive principles of state policy which require the state to take steps to secure
a uniform civil code throughout the territory of India. Though, these states done
a lot to implement the property rights of women, but having these different laws
on these property matters, again it creates confusions in the society.
Accordingly, the need was felt to have Central law enacted by Parliament under
Article 246 of the Constitution on the same subject. Considering this need and
to remove the continuing inequalities existing under the Hindu Succession Act,
the Law Commission of India prepared a draft of Hindu Succession
(Amendment) Bill, in 2000. This Bill was embodied in the Hindu Succession
(Amendment) Bill of 2004 which became the Hindu Succession (Amendment)
Act, 2005. It was passed by both the Houses of Parliament in August, 2005 and
came into force on 9th September 39 Property Rights of Woman; Proposed
Reforms under Hindu law, 174th Report of Law Commission of India, (May
2000), pp. 16-19. 66 2005. This amendment introduced sweeping changes in the
Hindu Succession Act, 1956. Though directly it is an amendment made under
Hindu Succession Act but indirectly it put major effects on Hindu coparcenary,
joint family and joint family property, and thus tries to remove discrimination
against female which exist in these institutions. It follows Andhara model but at
the same time tries to remove the loopholes which were still existed in these
state amendments. The changes introduced by this Amendment are: (1) The
discriminatory provision contained in section 4(2) of Act of 1956 which
provided that state can pass rule providing for the prevention of fragmentation
of agricultural holding or for fixation of ceiling or for the devolution of tenancy
rights in respect of such holding was omitted. This provision was usually used
by the male lobbies to retain their supremacy in land laws, which deprives the
women of their equitable share. For instance under the U.P Zamindari,
Abolition and Land Reforms Act, 1951 women were not entitled to inherit land
if the male heir is alive. Property inherited by a woman from man does not
devolve on her own heirs but on the heirs of man. By omitting this provision of
section 4(2), the Amendment Act 2005 tries to remove the gender
discrimination under the Act of 1956. (2) Under Section 6(1) of Amendment
Act, 2005: The daughter of a coparcenar shall: (a) By birth become a coparcenar
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 son; and any reference to a Hindu Mitakashara coparcenar shall be deemed to
include a reference to a daughter of coparcener. Provided that nothing contained
in this sub-section shall affect or invalidate any disposition or alienation
including any partition or testamentary disposition of property which had taken
place before the 20th day of December, 2004. (3) Section 6(2) provides that any
property to which female Hindu becomes entitled by the virtue of above
provision shall be held by her with the incidents of coparcenary ownership and
shall be regarded, as the property capable of being disposed off by her by will
and other testamentary disposition. 67 (4) Under Section 6 (3) the provision was
made that where a Hindu dies after the commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the property of a joint Hindu family
governed by the Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by the survivorship, and
the coparcenary property shall be deemed to have been divided as the partition
had taken place. The daughter is allotted the same share as is allotted to a son.
The provision was also made that the share of the predeceased son or a
predeceased daughter as they would have got, had they been alive at the time of
partition, shall be allotted to surviving child of such predeceased son or of such
predeceased daughter. Further the share of the pre-deceased 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 partition, shall be allotted to the child of such
pre-deceased child of the pre-deceased son or a pre-deceased daughter. The
most important fact is that the interest of a Hindu Mitakshara coparcener shall
be deemed to be the share in the property that would have been allotted to him if
a partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not. (5) Under
Section 6(4) the Amending Act of 2005 lays down that 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 (on the ground
of the pious obligation under the Hindu Law), of such son, grandson or great
grandson to discharge any such debt. But if any debt contracted before the
commencement of this Amending Act of 2005 the right of any creditor, to
proceed against son, grandson or great grandson, shall not affect or any
alienation relating to any such debt or right shall be enforceable under the rule
of pious obligation in the same manner and to the same extent as it would have
been enforceable as if Hindu Succession Amending Act of 2005 had not been
enacted. Further for the purpose of creditor’s right stated above the expression
son, grandson or great grandson shall be deemed to refer to the son, grandson or
great grandson who was born or adopted prior to the commencement (9th
September, 2005) of the Amending Act of 2005. (6) Further under Section 6(5),
the amendment Act of 2005 tries to plug that loopholes of anti dating partition
from the date of commencement of the Amendment by providing that only
partitions effected by a registered partition 68 deed or by a decree of court made
before the prescribed date i.e. 20th Dec. 2004 would be recognized. Under the
old law even the oral partitions or compromises was valid in the eyes of law.
Moreover under the state amendments a daughter, who was married before the
amendment was disentitled from becoming a coparcenar. But now there is no
such distinction of married and unmarried daughters. (7) Under the Amending
Act of 2005 Section 23 of the Act of 1956 has also been omitted which
disentitled the female heir to ask for partition in respect of a dwelling house
wholly occupied by a joint family until male heirs choose to divide their
respective shares therein. Thus again it removes the disability imposed on
female heirs and thus reduces the gender gap. (8) Similarly Section 24 of the
Act of 1956 was also omitted which debars the widow of predeceased son and
the widow of a pre-deceased son of the predeceased son or brother’s widow to
succeed the property of the intestate if they were remarried at the time when
succession opens. (9) Lastly the Amendment Act also introduces four new
cognatic relations in class I of the schedule of Hindu Succession Act, 1956.
These relations are: (i) Son of a predeceased daughter of a pre -deceased
daughter. (ii) Daughter of a predeceased daughter of a pre-deceased daughter.
(iii) Daughter of a pre-deceased son of a predeceased daughter. (iv) Daughter of
a pre-deceased daughter of a pre-deceased son.

Post Hindu Succession (Amendment) Act 2005

This act seeks to enlarge the rights of a daughter, married and unmarried both
by giving them equal coparcenary rights as that of son in joint family property.
It also seeks to bring the female line of descent at par with the male level of
descent. The Section 6 of the Hindu Succession Act 1956 has been amended as
stated below.

“In a joint Hindu family governed by the Mitakshara law, the daughter of a
coparcener shall, by birth become a coparcener in her own right in the same
manner as the son; have the same rights in the coparcenary property as she
would have had if she had been a son; be subject to the same liabilities in
respect of the 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”.

Also, the Act abolishes the doctrine of survivorship in case of male coparceners
who die as members of undivided Mitakshara conspiracy.

The Amendment thus makes a significant change by making daughters as

coparceners. The traditional patriarchal nature of the coparcenary has changed
radically. This change has fundamentally altered the nature of Mitakshara
coparcenary. The amendments in Section 6 seek to do away with the
discrimination against daughter, as her rights and liabilities are the same as that
of a son. This also implies that a daughter is now capable of acquiring an
interest in the coparcenary property, demand a partition of the same and dispose
it through a testamentary disposition. The new changes allow daughters to start
joint family herself. In short, all the prerogatives and uniqueness of a son’s
position in the family is available to a daughter as well.
The marital status of a daughter is immaterial as the Act does not impose any
reference or limitation with respect to her marital status. The Amendment
simply states that a daughter of a coparcener is included as a coparcener herself.

Law on equal right for daughters over property is prospective: SC

The law, which gave equal right to daughters in ancestral property under the
Hindu Succession Act, is prospectively enforceable and not with retrospective
effect (as held by some High Courts in the country), the Supreme Court
declared in its recent verdict.

A Bench comprising Justice Anil R Dave and Justice A.K. Goel, in its October
16, 2015, interpreted the succession law while setting aside the Judgment of the
Karnataka High Court in the case Prakash v Phulavati of 2010.

The Apex Court was dealing with the only issue which has been raised in this
batch of matters, whether Hindu Succession (Amendment) Act, 2005 (‘the
Amendment Act’) will have retrospective effect. In the impugned Judgment
(Phulavati v Prakash), plea of restrospectivity has been upheld in favour of the
respondents by which the appellants are aggrieved.

According to the case of the plaintiff, the suit properties were acquired by her
late father Yeshwanth Chandrakant Upadhye by inheritance from his adoptive
mother Smt. Sunanda Bai. After the death of her father on 18th February, 1988,
she acquired the share in the property as claimed. The suit was contested mainly
with the plea that the plaintiff could claim share only in the self acquired
property of her deceased father and not in the entire property. During pendency
of the suit, the plaintiff amended the plaint so as to claim share as per the
Amended Act 39 of 2005.

The Karnataka High Court had held that daughters would be entitled to equal
share even if father had died prior to September 9, 2005, when litigations over
partition were pending in courts.

The defendants-appellants have questioned the Judgment and Order of the High
Court with the contention that the amended provision of Section 6 has no
application in the present case. Father of the plaintiff died on 18th February,
1988 and was thus, not a coparcener on the date of commencement of the
Amendment Act. The plaintiff could not claim to be “the daughter of a
coparcener” at the time of commencement of the Act which was the necessary
condition for claiming the benefit.

The amendments of 2005 gave equal right to daughters in coparcener properties

by removing the discrimination that existed in the original enactment, the Hindu
Succession Act, 1956 against Hindu women on rights over ancestral properties.

The Apex Court said that the rights under the Hindu Succession (Amendment)
Act, 2005 are applicable to living daughters of living coparceners (those persons
sharing the inheritance of an undivided property equally with others) as on
September 9, 2005 (when amendments came into force) irrespective of when
such daughters were born.
“The text of the 2005 amendment, itself clearly provides that the right conferred
on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the
Hindu Succession (Amendment) Act, 2005.”

WOMEN AS A COPARCENAR

The Hindu women’s Right to Property Act came into force on the 14th April,
1937 and has no retrospective operation. As the Act was considered to be
defective, it was amended by the Hindu Women’s Right to property
(Amendment) Act XI, 1938, which was declared to have retrospective effect,
from the 14th April, 1937. Ever after the amendment, the Act remained
defective and obscure in some respects.

The Act does not confer upon Hindu widow of any interest in agricultural land
(Ante para 52), succession to shebaitship, in which an element of beneficial or
personal interest is normally involved is governed by the provision of the Act.3
The act applies to moveable properties in foreign countries.4 As there was no
specific legislation extending the Act to the erstwhile Indian State of Kutch it
was held that the old Hindu Law applied and the nephew would be preferential
hair to a son’s widow.5 The Act of 1937 conferred new rights on the widows in
modification of previous decisions. It recognized three widows, viz. intestate’s
widow, his son’s widow and the widow of a predeceased son of a predeceased
son.
SCOPE AND OPERATION OF THE ACT-

The Act has no retrospective operation6 . It has no application to properties

situated in foreign countries7 , or to properties which did not belong to the
deceased in his own right but were vested in him as a trustee8 . The Act does
not apply to the property of a Hindu female9 . The Act applies only when a
Hindu dies intestate either partially or wholly. Under the Act a Hindu widow
had no doubt a demonstrable right to obtain the entitlement to which her
husband was entitled to either in his self-acquired property or in the
coparcenary in which he was a member. She could demand a partition of her
share from the other sharers or coparceners. But the overall limitation or
circumscription which was conceived by the Act was that she should not for
reasons not contemplated and accepted by the then personal law of the
Hindus, sell or alienate her share except for accredited and sanctioned
purposes. 10 The provisions of the Act so far as succession to the separate
property of a Hindu is concerned may be summarised as follows: (i) His sons,
his widow, the widows of his predeceased sons, his son’s sons and son’s son’s
sons and the widows of predeceased sons of predeceased sons, succeed
together to that property with this qualification that if the parties are governed
by the Dayabhaga School in the presence of the son his own son cannot claim
any interest in the property inherited. (ii) The share of the widow of a
propositus is equal to that of a son where there is a son or son's widow or
grandson or grandson's widow or greatgrandson. If the propositus has left
more than one widow of his, then all such widows together will take the share
of a son. If the propositus has left only his widow or widows and none of the
other heirs mentioned in the Act, then she or they take the whole estate. (iii)
The share of the widow of a predeceased son is equal to that of a son provided
that in the case of the existence of more than one widow of a predeceased
son, all such widows are entitled to claim only one such share and provided
further that if there is a son of such predeceased son all such widows will take
together a share which is equal to that of a grandson. (iv)Similar provisions
apply in the case of the widow or widows of a predeceased son of a
predeceased son. (v) Each of the widows above-mentioned is entitled to claim
and sue for partition and delivery to her of her share under the Act.

In the case of a widow of a member of a Mitakshara coparcenary she virtually

steps into the shoes of her husband and is entitled to claim a separation and
delivery to her of his share both as against his sons and as against his other
coparceners, whether they be ascendants, descendants or collaterals of her
husband. Her existence suspends the rule of survivorship as to the deceased's
interest but the rule continues to operate quoad the other coparceners and
their interest as also the interest of the widow is liable to fluctuate by births
and deaths in the coparcenary as before subject only to her statutory right. 11
The term "widow" necessarily denotes the relationship with a deceased
husband who before his death was her husband. She may be a widow of her
deceased husband for purposes of Section 3 of the Act and she may continue
as the wife of her other husbands who had married her along with her
deceased husband in a community where polyandry was permitted.

APPLICABILITY OF THE ACT-

Section 1- Hindu Women's Right to Property Act, 1937 applies only to the
separate property left by a Hindu male. It does not apply either to the
coparcenary property or the property of a Hindu female.

OBJECT OF THE ACT-

Section l in investing the widow of a member of a coparcenary with the
interest which the member had at the time of his death has introduced
changes which are alien to the structure of a coparcenary. The interest of the
widow arises neither by inheritance, nor by survivorship, but by statutory
substitution. By the Act certain antithetical concepts are sought to be,
reconciled. A widow of a coparcener is invested by the Act with the same,
interest which her husband had at the time of his death in the property of the
coparcenary. She is thereby introduced into the coparcenary, and between the
surviving coparceners of her husband and the widow so in traduced, there
arises community of interest and unity of possession. But the widow does not,
on that account, become a coparcenary though invested with the same
interest which her husband had in the property; she does not acquire the right
which her husband could have exercised over the interest of the other
coparceners.

ACCORDING TO SECTION 3 OF THE ACT-

(i) When a Hindu governed by the Dayabhaga school of Hindu law

dies intestate leaving any property, and when a Hindu governed by
any other school of Hindu Law or by customary law dies intestate
leaving separate property, his widow or if there is more than one
widow all his widows together shall subject to the provisions of
sub section (3), be entitled in respect of property in respect of
which he dies intestate to the same share as a son. Provided that the
widow of a predeceased Son shall inherit in like manner as a son if
there is no son surviving of such predeceased son and shall inherit
in like manner as a son’s son if there is surviving a son or son’s son
of such predeceased son. Provided further that the same provision
shall apply mutatis mutandis to the widow of a predeceased son of
 a predeceased son. (ii) When a Hindu governed by any school of
Hindu Law other than the Dayabhaga school or by customary law
dies having at the time of his death an interest in a Hindu joint
family property his widow shall subject to the provision of sub
section (3), have in the property the same interest as he himself
had. (iii) Any interest devolving on a Hindu widow under the
provisions of this section shall be the limited interest known as a
Hindu Women’s estate, provided however, that she shall have the
same right of claiming partition as a male owner. (iv)The provision
of this section shall not apply to an estate which by a customary or
other rule of succession or by the terms of the grant applicable
thereto descends to a single heir or to any property to which the
Indian succession Act, 1925 applies:

AMBIT AND SCOPE OF SECTION 3(2)-

The persona of the husband after his death continues through his wife who
is the surviving half of the husband and the husband continues to live
through the widow so long as the widow is alive. It was this concept of the
Hindu law which was sought to be recognised and given effect to by the
Actof 1937. In these circumstances, therefore, when the Legislature used
the expression "the same interest as he himself had" it would include all the
bundle of rights possessed by the husband which would devolve on the wife
and if there were to be any limitations on those rights they were spelt out
by sub-section (3) itself. Sub-section (2) of Section 3 of the Act further
 conferred on the widow the right to demand partition and on partition she
was entitled to get the same share as her husband. Thus the position
appears to be that a Hindu widow was introduced for the first time into the
Hindu coparcenary having the same rights as her husband and became as it
were a' member of the Hindu coparcenary with two qualifications, viz.; (1)
that she had only a limited interest; and (2) that she could not be a
coparcener because having regard to the nature of her entry into the family
after marriage with her husband there was no question of her getting
interest in the Hindu coparcenary by birth which is one of the most
important incidents of a Hindu coparcenary. All the other rights of a
coparcener were duly conferred on her by the Act of 1937.

AMBIT AND SCOPE OF SECTION 3(3)-

The right to claim partition which a male owner may exercise is conferred upon
a Hindu widow by Section 3(3). On the making of a claim for partition, the
interest of the widow gets defined. The right which the widow may claim is not
different from the right which her husband could claim if he had been alive;
therefore, the right of the coparceners to take the joint property by
survivorship on the death of a coparcener does not service a demand for
partition by the widow in the coparcenary.

ACCORDING TO SECTION 4 AND 5-

S.4 nothing in this Act shall apply to the property of any Hindu dying intestate
before the commencement of this act S. 5 For the purpose of this Act, a person
shall be deemed to die intestate in respect of all property of which he has not
made a testamentary disposition which is capable of taking effect. Thus where
a Hindu male governed by Mitakshara law died, his separate property and
where a Hindu male governed by Dayabhaga School died, all his property, the
widow would inherit along with the male issue. The Act gave the widow equal
share as that of her son in the intestate’s separate property and in default of a
son she inherited the entire property. With respect to joint family property she
was given “the same interest as he himself had.” If there were more widows
than one, all of them together took one share. In all cases, the widow took a
women’s estate in the property. The widow was given the same right of
claiming partition as a male owner and this manna the abrogation of the right
of survivorship. Before the passing of the Act she was not entitled to inherit
any property but was entitled only to maintenance.

CHANGES EFFECTED BY THE ACT-

The Act replaces the rule of Hindu law recognized in all the states except in
Madras where it has become obsolete, that a widow was entitled to share
when her sons or her step son have actually divided the estate between
themselves.18 Under the Act the widow on her husband’s death gets a right to
the same share as a son along with her sons or step-sons, independent of any
partition which may or may not be entered into by them. In Madras, of course,
the change effected by the Act is much greater. What is more, it repeals in the
States, the older rule according to which a widow succeeds only on failure of
male issue. For instance, even where her husband leaves an only son and there
can be no question of partition, she succeeds along with him for the share of a
son. Evidently following the view of Visvarapee (para 457), the Act makes a
widowed daughter-in-law and a widowed-grand-daughter-in-law entitled to
share along with, or in default of, the male issue .and the widow. It brings the
Mitakshara and Dayabhaga system closer together by conferring upon the
widow of a member of an undivided family the right to inherit his coparcenary
interest. In every case she will be entitled to enforce a partition also.

While the object of the Act is to confer new rights of succession upon the
widows mentioned in it19, it not only alters the order of succession, but
involves far reaching consequences in many departments of Hindu law,
particularly in law relating to Mitakshara coparcenary, where the provisions of
the Act are clear. But the legislature may well be presumed to have left Hindu
Law unaltered in other respects. The Act must therefore be so construed as
not to create a greater departure from Hindu Law as it necessarily implies.20
The definition introduced by the amending Act of "Intestacy" in Sec. 5 does not
remove the difficulty created by the words "dies intestate" in Sec. 2 as to the
scope and operation of sub sec. (2) of Sec.3. The intention of the legislature
evidently is that sub section (2) of section 3 should apply in every case and that
is why the inappropriate words "dies intestate" which stood in that sub section
was repealed. Those words should also have been omitted from Sec. 2. As the
Act stands, on a strict construction sub sec. (2) of Sec. 3 can apply only when
under Sec. 2 a Hindu dies intestate; especially as those words are not required
in connection with Sec. 3(1), as they are already there, if therefore a man has
made a complete and valid disposition of all his separate and self acquired
property he cannot be said to have died intestate. But as intestacy cannot by
any legal possibility be a condition for the operation of sub sec. (2) of sec. 3 the
words "dies intestate" in sec. 2 must be treated as surplus age having no
meaning.

EFFECT OF THE ACT ON DEVOLUTION OF SEPARATE

PROPERTY UNDER THE MITAKSHARA FAMILY:
Introduction of new heirs Under the law prior this enactment, the widow of a
Hindu was no heir to his property in the presence of his sons. This Act not only
makes her an heir along with the sons, but also introduces the widowed
daughter-in-law and the widowed grand-daughter-in-law as new heirs. These
widows succeed with the sons and before the daughter, the daughter's son
and the parents22. The widowed daughter-in-laws right to come in as the heir
of the father-in-law under the Act was held by the Federal Court to be
claimable only in respect of his separate property in the sense of self-acquired
property, and not in respect of property held by him as sole surviving
coparcener23 even the interpretation by the Federal Court is not without
anomalies. Widows A widow is entitled under the Act to the same share as a
son either in competition with a son or in competition with a widowed
daughter-in-law or in competition with any other lineal male descendant or his
widow entitled to succeed under this Act. If the propositus has left more than
one widow all the widows together will be entitled to the same share as that
which would come to a sole widow. But where the widow is the only relation
left and there is neither a son nor any of the other relations mentioned in the
Act as entitled to heir ship, then the widow takes the whole estate, though
only as a qualified owner .

Separate property According to the decision of the Federal Court in Umayal

Achi vs. Lakshmi Achi25, the expression "separate property" meant only the
self-acquired property of the deceased Hindu. Property held by a person as a
sole surviving coparcener of a joint Hindu family was not his separate property
within the meaning of section 3(1) of the Act so long as there was a woman in
the family who can bring in a new coparcener by adoption26. As pointed out
by the Privy Council in Anant vs. Shankar,27 a coparcenary must be held to
subsist so long as there was in existence a widow of a coparcener capable of
bringing a son into existence by adoption. In that very case, the Judicial
Committee refers to the property held by surviving coparceners as joint family
property in his hands. Likewise it should be held that the property which a
coparcener obtains at a partition is joint family property though the
coparcener may, after the partition, have absolute powers of alienation so long
of course, there is no son born to him, after the partition, which would on birth
be entitled to a share in such property. The Orissa High Court has construed
section 3(2) of the Act in the same manner as indicated above in the case of
Visalamma vs. Jagannadha Rao28 , and also in Pandab Panigrahi vs. Laxmi,29.
In that case the learned Judges held that where a Hindu has effected a
partition with his only son and the parties are governed by the Madras school
of Hindu Law the properties which fell to the share of the father are not his
separate properties for the purpose of section 3(1) but are joint family
properties within the meaning of section 3(2) of the Act. In Lakshmamma vs.
Kondayya30, it was held that ancestral property which had been allotted to
one of the sons and subsequently dealt with by him under a settlement
between him and his daughter and widowed daughter-in-law could not be
considered as his separate property. Where a Hindu died in 1926 his
predeceased son's widow would not succeed under the Act even though the
widow of the deceased died after the Act. Shebaitship like any other heritable
properety follows the line of inheritance from the founder and hence attracts
the applicability of the provisions of this Act Angur Bala Mullick vs.
Debabrata32. The right to trusteeship or the right of management of trust
property whether the trustee has or has not a beneficial interest in the
dedicated properties can pass to a woman by succession except where the
functions to be discharged involve spiritual duties which a woman cannot
properly discharge Karthiah Kone vs. Bagyathammal. 33 The widow does not
obtain her right under the Act either by survivorship or by inheritance and
hence she is not bound to obtain a succession certificate in respect of moneys
due to her husband.34 See contra in Jadavbai vs. Pumommai, 35 she is not a
coparcener with the surviving coparceners. 36 The widow taking an interest in
the joint family of her husband under the Act is his legal representative and is
entitled to continue a partition suit filed by her husband. 37 A widow
succeeding to the interest of her husband under the Act does not become the
manager of the family in the right of her husband. Nor does the fact that she
happens to be the eldest member of the family invest her with such a right. If
there is an adult male member, he is the manager in spite of the fact that he is
junior in age to the widow. Where pending a partition suit between father and
sons the father died, his widow was held entitled to a share under the Act and
not as mother to an additional share. 39 The right which a widow gets under
the Act cannot be defeated by her husband making a will of his interest to his
sole surviving coparcener. 40 It was held that the Act did not abolish the
widow's right to maintenance and it was still available after the Act, there
being an option in her to claim maintenance or a share but not both. The
ornaments which are the separate property of the widow cannot be taken into
account in determining her share in the property left by the husband whether
the property is joint family property or the separate property of the
husband42. The interest taken by a widow under the Act is alienable by her
like any other property43 and when she alienates it without necessity the
alienee gets the right to enjoy the property during the widow's lifetime and
can claim partition and possession of the widow's share44 . In Ramaiya Konar
vs. Mottaiah Mudaliar45, a Full Bench of the Madras High Court held that a
Hindu married woman who is unchaste at the time of her husband's death is
disqualified from inheriting his interest in the joint family property under
Section 3 of this Act. It cannot be said that the Act has either expressly or by
necessary intendment done away with the personal disqualification like
unchastity imposed by Hindu Law on widows claiming to succeed to the estate
of their deceased husbands. The rule of Hindu Law to the contrary referred to
in Section 2 must be construed as confined to the rule of Hindu Law excluding
a widow from succession to her husband's estate if he had left a son or
grandson or great-grandson or if he had died a member of a joint Hindu family
leaving him surviving his coparceners. It is this rule of Hindu Law that must be
held to have been superseded by Section 3 of this Act and to that extent and
no further can Section 3 be held to be contrary to and. in supersession of the
rule of Hindu Law. This view has been followed by other decisions of other
High Courts as well.46 It is a fortiori that a widow re-marrying should forfeit
her right of succession to the property of her deceased husband.

In Surja Kumar vs. Manmatha,48 it was held that if unchastity of the wife had
been condoned by the husband the unchastity would not be a bar.

Status of the statutory co-heirs In places governed by the Mitakshara school, in

the interest taken by a son in the separate property of a deceased father that
son's son and grandson get a right by birth; and in cases governed by the
Dayabhaga, where a father's property is inherited by a son, the latter's son
does not get an interest by birth in that property. So also the existence of the
managership in the eldest male member should still be postulated with all the
privileges and powers of management and alienation appertaining to that
position and the corollary and concomitant disabilities and obligations of the
junior members Kalian Rai vs. Kashi. 51But if there is no adult male member,
there is nothing to preclude a female member of the family who is competent
and willing from taking up the rights and duties flowing from the position or
managership. She can contract debts and alienate the family property for the
benefits or necessity of the family of which she is the manager and the junior
members of the family, both males and females, would be bound by such
debts and alienations. She can sue Natarajan vs. Perumal,52 and be sued as
representing the entire family and can generally do all acts which can be said
to be acts of prudent management. But she cannot claim to be a coparcener
with her sons.

Nature of the widow's right to claim partition The interest which the widow
takes is an alienable right and the alienee can ask for partition and possession
of her share. 56 Again a suit for partition affects a severance in interest of a
coparcener and if anything the widow's position must be a fortiori. The proper
view to take seems to be that if there is a suit for partition either at the
instance of the widow or at the instance of her husband's coparceners she
must be considered to possess her interest as a separate coparcener and on
her death whether pending the suit or after a decree for partition the interest
of her husband which she had taken under the Act must be held to go to her
husband's heirs and not to the other coparceners of the quondam undivided
family. Ramaswami Cherry vs. Lakshmamma,57 Parappa vs. Nagamma,58
which consider the law on the point contains the following passage on the
question. Section 3(2) of the Act does not bring about a severance of interest
of the deceased coparcener. Certainly the widow is not raised to the status of a
coparcener, though she continued, to be the member of the joint Hindu family
as she was before the Act. The joint family would continue as before subject
only to her statutory right. The Hindu conception that the widow is the
surviving half of the deceased husband was invoked and fiction was
introduced, namely that she continued the legal persona of her husband till
partition. From the standpoint of the other members of the joint family, the
right of survivorship was suspended. The legal effect of the fiction was that the
right of the other members of the joint family would be worked out on the
basis that the husband died on the date when the widow passed away. She
would have during her lifetime all the powers which her husband had save that
her interest was limited to a widow's interest. She could alienate her widow's
interest in her husband's share: she could even convey her absolute interest in
the same for necessity or other binding purposes. She could ask for partition
and separate possession of her husband's share. In case she asked for
partition, her husband's interest would be worked out having regard to the
circumstances obtaining in the family on the date of partition If she divided
herself from the other members of the family during her lifetime, on her
demise the succession would be traced to her husband on the basis that the
property was his separate property. If there was no severance it would devolve
by survivorship to the other members of the joint Hindu family. This
conception of the legal persona of the husband continuing to live in her steers
clear of many of the anomalies and inconsis- tencies that otherwise would
arise. See also Keluni Dei vs. Jagabandhu. 59 Section 3(2) - The widow does
not, by virtue of the interest given to her by the new law become a
coparcener. She being entitled to claim partition of the joint family property is
in the same position in which her deceased husband would have been in the
matter of exercise of that right. That is to say, her interest is a fluctuating one
and is liable to increase or decrease according as there are deaths in or
additions to the members of the family or according as there are accretions to
or diminutions of the property.
EFFECT OF THE ACT AS REGARDS THE COPARCENARY
INTEREST OF DECEASED HINDU:

Position of the coparcener's widow On the death of a Hindu as a member of a

Mitakshara coparcenary, his widow takes his interest in the family property
subject to the coparcenary incidents of the right of survivorship, right to claim
partition and right to maintenance. It would however be a misnomer to
describe her as a coparcener. She takes the same interest as her husband" and
not "the same right as her husband" Dagdu vs. Namdeo. She gets the right to
demand a partition; but she cannot predicate the exact share which she might
receive until partition; until partition is made her dominion extends to the
entire property conjointly with the other members of the coparcenary; her
possession and enjoyment is common; the property cannot be alienated
without the concurrence of all the members of the family except for legal
necessity; and like other coparceners she has a fluctuating interest in the
property which may be increased or decreased by deaths or additions in the
family. It is manifest that she cannot have a right by birth because she enters
the coparcenary long after she is born and on her husband's death. Thus short
of this, she possesses all the indicia of a coparcenary interest. Though she
cannot be a coparcener she has a coparcenary interest and she is also a
member of the coparcenary by virtue of the rights conferred on her under the
Act Controller of Estate Duty vs. Alladi Kuppuswamy. The interest of the widow
vis-a-vis her husband's undivided interest arises not by inheritance nor by
survivorship but by statutory substitution Satrugnan vs. Sabujitpari. If the
coparcenary ceases to exist by virtue of a partition among the coparceners
during the lifetime of the widow, her interest becomes defined, which, on her
death will not survive to the erstwhile coparceners Padmanabha vs.
Harsamoni.80 Unless the widow claims partition of the share to which her
husband would be entitled had he been alive, her predeceased son's wife will
be preferred to her own daughters Anandi Devi vs. Shyam Kishore . Widow's
liability for her husband's debts The question of the widow liability for the
husband's debts in case he has died as a member of a coparcenary is beset
with doubts and difficulties but appears to depend for its determination on the
circumstance whether he died leaving sons or not and whether the debts is a
simple debt or a mortgage debt. If the debt is a valid mortage debt then his
share is taken by his widow burdened with the debts and is therefore liable for
its satisfaction. But if the debt is a simple debts, then the share which she has
taken in the family property is freed from the obligation of paying that debt if
the coparcenary as a member of which he died consists of only his collateral
relations, for in that case the rule of survivorship in favour of such relations
defeats the creditor's right unless his interest has been attached during his
lifetime in execution of a decree obtained in respect of that debt, and the fact
that the personality of the husband is in a sense continued by the widow is no
ground for holding that the husband's interest is still liable for his simple debt,
inasmuch as to so hold would, instead of the Act operating in favour of the
widow which obviously is the intention of the Act, make it operate to her
detriment. The chief idea underlying the scheme of the Act is that the right to
maintenance which the widow of a coparcener had prior to the Act must be
converted into a right in specific property as a shareholder and if ignoring the
fundamental foundation of the enactment one is to hold that her share would
be liable for the simple debts of the husband, it would very often deprive her
of her means of maintenance. It has been held that the interest of the husband
taken on his death by the widow under the Act is taken by her not as a
surviving coparcener in the husband's joint family but as his heir under a
statutory provision and is liable for his simple debts though there had been no
attachment and decree against him during his life-time. In view of the
decisions in Satrughan's case, 83the assumption that the widow takes under
the Act as the husband's heir and is therefore liable for his debts is not
warranted]. But if the husband has left also sons, son's sons or son's son's sons,
then her share must be held liable for the simple debts in the same way as her
sons' shares would be. The contrary construction would place the widow in a
more advantageous position, than that of the sons, for the sons would be
liable for the debts under the pious obligation but the widow would not be
liable, a result which it is difficult to hold is the intention of the Legislature. It
may, however, be asked, why should a widow be in a worse position when she
has sons than when she has no sons? The answer is otherwise there would be
anomalies, and it is one of the fundamental canons of construction to interpret
a statute in such a way as to avoid anomalous results. The construction
favoured in the discussion here does not take away the rights of persons which
they formerly possessed, and where possible secures to the widow the benefit
intended by the Act. The position that in the case the husband died as a
coparcener leaving a widow and no sons the husband's share in the widow's
hands is not liable for the simple debts of the husband in respect of which no
decrees had been obtained and no attachments effected during his lifetime,
while operating beneficially to the widow does not take away any right which
the creditors formerly had, for, the creditors formerly had none as on the
death of the coparcener his interest in the family property became freed from
the obligation of paying those debts as a consequence of the existence of the
right of survivorship of the other coparceners. So also the latter position of the
liability of the widow's share for those debts in the presence of the sons, while
not taking away any right of the widow which she formerly possessed, leads to
the reasonable construction that the sons should not be placed in a worse
position than the widow. The nature of the right which the widow gets being
the limited interest with all its incidents in the hands of the widow inheriting
that interest it is open to her to alienate her own undivided interest in the joint
family property and-if such alienation is not for necessity approved by the
Hindu Law it will be valid for her lifetime.84 In Narayan Vadraj Katti vs.
Belgaum Bank,85 it was held that when a Hindu died leaving sons and a widow
and his creditor filed a suit and obtained a decree as against the sons only in
respect of the assets of the father in their hands, the said decree would not be
binding on the share of the widow in the husband's property.

IT’S EFFECT ON THE MITAKSHARA COPARCENARY:

The Act affected the Mitakshara coparcenary fundamentally and introduced far reaching
changes in its structure. Section 3(2) laid down that in the joint family property the widow of
the deceased coparcener would have “the same interest as he himself had”. This was
irrespective of the fact whether the deceased coparcener left behind a son or not. This
virtually mean abrogation of the rule of survivorship Section 3(3) gave her the same right of
claiming partition as a male owner.87 These provisions led some controversy among the
High Courts. The Supreme Court has now resolved the controversy and clarified some
issues.88 As to whether the interest of the widow arose by inheritance or by survivorship or
by statutory substitution, the Supreme Court held that it came into existence by the statutory
substitution.89 She was given the same power of partition as any coparcener had, but thereby
she did not become a coparcener. A widow of deceased coparcener is thereby introduced into
the coparcenary, and between the surviving coparceners of her husband and the widow so
introduced, there arises community of interest and unity of possession. But the widow does
not, on that account, become a coparcener. Though invested with the same interest, which her
husband had in the property, she did not acquired the right which her husband could have
exercised over the interest of the other coparceners. Because of statutory substitution or her
interest in the coparcenery property in place of her husband, the right which the other
coparceners had under the Hindu law of the Mitakshara School of taking that interest by the
rule of survivorship remains suspended so long as that estate ensures. But on the death of the
coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in
favour of the widow in the coparcenary property.90 Since a widow took the same interest as
her deceased husband had, her interest was subject to all the incidents of coparcenary interest.
If she did not ask for partition, her interest was subject to fluctuations, and on her death,
passed by survivorship to other coparceners.91 An alienation made by the Karta for legal
necessity was binding on her share. When she asks for partition, “her husband’s interest
should be worked out having regard to the circumstances obtaining in the family on the date
of partition.”92 Once she demanded partition, severance of status took place irrespective of
the fact as to whether she got or did not get the possession of her share of properties. If
severance took place, the succession would be traced to her husband on her demise, on the
basis that the property was his separate property. 93Shah, J., said that “to assume that the
right of the coparceners to take her interest on determination of the widow’s interest survives
even after the interest has become definite, because of a claim of partition, is to denude the
right to claim partition of all reality.”94 The most important alteration in fundamental
principle of Hindu law is that introduced by sub Sec. (2) to Sec. 3 in a Mitakshara undivided
family, the widow of a deceased coparcener will have in the joint family property “the same
interest as he himself had.”95 This devolution of his interest on her abrogates the rule of
survivorship and makes the undivided interest of a coparcener pass to his widow, even when
he leaves male issue. This Act has taken away the rule of survivorship and allowed the
property to descend to his wife. Once the rule of survivorship no longer operates, there is
nothing to preclude a creditor from attaching the property96. The language of section is
comprehensive, and applies both to cases where her husband and his sons alone form a
coparcenary and to cases where a coparcener in a joint family dies leaving either his widow
and male issue or his widow only. As under sub.sec. (3), the interest case of Mitakshara
family, are treated as a coparcener in the strictest sense along with her sons and the other
coparceners though she is undoubtedly a member of the joint family with certain special
statutory right97. But she is conferred the right of claim partition as male owner, and she
acquires the status of a coparcener in possession for the purpose of filing a suit for partition,
though she may not acquire the full right of a coparcener but only a Hindu Widow’s estate.98
When a widow succeeds to her deceased husband's interest in a joint family, she takes it only
by inheritance and not by survivorship99, for she had no right by birth and she was not a Co-
owner prior to his death, there are no words in the Act by which she can be deemed to be a
co-parcener. The interest which devolves upon her is declared to be a Hindu woman’s estate.
This means that on her death it will go to her husband’s heirs which cannot mean all this
coparceners. In other words on her death, whether before or after partition, her interest will
go to her to daughter, daughter’s son, or other heirs of her husband. Under section 3(2) of the
Act, the window of a member of Hindu joint family was put in place of her husband and the
husband’s interest in the coparcenary property though indefinite would vest immediately
upon his death in the widow.100 This section of the Act does not bring about a severance of
interest of the deceased coparcener, and his widow is not raised to the status of coparcener
though she continues to be a member of the joint Hindu family as she was before the Act.
The joint family would continue to exist as before subject only to her statutory rights and that
the rights of other members of the family would be worked out on the basis that the husband
died on the date when the widow passed away, the right to survivorship being suspended till
then.101 The right conferred by this section was a new right in modification of the pre-
existing one. The widow was entitled to claim a share not only in the property owned and
possessed by the family at the time of his death but also in the accretions.102 Though by
virtue of the new right the widow does not become a coparcener, she being entitled to her
deceased husband would have been in the manner of exercise of that right. Before the
decision of the Supreme Court in P. Lakshmi Perumallu vs. P. Krishanavenamma,103 there
was a conflict in the decisions of the various High courts as to the interest of the widow under
section 3(2) of the Act of 1937. One view was that it is to be determined as on the dated on
which she seeks to enforce partition. The other view was that it was to be determined on date
on which her husband died, that is to say, that it was not a fluctuating interest increasing or
decreasing as a result of deaths or births in the family.104 In the instant case there were three
brothers S, L & K S died leaving a son SP from his first wife and his second wife W1 SP died
in the year 1939. W1 filed suit in 1950 against L claiming half share in the entire property. It
was held by the Supreme Court that her share did not get fixed at the time of death of her
husband in 1938, which was ¼ at that time as his son SP was alive) but was one half when
she claimed partition in 1950105 . S L K (died 1938) (died 1930) (W) W1 (SP) (died 1938)
On the same principles the position of Karta in the joint family remains unaffected so long as
there is no partition and Karta had right to deal with the joint family property including the
interest of the widow. He was empowered to alienate the joint family property including
widow’s interest.106 If the widow got her share partitioned, on her death the succession
would be traced to the husband’s heirs on the basis that the property was his separate
property. But if she died, joint family property would pass survivorship.107 Mere severance
of status is enough to carve out her interest in the family, though there was no division by
metes and bounds. 108 If two or more widows inherit the property, on the death of one would
go by survivorship to other.
IT’S EFFECT ON LAW OF SUCCESSION:

In respect of separate property of Mitakshara Hindu and in respect of all

properties of a Dayabhaga Hindu, the Act introduced three categories of
widows, viz, intestate’s own widow. His son’s, son’s widow and his son’s
widow as heirs along with the son, grandson and great grandson, as also in
default of them. The widow took a share equal to the share of a son and, in
default of the son took the entire property. If there were more than one
widow, all of them together took one share. In the case Mitakshara joint family
property, the widow of a deceased coparcener took the same interest in the
property which her deceased husband had in the joint family property at the
time of his death. In all cases, the widows took a woman’s estate in the
property110 . For instance, if a Hindu dies leaving being his separate property
and his own widow, son’s widow and grandson’s widow each of the widows
will take 1/3 share in the property. Or, take another example, P dies leaving
behind two widows, W1 and W2 and two son’s S1 and S2. He leaves behind
separate property, S1 and S2 each will take 1/3 and W1 andW2 each will take
1/6(both widows together taking onethird share. The deceased capacener’s
interest taken by widow, after her death, reverted to the heirs of the last male
holder. As to the devolution of the interest of the daughter –in-law and the
grand-daughter-in-law, Mayne said: “on the death of the daughter-in-law and
grand-daughter-in-law, her interest would pass to the whole of the male issue
and the surviving female heirs.”

THE CONSTITUTION OF INDIA AND THE ENACTMENTS

UNDER HINDU LAW:

After the constitution of India was enacted, in Haridas vs. Hukmi112 , the
Punjab High Court has held that under Article 372, the Act continued to be in
force, but until it was suitably amended by parliament or fresh legislation was
enacted under item 5, list 3 Schedule7, the law not applicable to agricultural
lands. In Bhagwan Kunwar vs. Nanhiduliya113, the Madhya Pradesh High Court
has held that the Hindu Women's Rights to property Act, 1937 applies to
agricultural land in Vindhya Pradesh, a part C State as the parliament under the
constitution could legislate for a part C State with respect to any matter
notwithstanding that such matter was enumerated in the State List, Article 246
(4).

SCANNING OF THE HINDU WOMEN’S RIGHTS TO PROPERTY

ACT, 1937:

Hindu Women’s Right to Property Act, 1937, though a reformatory measure

was subjected to a good deal of criticism. The reason appears to be that the
Act, though well intentioned, was not happily worded and resulted in certain
ambiguities and anomalies, 'not easy to reconcile. It can be said that it was a
glaring instance of how a piecemeal legislation on one of the many aspects of
an integrated and complicated structure like Hindu law could create
difficulties, or that it showed how an unregulated tinkering with law could lead
to confusion unless made in a systematic manner. True, it was passed for
removing some obvious anomalies and for making progressive changes in
Hindu law, but it was not easy to reconcile the changes made by it, with the
notions: of the Hindus based on the principles of Hindu law prevalent for
centuries.

The phrases "same share as a son" and the same interest as he himself had"
used in sub-sections (1) and (2) of Section 3 were ambiguous in their meaning
and were capable of different interpretations. The word "share" connoted a
determinate or ascertained portion of the estate whereas the word 'interest"
connoted a fluctuating portion of the estate as was held by the Bombay High
Court in Nagappa Naryan vs. Hukambe14and Orisa High Court in Gangadhar vs.
Subhashini: It was said that the word "interest" did not woman right, and
therefore, the same interest would not include the same right. It: is thus
evident that the phrases used in the Act looked fair and beneficial to the
widows but were not comprehensive or clear enough. For example they did
not provide as to: (i) Whether the widow could become Karta of the family in
case she happened to be the elder member of the joint family? (ii) Whether
the interest of the widow would fluctuate by births and deaths occurring in the
family after her husband death? (iii)What would be the rights of the co-widows
inter se where the deceased left more than one widow? (iv)Whether the
interest in the joint family, property developed on the widow of a coparcener
by Survivorship or by inheritance or because of the continuance of her
deceased husband’s personal in her? (v) Whether the Act brought about
severance or disruption of the joint family or merely provided for a statutory
devolution of property? The provisions of the Act were not easily
comprehensible because the draftsman did not take care to define adequately
what the Act sought to create. The phrases used in the Act were capable of
diverse and conflicting interpretations with the result that even the justice
creation, as has already been discussed in the proceeding pages. Chief justice
Chagla, speaking for the Division Bench in Dagadu Balu Cavade vs. Namdeo
Rakhmaji Khatke,115 made the following observation: "Although the Act is a
very short one. All questions of interpretation of that Act usually raise serious
difficulties. Some judges have observed that the provisions of the Act are
obscure. And more charitable minded judges have said that drafting of the Act
was not happy". The learned Chief Justice went on to say, “Now, in construing
this Act what has got to be borne in mind is that it was an Act ameliorative in
Character and intended to carry out an important social reform. Its express
intention was to give better rights to women in respect of property and
therefore the various provisions of the act must be construed in the light, of
the intention which the Legislature had in placing this piece of legislation upon
the stature book.” 116 Professor Derrett did not agree with the view of the
Orissa High Court in Kunja Sahu and others vs. Bagaban Mohanty and
others117 and of the Bombay High Court in Dagadu BaIu vs. Namdeo118 that
the widow had the absolute right to alienate her undivided interest for legal
necessity. Moreover, the alliance was held entitled to partition of the joint
family property even though he had purchased only the widow's life interest in
the presumptive share. The difficulty raised by the Act. According to Professor
Derrett, is that it gives the "same interest" subject to the statements that the
interest shall be the limited interest, known as the "Hindu women's estate"
and further says: "This is a patent contradiction, like saying that X shall have, a
mango, provided that it shall be a sweet-lime. The nonsensical conclusion can
be avoided simply only by taking the course taken in Kunja Sahu's case119 of
saying that “same interest” is not qualitative but quantitative. And means the
share the husband would have taken. It is not absolutely necessary that this
share should be assessed at the husband’s death, not that it should be
exempted from fluctuation, but once we admit, as all High Court except Orissa
have admitted, that the interest fluctuates like a coparcener's interest we are
more than half-way to admitting that the same qualitatively and not
quantitatively. The Bombay High Court in Dagadu Balu' s case120 faced by the
realization that a "women’s estate" (i.e. a widow's estate in particular) is
,essentially different from a coparcener's interest, have said in effect that the
Act makes a gift of a mango provided that it shall be a sweet-lime, and have
implemented to Act by giving sweet-lime." According to the learned jurist the
plain words of the Act give a women's estate, which involves not only that a
widow may alienate absolutely for legal necessity, but she may alienate her
interest without justification provided that it be for her life. The Act seems to
have given wider power to alienate to the widow in one respect as well as
narrower power in another as compared with the coparcener who cannot
make a real or camouflaged gift of coparcenary property. The opening words
of Section 2 of the Act, namely, 'notwithstanding any rule of Hindu law or
custom to the contrary' created confusion in the minds of the jurists and the
judges as to whether the Act had abrogated the rule of Hindu law that chastity
was a sine qua non to widow's competence to inherit the property of her
husband and his sapindas. The antagonists criticized that the words, if
interpreted in' the literal sense, would no longer be operative. If that be so, the
Act had offended all ethical sentiments and gave free licence to the widow to
indulge in Vice and wickedness without fear of disinheritance, i.e. the Act had
want only and shamelessly thrown to the winds the solemn vows of
matrimony. But if we look to the judicial pronouncements we find that there
was difference of opinion as to whether an unchaste widow was entitled to
inherit or acquire any interest in the husband's property under the Act. Take
for example the opinion of Hr. Justice Divatia in Akoba Laxman Pawar vs. Sai
Kom Cenu Pawar. 121 His Lordship, while considering whether the unchaste
widow of a Gotraja Sapinda could inherit the property of her husband's
kinsmen or not observed that the bar of unchastity seemed to have been
removed even with the regard to the widow inheriting her husband’s property
because the Act of 1937 provided that the provisions would apply
notwithstanding any rule of Hindu law or custom to the contrary. His lordship
summarized the whole position as follows: "The position, therefore, is that
there is no authority for the proposition that any widow inheriting any kind of
property must be chaste, that the bar was confined to only one particular case,
namely, the widow inheriting her husband's property and even the bar is now
removed by legislation. Is the Hindu community desire that the bar of
unchastity should be applicable to all widows inheriting property, it might
invoke the aid of legislature, but on law as its stands at present, it is clear that
the unchaste widow of Gotraja spinda is not incompetent to inherit property of
her husband Kinsmen" 122 A different view, however, was expressed by a full
bench of Madras High Court in Ramaiya vs. Mottayya Mudaliar 123 and by a
division bench of Calcutta High Court in Kanai Lal Mitra vs. Panna Shashi
Mitra.124 The point for consideration for those cases was whether a Hindu
married woman living in adultery at the time of her husband" s death was
disqualified by reason of her unchastity from succeeding to his interest in the
joint family property under section 3 of Hindu Women’s right to Property Act,
1937 or not? The facts of Ramaiya Konar’s case125 were that Sabapathy
Padyachi and Muthuvelu were undivided brothers. Muthuvelu died on August
17, 1943, leaving behind his widow Alamulu. The fact that she was leading an
unchaste life and was living; in adultery at the time of her husband’s death was
found by the Court. The woman’s estate has now been converted into stridhan
by s. 14, Hindu Succession Act, 1956. Any property that a Hindu female will get
after June 17, 1956, will be her absolute property unless specifically given to
her with limitation.136 The woman’s estate over which she has possession
when the Act came into force (June 17, 1956) is converted into her absolute
estate. The old Hindu law of woman’s estate and reversioner is still relevant in
respect of property over which she had no possession when the Act came into
force.

Supreme Court - on the effect of the 2005 amendment to The Hindu Succession
Act

Indian Parliament enacted the Hindu Succession (Amendment) Act, 2005 ("the
Amendment Act" or "the 2005 Amendment") so as to confer equal right to a
daughter to a share in Hindu joint family property by deeming a daughter to be
a coparcener. However, the question as to whether this amendment was
retrospective in nature or prospective in nature, whether it applied to cases
where the succession had already opened before the 2005 Amendment, what
would be the effect of the daughter being declared to be a coparcener by birth,
would her right to a share date back to the date of her birth, or would it apply to
only a female born after 2005, were all questions which have vexed the Courts
for the last 10 years. Different views were taken by different High Courts.

The requirement that for a daughter to claim a share as a coparcener, the father
must have been living as of the commencement of the 2005 Amendment, can at
least be possibly gathered from the wordings used in the Amendment Act.
However, unfortunately while holding that the daughter also has to be living as
at the commencement of the 2005 Amendment Act and thus depriving
children/heirs of a daughter the Supreme Court has clearly overlooked S. 6(3)
(b) of the Amended Hindu Succession Act. This provision specifically stipulates
that after 2005 if a male Hindu dies, his daughter's legal heirs would get the
share which the daughter would have got had she been alive at the time of the
death of the Hindu father. Therefore notwithstanding that a daughter may have
died prior to the 2005 Amendment, if her father dies thereafter, she would be
deemed to be living at that time and her share would go to her heirs. The share
she would get if we she were deemed to be living after 2005 would be a share as
a coparcener, equal to that of the son. Even the Bombay High Court which had
ruled in 

• Bhadrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari (AIR

2014 BOM 151), that a daughter had to be living as at the commencement of
the 2005 Amendment, has not considered the effect of the above provision.

On the issue as to what would be the position if the father and daughter were
both living after 2005 but the father had entered into an oral or unregistered
partition with his sons prior to 20th December 2004, where there had been a
severance in the joint family followed by a recording of the division in the local
authority's records, certain observations of the Supreme Court seem to indicate
that if the pre 2005 Amendment partition had been valid under the law then
existing, then the Amendment would not allow the daughter to ignore it and
claim a share . The logic would be that since there had been a partition
involving the father before 2005 (even if oral, which was valid under the law
then existing), he would no longer be a coparcener in 2005 and hence in or after
2005 the daughter would not be a daughter of a coparcener and hence cannot
claim rights so as to disturb the actual partition that had already taken place.
This conclusion had been previously arrived at even by the Bombay High Court
in Bhadrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari.
However the Bombay High Court had clarified that a mere oral partition prior to
the 2005 Amendment would not suffice but it must have been followed by an
actual partition by metes and bounds and a reflection of the divided ownership
in local authority's records. However the Supreme Court judgement is silent on
this aspect. The observations of the Supreme Court could be used to argue that
an oral partition prior to the 2005 Amendment even if not followed by a
division by metes and bounds would have resulted in the severance in status and
the father would not remain a coparcener but a co-owner and hence post the
2005 Amendment the daughter would not be entitled to an equal share as she is
not the daughter of a "coparcener". A clear express intention to divide also leads
to severance in status. Therefore by the above logic, even if the father and
daughter were to be alive post the 2005 Amendment but if the father were no
longer to be a coparcener in view of severance in status, whether by a
declaration, an oral partition or even a suit for partition having been instituted
prior to the 2005 Amendment, it would lead to the conclusion that the daughter
of such a father also cannot claim an equal share in joint family property. This
seems to be contrary to the intention of the Parliament of saving only registered
partitions to avoid contrived or concocted pleas being set up of a severance in
status prior to the 2005 Amendment More thought could have been given by the
Supreme Court to this issue also, which it unfortunately did not, thus leaving
scope for further litigation and differences between High Courts on this aspect.

Further, though the judgment of the Supreme Court arose from Karnataka where
the state legislature had enacted an amendment to the Hindu Succession Act in
1990 giving equal rights to daughters in coparcenary property, provided they
were unmarried as on the date of Karnataka amendment, which came into force
in 1994, the Supreme Court has not dealt with the question as to what would be
the effect of the Parliamentary Amendment on the rights which had already
vested in daughters by virtue of some of the state amendments. The Supreme
Court has observed that the 2005 Amendment of the Parliament was prospective
and was not meant to unsettle rights that had vested under the laws which were
in existence prior to the 2005 Amendment. By this logic, one can assume that
the rights which had vested in daughters to be treated as coparceners by virtue
of some of the state amendments would therefore not be taken away by the 2005
Amendment. However, even in those states, from 09/09/2005, the rights of such
daughters would be governed by the 2005 Amendment as the Parliamentary
amendment would prevail over the state amendments.

Notwithstanding that certain other issues as discussed above could have been
clarified, the judgment of the Supreme Court has gone a long way in settling
some of the controversies that had arisen post the 2005 Amendment Act. It
brings in clarity to those cases where succession had already opened prior to
2005 Amendment Act itself. To that extent, it has brought in certainty because
in those cases where succession had already opened prior to 2005 amendment,
people would have arranged their transactions, shared properties or gone about
arranging their shares or making improvements on properties on the basis of the
law then existing. Women may feel let down though, in view of the
conditionality being brought in of a living father and living daughter being
required as of 9/9/2005. Further the conditionality of the daughter being alive as
of the commencement of the 2005 Amendment is contrary to an express
provision {S.6 (3)(b)} of the 2005 Amendment Act. One can expect this
judgement being revisited by the Supreme Court itself in the near future

Schools of Hindu Law and Law prior to the Hindu Succession Act, 1956.

There are two schools of Hindu Law namely Mitakshara School and Dayabhaga
School.   The   Dayabhaga   School   (even   known   as  
School of Hindu Law) prevails mostly in Bengal area, while Mitakshara
School prevails in the rest parts of India. Both schools differ in two main
particulars, namely, the law of inheritance and the joint family system.
Mitakshara   school   recognizes   two   modes   of   devolution   of  
namely, survivorship and succession. The rules of survivorship applies to
the joint family property and the rules of succession applies to property
held in absolute severalty by the last owner. However the Dayabhaga
school recognizes only one mode of devolution and that is succession.
 The Bombay school of Mitakshara recognizes not only the widow,
daughter, mother, father's mother and father's father's mother as heirs but
also sister, father's sister. The law of inheritance by female heirs is not
uniform. Males succeeding take the property absolutely, while succeeding
females take limited estate in the property. If a separated Hindu under
Mitakshara   dies   leaving   behind   a   widow   and   a   brother,  
succeeds to the property as his heir. But the widow, being a female, does
not take the property absolutely. She is entitled only to the income of the
property. She can neither make a gift of the property nor can she sell,
unless there is a legal necessity. Even after her death, the property will
not pass to her heirs, but to the next heir of her husband.

A joint Hindu family consists of all persons lineally descended from
a common ancestor and includes their wives and unmarried daughters.
However, a Hindu coparcenary is a much narrower body than the joint
family and includes only those persons, who acquire by birth an interest
in the coparcenary property. They are the sons, grandsons and great grandsons.  
The   cardinal   doctrine   of   Mitakshara   school   that  
inherited by a Hindu from his father, father's father or father's father's
father is ancestral property that means unobstructed heritage as regards
his male issues. A property inherited by a Hindu from other relations is
his separate property.
Hon'ble Supreme Court has laid down the incidents of coparcenery
in the case of Hardeo Rai  Vs.  Shakuntala Devi and Ors. reported in
AIR 2008 Supreme Court 2489 and it is held that, 
“ The incidents of coparcenership under the Mitakshara law are : 
first, the lineal male descendants of a person up to the third generation,   acquire
on   birth   ownership   in   the   ancestral of such person; 
secondly that such descendants can at any time work out their
rights by asking for partition; thirdly  that   till   partition   each   member  
extending over the entire property conjointly with the rest;
fourthly, that as a result of such co ownership the possession
and enjoyment of the properties is common;
fifthly, that no alienation of the property is possible unless it
be for necessity, without the concurrence of the coparceners,
and sixthly, that the interest of a deceased member lapses on
his death to the survivors.”

The most important of the coparcenary is that a female can not be a
coparcener under Mitakshara school. Even a wife, though she is entitled
to maintenance out of her husband's property, and has to that extent an
interest in his property, is not her husband's coparcener. A mother is not a
coparcener with her son. There can be no coparcenery in between a
mother and a daughter. While considering the position of a woman in the
family, a reference must also go to the concept of stridhana. It can be described  
thus,   “a   property   which   was   given   by   the   father,  
mother,husband or by a brother at the time of wedding before the nuptial fire
and a gift.” Stridhana is the absolute property of a woman and she may
dispose of at her pleasure.

The position of a female member in the joint Hindu family was minimal   in  
nature.   She   had   no   independant   rights   and   was   mostly
dependant on the male counterparts of the family. She had no absolute
rights in the joint family much less in the coparcenery, wherein she was
not even recognized. But certain enactments in the pre independence era
did try to change this poor scenrio and important amongst them are,

 The Hindu Widow's Remarriage Act, 1856
A Hindu widow can not remarry under the cutomary Hindu Law. But   this  
enactment   brought   a   radical   change   in   this   situation   and
removed the obstacle in the way of remarriage. This Act also provides
that on her remarriage, she will forfeit her right and interest in the estate
and the estate would pass to the next heirs of her deceased husband, as if
she were dead. This was one of the major reason for the failure of this  

The Indian Succession Act, 1925
This enactment modified the Hindu Law to some extent and Section
57, 214 and schedule III deals with the Will executed by a Hindu and
prescribe certain formalities in respect thereto. The provisions of this Act
are made applicable to the “Wills and codicils” made by any Hindu on or
after 01.09.1870 within the territories of Bengal and within the original
jurisdiction of the High Courts of Judicature at Madras and Bombay.

The Transfer of Property Act, 1882
This Act supersedes the customary Hindu Law as to transfer of property.
d. The Hindu Inheritance (Removal of Disabilities) Act, 1928
This Act was intended to remove the difficulties in the way of a Hindu   relating
to   inheritance   and   enables   him   to   receive   share   in partition.

 The Hindu Law of Inheritance (Amendment) Act, 1929
The Act admits the son's daughter, the daughter's daughter, the
sister and the sister's son as heirs next after father's father and before
brother. The Hindu Women's Rights to Property Act, XVIII OF 1937
It gave new rights of inheritance to widows, and strikes at the root
of a Mitakshara coparcenery. It gave better rights to Hindu women in
respect of property but gave her a limited estate, which is held by her
only during her lifetime and it then reverts back to her husband's heirs.
She had no right to dispose of such property.
 The Hindu Married Women's Right to Separate Residenc
e and Maintenance Act, 1946.
This enactment involved certain rights in Hindu married woman to
claim separate residence and maintenance in given circumstances. These   are  
some   of   the   instances,   which   show   attempts   of   law
makers in the preindependence era to codify the vast and vivid Hindu
Law. But these attempts were not enough to recognize the rights of the
female Hindu in a family. Even after these enactments a female Hindu
had no independent and substantial rights barring few or to say fewer
instances provided under the above mentioned codified parts. They had
minimal impact in uplifting the basic women's right in the family. Post
independence   era   did   witness   major   overhaul   in   the   system.  
Considering the rights of women, a reference to Article 14, 15 and 16 of
the Constitution of India is a must and crucial. Article 14 guarantees
equality before law and equal protection of the law. Article 15 prohibits
the discrimination on the ground of religion, race, caste, sex and place of
birth. Article 16 as well guarantees equality of opportunity and prohibits
discrimination   in   matters   of   employment.   Still   there   was   something
missing and that came with certain major enactments.

The Hindu Succession Act, 1956

“An   Act   to   amend   and   codify   the   law   relating to intestate

succession among Hindus”

This preamble of the present Act speaks only of the law relating to
intestate succession. The Act applies to Hindus and received the assent of
the President on 17th  June 1956. The enactment brought some radical
changes in the law of succession without abolishing the joint family and
the joint family property. It does not interfere with the special rights of
those who are members of Mitakshara Coparcenery. Section 6 of the Act
recognizes the rights upon the death of a coparcener of certain of his
preferential heirs to claim an interest in the property.
Every coparcener is held to be entitled to the share upon partiton. A
wife can not demand partition but if a partition does take place, she is
entitled to receive share equal to that of her son and can enjoy the same
separately even from her husband. Section 6 of the Act provided that the
devolution of interest will be by survivorsip. However it also came with a
proviso that if such Hindu has left surviving female relative specified in
Class I or a male relative specified in that class, who claims through such
female relative, his interest shall devolve by testamentary or intestate
succession and not by survivorship. It created the theory of notional partition.
As such section 6 and 8 of this Act gave rights to the female relative
of a Hindu to some extent and she was entitled to succeed the interest in the  
property.   Section   14   of   the   Act   has   one   of   the   path  
provision, whereby the female Hindu was given the absolute ownership
in the property acquired before or after the commencement of this Act.
Any movable or immovable property acquired by a female Hindu by
inheritance or partition or in lieu of maintenance or by Gift or by her
own skill or in any other manner was included in the scope of this
section. The rights of female Hindu were tried to be recognized by this
effort. Hon'ble Supreme Court in the case of  Tulasamma vs. Sesha
Reddy reported in AIR 1977 Supreme Court 1944 held that, a Hindu
widow is entitled to maintenance out of her deceased husband's estate
irrespective whether that estate may be in the hands of male issues or
coparceners. She can follow the estate for her right of maintenance, even
if it is in the hands of third person having notice of her rights.
 But still it was a long way to go. The Act does not recognize the
female Hindu as a coparcener nor does it gives any right to her to
partition. Her rights were still limited. Section 23 of the Act further put
an embargo on the rights of a female Hindu, wherein it is provided that
she is not entitled to claim partition in the dwelling house, until the male
heirs choose to divide their respective shares. She was given only a right
of residence in such dwelling house that too when she is unmarried or
deserted by her husband or is a widow.
The enactment did provide certain rights to female Hindu and did
recognize her role to some extent. But still it did not give the female
Hindu the status of coparcener and she was still relying on the male
counterparts in the family.

The Hindu Succession (Maharashtra Amendment) A
ct, 1994

Five States in India had amended the law relating to coparcenary
property. Four States namely Maharashtra, Andhra Pradesh, Tamil Nadu
and Karnataka conferred upon daughters a birth right in coparcenary property.
The State amendments of Maharashtra, Andhra Pradesh, 
Tamil Nadu, and Karnataka.

The language of these amendments is identical. The amendments of Tamil   Nadu,   Andhra  

Pradesh   and   Karnataka   are   prospective.   The Maharashtra   Amendment   added   to  
the   Principal   Act   (the   Hindu
Succession Act) a new Chapter IIA entitled "Succession by Survivorship". Despite   its  
incorporation   in   a   law   relating   to   succession   (the  
Succession Act), and reference to "succession" in the title of the Chapter,
the Amendment confers rights upon daughters inter vivos and deals with
matters of property irrespective of death of any person or of succession.
Under Section 29A added by the Amendment, the daughter of a
coparcener shall by birth become a coparcener in her own right in a joint
Hindu family governed by Mitakshara law, and shall have the same rights
and be subject to the same liabilities, as if she would have been a son. In
the event of partition, she shall be allotted the same share as that of the
son, and if she is dead at the time of partition, her children will be allotted   her   share.   She  
shall   hold   such   property   with   incidents   of
coparcenary ownership, and shall be entitled to dispose of it by will. A
daughter married before 22.6.1994 (the date of operation of the Act) has
been excluded from these benefits. Nor are partitions effected before
22.6.1994 to be reopened. And partitions effected on or after 22.6.1994
and before 15.12.1994, if not effected according to the provisions of the
Amendment, shall be rendered null and void. 19.
Under Section 29B, if such daughter having share in Mitakshara
coparcenary dies leaving behind a child or a child of a predeceased child,
the share in coparcenary property held by her at the time of her death
shall pass by testamentary succession if she has made a will disposing it,
else by intestate succession. If she does not have these relatives, the share
shall pass by survivorship to other coparceners.
The policy of these State Legislatures to confer upon daughters the
hitherto denied right in coparcenary property has been lauded widely, yet the   amendments  
have   been   criticised   for   ambiguous   language  
interpretational difficulties. Doubts have also been expressed regarding
their constitutionality, particularly in the exclusion of daughters married before
such amendment came into force.  So this exclusion of married
daughters again became a big hurdle for the female Hindu and still their
rights were not fully recognized.

Hindu Succession Amendment Act of 2005.
The Principal Act did not provide any independent right to the daughter   in  
respect   of   partition   and   to   demand   the   partiton.     The
daughter would only be able to get a share in father's share and the same would  
arise   only   on   the   death   of   her   ancestor.   This   led   to   gender
discrimination   and   daughters   were   left   out   from   enjoying   the
coparcenary   property   being   violative   of   Article   14   and   15   of   the
Constitution of India. Realising the dichotomy and gender discrimination,
Law Commission of India undertook the study of provisions of Hindu
Law with regards to the Laws of inheritance and with regards to the rights  of 
daughters.    An  apprehension was   also   raised  that  a   whole generation   of  
woman   contemporary   to   passage   of   this   important
enactment will lose out all their property rights.
The Law Commission of India submitted its 174th  report to the
Government of India on 5th May 2000 and it is in respect of “ Propert
Rights of Women : 

Proposed Reforms under the Hindu Law.” It started with,
“Discrimination against women is so pervasive that it
sometimes surfaces on a bare perusal of the law made by   the   legislature
itself.This is   particularly   so   in
relation to laws governing the inheritance/succession of
property amongst the members of a Joint Hindu family. It   seems   that   this  
discrimination   is   so   deep   and
systematic that it has placed women at the receiving
end. Recognizing this the Law Commission in pursuance
of its terms of reference, which, interalia, oblige and
empower it to make recommendations for the removal
of anomalies, ambiguities and inequalities in the law, decided   to   undertake   a
study   of   certain   provisions
regarding the property rights of Hindu women under the
Hindu Succession Act, 1956. The study is aimed at
suggesting changes to this Act so that women get an
equal share in the ancestral property. ”

Keeping   this   background   in   mind,   the   Hindu   Succession

Amendment Act, 2005 was enacted to enlarge the rights of a daughter,
married and unmarried both and to bring her at par with a son or any
male member of a joint Hindu family governed by the Mitakshara law. It
also sought to bring the female line of descent at an equal level with the
male line of descent, including children of predeceased daughter of predeceased
daughter. By the way of the Amendment Act, the daughter of a coparcener   has
been   admitted   in   coparcenary   and   after   the
commencement of the Amendment Act, the daughter is a coparcener in
her own right. The daughter now has the same rights and liabilities in
the coparcenary property as the son. This means that a daughter along
with a son is liable for debts of joint family. The daughter is also entitled
to dispose of her share of the coparcenery property or her interest thereof
by way of a will.

18. The statement of objects and reasons for amending the Principal
Act is as follows : “STATEMENT OF OBJECTS AND REASONS The   Hindu
Succession   Act,   1956   has   amended   and
codified the law relating to intestate succession Hindus and   gave   rights  
which   were   till   then   unkonwn   in relation  to   women's   property.    
However,   it   does   not interfere   with   the   special   rights   of   those   who  
are members of Hindu  Mitakshara coparcenary except  to
provide rules for devolution of the interest of a deceased male in certain cases.   
The Actlaid down a uniform
and comprehensive system of inheritance and applies, inter   alia,   to   persons  
governed   previously   by   the
Murumakkattayam, Aliyasantana and Nambudir laws.
The Act applies to every person who is a Hindu by
religion in any of its forms or developments including a
Virashaiva, a Lingayat or a follower of the Brahmo,
Parathana or Arya Samaj; or to any person who is
Buddhist, Jain or Sikh by religion;  or to any other
person who is not a Muslim, Christian, Parsi or Jew by
religion.  In the case of a testamentary disposition, this
Act does not apply and the interest of the deceased is
governed by the Indian Succession Act, 1925.

Section 6 of the Act deals with devolution of
interest of a male Hindu in coparcenary property and
recognizes the rule of devolution by survivorship among
the menbers 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 to.   The
law by excluding the daughter from participating in the coparcenary  
ownership   not   only   contributes   to   her
discrimination on the ground of gender but also has led
to oppression and negation of her fundamental right of equality   guaranteed   by
the   Constitution.     Having
regard to the need of render social justice to women, the
States of Andhra Pradesh, Tamil Nadu, Karnataka and
Maharashtra have made necessary changes in the law
giving equal right to daughters in Hindu Mitakshara coparcenary   property,    
The   Kerala   Legislature   has enacted   the   Kerala   Joint   Hindu   Family  
System (Abolition) Act, 1975. 3. It is proposed to remove the discrimination
as contained in section 6 of the Hindu Succession Act,
1956 by giving equal rights to daughters in the Hindu Mitakshara  coparcenary  
property   as   the   sons   have.
Section 23 of the Act disentitles a female heir to ask for
partition in respect of a dwelling house wholly occupied
by  joint family until the male heirs choose to divide
their respective shares therein.   It is also proposed to
omit the said section so as to remove the disability on
female heirs contained in that section.”

19.Section 6 of the Amendment Act has an overriding effect, so far as
the partition of a coparcenary property and succession of interest of
deceased member (male or female) is concerned. It also supersedes all customs  
and   usages   or   Shashtric   Law   in   this   regard.   The   amended Section   6
has   an   overriding   effect   so   far   as   the   constitution   of
coparcenary is concerned. The basic concept of coparcenary is that only male
members  of  a   joint  Hindu  family  can  constitute   a  coparcenary
completely excluding the female members of the family. This concept has not  
been   substantially   modified   with   the   amendment   of   Section   6.
However, although the daughter has been included as a coparcener by
way of this amendment, the wife, mother and widow are still standing in
queue for their admission in the coparcenary.

Recent Judicial Pronouncements and their effects

20. Judicial pronouncements of Hon'ble Supreme Court and Hon'ble
High Courts are of vital importance, as they lay down the interpretation
of the enactment and the intention of the legislature. Some of the most
important recent judicial pronouncements are discussed to ascertain the
actual effects of the Amendment Act of 2005.

21.Hon'ble Supreme Court in the case of  Ganduri Koteshwaramma    
Vs. Chakiri Yanad reported in AIR 2012 SC 169,  held that,
“The new Section 6 provides for parity of rights in the
coparcenary property among male and female members of   a   joint  
hindu   family   on   and   from   September   9,
2005. The Legislature has now conferred substantive
right in favour of the daughters. According to the new Section   6,   the  
daughter   of   a   coparcener   becomes   a
coparcener by birth in her own rights and liabilities in
the same manner as the son. The declaration in Section
6 that the daughter of the coparcener shall have same
rights and liabilities in the coparcenary property as she would   have  
been   a   son   is   unambiguous   and
unequivocal. Thus, on and from September 9, 2005, the   daughter   is  
entitled   to  a   share   in  the   ancestral
property and is a coparcener as if she had been a son.”

22.Hon'ble Bombay High Court in the case of  Ms. Vaishali Satish
Ganorkar & Anr. Vs. Satish Keshorao Ganorkar & Ors. reported in
AIR 2012 Bombay 101. It was held that,
“ Ipso facto upon the passing of the Amendment Act in 2005   all   the  
daughters   of   a   coparcener   in   a
coparcenary or a joint HUF do not become coparceners.
The daughters who are born after such dates would
certainly be coparceners by virtue of birth, but, for a
daughter who was born prior to the coming into force
of the amendment Act she would be a coparcener only
upon a devolution of interest in coparcenary property
taking place. Until a coparcener dies and his succession opens   and   a  
succession   takes   place,   there   is   no
devolution of interest and hence no daughter of such coparcener   to  
whom   an   interest   in   the   coparcenary property   would   devolve  
would   be   entitled   to   be   a
coparcener or to have the rights or the liabilities in the coparcenary  
property   along   with   the   son   of   such coparcener.   A   reading   of  
Section   as   a   whole   would,
therefore, show that either the devolution of legal rights
would accrue by opening of a succession on or after 9 September,   2005  
in   case   of   daughter   born   before   9
September, 2005 or by birth itself in case of daughter
born after 9 September , 2005, upon them.”
However another bench of Hon'ble Bombay High Court, in various
appeals   before   it,   dis agreed   with   the   law   laid   down   by   the  
Hon’ble
Bombay High Court in the Vaishali Ganorkar's case and referred the
matters to a bench of two or more Judges by formulating questions of
law. Hon'ble Bombay High Court constituted a full bench on the said
reference and proceeded to decide the questions of law raised in the said
matters.  

Hon'ble   Bombay   High   Court   in   that   case   of  Badrinarayan

Shankar   Bhandari   and   others   Vs.   Omprakash   Shankar   Bhandari
reported in 2014(5) Mh.L.J. 434  differed from the view taken by the
Division Bench in Vaishali Ganorkar's case. It was observed that, if a
daughter born prior to amendment will get right only on the death of her
father, it will postpone the conferment of valuable property rights on
crores of daughters, who may also lose everything upon the father and
other coparceners disposing of the property in the lifetime of father.  The
legislature did not and could not have intended such eventuality. 30.
The Hon'ble Bombay High Court  in Bhandari's case  cited supra
observed that, the clause (b) in amended Section 6 was not referred to in
Vaishali Ganorkar's case.  It was also observed that, 
“A bare perusal of sub section (1) of section 6 would,
thus, clearly show that the legislative intent in enacting
clause (a) is prospective i.e. daughter born on or after
09/09/2005 will become a coparcener by birth, but the legislative   intent  
in   enacting   clauses   (b)   and   (c)   is
retroactive, because rights in the coparcenary property
are conferred by clause (b) on the daughter who was
already born before the amendment, and who is alive
on the date of Amendment coming into force.  Hence, if a   daughter   of  
a   coparcener   had   died   before
09/09/2005, since she would not have acquired any
rights in the coparcenary property, her heirs would have
no right in the coparcenary property. Since section 6(1)
expressely confers right on daughter only on and with effect   from   the  
date   of   coming   into   force   of   the
Amendment Act, it is not possible to take the view being
canvassed by learned counsel for the appellants that
heirs of such a deceased daughter can also claim benfits
of the amendment. Two   conditions   necessary   for   applicability   of
Amended section 6(1) are: (i)

The  daughter of the coparcener (daughter 
claiming benefit of amended section 6) 

should be alive on the date of amendment  coming into force; (ii)

The property in question must be available 
on the date of the commencement of the Act  as coparcenary property.”

Hon'ble Bombay High Court in this judgment held that, amended Section
6   of   the   Hindu   Succession   Act   is   retroactive   in   the   nature.
Hon'ble   Bombay   High   Court   also   considered   the   applicability  
of   the amended   provision   to   daughter   born   prior   to   17.06.1956  
and   after 17.06.1956 but prior to 09.09.2005.   
It was held that, it is imperative that
the daughter who seeks to exercise such a right must herself be alive
at the time when the Amendment Act, 2005 was brought into force.  The
Principal Act was applicable to all Hindus irrespective of their date of
birth, when it came into force. The date of birth was not a criterian for
 the application of the Principal Act.  The only requirement is that when
the Act is being sought to be applied, the person concerned must be in
existence or alive.  So, to ensure the rights which are already settled the
Parliament   has   specifically   used   the   word   “On   and   from   the
commencement of Hindu Succession (Amendment) Act, 2005”.
It was observed and laid down that, the Amendment Act applies to
all daughters born prior to 09.09.2005 and who are alive on the date of
commencement of that Act i.e. on 09.09.2005.  

The case of coparcener
who died before 09.09.2005 would be governed by preamended Section(6
)(1) of the Act.  It is only in case of a coparcener on or after 09.09.2005
that, the amended Section 6(3) of the Act would apply.  The provisions of
amended Section 6(3) do not and cannot impligned upon or curtail or
restrict the rights of daughters born prior to 09.09.2005. Sub section (1)
and   (2)   of   amended   Section   6   and   sub   section   (3)   operate   in
two different fields.  

This judgment of  Hon'ble Bombay High Court has laid down the
minute details to be considered by all the Courts and has laid down the
law in respect of the Amendment Act of 2005. The ratio has paved way
to many women, who are aspiring to assert their rights in coparcenery
property.   It has given a huge relief to the daughters to fight with the
discrimination on the ground of gender and the consistent oppression
and negation of their fundamental right of equality.

CONCLUSION
Thus the Amendment of Hindu Succession Act of 1956 in 2005 is a total
commitment for the women empowerment and provides more and more
property rights to women in the Mitakshara system which was mainly
patriarchal one. Making daughters as a member of coparcenary and giving them
equal rights as other male coparcenars is indeed a very bold step to provide new
arena of rights to females, but one question remains there: whether these
females actually get their share in joint family property? Or does under the
social pressures and our social set up these rights were not at all exercised by
females and these things remain only in our statutes and lastly that inspite of
such like amendments.