Conflict between Hindu Suc­cession (Amend­ment) Act, 2005 and Law of Mitak­shara Coparce­nary

When a Hindu dies after the 2005 Amendment, his interest in the property of a joint Hindu family governed by Mitakshara law devolves by testamentary or intestate succession, as the case may be, under the Hindu Succession Act, and not by survivorship. In such cases, 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;

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(b) The share of a pre-deceased son or a pre-deceased daughter (as they would have got if they had been alive at the time of the partition) is to be allotted to the surviving child of such pre­deceased son or pre-deceased daughter; and

(c) The share of the pre-deceased child of a pre-deceased son or a pre-deceased daughter (as such child would have got had he or she been alive at the time of the partition) is to be allotted to the child of such pre-deceased child of the pre-deceased son or the pre-deceased daughter, as the case may be.

It is clarified that the interest of a Hindu Mitakshara coparcenary 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 a partition or not.

Abolition of the Doctrine of Pious Obligation:

The new S.6 also abolishes the Doctrine of Pious Obligation which earlier existed under the uncodified Hindu law, and provides that after the commencement of the 2005 Amendment, 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 such a debt.

This radical provision, which abolishes the age-old Doctrine of Pious Obligation, is, however, not retrospective in its operation. In fact, it is expressly provided that in case of any debt contracted before the commencement of the 2005 Amendment, this provision shall not affect-

(a) The right of any creditor to proceed against the son, grandson, or great-grandson, as the case may be, who was born or adopted prior to the 2005 Amendment; and

(b) Any alienation made in respect of, or in satisfaction of any such debt.

Any such right or alienation (in clause (a) or clause (b) above) is enforceable under the Doctrine of Pious Obligation in the same manner and to the same extent as if the 2005 Amendment had not been enacted.

Prior partitions not affected:

S. 6 also lays down that nothing in the amended section shall apply to a partition which has been effected before 20th December, 2004. For this purpose, the term “partition” refers to any partition made by execution of a Deed of Partition duly registered under the Registration Act, 1908, or a partition effected by the decree of a court.

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