Supreme Court Dismisses Plea Seeking Amendment Of Hindu Succession Act As Recommended In 204th Law Commission Report

The Supreme Court dismissed a writ petition seeking direction to amend the Hindu Succession Act 1956 as recommended by the Law Commission of India in its 204th report.

The bench comprising Justices DY Chandrachud and Hima Kohli noted that the petitioner (S. Venkatesh) is not an aggreived person. 

A mandamus, it is well settled, cannot be issued to the legislature to enact or amend legislation, the bench observed. The court also clarified that it has not expressed any opinion on the validity of any provision of the Hindu Succession Act 1956 which may arise in an appropriate case in the future.

In its 204th report, the Law Commission had made the following recommendations

1. The following entries should be deleted from class II (as these have been elevated to class I) in the Schedule. Entry (II) (2) son's daughter's daughter Entry (III) (2) daughter's son's daughter Entry (III) (3) daughter's daughter's son Entry (III( (4) daughter's daughter's daughter
2. The following entries should be deleted from class II and be added to class I heirs in the Schedule. Entry (II) (1) son's daughter's son Entry (III) (2) daughter's son's son. 
3. 'Father' should be deleted from Entry I under class II and be inserted in class I after 'mother'.
4. Father's widow be deleted from Entry VI and included in Entry II after 'sister' as father's widow other than real mother.
5. (1) The following Rule shall be inserted in Section 10, after Rule 1, Rule 2 – The surviving parents at the intestate's death shall together take between them one share. (2) The following Rules 2, 3 and 4 shall be renumbered as Rules 3, 4 and 5 respectively. (3) Mother shall be deleted from existing Rule 2 and renumbered Rule 3. (4) The words "so on in succession" shall be added at the end of renumbered Rule 4.

6. Amendments recommended at Serial No. 1 to 3 above except to the extent to which these relate to the deletions in Class-II will not be necessary, if the alternative recommendation of revising class I heirs in the Schedule as follows is accepted. Class I : 1. Son, daughter, widow, parents (or mother and father). 2. In case any son or daughter dies before the intestate's death, then children of any such pre-deceased son or daughter, as the case may be, and widow of the pre-deceased son, if any. 3. And so in succession, among the heirs of the descending branches of successors being grand children and great grand children and widow of any grandson or great grandson, and so on, as the case may be, in the case of their pre-deceasing the intestate.

The Commission had made the following observations regarding its recommendation to relocate 'father' from Class II to Class I : ""Father", who is certainly a very close relative rather than any one coming in the Class II Entry 2 and 3 list, assumes more importance in view of the recent enactment of the Parliament to provide maintenance to parents in "The Senior Citizens (Maintenance, Protection and Welfare) Act, 2007" wherein it is now made mandatory that every person should maintain his parents and 16 failure will result in punishment. While so, it is but natural and logical to expect that a father should be given the right of inheritance of the property of his son like a mother. As such pushing "Father" beyond a III generation "Daughter's daughter's daughter" etc., has no meaning. Why a preference to the more close relatives should be given-up, in place of 3 rd generation relatives who in our society may not have any contact with the person dying intestate – is not known. Further, we have to see one more point that is almost all (Class I heirs) sons, daughters and grand children have the duty to maintain the parents or grand parents as per the 2007 Act. There is no duty cast upon the great grand children to look after their great grand parents, whereas they have been given equal right to share as Class I heirs. This is certainly an anomaly. This can be rectified only by including the "Father" in Class-I. As suggested earlier, we have to consider that the desirability of elevating the father as a Class I heir with the mother was that he may not be the lesser heir than a daughter's daughter in the list particularly when we are now thinking of enforcing, by law, of obligation of the children to maintain their parents."

Case details

S. Venkatesh vs Union of India | 2022 LiveLaw (SC) 752 | WP(C) 536/2022 | 5 September 2022 | Justices DY Chandrachud and Hima Kohli

Headnotes

Constitution of India, 1950 ; Article 32 - Mandamus - A mandamus cannot be issued to the legislature to enact or amend legislation - Writ petition seeking direction to amend the Hindu Succession Act 1956 as recommended by the Law Commission of India in its 204th report - Dismissed. 

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