Honorable Chief Minister, Govt. of H.P., Shimla.
Subject: To take immediate necessary action for providing the ancestral property right to women on Distt. Kinnaur and Lahaul-Spiti (HP) at ground level
With regards, this petition is subjected to the welfare and right of the women living in Distt. Kinnaur and Lahaul-Spiti (HP) at ground level who are deprived of the Right to Ancestral Property. As you can see the news published in the Daily Amar Ujala, Hamirpur (HP) edition front page on 14-04-2013 as below
It is really a great shame in the modern society era and the public must respect women in every aspect. If the property is transferred to relatives than the daughters in absence of the son, this is an act of injustice and cruelty with women in Distt. Kinnaur and Lahaul-Spiti (HP) . The Law of Wajib Ul Arz cannot be used in modern society. The tribal women are right and they deserve the attention in this case.
What is the law of Wajib Ul Arz in international context ?
The wajib-ul-arz is a record of customs in each village in regard to: the right to irrigation or right of way or other easementary right, and the right to fishing.Differently from the rights detailed in a nistar patrak these rights do not pertain to land or water not belonging to, or controlled or managed by the state government or a local authority; it relates to rights available on occupied land. Inserting or modifying an entry in the wajib-ul-arz may happen, either when all persons interested in such an entry so desire, or where a court intervenes to rule on an existing entry, or decrees the existence of a custom that has not yet being recorded.
The term wajib-ul-arz in the North-Western Provinces is applied to what is considered to be the most important document contained in the official records relating to the village administration. Entries therein, properly made and authenticated by the signatures of the officers who made them, have been held by this Committee in the case of Rani Lekraj Kuar v. Baboo Mahpal Singh (1879) 7 I.A. 63, to be admissible in evidence under Section 35 of the Indian Evidence Act in order to prove a family custom of inheritance, or, under Section 48 as the record of opinions as to the existence of such custom by persons likely to know of it. In giving their Judgment their Lordships say ” These wajib-ul-arz, or village papers, are regarded as of great importance by the Government. They were directed to be made by Regulation VII of 1822,” the 9th section of which enacts that-
It shall be the duty of collectors and of her officers exercising the powers of collectors, on the occasion of making or revising settlements of the land revenue, to unite with the adjustment of the assessment and the investigation of the extent and produce of the lands, the object of ascertaining and recording the fullest possible information in regard to, landed tenures the rights, interests, and privileges of the various classes of the agricultural community. For this purpose their proceedings shall embrace the formation of as accurate a record as possible of all local usages connected with landed tenures, as full as practicable a specification of all persons enjoying the possession and property of the soil, or vested with any heritable or transferable interest in the land.” and it was specially ordered that-
The information collected on the above points shall be so arranged and recorded as to admit of an immediate reference hereafter by the Courts of Judicature.
3. As this Regulation was passed at the time of the introduction of a regular settlement of the land revenue into “the Ceded and Conquered Provinces,” under which designation the districts afterwards known as “the North-Western Provinces” were at that time included, the object of the Government appears to have been to obtain a body of reliable contemporary evidence upon matters which might afterwards come into controversy, not only between the landholders and the Government, but between rival claimants to estates.
4. Regulation VII of 1822 was repealed, as regards the North-Western Provinces, by Act XIX of 1873, and it is to be observed that this Act, while providing, in the 62nd and following sections, for the maintenance of a careful ” record of rights” in each mahal, no longer included a record of ” local usages connected with landed tenures” among the particulars to be entered. It was probably considered that, during the fifty years which had elapsed between the passing of the Regulation and the Act, such usages had been sufficiently ascertained, and that it was desirable that reference should be made to the earlier records when the existence of any such usage was asserted. For it is clear from a subsequent Judgment of this Committee in the case of’ Uman Parshad v. Gandharp Singh (1887) 14 I.A. 127, that, in later years, at any rate, attempts have been made by some proprietors to use these records as an indirect means of giving effect to their wishes with regard to the nature of their tenure, or the mode of devolution of their property after their death. When this has been the case, as Lord Hohouse observes (ubi supra p. 135) these records are “worse than useless, they are absolutely misleading.”
It is to this custom that the terms of the wajib-ul-arz appear to me to give expression, and the matter therefore comes to this that before any sharer is competent to transfer his rights and interests, he must offer to transfer them to his co-sharers. It is true that the Wajib-ul-arz shows that before the co-sharers can fix the price, the owner is entitled to get what he can from an outsider, so that he can insist upon their giving the same. Under these circumstances, the word “qimat” is used, and it seems to be generally agreed that the meaning of this word is not “money,” but “equivalent” or “value.”
If, therefore, the co-sharers want to get the land, they must give the vendor the equivalent or value of the thing for which he desires to exchange his property. Now, in all countries sufficiently advanced in civilization to possess coinage, money is the accepted standard of value, and therefore, because in this case the co-sharers cannot give the thing for which the vendor agreed to exchange his land – it being another piece of land which does not belong to them–they have a right to obtain his land for an equivalent in money.
to the interpretation to be placed on the word “haqiyat,” I have nothing to add to the observations which I made upon a cognate question in the case of Sahib Ram v. Kishen Singh Weekly Notes 1882 p. 192 which was a case decided by a Full Bench, of which I was a member, but had the misfortune of differing with the majority of the Court. The case has unfortunately not been reported in the Indian Law Reports, but I have adhered to the view which I then expressed as to the nature of the proprietary rights of a co-sharer in a mahal to which, under the wajib-ul-arz, the right of pre-emption applies. That case related to the question whether the abadi area or habitable site of a village came within the meaning of the term “haqiyat;” and in the present case the property appears to be a grove.
The rule of pre-emption was originally introduced into India as a part of the Muhammadan law, and must, by equitable analogy, be administered in the spirit of that law. This view was adopted by Sir Barnes Peacock, C.J., a good many years ago. It therefore appears to me that the word “qimat,” which is of Arabic origin, must be interpreted in the sense given to it by the Muhammadan law, and that is undoubtedly not the technical meaning of the English word “price.” In the law of pre-emption “qimat” includes not only money, but other kinds of property capable of being valued at a definite sum of money. This is borne out by the passage in Hedaya, which has been cited at the Bar: “If a man sell a piece of ground for another piece of ground, in this case, as each piece of ground is the price for which the other is sold, the shafee of each piece is entitled to take it for the value of the other, land being of the class of zosat-al-keem, or things compensable by an equivalent in money,” (Grady’s edition of Hedaya, p. 555), and in this sense the word may be taken to cover the consideration of “sale” as well as of exchange as defined in Sections 54 and 118 of the Transfer of Property Act (IV of 1882) respectively. Any other view of the law of pre-emption would simply render the object of the right easily defeasible–the object being the exclusion of strangers from the co-parcenary of the property to which the right applies.
limbadar or co-sharers Construction of wajib-ul-arz Where a wajib-ul-
arz was not signed by the lainbadar or by any of the co-sharers of the
village (or which it was framed, but was found to have been in
existence without having been questioned by any of the parties who might
have been affected thereby for a period of some thirteen years : Held that
the wiji’i’Ul-arz might be taken as prima facie evidence of the custom of
the village for which it was framed.The said ivajib-ularz contained a clause relative to pre-emptive rights to
the following effect : “When any muafidar in the patti desires to transfer
his share, then first a shareholder in the path takes it, and if he
does not take it, then another man who desire to take it takes it.” Held
that this clause was declaratory of the village custom and that it was not
intended thereby to adopt the Muhammadan law of pre-emption. RUSTAM
ALI KAHN v. ABBASI BEOAM, 13 A. 407=11 A.W.N. (1891) 146 … 260
(2) Wajib-ul-arz Inivroper use of wajib-ul-arz to record wishes of sole proprietor
of villag a Succession Hindu Law Primogeniture- The object of the
wajib-ul-are is to supply a reliable record of existing loyal custom. It was
never intended that the wajib ul-arz should be used as an indirect means
of giving effect to the wishes of a sole proprietor with regard to the
nature of his tenure or the mode of devolution of the property which
should obtain after his death. 8UPERUNDDHWAJA PRASAD v. G.
PRASAP, 15 A. 147 = 13 A.W.N. (1893) 85 … 813
3) Act XIX of 1873, ss. 3, sub-s. (1), 101 Partition Wajib-ul-arz Power of
Collector in constituting a new mahal by partition to frame a new wajib-ul-
arz for such mahal. Ic is within the implied, though not within the speci-
fied, powers of a Collector while constituting new mahals by partition of
a previously existing single mahal to frame new wajib ul-arz for each of
the new mahals so constituted. KEDAR NATH v. RAM DIAL, 15 A. 410
Wajib-ul-arz is a
document included in the record-of-rights cannot be
disputed since it contains the statements on matters
envisaged under clauses (a) and (b) of sub-section (2) of
Section 31 of the Act. According to the courts ,
Wajib-ul-arz document being record-of-rights of estates
completed after November 18, 1871, and there being
nothing expressly stated in them that the forest or quarry
or land or interest in the estates belong to the
Government, the lands in such estates including brick-
earth in them shall be presumed to belong to the
concerned landowners as is declared in sub-section (2) of
Section 42 of the Revenue Act.”
Community rights are completely overlooked. There is no understanding of these
community rights at the State level. Though people have collected the old record known
as Wajib-ul-urz, which is a document of record of rights existed before British period in
Urdu. This record of rights mentions about all the rights such as timber for house
construction, grazing rights, timber for making agricultural implements, grass for
thatched roof, fodder, fuel wood, looping trees for cattle, Chirgoza and Kail dry leaves
for bedding of cattles, wood for ceremonies, dry wood for dead etc . These rights are
known as “Bartandari Rights” in HP. The issue of community rights came up very
strongly in all the places and submission regarding these old records was made to
committee members. In 1927 (according to Indian Forest Act) settlement 24 rights were
recorded. But over the years these rights have been transformed into concession.
Submissions were made that all these rights should be granted under community rights.
The GoHP states that the record of rights has already been compiled since 1921, and rights
have already been settled under the Forest Act 1927. The state authorities say that the HP
Land Revenue Act is also applicable. Chapter IV of HP Land Revenue Act envisages that if
there is any change in the record of rights, there is a detailed procedure for making new
entries, variations, alterations, additions’ in the record of rights. Thus their is a complete
code, statutory enactment and rules and regulations pertaining to these rights especially in
three tribal districts. The record of rights i.e individual and community which were earlier
recorded in Wazib-ul-arj were finally reduced in the shape of Forest Settlement Report.
The wajib-ul-arj document is available in Urdu (these documents were also submitted to
committee). It is important that these documents needs to be translated to find out the real
status of rights before British annexed forest and rights of the people.
At this juncture we may refer to the relevance of Wajib-ul-arz while dealing with cases of customary easements. Section 242 of the Code deals with Wajib-ul-arz and is extracted below :
“242. Wajib-ul-arz.–(1) As soon as may be after this Code comes into force, the Sub-Divisional Officer shall, in the prescribed manner, ascertain and record the customs in each village in regard to –
(a) the right to irrigation or right of way or other easement; (b) the right to fishing; in any land or water not belonging to or controlled or managed by State Government or a local authority and such record shall be known as the Wajib-ul-arz of the village.
(2) The record made in pursuance of sub-section (1), shall be published by the Sub-Divisional Officer in such manner as may be prescribed.
(3) Any person aggrieved by any entry made in such record may, within one year from the date of the publication of such record under sub-section (2), institute a suit in a civil court to have such entry cancelled or modified.
(4) The record made under sub-section (1) shall, subject to the decision of the civil court in the suit instituted under sub-section (3), be final and conclusive.
(5) The (Sub-Divisional Officer) may, on the application of any person interested or on his own motion, modify an entry or insert any new entry in the Wajib-ul-arz on any of the following grounds :
(a) That all persons interested in such entry wish to have it modified; or
(b) That by a decree in a civil suit it has been declared to be erroneous; or
(c) That being founded on a decree or order of a civil court or on the order of a Revenue Officer it is not in accordance with such decree or order; or
(d) That being so founded, such decree or order has subsequently been varied on appeal, revision or review; or
(e) That the civil court has by a decree determined any custom existing in the village.”
Rules have been made under section 242 relating to Wajib-ul-arz vide notification dated 2.2.1966, Rule 2 thereof is extracted below :
“2. Customs under sub-section (1) of section 242 shall be ascertained and recorded in the Wajib-ul-arz under the following heads, namely : – (i) Right to irrigation; (ii) Other water-rights; (ii) Right to fishing; (iv) Rights of way, village roads, paths, drains and the like; (v) Rights of persons of other villages over the lands of the village; (vi) Rights of the villagers over the lands of other villages; (vii) Other easement – (a) Burial and cremation ground, (b) Gaothan (c) Encamping-ground, (d) Threshing-floor, (e) Bazars, (f) Skinning-grounds, (g) Rights to graze and take fuel, (h) Manure and rubbish; (viii) Other miscellaneous rights.”
15. Wajib-ul-arz is thus the record of customs in a village in regard to (i) easements (including the right to irrigation and right of way); and (ii) the right to fishing in privately owned/held lands and water bodies. The entries therein could be modified in the manner provided in sub-section (5) of section 242 of the Code. Though the Code provides for maintaining a record of all customary easements imposed upon privately held lands and water bodies, significantly the Code does not provide the remedies available in the event of disturbance or interference with such easements recorded in Wajib-ul-arz, as the remedy is only way of a suit before the civil court. Customary easements are the most difficult to prove among easements. To establish a custom, the plaintiff will have to show that (a) the usage is ancient or from time immemorial; (b) the usage is regular and continuous; (c) the usage is certain and not varied; and (d) the usage is reasonable. If the Wajib-ul-arz (where such a record is maintained) records or shows the customary easement, it would make the task of civil courts comparatively easy, as there will be no need for detailed evidence to establish the custom. Be that as it may. If the remedy for violation of a customary easement recognized and recorded in the Wajib-ul-arz is by way of a civil suit, it is inconceivable that in regard to violation of a customary easement not recognized or recorded in the Wajib-ul-arz, the remedy would be only by way of a summary enquiry by the Tahsildar under section 131 of the Code, and not by a suit, before the civil court.
I am producing a judgement about this :-
Allahabad High Court
Jiwan Ram vs Tondi Singh on 10 July, 1911
Equivalent citations: (1912) ILR 34 All 13
Author: G Knox
Bench: G Knox, K Husain
George Knox, J.
1. I would dismiss this appeal. It arises out of a suit for pre-emption based upon custom as contained in the wajib-ul-arz.The wajib-ul-arz under which the right is claimed is a wajib-ul-arz prepared under and in accordance with the provisions of Regulation VII of 1822. According to the Regulation that wajib-ul-arz is primd facie evidence of the custom recorded in it unless and until it has been formally altered. It shall be shown by the result of a full investigation in a regular suit that the proceeding or record of the Collector was erroneous or incomplete. No evidence has been given by the defendant. I have therefore, to see what is the true construction to be placed upon its language. The terms of it will be found fully set out at page 282, I.L.R., volume 32. As I read them they record a custom whereby a person holding a share in the deh of Dharera has a right of pre-emption over and above a stranger. This is what I understand the villagers of Dharera intended and what they-understood and what the Settlement Officer found to be the custom. The stranger was to be kept out so long as any one who held any part or lot in the deh was prepared to pre-empt.
2. I would therefore dismiss the appeal with costs.
Kabamat Husain, J.
3. Certain property in the village Dharera was sold and a suit for pre-emption on the basis of the wajib-ul-arz of 1272 Fasli brought. The terms of the wajib-ul-arz are:
Agar kisi hissadar ko haqiyat apni bai wa rehan aur murtahin ko rehan dar rehan karna ho to bawaqt intiqal ke lazim hoga ki pahle apna hissadar karib ko aur darsurat inkar uske dusre hissadar deh ko khabar dekar baqimat wajib bai wa rehan kare.
4. [If any hissadar (sharer) has to sell or mortgage his haqiyat (interest) and if any mortgagee has to sub-mortgage it, he at the time of the transfer must give information first to his near hissadar and in case of his refusal (to buy) to other hissadar deh (sharer in the village) and then sell or mortgage it (to others) for a proper price.]
5. The village afterwards was divided into several mahals for whioh no new wajib-ul-arz was framed. The property sold was situate in one mahal and the pre-emptor had a share in another mahal. A single Judge of this Court held that a perfect partition ” put an end to the right of pre-emption in respect of the property situate in a different mahal and the Full Bench case of Dalganjan Singh v. Kalka Singh
(1899) I.L.R. 22 All. I applied. He therefore dismissed the pre-emptor’s claim. On appeal, the learned Judges who heard the appeal took different views. Stanley, C.J., held that the plaintiff was entitled to pre-empt notwithstanding the partition, and that the words hissadar deh, as used in this wajib-ul arz, meant a sharer in the village. Banerji, J., came to the conclusion that the plaintiff could not pre-empt after the partition of the village, as, although he was a sharer in the village, he was not a co-sharer of the vendor, and that the words hissadar deh, as used in the wajib-ul-arz meant a co-sharer of the undivided village for which the wajib-ul-arz had been prepared. See Dori v. Jiwan Ram
(1910) I.L.R. 32 All. 265. Hence this appeal. It has been . expressly laid down in the Full Bench case of Dalganjan Singh that, where on the perfect partition of a mahal under the North-Western Provinces Land Revenue Act, 1873, no new wajib-ul-arz has been framed for any of the new mahals, the question whether or how far a contract or a custom of pre-emption recorded in the wajib-ul-arz of the undivided mahal is still in force, or who is entitled to claim the benefit of it, is not capable of any absolute or invariable answer.” This shows that the mere fact that the words hissadaran deh have been construed to mean “co-sharers in the undivided village,” is no reason for holding that the words “hissadar deh” in the present case also mean a co-sharer in the undivided mahal and not a sharer in the deh, Nos. , village.
6. Again, in interpreting a wajib-ul-arz according to the ruling in the case of Dalganjan Singh “no general consideration are of any value. In every case we must place ourselves as nearly as possible in the position of the parties and have regard to surrounding circumstances.” These remarks imply that the learned Judges who decided Dalganjan Singh v. Kalka Singh
(1899) I.L.R. 22 All. 1 on placing themselves as nearly as possible in the position of the parties to the wajib-ul-arz and considering the surrounding circumstances came to the conclusion that by using the words “hissadaran deh the framer of the wajib-ul-arz intended to confer ; the right of pre-emption on the co-sharers of the undivided deh meaning thereby the undivided mahal. It must be taken for granted that in the case such surrounding circumstances did exist as forced the learned Judges to come to that conclusion. It remains to be seen if in the case before us the circumstances are such as to make us conclude that the right of pre-emption is intended for the co-sharers of the undivided deh as one mahal. Deh is a Hindi word and means a definite area of agricultural , holdings with houses upon, and is thus a physical unit. Mahal is a corruption of an Arabic word and is a legal term meaning “any local area held under separate engagement for the payment of the land revenue.” Deh and mahal are two distinct conceptions. In one deh there may be several mahals and in one mahal there may be several dehs or portions of them. It, however, sometimes happens that a definite area of land is one deh and also one mahal. This is a pure accident and must not lead to the erroneous notion that when the terms “deh” and “mahal” may be predicated of one and the same area of land, they became synonymous. When the wajib-ul-arz of the village Dharera was framed in 1272 Fasli, it was one deh and also one mahal. It was called a deh from the physical point of view and a mahal from the fiscal stand-point. The meaning of a “hissadar in the deh of Dharera” is quite distinct from the meaning of “a hissadar in the mahal of Dharera.” The plain and natural meaning conveyed by the former is “a sharer in the physical entity called Dharera” without any notion of his liability to the payment of revenue ; while the natural and ordinary meaning of the latter is “a co-sharer in the mahal of Dharera who is a member of the co-parcenary body jointly and severally responsible for the revenue of the mahal.
7. There being a vast distinction between the word “deh” and the word “mahal,” the plain meaning of a “hissadar deh” in the wajib-ul-arz we have to construe is “a sharer in the village Dharera,” and there are no surrounding circumstances to lead me to infer that the intention of the framers of the wajib-ul-arz in question was to mean by those words a co-sharar in the undivided mahal of Dharera.” Had they any such intention, they would have used the expression “hissadar mahal” instead of “hissadar deh.” Moreover, the distinction sought to be drawn between a “hissadar deh” and a “hissadar mahal is too fine for the mental calibre of the class of people to which the ordinary f ramers of waib-ul-arzes belong. Again, in the wajib-ul-arz before us there” are indications which go to show that a “hissadar deh” means “a sharer in the village” and not “a co-sharer in the undivided mahal.” One is that the framers are stating a custom which exists in the “village” and not in the mahal” Another is that they use the word “hissadar” in the singular number, showing thereby a complete absence of the idea of the co-parcenary body from their minds. The existence of the expression, “As to the rights of co-sharers among themselves based on custom or agreement,” in the wajib-ul-arz in Dalganjan Singh’s case might have been one of the surrounding circumstances which led the Chief Justice to hold that “deh” in that wajib-ul-arz meant “mahal” There is nothing in the case before us to show that the word “hissadar” in the beginning of the pre-emption clause means “a co-sharer in the undivided mahal of Dharera” to make me infer that that word in the expression “hissadar deh” also means “a co-sharer in the undivided mahal of Dharera.” The natural meaning of the pre-emption clause in the case before us to my mind is that at the time framing the wajib-ul-arz there existed a custom whereby a sharer in the village was entitled to pre-empt. The fact that he at that time was also a co-sharer in the undivided mahal of Dharera was a mere accident and not the differentia on which the existence of the right of pre-emption depends. It is admitted in Dalganjan Singh’s case that persons other than co-sharers in an undivided mahal can have the right of pre-emption after a perfect partition, and that being the case to be a co-sharer in an undivided mahal, cannot be an essential of the right of preemption. For the above reasons I hold that the plaintiffs, on the right interpretation of the wajib-ul-arz of 1272 Fasli, notwithstanding a perfect partition, are, as sharers in the village, entitled to pre-empt. The result is that I would dismiss the appeal with costs.
FURTHER, IT MAY BE OBSERVED CLOSELY IN THE VERDICT OF SUPREME COURT GIVEN BELOW:-
Supreme Court of India
Dayaram & Ors vs Dawalatshah & Ors on 8 January, 1971
Equivalent citations: 1971 AIR 681, 1971 SCR (3) 324
Bench: S C.
DAYARAM & ORS.
DAWALATSHAH & ORS.
DATE OF JUDGMENT08/01/1971
SHAH, J.C. (CJ)
SHAH, J.C. (CJ)
1971 AIR 681 1971 SCR (3) 324
1971 SCC (1) 358
Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1, of 1951-SS. 3, 14-S. 14 scope of-Section only intended to determine the Proprietary rights in the land qua the State-Dhanora-Zamindari- Succession by lineal primogeniture-‘Nearest male relative’ does not mean eldest male relative.
Under the Chanda Patent and the terms recorded in the Wajibul-Arz the Dhanora Zamindari was impartible and on the death of the holder it devolved upon his eldest son and in the absence of a legitimate or an adopted son it devolved upon the nearest male relative. The succession to the Zamindari was subject to the power of the Governor to dispossess a person found unfit to observe the conditions of loyalty, good police administration and improvement of the estate.
Therefore, we must amend the said law which is anti-women and anti-justice in nature because modernsociety does not allow it to be continued in the old patterns. As we know:
The Hindu Succession Act, 1956 is an Act to codify the law relating to intestate succession among Hindus. Intestate succession means succession to property left by a Hindu without any testamentary instrument like Will, Settlement etc. The Act brought about important changes in the law of succession but without affecting the special rights of the members of a coparcenary. Coparcenary consists of a male Hindu, his son, grand son (son’s son) and great grand son (son’s son’s son). Daughters were excluded from succession to coparcenary property. The law by excluding the daughter from participating in the coparcenary ownership not only contributed to her discrimination on the ground of gender but also led to oppression and negation of her fundamental right of equality guaranteed under Article 226 of the Constitution of India. Parliament felt that non inclusion of daughters in the coparcenary property was causing discrimination to them and accordingly decided to bring in necessary changes in the law. Accordingly Section-6 of the Hindu Succession Act, 1956 was substituted by a new provision vide the Hindu Succession (Amendment) Act, 2005 as follows:
‘6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 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 in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary 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, 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 coparcenary 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, 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, 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 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.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004″.
The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 09-09-2005. Thus on and from 09-09-2005 the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. The States of Tamil Nadu, Andhra Pradesh, Karnataka and Maharashtra made necessary changes in the law giving equal rights to daughters in the ancestral property by enacting State amendments and in these states the daughters have been provided parity of rights in the co-parcenary property with effect from the dates notified by the said State amendments. The effective dates are:- Tamil Nadu(25-03-1989), Andhra Pradesh (5-9-1985) Karnataka (30-07-1994) and Maharashtra (22-06-1994). The State of Kerala abolished the joint family system by enacting the Kerala Joint Hindu Family System (Abolition) Act. 1975 with effect from 1-12-1976.
The right accrued to a daughter in the ancestral property, by virtue of the Amendment Act, 2005 is absolute, except in the circumstances provided in the amended Section-6. The excepted categories to which new Section-6 is not applicable are two, namely, (1) where the disposition or alienation including any partition which took place before 20-12-2004 and (2) where testamentary disposition of the property was made before 20-12-2004.
The Hindu Succession Act (1956) was amended on September 9, 2005, to provide the right to parental property for daughters as an equal right since birth.
In a landmark judgment on Friday, the high court has ordered that
married women born after 1956 will be entitled to an equal right of inheritance of ancestral property from parents. According to the Hindu Succession Act (1956) the right to ancestral property was not given to married women. But it was amended on September 9, 2005, to provide the right to parental property for daughters as an equal right since birth.
Justice N Kumar while listening to an appeal filed by Bangalore resident Pushpalatha, directed that a married daughter is also a co-parcenar (having an equal right to ancestral property along with male siblings) and is entitled to equal share as that of the sons in co-parcenary properties and the marriage in a way affects her right to get equal share in the co-parcenary property to married woman since 1956.
Hence, I am making this appeal before you to allow all the ancestral property rights to the women living in tribal distt. Kinnaur and Lahaul-Spiti immediately.
Dated: 14-04-2013 Yours sincerely: Vijay Kumar Heer, State President , H.S.K.M. & Himachal Shikshak Mahasangh JBT Cell, HP
VPO CHAKMOH , TEHSIL BARSAR, DISTT. HAMIRPUR , H.P. 176039