Position Of Woman

 After Enactment Of Hindu Succession Act, 1956

After the advent of the Constitution, the first law made at the central level pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956 (hereinafter called the HSA). This Act dealing with intestate succession among Hindus came into force on 17th June 1956. It brought about changes in the law of succession and gave rights, which were hitherto unknown, in relation to a woman's property. The section 6 of Hindu Succession Act, 1956 follows as:

Devolution of interest in coparcenary property. - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship.

Explanation 1. For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property 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.

Explanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

Section 6 deals with the devolution of the interest of a male Hindu in coparcenary property it says that if a male Hindu dies leaving behind his share in Mithakshara Co-parcenary property , such property will pass on to his sons, son's son's, son's son's son by survivorship, on surviving members. In case there are female relatives like daughter, widow, mother, daughter of predeceased son, daughter of predeceased daughter, widow of predeceased son, widow of predeceased son of a 

predeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by succession and not by survivorship . And while recognizing the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left him surviving a female relative specified in Class I of Schedule I, or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession under this Act and not by survivorship. The rule of survivorship comes into operation only: -

· Where the deceased does not leave him surviving a female relative specified in Class I, or a male relative specified in that Class who claims through such female relative; and · When the deceased has not made a testamentary disposition of his 

undivided share in the coparcenary property.

As pointed out above that the main provision of this section deals with the devolution of the interest of a coparcener dying intestate by the rule of survivorship and the proviso speaks of the interest of the deceased in the Mitakshara Coparcenary Property. Now, in order to ascertain what is the interest of the deceased coparcener, one necessarily needs to keep in mind the two Explanations under the proviso. These two Explanations give the necessary assistance for ascertaining the interest of the deceased coparcener in the Mitakshara Coparcenary Property. Explanation I provides for ascertaining the interest on the basis of a notional partition by applying a fiction as if the partition had taken place immediately before the death of the deceased coparcener. Explanation II lays down that a person who has separated himself from the coparcenary before the death of the deceased or any of the heirs of such divided coparcener is not entitled to claim on intestacy a share in the interest referred to in the section.

Under the proviso if a female relative in class I of the schedule or a male relative in that class claiming through such female relative survives the deceased, then only would the question of claiming his interest by succession arise. The Supreme Court in 1978 Gurupad v. Heerabai and reiterated later in 1994 in Shyama Devi v. Manju Shukla wherein it has been held that the proviso to section 6 gives the formula for fixing the share of the claimant and the share is to be determined in accordance with Explanation I by deeming that a partition had taken place a little before his death which gives the clue for arriving at the 

share of the deceased.Section 6 can further be understood by the following-Example: If ?C? dies leaving behind his two sons only, and no female heirs of class I then property of ?C? passes to his sons by survivorship since there are no female relatives like daughter or any other member specified in the class I of first schedule. In case ?C? dies leaving behind two sons and three daughters, then property of ?C? will pass on to his sons and daughters by succession in the following manner.

Firstly property of "C" is divided between "C" and his two sons. The shares of "C" and his two sons are, C gets one-third and each son one-third.

The sons are entitled to the equal share of the property along with the father. But the daughters are entitled to the share in the share of the deceased ?C? along with other sons. So the sons will get one-third of the property and a share, which is one-fifth in the share of deceased ?C?. Hence the daughter does not take equal share with the son.

However, section 6 did not interfere with the special rights of those who are members of a Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, interalia, to persons governed by Mitakshara and Dayabhaga Schools as also to those in certain parts of southern India who were previously governed by the Murumakkattayam, Aliyasantana and Nambudri Systems. The Act applies to any person who is a Hindu as defined in section 2 of HSA . But now the question the question is whether, the Hindu Succession Act actually gave women an equal right to property or did it only profess to do so. Significantly, the provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N.Rau Committee and piloted by Dr.Ambedkar, was for abolishing Mitakshara coparcenary with its concept of survivorship and the son's right by 

birth in a joint family property and substituting it with the principle of inheritance by succession. These proposals met with a storm of conservative opposition. The extent of opposition within the Congress or the then government itself can be gauged from the fact that the then Law Minister Mr.Biswas, on the floor of the house, expressed himself against daughters inheriting property from their natal families.

The retention of the Mitakshara coparcenary without including females in it meant that females couldn't inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Only when one of the coparceners dies, a female gets a share of his share as an heir to the deceased. Thus the law by excluding the daughters from participating in coparcenary ownership (merely by reason of their sex) not only contributed to an inequity 

against females but has led to oppression and negation of their right to equality and appears to be a mockery of the fundamental rights guaranteed by the Constitution.

Hence this very fact necessitated a further change in regards to the property rights of women, and which was done by the Hindu Succession (Amendment) Bill, 2004.