Hindu Succession Act

The Hindu Succession Act, 1956 is an act that codifies the laws relating to intestate succession. It is applicable to all people who are are Hindus, and also includes Jains, Sikhs, Buddhists and Sikhs. The Hindu Succession Act continues with the dual mode of devolution of property under the Mitakshara. The Hindu Succession Act is based on the principle of propinquity. It gives preference to the heirs on the basis of proximity of relationship. Heirs are categorised into Class I heirs (Immediate family members) and Class II heirs (In the absence of Class I heirs, the property goes to them). This act was amended in 2005. 

The Hindu Succession Act, 1956

Post independence, a significant change was introduced to Hindu succession laws. This was a revolutionary considering the position at that point of time. The Hindu Succession Act was enacted in 1956. This act granted right to inheritance to females. Section 6 gave women the right to inherit property like a son. It categorised people with right to inherit as class I heirs, class II heirs, agnates, cognates and others. This act was based on the principle of propinquity. That is, to grant a share of property to the nearest relatives. This act assumed a hypothetical situation of the way it would have been shared before the death of the coparcener. This act did not grant rights to people who had left the group of coparceners. Section 6 of this act talks about devolution of interest in joint Hindu family. It says that after the death of a Hindu male, the property will pass on by survivorship. This means the surviving heirs will get the share. In the presence of female heirs, the interest will devolve by succession. In such a scenario, the survivorship mode of devolution will not be followed. There is an exception to provision that states the property shall pass on by survivorship. If a coparcener dies, leaving behind female heirs the property shall pass on by intestate or testamentary succession. The survivorship mode of devolution will not followed in this case. The survivorship mode of devolution is applicable only to cases in which, the coparcener dies, without leaving behind female heirs. This is also applicable when the coparcener has not made any wills.

The most important section of this section talks about the devolution of interest and interest in coparenery property. This is done on the basis of notional partition. Every surviving member receives a share. It divides property as if the property had been divided before the death of the coparcener. The person who has left the coparcenery cannot claim his share of property. He loses his right to claim property the moment he quits coparcenery. In Shyama Devi v Manju Shukla, it was clearly explained that the share would be divided assuming the divison had happened during the life of the coparcener. After the death, the property devolves to surviving heirs. The sons get their share before others and then for others. One major drawback was the law did not deal with the exclusive rights of members of coparceners. This act codifies and forms uniform law for all who were practising different laws. This act applies to all Hindus. Hindu is defined in section 2 of the act. At that time, proposal to provide equal share for women received a lot of criticism and opposition. As a result, females were not included as coparceners. It denied admission of women to the group of coparceners. This meant that they did not have right to inherit ancestral property. Even after providing property rights to women, this act was still discriminatory.

This act introduced some major changes regarding intestate succession among Hindus. It was to improve the social status of a woman. This act governs all the people who previously followed Mitakshara and Dayabhaga schools and other schools in different parts of the country. This act governs all Hindus. This law is not applicable to people married under the Special Marriage Act 1954. Section 4 repeals all previously existing customs and laws related to interstate succession by force of law. This act abolished unbiased estate. The method of substituting unbiased estate was also abolished. According to this act, the land devolved through the husband’s descendants. The husband did not have any position. Rule of survivorship has little applicability in this act. This principle or rule can be applied if there are surviving coparceners. After the death of Mitakshara coparcener, the property will not devolve according to rule of survivorship.

The principle on which the law is based is called the doctrine/principle of propinquity. The nearest blood relation. As discussed above, there are four categories. Each category excludes the other. The heirs in Class I inherit simultaneously. They are preferential sharers. They share property along with each other. The second class heirs get property only in the absence of first category. Similarly, the other categories get property only in the absence of the preceding category. Hindu women’s restricted property was abolished by this act. This act is also known for granting women the right to dispose of their property in the way they desire. This act brought order to women’s succession of property. If she dies intestate, the property will pass on to her children and spouse. The parents and their heirs come later in the order. If her share is not issued the parent and their heirs will get the property on her death. This act introduces general rules for succession. It deals with things like preference of heirs of executors to half blood (only in the case where the nature of relationship is the same). It deals with case where two or more heirs succeed to land of the intestate. In this case, they are forbidden to receive their portion. This act dismissed exclusion on the basis of defects or deformity. Restriction of property to a widow of a late son who remarries, widow of a brother and widow of late son’s son is not touched upon by this act. There is no change regarding this. This act denies right to criminals. This act introduced a change in laws relating to converts. According to this law, convert who previously were denied share got rights to property. However, the heirs of the convert are not eligible to inherit property.

 The Hindu Succession (Amendment) Act, 2005

The need to bring amendment to the previous act was understood and this resulted in the amendment act. The Hindu Succession (Amendment) Act, 2005 was passed in 2005.  The main issue in the previous act was Section 6. The major drawback of this act was it did not include women as coparceners. It did not grant women the right to ancestral property. The amendment act introduced changes to this section. 

The second major change was omission of Section 23. The section 23 of the previous act did not allow women to claim right to partition of dwelling house. Other major changes introduced by this are Section 4(2). This section was omitted. This section was criticised as partial. This section did not permit the division of agricultural land. It forbade tenancy rights. The agricultural land was exempted from the scope of law. This did not allow women to claim a share in such property. Again this act was discriminatory in nature.  So, the amendment act omitted this section. This enables women to claim a share in agricultural land. 

The most important change was change in Section 6. The amendment act deleted the previous provisions in this act. This act included women to the group of members called coparceners. Making women coparcener allowed them to claim equal share to all kinds of property. Now women, by birth, acquired rights similar to that of a man. Until this point, a female was treated like an alien to the joint Hindu family property. This enabled her to claim interest in the undivided property. The right to property indicates the social status of a person. This amendment act by quashing this discriminatory section elevated the status of women. Right to property allows a woman to be independent. The kind of property she is allowed to inherit also matters. 

Prior to this act, women’s property was strictly restricted to donated property called Stridhan. When it came to other kinds of property, she was not allowed to get a share without the permission of the husband. She had limited or restricted rights when it came to other kinds of property. This restricted her to a limited owner. This was recognised in 1937 act. But this recognition was restricted to widows. This also forbade her to individually dispose of the property. She needed permission from other male members to transfer property. This act is considered as major leap towards equality. 

The changes or regulations introduced by the 1956 act wasn’t sufficient. Even after 1956, women were not treated as equals. The amendment act, by including women as coparceners, achieved what previous laws failed to achieve. The group of coparceners was no longer an exclusive group. This group lost its relevance as all could inherit now. The amendment act allowed women or granted her rights to seek partition. This allowed her to claim her due share of property. Now, she had a right in joint Hindu family property. This act is not applicable to testamentary succession. The next change introduced by this act was in Section 23. Section 23 of the previous act forbade women to claim a share in the dwelling house. Dwelling house is her birth house, to which she became an alien after her marriage. After her marriage, the dwelling house was occupied by male heirs. They were the exclusive owners of this property. The amended acted deleted this section. Women now were able to seek partition of the dwelling house. Married women could claim their share in the property. Another major change was in section 24. This section was omitted in the amendment act. This section was discriminatory towards widow of a predeceased son, widow of a predeceased son of a predeceased son and widow of a brother after another marriage. This was based on the reason that a widow ceases to to be a surviving partner after her marriage with another man. So, she was not granted right to property. This section was particularly discriminatory towards these women alone. When it came to the widow of the intestate, it took a different stance. Widow of an intestate was allowed to claim a share in the property. This right existed even after another marriage. This again manifested the partial and unequal nature of laws. This was contradictory to the spirit of the constitution. This fault was corrected in the amendment act of 2005. The first two types of widows, mentioned above, were included in class I heirs. The third type of widow was included as an agnate. They were invested with property rights immediately after the death of the intestate according to the amendment act. The amendment act makes her an absolute owner. This is mentioned in Section 15 of the Hindu Succession (Amendment) act, 2005. Section 25 of the Hindu Succession Act, 1956 was omitted in the amendment act. The next major change introduced in the amendment act was with regards to Section 30 of the Hindu Succession Act. The amendment act brought changes to the previous section that was discriminatory. This act replaced the words “disposed by him” with the words “disposed by him or by her”. The discriminatory nature of the previous law was changed. 

Other minor changes introduced by the amendment act was with regards to things like adding extras to the schedule of class I heir. This gave equal rights the descendants of daughters. The new version treated the descendants of the daughters equally like the descendants of the sons. This was major change. This changed the gender discriminatory nature of Hindu laws.

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