Women's Right in Property & Amendment of Hindu Succession Act : Whether Any Retrospective Effect?

Justice P. Nandrajog
Delhi High Court

Justice Pradeep Nandrajog of the Delhi High Court, in Smt. Mukesh & Ors. v. Shri Bharat Singh & Ors. had the occasion to examine the question whether the Amending Act of 2005 in the Hindu Succession Act, 1956 would apply retrospectively and effect succession prior to its enactment. While answering the question in the negative, the Hon'ble court held as under;

5. Section 4 of the Hindu Succession Act, 1956 as originally enacted read as under:

4. Over-riding effect of Act.-(1) Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

2. For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.

6. Section 50 of the Delhi Land Reforms Act, 1954 reads as under:

50. General order of succession from males.- Subject to the provisions of Section 48 and 52, when a Bhumidar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below:

(a) male lineal descendants in the male line of the descent:

Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive:

Provided further that the son or sons of a predeceased son howsoever low shall inherit the share which would have devolved upon the deceased if he had been then alive;

(b) widow;

(c) father;

(d) mother, being a widow;

(e) step mother, being a widow;

(f) father's father;

(g) father's mother, being a widow;

(h) widow of a male lineal descendant in the male line of descent;

(i) brother being the son of same father as the deceased;

(j) unmarried sister;

(k) brother's son, the brother having been son of the same father as the deceased;

(l) father's father's son;

(m) brother's son's son;

(n) father's father's son's son;

(o) daughter's son.

7. Due to Sub-section 2 to Section 4 of the Hindu Succession Act, 1956 the rule of succession stipulated under the Hindu Succession Act, 1956 was subject to any law for the time being in force relating to agricultural holdings. Thus, if succession to an agricultural holding was stipulated in any local law applicable to an agricultural holding, provisions thereof would apply relating to devolution of interest in a holding. The effect of deletion of Sub-section 2 to Section 4 of the Hindu Succession Act, 1956 due to the promulgation of the Hindu Succession (Amendment) Act, 2005 is that with effect from the date when the Amending Act was promulgated succession would be as per the Hindu Succession Act, 1956.

8. Prima facie, the Amending Act of 2005 cannot be read retrospectively as the Amending Act has not been given a retrospective operation. Meaning thereby, successions which had taken place prior to the promulgation of the Amendment Act of 2005 cannot be disturbed.

9. Section 3 of the Amending Act has substituted the existing Section 6 of the Hindu Succession Act. One gets a clue of the legislative intent when one looks at Sub-Section 3 of Section 6, as amended. It stipulates that where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 his interest in the property of a joint family governed by Mitakshara Law shall devolve by testamentary or intestate succession and not by survivorship. A daughter is given a share equal to that of a son.

10. In respect of the co-parcenery property the right of a daughter to receive a share equal to that of a son applies only if the death of male Hindu is after commencement of the Amendment Act, 2005.

11. Thus, the prima facie view recorded by the learned Trial Judge is correct.