Q & A
A female Hindu's right to succession
The change in the Hindu Succession (Amendment) Act, 2005 does not alter A woman's position as legal heir to her husband's share. But her husband's share would shrink to the extent that her daughter is now given a share equal to that of her son.
With reference to the answers in these columns on Amendments to Hindu Law of Succession, a reader wants to know whether under `The Hindu Women's Rights to Property Act, 1987' Sec. 3(2), the right of a Hindu widow to get the full share of her late husband in coparcenary property (with limited interest later enlarged to absolute right) continues or has been curtailed now. From September 2005, daughters also have become coparceners. What about the widow's share in today's law?
You had also indicated in these columns some time ago that female heir's share in the joint family gets ascertained on the date of death of the male coparcener in the light of the decision of the Supreme Court in Gurupad Khandappa Magdum v Hirabai Khandappa Magdum (1981) 129 ITR 440 (SC) and that till such time, such ascertained share is handed over, the Hindu Undivided Family (HUF) would continue to be treated as the owner of such assets, notwithstanding the ascertained shares of such female heir as part of the corpus of the Hindu family, even as held in State of Maharashtra v Narayan Rao Sham Rao Deshmukh (1987) 163 ITR 31 (SC). Does the law continue to have application after the Hindu Succession (Amendment) Act, 2005?
Who would be liable to pay income tax and on what income in the case of death of the Hindu leaving his share in the joint family after the recent changes in law relating to Hindu succession?
Sec. 3(2) of the Hindu Women's Right to Property Act, 1937 did provide that in the event of death of a Hindu coparcener, the widow is entitled to husband's share in the property, which would get vested on her immediately upon his death and does not devolve by survivorship. Such right does not extend to the full right of the husband as the karta of his branch of the joint family, unless he was the sole coparcener in such branch. If he had left son or sons, her share will be limited to what her husband would have got on a further deemed partition between her husband and his son/s, the share of the son/ sons continuing with larger family by survivorship. But then, Orissa and Madras High Courts have ruled that in view of the plain language of the provision, which deems partition only between deceased coparcener and other coparceners, wife will be entitled to the entire share of her husband, while the Bombay High Court had left the question open, so that the issue is not finally settled. The provisions of Hindu Women's Right to Property Act, 1937 to the extent to which it is inconsistent with the Hindu Succession Act would stand abrogated with effect from that date.
As pointed out in the second part of the query, the Hindu widow would get a right equal to that of sons in respect of her husband's share under the Hindu Succession Act, 1956, so that the widow's right to a share of her husband's right in the joint family continues after the succession law in 1956, but the doubt in pre-existing law gets clarified in that her share will extend only to husband's share as ascertained on a sub-partition, (so to say) deemed as between her deceased husband and her son/ sons.
The change effected by the Hindu Succession (Amendment) Act, 2005 does not alter her position as legal heir to her husband's share. But then, her husband's share would shrink to the extent that her daughter is now given a share equal to that of her son. Earlier, the widow and daughter had a share only on their father's share on deemed partition between the deceased father and his sons. Where the widow has daughters, she would find, after the recent amendment, that her husband's share would get reduced because of the rights of the daughters to a share of the joint family, so that her share gets diminished.
To take an illustration, if the deceased coparcener leaves a widow, a son and a daughter, the share of the widow and daughter prior to amendment in 2005 would have been one-third of half of the share of deceased coparcener, with son getting half share on deemed partition between him and his father in the first round and further one-third of balance in the second round as legal heir of the father along with his mother and sister. After the amendment in 2005, where the death occurs on or after September 6, 2005, the husband's share will get reduced to one-third because of the right of the daughter, so that widow will get only one-third of such one-third share with son and daughter getting one-third share in the first round besides one-third of remaining one-third along with mother.
She could have had the same share as son and daughter only if she was also recognised on par with son and daughter. What was once a special privilege, when her maintenance right was converted to absolute right by the Hindu Women's Right to Property Act and later under Hindu Succession Act has shrunk in size, probably unintended, but at the same time anomalous, requiring to be set right.
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