Hsa amendmnt 005.
VIJAY KUMAR
(Querist) 09 June 2013
This query is : Resolved
In Hindu Succession Act 1956 or 2005, we refer to Hindu Undivided family or Joint Hindu Family. Does that necessary mean that for applicability of the provisions of the Act the family has be practically undivided in other words they should be residing under the same roof and sharing the kitchen?
You see there is an amendment in the Hindu Succession Act in 2005 basically and apparently to remove inequality and conventional gender bias by giving equal rights to the girl child in the ancestral property. But we know every law and rule many times have shortcomings and weaknesses owing to the politically driven tendencies brought in by the politicians in haste and halfhearted manner not always with the support of rational analysis and therefore these laws remain unrelated to the multiple situations prevailing at the ground level. Although the said amendment has been introduced as an element of balance also, which was earlier not there, but the same has been left stunted and incomplete. By saying so I am referring to the under mentioned part (c) of the amendment in Section 6 of the HSA amendment 2005;
6. Devolution of interest in coparcenary property. — (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, —
(a) by birth become a coparcener 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 coparcenaries property as that of a son,
The amendment uses the word liability. This raises the question in the mind whether this word ‘LIABILITY’ includes duties and responsibilities also and I feel it should; otherwise it falls short of the basic purpose, intent and spirit of the part (c). As I feel that the liability differs from the duties and responsibilities. The question gathers strength because very often the duties and responsibilities attached or linked with the properties are more vital and important than liability. If the liability does not include duties and responsibility than this word ‘liability’ carries a very narrow and weak meaning as a balancing factor purported to have been included in the amendment; and it perhaps defeats the very purpose of maintaining a balance. The liability I feel, refers to the financial element of the matter, whereas the duties and responsibilities may refer to every type of care with sincerity, respect and dedication. In property matters the situations differ from case to case and at times may demand every care of the old and dependent parents. If the liability, duties and responsibility devolves upon a one single legal heir of the property and all other legal heirs are completely free from the same and enjoying their life in their own way; sometimes indulging in making properties in abundance elsewhere by living away from the place of liability, duties and responsibility and subtly and deliberately not caring for the duties, responsibilities and liabilities under the assurance of their share in the property by virtue of the legal provisions/position, then in such cases
1. What would the position of their legal rights (other legal heirs) with respect to the ancestral property. As in such cases they do not fulfill the conditions laid down in part (C).?
2. Should this unfulfilled condition be taken as disqualification of their rights to some extent, and to what extent?
3. Although the part (c) refers to the right of a daughter and if sometimes a son or the male heir is also not fulfilling this condition (and non-fulfillment applies more to him) then in that case the daughter can raise the issue that one of the son/male legal heirs is also not fully entitled to the equal share.
4. The issue in totality should be seen in the context that in most of the Hindu families in India the parents do not live with the daughters and the responsibilities with respect to parents lie with sons.
5. It’s common knowledge that after marriage the daughters are looking after their husband’s house and families and not their parents’.
We all know that every and any provision of law can be subjected to misuse in the society. Therefore we happen to face the litigation at every step of our life, this is more so, in case of the people who are downtrodden, weak and the meek. Its ultimately the superior position acquired by some in the society which predominates and subtly takes away the rights of weak and the meek in tricky and clever moves thereby betraying the relevant provisions of law wherever they are able to make it possible.
Now coming to the specific case of property problem the situation is as thus;
We have a house on the plot measuring 100 Sq. yds., allotted by GOI on rehabilitation of the post partition repatriates from W. Pakistan sometime in 1954 on 99 yrs lease bases in my fathers’ name which exists as on date in my sole occupation..
- The price of this plot was deducted out of the claims sanctioned by the GOI in lieu of the properties left behind in Pakistan after having been uprooted; therefore to be considered whether it is to be treated as self acquired or inherited ancestrally.
- Father expired on 8.02.1985 without leaving any WILL.
- No mutation or substitution done so far and Mother expired on 03.06.2000.
- Eldest was brother born in April, 1943, settled permanently as a registered voter in Bangalore from June, 1974, remained in Army till 1970. In between worked and lived in Faridabad. He got married in Sept., 1979 have a separate family and continuously living and settled in Bangalore even today as on date.
- Next is Sister Married in Dec., 1976 and living in Delhi. I got married in Dec., 1986 and living in this house without break with my father (expired in Feb., 1985) and mother (expired in June, 2000). Younger Sister got married in July, 1987 having separate family and living in Delhi itself.
The issue of partition among the legal heirs was raised around 1991-1993, but was avoided or declined by all the legal heirs because of the responsibility of taking care of Mother ;or we can say in other words the question was of living with Mother. The issue was avoided by everybody and dumped and I was forced to live with the circumstances without any partition and without any assurance. In the meantime it was neither allowed to be constructed/repair (expand) the house according to the need, nor was the partitioned/distributed. The issue was not raked up again until Mother became bedridden and Elder brother raked up the issue about the distribution plan of the property just a year before when the terminal end of Mother was felt very near. I declined to discuss the issue at that stage because of the extreme disturbed and painful domestic conditions because of my ailing/bedridden Mothers’ condition.
In 2003 the issue was discussed by the brothers and the eldest brother at the same time suggested that he is not very much interested in his share as the same may not amount to more than 4 to 5 lakhs (at that time property price was around 20 to 25 lakhs, but at the same time suggested that the younger sister must be helped out because of her weak financial position. In 2007 the property prices suddenly shot up to about 1 crore, and from then onwards he started expecting his full share. Around the same time elder sister also communicated directly or indirectly that she has no interest in the property. But now as conveyed by the elder brother, she also appears to be expecting her share, however not sure as to how much whether full or some part thereof.
As stated in the paragraph above that every and any provision of law is generally misused in property matters; it is common knowledge and well known that no one likes to share the responsibility/liability especially the old ailing parents, more so, when they are bedridden and require round the clock care of all type. The legal heirs come forward only when they see the scope of hefty share distribution in the property minus liability/responsibilities.
In the context of above stated circumstances of this case, Sir I want your help in the shape of your advice with reference to the Hindu Succession (Amendment) Act 2005, quoted below;
Under the Hindu Succession Amendment Act 2005, the daughters have been given the equal rights over the ancestral properties as a coparcener just as to the son but with the liability (responsibility) also at the same time in respect of that property which is to be discharged by the son or the other male legal heirs. The amendment reads as under:-
In a Joint Hindu family the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) (b) have the same rights in the coparcenaries property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenaries property as that of a son, and any reference to a Hindu coparcener shall be deemed to include a reference to a daughter of a coparcener:”
Now it is to be seen for elaboration and decisions as to;
1. whether the liabilities stated in (c) above includes the taking care of the old mother who was without any income and needed a constant care in all respects for leading a normal decent life till her death. Or the liabilities stated in (C) above refers only to the financial liabilities involved in the maintenance of the said property.
2. In the context of the above amendment the daughters can also raise the issue that in some cases one of the Son has also not discharged the liability/responsibility, then why it should be made conditional in case of daughters only.
3. Thirdly it is also required to seen and clarified that in cases where the female or one of the male legal heirs fail to fulfill the condition (c) above; whether they are left disqualified to have the full share or would be losing the their share completely.
4. If the whole issue goes to the court for litigation from either of the parties whether from one side who was thrusted upon the complete liabilities or from the side of the other three legal heirs completely free i.e. two sisters and the elder(eldest) brother what may be the most probable decision of the court.
5. Does the provisions of the HSA amendment 2005 apply to daughters married before the commencement of the Hindu Succession (Amendment) Act of 2005, especially in this particular case where the daughters were married in 1976 and 1987?
prabhakar singh
(Expert) 09 June 2013
It is hard for anyone to even dare reading such long argumentative post.
One should not state what view of law one holds in his mind.
One should ask only what confuses one.
An even better position is that just state facts.
One can not get any benefit in share of property simply because one has served old dependant parents while other heirs have not.
One should have taken care of this fact earlier.
If you failed to get any will from father why didn't you got it executed from your mother at least for her share.
Circumstantially the cause of suffering is your own creation.
You can not claim legally anything more than your share on the score that you maintained and look after parents but others not.
Guest
(Expert) 09 June 2013
It would be better if you post the actual problem pertaining to the property matter, if any, is there. But, if you want discussion on your own perception about section 6 of HSA, better post the long discussion in the forum section and try to get views of experts through that section.
Guest
(Expert) 09 June 2013
It would be better if you post the actual problem pertaining to the property matter, if any, is there. But, if you want discussion on your own perception about section 6 of HSA, better post the long discussion in the forum section and try to get views of experts through that section.
R.K Nanda
(Expert) 09 June 2013
query too long to reply as ur getting free
reply.
