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  • Clarification on section 6 of 1956 Act: Mitakshara property

Since many lawyer answers on this forum have stated Mitakshara survivorship does not apply after hindu succesion 1956 act, I qoute the act verbatim because in plain english it says exactly the opposite:

Section-6. Devolution of interest of coparcenary property.- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: 

Now if this can be interpreted to mean anything other than a male only succession as provided by Mitakshara I would really like an explanation.
Specifically, properties bought prior to 1956 act by hindu males would default to Mitakshara and continue to follow the mitakshara coparcenary?
Asked 5 years ago in Property Law
Religion: Hindu

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16 Answers

This section has been amended by the 2005 Amendment Act.  The new section is as follows:

Section 6: Devolution of interest in coparcenery property:

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 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 the same manner as the son;
(b) have the same rights in the coparcenery property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,―
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation.―For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect―
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted.
Explanation.―For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005).
(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. 

 

NOTE: We would be in a better position to answer your query if you ask it specifically in the light/context of the facts and not the law. 

Agam Sharma
Advocate, New Delhi
617 Answers
6 Consultations

Dear author , it appears you are not aware of the changes the said Act underwent by virtue of Hindu Succession ( Amendment) Act, 2005 w.e.f 9.9.2005 which has totally altered section 6..

Please read the updated version to find that daughters have acquired equal rights even in respect of ancestral properties if the person dies after 2005 irrespective when he acquired the property.

Now in respect of his self acquired the daughters have equal rights whenever he dies provided it happened after coming into effect of Hindu Succession Act in 1956.

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

Yes it will follow its interpretation if sold after 1956.Otherwise there is no application of HSA for the same

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

1.

It includes, the succession in such property was done in coparcener basis and daughter was not considered one prior to 2005 amendment 

Read section 29A along section 6, the daughter shall be by birth considered as coparcener. See will be having right in the property as son. 

As per 1956 act only son had right in coparcenary property.  

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

This section comes to operate if a male Hindu dies after the commencement of this Act, i.e.. after 17th June, 1956 and leaves behind his interest in the Mitaloshara coparoenary pro- perty. If he leaves behind his self-acquired property or pro- perty governed 'by -Dayahhaga school of law then this pro- vision will not apply 

 

2) 
The separate property of a male Hindu is the principle sub- ject matter of this Act (particularly 'sections 8 to 13); copar- cenary property of a joint family governed by the Mitakshara school is the isubject matter of section 6.

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. A son, grandson and a great-grandson form a class of coparceners-based on birth in the family No female is a member of the coparcenary in Mitakshara law.

The essential feature of a Mitakshara coparcenary property is unity of ownership, i.e., the ownership of property is not vested in a single coparcener. It is vested in whole body of coparcenary.

The coparcener acquires an interest in coparcenary property by birth, which is equal to that of his father.

The incidents of coparcenership under Mitakshara law are:

i) First, the lineal male descendants of a person upto third generation, acquire on birth ownership in the ancestral properties of such person,

(ii) Secondly, that such descendants can at any time work out their rights by asking for partition;

(iii) Thirdly, that till partition, each member has got ownership extending over the entire property conjointly with the rest;

(iv) Fourthly, that as a result of such co-ownership the possession and enjoyment of properties is common;

v) Fifthly, no alienation of the property is possible unless it be necessity, without the concurrence of the coparceners;

(vi) Sixthly, that the interest of the deceased member lapses on his death to the survivors;”

One of the distinctive features of coparcenary is that the coparcenary interest of a coparcener in coparcenary property on his death does not devolve on his heirs by succession but on the other hand it passes by survivorship to the other coparceners. Thus right by birth and right of survivorhsip are necessary incidents of community of interest and unity of ownership, which signify joint possession not an exclusive possession

 

Now coming to the property purchased before the enactment of HSA, 1956, the law applicable as per the said act shall be applicable to this property too 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

1. You are confusing yourself. You are a layman, do not embark on an academic voyage to comprehend these intricacies of statutory provisions unless you intend to practice law. 

2. So far as intestate succession is concerned it is governed by Section 8 of Hindu Succession Act and not Section 6 thereof. Since there was no codified Hindu Law of Succession prior to coming into being of Hindu Succession Act, the intestate succession was under the customary Hindu law. Section 6 applies to only HUF property and the narrower body of coparcenery within it. Now tell me where is the link between intestate succession and Section 6 in the first place. If succession itself opened up prior to the coming into being of Hindu Succession Act then succession had to be under customary Hindu Law.

3. Section 6 has further been amended and daughters also made coparceners in the same manner as sons.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

By virtue of the Hindu Succession (Amendment) Act, 2005, the daughters of a family, who are governed by Mitakshara Law, can now be recognized as coparceners in the Coparcenary property. The said Amendment further, by virtue of the amended Section 6(1)(a) and (b) gave them equal rights as the sons.

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

Before 2005, daughters dose not coparcenary right in ancestral property neither married daughter was considered member of HUF.

But daughter had eqaul right in self acquired property of father from 1956.

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

This for ancestral property only. 

In self acquired property daughters have equal rights irrespective of date of death of father. 

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

Now the 2005 amendment is of no use. The interpretation is simple now daughter have equal rights over property by birth only. Only if the property is sold before HSA Act introduction then the said interpretation will not have any application and daughters will not have any rights

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

With regard to HUF property, prior to the 2005 amendment in Section 6 of the HSA, under the Mitakshara school of Hindu law, daughters albeit members, were not coparceners (and hence were not entitled to demand partition). Her inheritance to HUF property devolved upon her from the share which her father would have had in the HUF property at the time of his death as a class 1 heir along with the other heirs specified in class I or a male relative specified in that class who claims through such female relative. However, since she was not considered to be a coparcener, she could not demand partition and was not entitled to a separate share of her own as a son was.

However post the amendment, such discrimination has been removed and a daughter of a coparcener shall, (i) by birth become a coparcener in the same manner as a son, (ii) have the same rights in the coparcenary property as she would have had if she had been a son, (iii) be subject to the same liabilities in respect of the coparcenary property as that of a son (iv) be entitled to demand a partition of the HUF

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

You are getting diverted from your main subject by posting a different subject.

Yes, your understanding is right that the daughters are entitled to an equal share after the amendment came into effect in the year 2005, with regard to coparcenary rights or ancestral property rights.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

1. For a coparcenary property or joint hindu property yes section 6 will apply and male coparcener will inherit same.

Further the law is plain it's not twisted.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Yes, if the property is ancestral property. 

However, if it was a self acquired property, then the daughters had a equal under the original 1956 Act as well. 

Agam Sharma
Advocate, New Delhi
617 Answers
6 Consultations

1. This section is specifically for the property of HUF and not for individual property.

2. Because coparcenars are only mentioned for HUF properties and not for individual property.

3. The amendment of 2005 in Hindi marriage act change the  rights of HUF property and not HUF property will also be divided among female coparcenars of HUF. 

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

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