hindu sucession amendment act 2005
sahadev k
(Querist) 15 June 2009
This query is : Resolved
The Supreme Court of India in Sheela Devi and Others vs Lalchand held that sucession opens up on the date of death of a hindu woman's father. Therefore if a hindu woman's father dies before the above act came into force, she will not get the benefit of the above amendment. Only those hindu women whose father expires after the amendment of 2005 came into force, can benefit from the said act. Am I correct ? If so, Indian women have to wait for a couple of decades to get the benefit of this amended act ?(p.s.- I am not an advocate)
Kiran Kumar
(Expert) 16 June 2009
why the Indian women will have to wait for couple of decades.
the amendment act came into force on 9-9-2005, even if the father dies on the same day the female becomes entitled to the share in partition.
dont worry, the female wont suffer, the benefit will be of immediate effect.
Uma parameswaran
(Expert) 16 June 2009
You will get the benefit of amendment from the date of amendment itself.
adv. rajeev ( rajoo )
(Expert) 16 June 2009
it is retorspective effect, death of a father is not criteria to decide the women's rights.
sahadev k
(Querist) 17 June 2009
Please refer to the judgement in Bagirathi vs S Manivannnan ( Madras High Court)14th Aug, 2008 where it was held that notional partition has arisen on the date of death of the father. As per the amendment of 2005, "the daughter of acoparcener shall by birth become a coparcener in her own right in the samemanner as the son". But this birth right is subject to the date of death of the father !! Defies all logic.
sahadev k
(Querist) 17 June 2009
The amendment of 2005 says "the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son". In the case of Bagirathi vs S Manivannan ( Madras High Court ) Aug 2008, the hon'ble court held that notional partition has arisen on the death of the father in 1975 hence, the amended act is not applicable. How can the birth right of a person depend upon the date of death of another person !! defies logic. Karnataka High Court in Sugalabai vs Gundappa A Maradi has held the opposite, i.e. the hon'ble court stressed the birth right and held that the amended act of 2005 is applicable to partitions that are not final. Thus conflicting judgements are coming out
a.manoharan
(Expert) 22 June 2009
As far as Tamilnadu concerned , even before the amendment of 2005 , State-made amendment was made in Hindu Succession Act as per which an woman marries on or after 29-3-1989 will become a coparcener even in ancestral property. Before that , she had rights only in intestate property of her father's share. So, please do not get confused with - as far as Tamilnadu concerned - the said Act on or after 29-3-1989 and the amended act of 2005 .
sahadev k
(Querist) 22 June 2009
I thank all who responded. I am aware that four states AP,TN,KARNATAKA AND MAH passed amendments at various dates . These acts restricted eligibility of daughters married or born after a certain date. The Central Act of 2005 removed the restriction on date of marriage or birth etc. I request all to go through the following judgements and get updated please.
1. DAMALANKA GANGARAJU AND OTHERS VS . NANDIPATI VIJAYA LAKSHMI AND OTHERS- AP HIGH COURT, 21ST MAR, 2007
2. SUGALABAI VS.GUNDAPPA A MARADI AND OTHERS -KARNAKATA HC 18TH SEP, 2007
3. PRAVAT CHANDRA PATNAIK AND OTHERS VS. SARAT CHANDRA PATTNAIK AND OTHERS ORISSA HIGH COURT - 12TH MARCH, 2008
4. N JANGI REDDY AND OTHERS VS YELLARAM NARSIMHA REDDY AND OTHERS 3RD OCT, 2007.
Thus all restrictions on date of marrage ,date of birth before,unmarried have been struck down after the above judgements. Also the supremacy of the Central Act of 2005 over various state amendments has been upheld in the above judgements.
Now this leaves with only one question i.e, the Madras HC judgement that a Hindu lady's father should have passed away after 29-3-1989, when the act was amended in TN. Here, Central Amendment Act, 2005 makes it clear that Section 6 of the Principal Act stood substituted by the new section 6 and for all practical purposes, the new Section 6 will have to be read as having been incorporated into the Principal Act from day one itself.
His Lordship Justice Vivian Bose in the case of Shamrao V. Parulekar v. DistrictMagistrate, Thana, Bombay AIR 1952 SC 324 which observations as under :
" that the rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then
the earlier Act must thereafter be read and construed as if the altered words
had been written into the earlier Act with pen and ink and the old words scored
out so that thereafter there is no need to refer to the amending Act at all.
So is it not that the new section 6 of Central Act of 2005 is part of Hindu Sucession Act, 1956 from day one itself ?
