| Law Commission Recommends Amendment of Explanation to Section 6 of the Hindu Succession Act, 1956 Defining ‘Partition’; and
OMISSION OF SECTION 213 FROM THE INDIAN SUCCESSION ACT, 1925 |
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13:55 IST |
The Law Commission has recommended
(i)
Amendment
of explanation to Section 6 of the Hindu Succession Act, 1956 to include oral
partition and family arrangement in the definition of ‘partition’; and
(ii)
omission
of Section 213 from The Indian Succession Act, 1925
The Commission submitted to the Government
of India, its 208th and 209th Reports on “Proposal for amendment
of Explanation to Section 6 of the Hindu Succession Act, 1956 and “Proposal for
omission of Section 213 from the Indian succession Act, 1925”, respectively. The
Chairman of the Commission, Dr. Justice AR. Lakshmanan, former Supreme Court Judge,
presented the said Reports to the Union Minister of Law & Justice, Dr. Hans
Raj Bhardwaj, today.
208th Report:
Section 6 of the Hindu Succession Act, 1956 deals with devolution of interest
in coparcenary property. The Act was amended
by Act 39 of 2005 and a new section 6 was substituted. Sub-section (5) of section 6 and the Explanation
thereto read thus:
“(5) Nothing contained
in this section shall apply to a partition, which has been effected before the
20th day of December, 2004.
Explanation.- For the
purposes of this section, “partition” means any partition made by execution of
a deed of partition duly registered under the
Registration Act, 1908
(16 of 1908) or partition effected by a decree of a court.”
The Explanation defines “partition”
as any partition made by execution of a deed of partition duly registered under
the Registration Act, 1908 or partition effected by a decree of court. This definition
of “partition” does not include oral partition and family arrangement.
Since the amended Act has failed to
include oral partition and family arrangement within the definition of “partition”,
which are common and legally accepted modes of division of property under the
Hindu Law, the Commission undertook this subject suo motu.
The Supreme Court of India in its judgment
dated 21.01.1976 in Kale and Ors. v. Deputy
Director of Consolidation and Ors., 1976 (3) SCC 119 held that a document
which is in the nature of a memorandum of an early family arrangement and which
is filed before the court for its information for mutation of names is not compulsorily
registrable and therefore can be used in evidence of the family arrangement and
is final and binding on the parties. The
above view of the Supreme Court has also been clearly enunciated and adroitly
adumbrated in a long course of decisions of the Supreme Court and also those of
Privy Council and High Courts. The courts
have taken a liberal and broad view of the validity of a family settlement and
have always tried to uphold it and maintain it.
The Commission is of the view that the proposal
for suitable amendment in the Explanation to section 6 of the Hindu Succession
Act is absolutely necessary in public interest.
209th Report:
The Indian Succession
(Amendment) Act, 2002 (26 of 2002) amended sections 32 (devolution of such property) and 213 (right as executor or legatee when established)
of the Indian Succession Act, 1925. Explanation to section 32 was omitted relieving
thereby a Christian widow of the bar to succeed distributive share of her husband’s
estate even if there was a valid contract made to that effect before her marriage.
The words “or Indian Christians” after the word “Muhammadans” in sub-section
(2) of section 213 were inserted. The opening portion of the said sub-section
(2) now reads thus:
“(2) This section
shall not apply in the case of wills made by Muhammadans or Indian Christians
and shall only apply –
The result is that the provision of
sub-section (1) of section 213 which necessitates grant of probate of the will
or letters of administration with the will or with a copy of an authenticated
copy of the will annexed, by a Court of competent jurisdiction in order to establish
the right as executor or legatee is now not applicable to the wills made not only
by Muhammadans but also by Indian Christians. But this provision continues to apply -
(i)
in
the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills
are of the classes specified in clauses (a) and (b) of section 57, i.e.,
wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the
1st day of September, 1870, within the territories which at the said
date were subject to the Lieutenant-Governor of Bengal or within the local limits
of the ordinary original civil jurisdiction of the High Courts of Judicature at
Madras and Bombay and all such wills and codicils made outside those territories
and limits so far as they relate to immovable property situate within those territories
or limits; and
(ii) in the case
of wills made by any Parsi dying after the commencement of the Indian Succession
(Amendment) Act, 1962, where such wills are made within the local limits of the
ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and
Bombay and where such wills are made outside those limits, insofar as they relate
to immovable property situate within those limits.
The exemption in respect of the wills
made by Muslims under the parent Act was due to the Muslim Personal Law.
The stipulation imposed under the unamended section 213 of the Act in respect
of wills made by any Indian Christian, Hindu, Buddhist, Sikh or Jaina was the
legacy of the colonial rule, which was extended to Parsis in 1962.
The discrimination against the wills executed by the Indian Christians
has now been removed by the 2002 Amendment on an All-India basis.
There is discrimination in respect
of wills made by Hindus, Buddhists, Sikhs, Jainas or Parsis, where such wills
are made within the territories of the ordinary original civil jurisdiction of
the High Courts of Judicature at
Since there is no uniformity in the application of section 213 insofar
as it relates to the Muslims and Christians on the one hand and Hindus, Buddhists,
Sikhs, Jainas and Parsis on the other, the Commission has resolved to recommend
for the repeal of section 213 altogether from the statute and remove the disuniformity/discrimination
and attain uniformity. There does not appear to be any earthy reason to ignore
the claim to equality of the major section of the people of India, the Hindus
etc. Article 15 of the Constitution of
India states that the State shall not discriminate against any citizen on grounds
only of religion, race, caste, s*x, place of birth or any of them.
