M.M. Sundresh, J.

1. The petitioner in person, a practitioner of law in this Court, has filed this pro bono publico seeking to declare the Hindu Succession (Amendment) Act, 2005 (39 of 2005) as ultra vires the Constitution of India.

2. On 20th day of December, 2004, the Hindu Succession Amendment Bill 2004 has been introduced, inter alia, seeking to amend the erstwhile Section 6 and to omit Sections 23 and 24 of the Hindu Succession Act, 1956. Ultimately, the Amendment Act, 2005 was passed as the Act 39 of 2005 on 09.09.2005. This Act was introduced pursuant to the recommendation made by the Law Commission to alleviate the gender bias caused by the then existing Act. The following is the statement of object and reasons for amending the “Principal Act”.

“STATEMENT OF OBJECTS AND REASONS: The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession Hindus and gave rights which were till then unknown in relation to women's property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act-lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudir laws. The Act applies to every person who is a Hindu by 28 of 72 SA.566.2011 religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Parathana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts to. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need of render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

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4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on 'Property Rights of Women: Proposed Reform under the Hindu Law'.

5. The Bill seeks to achieve the above objects.”

3. By the Amendment Act, not only Section 6 was amended apart from omission of Sections 23 and 24, but consequent thereon, an insertion was made by way of Amendment to Schedule in Clause-I.

4. For the purpose of convenience, the amended provisions of Section 6, unamended provisions of Sections 23 and 24 and amended Sch