Lecture 3 Hindu Succession Act

1937 Act :-
The purpose of 2005 amendment act has to be seen in the light of the earlier legislative changes
which were brought about the 1937 act and the 1956 act. The concerned was always regarding
the gender justice particularly in the matters of coparcenary property

In the 1937 act the widow of the deceased coparcenar was given the right to have the life estate
upon the share of her deceased husband in the joint property even though no partition has been
done during his lifetime. The widow would get a share equal to the husband share as a life estate
as if there had been a partition in a family in his lifetime.

1956 Act:-

This act brought about 2 material changes :-

. It declared that any female holding or possessing the property in the form of life estate in
lieu of her pre existing rights upon the joint family would become the absolute owner of
the property.
2
. Regarding Survivorship
It was declared in section 6 that if a coparcenar dies leaving behind a class -1 female relative or a
male of class-1 claiming through such female relative then the doctrine of survivorship will not be
1
applied. Instead the notional partition(deemed partition) of the property will be done to find the
actual share of the deceased coparcenar and then succession will take place. The females used
to get a share in the deceased coparcenar share.

2005 ACT :-

After the 2005 amendment act a daughter has been given the same coparcenary rights as that of
the son since 9th September 2005 though she becomes a coparcenar from the date of her birth
or adoption. She even gets the birth right in the same manner as a son. There is an implied
declaration under section 6(1)(a) that the daughter becomes a coparcenar in her own right. The
purpose of 2005 amendment act is not to bring large scale socio religious justice instead it is to
do proprietary justice to females and for that purpose she was made a coparcenar for greater
property rights. A complete gender justice cannot be done.

Case :- SBI vs Ghamandi Ram 1969

The coparcenary property held by the coparcenar is a quasi corporate property following are the
legal incidents of mitakshara coparcenary :-

. The linear male descendants of a person upto 4 degrees acquire by birth, ownership in the
copacenary property (now even the females are included as per 2005 amendment act)
. Such defendants can at any time work out their rights by asking for a partition
. Till such a partition each member has ownership extending over the entire property jointly
with the other coparcenars.
. The possession and enjoyment of property is common. No alienation of property is
possible without the concurrence of coparcenars unless it is for a legal necessity.
. The interest of the deceased member passes on his death to the surviving coparcenars
(survivorship has been abolished as per 2005 amendment act)

Case :- Ganduri koteshwaramma vs Chakiri

It was held that the rights of the daughter in a coparcenary property as per the amended section
6 are not lost merely because a preliminary decree has been passed in such suit so far as
partition suits are concerned partition becomes final only on the passing of a final decree. Where
such situation arises preliminary decree have to amended the changes made by the 2005
amendment act.

Who can ask for partition

. Sons Grand sons and Daughter

. Adoptive children
. Female sharers - not entitled to ask for partition but they are entitled to a share in partition
● Illegitimate son cannot demand partition (but is entitled to maintenance out of his father’s
estate)

Partible property

. In partible property where the property descends to one member only by customs etc.
. Property indivisible by nature
 . Family idols of worship
. The common way used by the family members to access the property
. Separate property of a member

Allotment of shares :-

. Between father and his children each children takes equal share to that of his father (But
under Dayabhaga = sons are not entitled to any share until their father is alive)
. When a joint family consist only of brothers they take equal shares on partition.
. Each branch takes per stirpes as regards every other branch but the members of the same
branch take per capita as regards each other.
. On the death of the coparcenar leaving issues(heirs) who are within coparcenary limit.

Female sharers :- Daughter,Wife,Mother and Paternal Widowed Grandmother.

. A daughter will get the same share as that of the son

. On a partition between father and his children the wife takes a share equal to that of
children
. On partition after father’s death the mother of the children receives equal share
. The paternal Grand Mother will get the share only if partition is between her grandchildren.