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Bluebook 21st ed.

Rahul Rathore, Hindu Women's Right to Inherit Property Pre and Post Hindu Succession
(Amendment) Act, 2005 - A Comparative Study, 7 SUPREMO AMICUS 217 (2018).

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Rahul Rathore, Hindu Women's Right to Inherit Property Pre and Post Hindu Succession
(Amendment) Act, 2005 - A Comparative Study, 7 Supremo Amicus 217 (2018).

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Rathore, Rahul. (2018). Hindu Women's Right to Inherit Property Pre and Post Hindu
Succession (Amendment) Act, 2005 A Comparative Study. Supremo Amicus, 7, 217-226.

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Rahul Rathore, "Hindu Women's Right to Inherit Property Pre and Post Hindu Succession
(Amendment) Act, 2005 - A Comparative Study," Supremo Amicus 7 (2018): 217-226

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Rahul Rathore, "Hindu Women's Right to Inherit Property Pre and Post Hindu Succession
(Amendment) Act, 2005 - A Comparative Study" (2018) 7 Supremo Amicus 217.

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Rahul Rathore, 'Hindu Women's Right to Inherit Property Pre and Post Hindu Succession
(Amendment) Act, 2005 - A Comparative Study' (2018) 7 Supremo Amicus 217

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Succession (Amendment) Act, 2005 - A Comparative Study." Supremo Amicus, 7, 2018, pp.
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 SUPREMO AMICUS

VOLUME 7 ISSN: 2456-9704

Gender equality is recognised as a basic

HINDU WOMEN'S RIGHT TO human right in all civilised nations. The
INHERIT PROPERTY PRE AND POST concept of gender equality is considered as a
HINDU SUCCESSION universal principle. At the international
(AMENDMENT)) ACT, 2005- A level, the Universal Declaration of Human
COMPARATIVE STUDY Rights, 1948 also recognises the principle of
equality. Article 1 of the Universal
Declaration of Human Rights, 1948 provides
By Rahul Rathore that all human beings are born free and
From Indore Institute of Law equal in dignity and rights. In India also,
attempts have been made to raise the status
of women in accordance with these
Abstract
universally accepted principles. The Indian
The Constitution of India provides that
Constitution enshrines the principle of
every person has the right to equality before
gender equality in its Preamble & Parts III,
law and equal protection of the laws
&

IV & IVA relating to Fundamental Rights,

thereby prohibits discrimination on the basis
Directive Principles of State Policy
of caste, creed & gender. In India, women's

&
Fundamental Duties respectively. It provides
rights have suffered serious setbacks among
that every person has the right to equality
all communities. The Hindu Succession Act,
before the law and the equal protection of
1956 has been enacted to amend & codify
the laws within the territory of India. It also
the law relating to intestate succession
empowers the State to make special
among Hindus. It lays down a uniform
provisions for women as there is a need to
&

comprehensive system of inheritance. The

empower women who have suffered gender
Hindu women's limited estate is abolished
discrimination for centuries. The
by it. Under the Act, for the first time,
Constitution of India is the supreme law of
absolute property rights were granted to
India. Certain laws were also enacted to
women. The Act is basically based on
raise the status of women. But a significant
Mitakshara law, under which coparcenary
change took place when the Parliament in
rights are in favour of male child by birth.
1955-56 enacted a series of Acts better
This provision was against the principle of
known as the Hindu Code, which
gender equality. Therefore, the Hindu
significantly improved the status of Hindu
Succession (Amendment) Act, 2005 was
women to a great extent. The principle of
enacted to enlarge the rights of a daughter,
equal social status to women also includes
married & unmarried both & to bring her at
their right to hold & inherit property like the
par with a son or any male member of a joint
male members of the family. In spite of the
Hindu family governed by the Mitakshara
equality guaranteed by the supreme law of
law. In this paper, comparative analysis of
India, women in India had suffered a lot of
Hindu women's right to inherit property pre
inequalities.
and post-Hindu Succession (Amendment)
Act, 2005 has been done.
The Hindu Succession Act, 1956 has been
enacted to amend & codify the law relating
Introduction

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to intestate succession among Hindus. incorporated a number of provisions for the

According to the Hindu Succession Act, upliftment of the status of women. The
1956, the expression "Hindu" in any portion principle of gender equality is incorporated
of this Act is construed as if it included a in the Constitution of India in its Preamble,
person who, though not a Hindu by religion Fundamental Rights, Directive Principles of
is, nevertheless, a person to whom this Act State Policy and Fundamental Duties.
applies by virtue of the provisions contained
in section 2 of this Act. Thus, the Act is The Preamble of the Indian Constitution
applicable to any person who is a Hindu, contains various objectives including "the
Buddhist, Jaina or Sikh by religion equality of status and opportunity" to all the
&
applies to those governed both by the citizens. This objective has been
Mitakshara & the Dayabhaga Schools incorporated with the view to give equal
&
also to those in South India governed by the rights to men & women in terms of the
Murumakkattayam, Aliyasantana, Nambudri status & opportunity.
and other systems of Hindu Law. It lays
down a uniform & comprehensive system of Part III (Articles 12 to 35) of the Indian
inheritance. The Hindu women's limited Constitution deals with the Fundamental
estate is abolished by it. Under the Act, for Rights. The provisions regarding
the first time, absolute property rights were fundamental rights are applicable to all the
granted to women. However, under the Act, citizens. However, certain fundamental
Hindu women could not inherit ancestral rights contain specific provisions to protect
property by birth right & was excluded from the rights of women.
joint family coparcenary under Mitakshara
system merely by reason of their biological Article 14 of the Indian Constitution
identity (i.e., gender). This resulted in the provides that the State shall not deny to any
violation of their right to equality. Thus, the person equality before the law or the equal
Hindu Succession (Amendment) Act, 2005 protection of the laws within the territory of
was enacted to remove gender India.
discriminatory provisions in the Hindu
Succession Act, 1956 & to give equal rights Article 15(1) of the Indian Constitution
to daughters in the Hindu Mitakshara provides that the State shall not discriminate
coparcenary property as the sons have. The against any citizen on grounds only of
daughter has been made a coparcener by religion, race, caste, sex, place of birth or
birth in the joint property after any of them. Article 15(3) of the Indian
commencement of the Hindu Succession Constitution provides that nothing in the
(Amendment) Act, 2005. article 15 shall prevent the State from
making any special provision for women
Constitutional Provisions ensuring and children.
Gender Equality
The framers of the Indian Constitution were Article 16(1) of the Indian Constitution
well aware of the adverse condition of provides that there shall be equality of
women in the society. Thus, they opportunity for all citizens in matters

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relating to employment or appointment to customary laws that varied from region to

any office under the State. region. Sometimes such laws varied even in
Part IV (Articles 36 to 51) of the Indian the same region due to different castes. This
Constitution deals with the Directive resulted in multiplicity of laws with
Principles of State Policy. They are diversified nature. As a result, in the matters
fundamental in the governance of the of succession also, there were different
country. Article 39(a) of the Indian schools. Amongst the Hindus, there were
Constitution provides that the State shall, in two major schools which governed the
particular, direct its policy towards securing inheritance. These are Mitakshara

&
that the citizens, men & women equally, Dayabhaga. The Mitakshara School prevails
have the right to an adequate means of in the whole of India except Bengal

&
livelihood. Article 39(d) of the Indian Assam. The Dayabhaga School prevails in
Constitution provides that the State shall, in Bengal & Assam.
particular, direct its policy towards securing
that there is equal pay for equal work for Under the Mitakshara law, a son, grandson
both men & women. Article 39(e) of the & a great grandson acquire a right by birth
Indian Constitution provides that the State in the joint family property. They constitute
shall, in particular, direct its policy towards a class of coparceners, based on birth in the
securing that the health and strength of family. Under the Mitakshara law, female
workers, men and women, and the tender members are not considered as a part of the
age of children are not abused and that coparcenary. Under the Mitakshara law, the
citizens are not forced by economic devolution of joint family property is based
necessity to enter avocations unsuited to on the principle of survivorship. It means
their age or strength. that the joint family property does not
devolve by inheritance but it goes to those
Article 42 of the Indian Constitution who, among the group called as coparceners,
provides that the State shall make provision survive others, that is, are able to live longer
for securing just and humane conditions of than others. It means that with every birth of
work and for maternity relief. a male in the family, the share of every other
surviving male gets diminished and with
Part IVA (Article 51A) of the Indian every death of a male in the family, the
Constitution deals with the Fundamental share of every other surviving male
Duties. Article 51A (e) provides that it shall increased. However, in case of property
be the duty of every citizen of India to separately owned by an individual male or
renounce practices derogatory to the dignity female, inheritance by succession is allowed
of women. under Mitakshara law. Females are allowed
to inherit separate property under
Hindu Women's Right to inherit Property Mitakshara law.
Pre-Hindu Succession (Amendment) Act,
2005 Under the Dayabhaga School, sons do not
Prior to the Hindu Succession Act, 1956, have right by birth in any property & all
Hindus were governed by shastric properties devolve by inheritance. Thus, the
&

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Dayabhaga School has only one mode of property shall devolve by survivorship upon
succession, irrespective of the kind of the surviving members of the coparcenary

&
property. Neither sons nor daughters become not in accordance with the Act.
coparceners at birth nor do they have rights
in the family property during their father's But, proviso to section 6 provided that if the
lifetime. But, on his death, they can inherit deceased had left him surviving a female
the property. Under the Dayabhaga School, relative specified in class I of the Schedule
daughters also get equal shares along with or a male relative specified in that class who
their brothers. claims through such female relative, the
interest of the deceased in the Mitakshara
With the advent of independence, the coparcenary property shall devolve by
framers of the Indian Constitution took note testamentary or intestate succession, as the
of the adverse discrimination perpetuated case may be, under the provisions of the Act
against women and incorporated many & not by survivorship.
provisions in the Indian Constitution for
ensuring gender equality. For implementing Explanation 1 of the section 6 further
those provisions, many laws were enacted. provided that for the purposes of section 6,
Thus, the Hindu Succession Act, 1956 was the interest of a Hindu Mitakshara
enacted in 1956. It extends to the whole of coparcener shall be deemed to be the share
India except the State of Jammu and in the property that would have been allotted
Kashmir. It tries to bring an end the to him if a partition of the property had
discrimination between sons & daughters taken place immediately before his death,
followed in inheritance laws. It aims to irrespective of whether he was entitled to
integrate the Mitakshara & Dayabhaga claim partition or not.
schools of Hindu law. It codified personal
laws of Hindus as before this Act came into Explanation 2 of the section 6 further
force, they were governed by shastric provided that nothing contained in the
&

customary laws which varied from region to proviso to section 6 shall be construed as
region. Now, the Hindu Succession Act, enabling a person who has separated himself
1956 is a principal Act which applies to all from the coparcenary before the death of the
Hindus in India. deceased or any of his heirs to claim on
intestacy a share in the interest referred to
Section 6 of the Hindu Succession Act, 1956 therein.
deals with the devolution of interest of
coparcenary property. Before the enactment This meant that the principle of survivorship
of the Hindu Succession (Amendment) Act, applied in the devolution of interest of
2005, section 6 of the Hindu Succession Mitakshara coparcenary property. It meant
Act, 1956 provided that after the that Hindu females were not entitled to
commencement of the Act, when a male inherit Mitakshara coparcenary property by
Hindu dies intestate, having at the time of birth right & were excluded from joint
his death an interest in a Mitakshara family coparcenary under Mitakshara law.
coparcenary property, his interest in the For example, if a joint family property was

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divided, then each male coparcener took his arrears of maintenance, or by gift from any
share & female has no right to get any share. person, whether a relative or not, before, at
or after her marriage, or by her own skill or
Illustration- a Mitakshara Coparcenary exertion, or by purchase or by prescription,
consists of A, the father & his two sons, B or in any other manner whatsoever, and also

&
C. A dies leaving his undivided interest in any such property held by her as stridhana
the coparcenary property & leaving behind immediately before the commencement of
his two sons B & C & a daughter D. A's the Act.
interest devolves upon B & C, the surviving
coparceners by the principle of survivorship. For Section 14, the following conditions are
The daughter has no right to get any share as necessary:
she is not a coparcener as under Mitakshara (i) Ownership of property must vest in her,
Law, no female is a coparcener. and
(ii) Section 14 has qualified retrospective
Under Section 14 of the Hindu Succession application. It converts only those women's
Act, 1956, the disability of a Hindu female estates into full estates over which she has
to acquire & hold property as an absolute possession (possession is used in the widest
owner is removed and the existing Hindu possible sense, including actual and
woman's estate (existing prior to the constructive possession) when the Act came
commencement of the Act & over which into force. In the wider sense, the term
Hindu woman has possession) which is held "possession" is co-extensive with the
by her as a limited owner is converted into ownership. Therefore, whenever the woman
her absolute estate. has the ownership of property vested in her,
she will be deemed to be in its possession

&
Section 14 provides that any property if the ownership does not vest in her, even if
possessed by a Female Hindu, whether she is in actual or physical possession, she
acquired before or after the commencement will not be deemed to be in its possession
of this Act, shall be held by her as full within the meaning of the section.
owner thereof & not as a limited owner.
Before the enactment of the Hindu
However, this provision shall not apply to Succession (Amendment) Act, 2005, section
any property acquired by way of gift or 23 of the Hindu Succession Act, 1956
under a will or any other instrument or under provided that where a Hindu intestate has
a decree or order of a civil court or under an left surviving him or her both male & female
award where the terms of the gift, will or heirs specified in class I of the Schedule
&

other instrument or the decree, order or his or her property includes a dwelling-
award prescribe a restricted estate in such house wholly occupied by members of his or
property. her family, then, notwithstanding anything
In section 14, property includes both contained in the Act, the right of any such
movable and immovable property acquired female heir to claim partition of the dwelling
by a female Hindu by inheritance or devise, house shall not arise until the male heirs
or at a partition, or in lieu of maintenance or choose to divide their respective shares

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therein; However, the female heir shall be Hindu Succession Act, 1956 to ensure
entitled to a right of residence therein: gender equality.
Provided that where such female heir is a The State amendments only made reforms in
daughter, she shall be entitled to a right of their respective States. However, Hindu
residence in the dwelling-house only if she women in other States of India continued to
is unmarried or has been deserted by or has be subjected to inequality in relation to their
separated from her husband or is a widow. property rights due to the shortcomings of
Before the enactment of the Hindu Hindu Succession Act, 1956.
Succession (Amendment) Act, 2005, section
24 of the Hindu Succession Act, 1956 To improve the status of Hindu women,
provided that any heir who is related to an initiative was taken up by the Law
intestate as the widow of a pre-deceased son, Commission of India which in its 1741
the widow of a pre-deceased son or the Report on "Property Rights of Women:
widow of a brother shall not be entitled to Proposed Reforms under Hindu Law" under
succeed to the property of the intestate as the Chairmanship of Justice B. P. Jeewan
such widow, if on the date the succession Reddy made important recommendations for
opens, she has re-married. the removal of anomalies & ambiguities
with regard to property rights of Hindu
Hindu Women's Right to inherit Property women under the Hindu Succession Act,
Post-Hindu Succession (Amendment) Act, 1956. According to the view of the Law
2005 Commission, the exclusion of the daughters
The Hindu Succession Act, 1956 has been from participation in coparcenary Property
amended by the Hindu Succession ownership merely by reason of her gender
(Amendment) Act, 2005. It has undergone was unjust.
many changes by the Hindu Succession
(Amendment) Act, 2005. The Constitution Thus, the Hindu Succession (Amendment)
of India makes provision for ensuring Act, 2005 was enacted to provide full-
gender equality. But, before the enactment fledged property rights to daughters in
of the Hindu Succession (Amendment) Act, coparcenary property along with sons. It was
2005, the provisions of the Hindu enacted on 5 September, 2005 & came into
Succession Act, 1956 were discriminatory force from 9 September, 2005 incorporating
towards women and thus, against the the reforms suggested in the 174' Report of
principle of gender equality enshrined in the the Law Commission of India.
Indian Constitution.
The Hindu Succession (Amendment) Act,
Due to the fact that the provisions of the 2005 omitted sub-section (2) of Section 4 of
Hindu Succession Act, 1956 were the Hindu Succession Act, 1956 and has
discriminatory towards women, certain made women's inheritance rights in
States of India, namely, Kerala, Andhra agricultural land equal to men's. Section 4(2)
Pradesh, Tamil Nadu, Maharashtra excluded, from the ambit of the Hindu
&

Karnataka made State amendments in the Succession Act, 1956, significant interests in
agricultural land, the inheritance of which

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was subject to the succession rules property as she would have had if she had
mentioned in state-level tenurial laws. been a son. She shall be subject to the same
liabilities in respect of the said coparcenary
Especially in the north-western states, these property as that of a son & any reference to
laws were highly gender unequal and gave a Hindu Mitakshara coparcener shall be
primacy to male lineal descendants in the deemed to include a reference to a daughter
male line of descent. Women came very low of a coparcener:
in the succession order and got only a
limited estate. The new legislation brings Provided that nothing contained in the sub-
male and female rights in agricultural land section (1) of section 6 shall affect or
on par for all states, overriding any invalidated any disposition or alienation
inconsistent state laws. This can potentially including any partition or testamentary
benefit millions of women dependent on disposition of property which had taken
agriculture for survival. 466 place before 20 December, 2004.

The Hindu Succession (Amendment) Act, Section 6(2) of the Act provides that any
2005 has addressed a very important issue property to which a female Hindu becomes
relating to the rights of daughters in the entitled by virtue of sub-section (1) shall be
Mitakshara coparcenary & thus, elevated held by her with the incidents of
daughter's position by amending section 6 coparcenary ownership and shall be
of the Hindu Succession Act, 1956. The regarded, notwithstanding anything
amended Section 6 deals with the devolution contained in the Act or any other law for the
of interest in coparcenary property. time being in force in, as property capable of
being disposed of by her by testamentary
The section 6 of the Hindu Succession Act, disposition.
1956 has been completely replaced by a new
provision. After the enactment of the Hindu Section 6(3) of the Act provides that where a
Succession (Amendment) Act, 2005, section Hindu dies after the commencement of the
6(1) of the Hindu Succession Act, 1956 Hindu Succession (Amendment) Act, 2005,
provides that in a Joint Hindu family his interest in the property of a Joint Hindu
governed by the Mitakshara law, the family governed by the Mitakshara law,
daughter of a coparcener shall, on & from shall devolve by testamentary or intestate
the date of commencement of the Hindu succession, as the case may be, under the
Succession (Amendment) Act, 2005, by Act & not by survivorship, & the
birth become a coparcener in her own right coparcenary property shall be deemed to
in the same manner as the son. She shall have been divided as if a partition had taken
have the same rights in the coparcenary place &:
(a) the daughter is allotted the same share as
466 Whether Amendments Made To The Hindu is allotted to a son;
Succession Act Are Achieving Gender Equality?, (b) the share of the pre-deceased son or a
Legal Service India, available at pre-deceased daughter, as they would have
[Link] got had they been alive at the time of
last seen on 22/07/2018.

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partition, shall be allotted to the surviving right or alienation shall be enforceable under
child of such pre-deceased son or of such the rule of pious obligation in the same
pre-deceased daughter; manner & to the same extent as it would

&
(c) the share of the pre-deceased child of a have been enforceable as if the Hindu
pre-deceased son or of a predeceased Succession (Amendment) Act, 2005 had not
daughter, as such child would have got had been enacted.
he or she been alive at the time of the
partition, shall be allotted to the child of For the purposes of clause (a), the
such pre-deceased child of the pre-deceased expression "son", "grandson" or "great-
son or a pre-deceased daughter, as the case grandson" shall be deemed to refer to the
may be. son, grandson or great-grandson, as the case
may be, who was born or adopted prior to
For the purposes of the sub-section (3), the the commencement of the Hindu Succession
interest of a Hindu Mitakshara coparcener (Amendment) Act, 2005.
shall be deemed to be the share in the Section 6(5) of the Act provides that nothing
property that would have been allotted to contained in the section 6 shall apply to a
him if a partition of the property had taken partition, which has been effected before 20
place immediately before his death, December, 2004.
irrespective of whether he was entitled to
claim partition or not. For the purposes of section 6, partition
means any partition made by execution of a
Section 6(4) of the Act provides that after deed of partition duly registered under the
the commencement of the Hindu Succession Registration Act, 1908 or partition effected
(Amendment) Act, 2005, no court shall by a decree of a Court.
recognize any right to proceed against a son,
grandson or great-grandson for the recovery Section 23 of the Hindu Succession Act,
of any debt due from his father, grandfather 1956 has been omitted by the Hindu
or great-grandfather solely on the ground of Succession (Amendment) Act, 2005, as a
the pious obligation under the Hindu law, of result of which, at present all daughters,
such son, grandson or great-grandson to both unmarried and married, are entitled to
discharge any such debt: same rights as sons to reside in & to claim
partition of the parental dwelling-house.
Provided that in the case of any debt Section 23 disallowed married daughters
contracted before the commencement of the (unless separated, deserted or widowed)
Hindu Succession (Amendment) Act, 2005, even residence rights in the parental
nothing contained in the sub-section (4) dwelling-house. Unmarried daughters had
shall affect- rights of residence but not of partition.
(a) the right of any creditor to proceed
against the son, grandson or great-grandson, Section 24 of the Hindu Succession Act,
as the case may be; or 1956, which had disqualified certain widows
(b) any alienation made in respect of or in from inheriting the property of the intestate,
satisfaction of, any such debt, & any such if they had remarried, has been omitted by

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the Hindu Succession (Amendment) Act, Comparative analysis of the Hindu

2005. Now the widow of a pre-deceased son women's right to inherit property Pre

&
or the widow of a pre-deceased son of a pre- Post-Hindu Succession (Amendment) Act,
deceased son or the widow of the brother 2005.
can inherit the intestate's property even if The comparative analysis of the Hindu
she has remarried. women's right to inherit property pre

&
post-Hindu Succession (Amendment) Act,
Also the Hindu Succession (Amendment) 2005 can be done under the following heads:
Act, 2005 has added some more heirs to the
list of Class I heirs who are son of a pre- (1) Agricultural lands (Section 4(2))
deceased daughter of a pre-deceased Before the enactment of the Hindu
daughter, daughter of a predeceased Succession (Amendment) Act, 2005,
daughter of a pre-deceased daughter, inheritance of agricultural land is subject to
daughter of a pre-deceased son of a state-level tenurial laws & not to the Hindu
predeceased daughter, & daughter of a pre- Succession Act, 1956. Many of the tenurial
deceased daughter of a pre-deceased son. laws specify inheritance rules that are
against the principle of gender equality. But
Case laws after the enactment of the Hindu Succession
Danamma @ Suman Surpur & Anr. v. (Amendment) Act, 2005, inheritance rights
Amar & Ors. 4 67 in all agricultural lands are subject to the
In this case, the Supreme Court has held that Hindu Succession Act, 1956. The Act
daughters who were born before the overrides such State laws which are
enactment of the Hindu Succession Act, inconsistent with the Hindu Succession Act,
1956 are entitled to equal shares as son in 1956. The Hindu Succession (Amendment)
ancestral property. Act, 2005 omitted sub-section (2) of Section
4 of the Hindu Succession Act, 1956 and has
Prakash v. Phulavati468 made women's inheritance rights in
In this case, the Supreme Court has held that agricultural land equal to men's.
the rights under the Hindu Succession
(Amendment) Act, 2005 are available to (2) The Mitakshara Joint Family
daughters living on the date of amendment, Property (Section 6)
irrespective of when they were born. Before the enactment of the Hindu
Succession (Amendment) Act, 2005, Hindu
females were not entitled to inherit
467 Daughters Have Equal Rights In Ancestral Mitakshara coparcenary property by birth
Property, Even If They Were Born Before Enactment right & were excluded from joint family
Of Hindu Succession Act, Holds Supreme Court, coparcenary under Mitakshara law. But a
[Link], available at son, grandson & a great grandson acquired a
[Link] right by birth in the joint family property.
ancestral-property-even-born-enactment-hindu- They constitute a class of coparceners, based
succession-act-holds-supreme-court-read-judgment/, on birth in the family. Female members
last seen on 22/07/2018. were not considered as a part of the
468 (2016) 2 SCC 36.

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coparcenary. Also, the devolution of joint whether unmarried or married, have the
family property was based on the principle same rights as sons to reside in & to claim
of survivorship. partition of the parental dwelling-house.

After the enactment of the Hindu Succession (5) Rights of certain widows (Section 24)
(Amendment) Act, 2005, sons and daughters Before the enactment of the Hindu
both have independent equal birth rights and Succession (Amendment) Act, 2005, under
liabilities as coparceners in joint family section 24 of the Hindu Succession Act,
property. Also, the joint family property 1956, the widow of a pre-deceased son or
devolves by testamentary or intestate the widow of a pre-deceased son of a pre-
succession, as the case may be, under the deceased son or the widow of the brother,
Act & not by survivorship. was not entitled to inherit the intestate's
property as a widow, if on the date the
(3) Class I heirs succession opens, she has re-married.
Before the enactment of the Hindu Section 24 has been omitted by the
Succession (Amendment) Act, 2005, the enactment of the Hindu Succession
Class I heirs of a Hindu male included the (Amendment) Act, 2005. Now such widows
children of predeceased children, but these can inherit the intestate's property even if
were recognised upto two generations for they have remarried.
predeceased sons and only upto one
generation for predeceased daughters. But, Conclusion
after the enactment of the Hindu Succession The provisions of the Hindu Succession Act,
(Amendment) Act, 2005, the Schedule 1956 were discriminatory towards Hindu
amended to include as Class I heirs, the women. Earlier, Hindu women could not
children of predeceased children going inherit ancestral property by birth right

&
down to two generations for both sons was excluded from joint family coparcenary
&

daughters. under Mitakshara system merely by reason

of their biological identity (i.e., gender). The
(4) Parental Dwelling-House (Section 23) Constitution of India provides for the gender
Before the enactment of the Hindu equality. Thus, the Hindu Succession
Succession (Amendment) Act, 2005, under (Amendment) Act, 2005 was enacted to
section 23 of the Hindu Succession Act, remove gender discriminatory provisions in
1956, in a dwelling-house wholly occupied the Hindu Succession Act, 1956 & to give
by members of the deceased's family, no equal rights to daughters in the Hindu
female heir can claim partition, until the Mitakshara coparcenary property as the sons
male heirs choose to divide their respective have. The Hindu Succession (Amendment)
shares. Daughters only had rights of Act, 2005 is a significant step towards
residence, only if she is unmarried, or gender equality.
deserted, separated or widowed.
Section 23 has been omitted by the
enactment of the Hindu Succession
(Amendment) Act, 2005. Now daughters,

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