Law Commission Recommends Amendment of Explanation to Section 6 of the Hindu Succession Act, 1956

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 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 Calcutta, Madras and Bombay and where such wills are made outside those territories insofar as they relate to immovable properties situate within those territories. There is no rationale in insisting upon the obtaining of probate or letters of administration in respect of wills executed by Hindus, Buddhists, Sikhs, Jainas and Parsis in respect of the property situate outside those limits. 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, sex, place of birth or any of them.

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