Hindu Succession Act, 1956

6. Devolution of interest of coparcenary property When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: PROVIDED that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation I: For the purposes of this 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. Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

Devolution of Coparcenary Property to Hindu Females : The Law

Justice R.M. Lodha Supreme Court of India

The Supreme Court in Ganduri Koteshwaramma Vs. Chakiri Yanadi has discussed the law relating to intestate succession by Hindu females and the effect of the amendment to the Hindu Succession Act. While dealing with the effect of the amendment in the Hindu Succession Act, in a suit for partition of ancestral property, the Supreme Court has observed as under; 12. 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act has brought about important changes in the law of succession but without affecting the special rights of the members of a Mitakshara Coparcenary. The Parliament felt that non-inclusion of daughters in the Mitakshara Coparcenary property was causing discrimination to them and, accordingly, decided to bring

in necessary changes in the law. The statement of objects and reasons of the 2005 Amendment Act, inter alia, reads as under : ".......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 do. 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 to 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." 13. With the above object in mind, the Parliament substituted the existing Section 6 of the 1956 Act by a new provision vide 2005 Amendment Act. After substitution, the new Section 6 reads 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 in, 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. Explanation. --For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court." 14. 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 September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. 15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed.

Position Of Woman

After Enactment Of Hindu Succession Act, 1956

After the advent of the Constitution, the first law made at the central level pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956 (hereinafter called the HSA). This Act dealing with intestate succession among Hindus came into force on 17th June 1956. It brought about changes in the law of succession and gave rights, which were hitherto unknown, in relation to a woman's property. The section 6 of Hindu Succession Act, 1956 follows as: Devolution of interest in coparcenary property. - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship. Explanation 1. For the purpose of this 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. Explanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. Section 6 deals with the devolution of the interest of a male Hindu in coparcenary property it says that if a male Hindu dies leaving behind his share in Mithakshara Co-parcenary property , such property will pass on to his sons, son's son's, son's son's son by survivorship, on surviving members. In case there are female relatives like daughter, widow, mother, daughter of predeceased son, daughter of predeceased daughter, widow of predeceased son, widow of predeceased son of a predeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by succession and not by survivorship . And while recognizing the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left him surviving a female relative specified in Class I of Schedule I, or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession under this Act and not by survivorship. The rule of survivorship comes into operation only: Where the deceased does not leave him surviving a female relative specified in Class I, or a male relative specified in that Class who claims through such female relative; and When the deceased has not made a testamentary disposition of his undivided share in the coparcenary property. As pointed out above that the main provision of this section deals with the devolution of the interest of a coparcener dying intestate by the rule of survivorship and the proviso speaks of the interest of the deceased in the Mitakshara Coparcenary Property. Now, in order to ascertain what is the interest of the deceased coparcener, one necessarily needs to keep in mind the two Explanations under the proviso. These two Explanations give the necessary assistance for ascertaining the interest of the deceased coparcener in the Mitakshara Coparcenary Property. Explanation I provides for ascertaining the interest on the basis of a notional partition by applying a fiction as if the partition had

taken place immediately before the death of the deceased coparcener. Explanation II lays down that a person who has separated himself from the coparcenary before the death of the deceased or any of the heirs of such divided coparcener is not entitled to claim on intestacy a share in the interest referred to in the section. Under the proviso if a female relative in class I of the schedule or a male relative in that class claiming through such female relative survives the deceased, then only would the question of claiming his interest by succession arise. The Supreme Court in 1978 Gurupad v. Heerabai and reiterated later in 1994 in Shyama Devi v. Manju Shukla wherein it has been held that the proviso to section 6 gives the formula for fixing the share of the claimant and the share is to be determined in accordance with Explanation I by deeming that a partition had taken place a little before his death which gives the clue for arriving at the share of the deceased.Section 6 can further be understood by the following-Example: If ?C? dies leaving behind his two sons only, and no female heirs of class I then property of ?C? passes to his sons by survivorship since there are no female relatives like daughter or any other member specified in the class I of first schedule. In case ?C? dies leaving behind two sons and three daughters, then property of ?C? will pass on to his sons and daughters by succession in the following manner. Firstly property of "C" is divided between "C" and his two sons. The shares of " C" and his two sons are, C gets onethird and each son one-third. The sons are entitled to the equal share of the property along with the father. But the daughters are entitled to the share in the share of the deceased ?C? along with other sons. So the sons will get one-third of the property and a share, which is one-fifth in the share of deceased ?C?. Hence the daughter does not take equal share with the son. However, section 6 did not interfere with the special rights of those who are members of a Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, interalia, to persons governed by Mitakshara and Dayabhaga Schools as also to those in certain parts of southern India who were previously governed by the Murumakkattayam, Aliyasantana and Nambudri Systems. The Act applies to any person who is a Hindu as defined in section 2 of HSA . But now the question the question is whether, the Hindu Succession Act actually gave women an equal right to property or did it only profess to do so. Significantly, the provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N.Rau Committee and piloted by Dr.Ambedkar, was for abolishing Mitakshara coparcenary with its concept of survivorship and the son's right by birth in a joint family property and substituting it with the principle of inheritance by succession. These proposals met with a storm of conservative opposition. The extent of opposition within the Congress or the then government itself can be gauged from the fact that the then Law Minister Mr.Biswas, on the floor of the house, expressed himself against daughters inheriting property from their natal families. The retention of the Mitakshara coparcenary without including females in it meant that females couldn't inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Only when one of the coparceners dies, a female gets a share of his share as an heir to the deceased. Thus the law by excluding the daughters from participating in coparcenary ownership (merely by reason of their sex) not only contributed to an inequity against females but has led to oppression and negation of their right to equality and appears to be a mockery of the fundamental rights guaranteed by the Constitution.

Hence this very fact necessitated a further change in regards to the property rights of women, and which was done by the Hindu Succession (Amendment) Bill, 2004.

6. Devolution of interest of coparcenary property.1[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 in, 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. Explanation. For the purposes of this section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]

Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises 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 do. 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 to 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. 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. State Amendment Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted, namely: 6A. Equal rights to daugher in co-parcenary property. Notwithstanding anything contained in section 6 of this Act (a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son; (b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:

Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be; (c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary 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 will or other testamentary disposition; (d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990. 6B. Interest to devolve by survivorship on death. When a female Hindu dies after the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara co-parcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act: Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship. Explanations. (1) For the purposes of this section the interest of female Hindu Mitakshara coparcenary shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not. (2) Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the co-parcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein. 6C. Preferential right to acquire property in certain cases. (1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried by him or her, whether solely or in conjunction with others devolves under sections 6A or 6B upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under sub-section (1) shall in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application. (3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation. In this section court means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the Official Gazette specify in this behalf. [Vide Karnataka Act 23 of 1994, sec. 2 (w.e.f. 30-7-1994).] COMMENTS Disposal of undivided interest in property A wife inherited the interest of her deceased husband in the family property, she continued to be a member of the family and the property including that of hers was held by the family. As a female heir, having inherited property under section 6, she cannot be treated as having ceased to be a member of the family without her volition. Though she can dispose of her undivided interest in the co-parcenery property by a w ill or sale for a valuable consideration, she cannot make a gift of such interest without the prior consent of the other coparceners; Kanna Gounder v. Arjuna Gounder , AIR 2003 Mad 157. Partition of coparcenary property (i) The contention of the petitioners that there was automatic partition amongst the heirs of the deceased Karta on his death has been negatived because it is only when the deceased had left his surviving female heirs as provided in proviso to section 6 of the Act, a notional partition is deemed to have taken place in the joint family property for the purpose of ascertaining the share of the deceased in the joint family properties which comes to the share of the female heirs. If there are male heirs there is no automatic partition; Shivgonda Balgonda Patil v. Director of Resettlement, AIR 1992 Bom 72.

(ii) The heirs will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death in addition to the share which he or she received or must be deemed to have received in the notional partition; Gurupad v. Hirabai, AIR 1978 SC 1239. (iii) The fiction in the explanation of section 6 of the Act should be carried to a narrow extent only with a new point to implement the purpose for which it was introduced. When there were only two coparceners and one of them died, then if any person other then the coparcener is entitled to a share as a result of severance of the share of the deceased coparcener, the share of such other person will become fixed; Shushilabai v. Naraynarao , AIR 1975 Bom 257. (iv) The deceased coparceners share gets fixed on the date of his de ath, subsequent fluctuations in the fortunes of the coparceners do not affect it; Karuppa v. Palaniammal; AIR 1963 Mad 254. Scope The interpretation of provisions of section 6, its proviso and explanation 1 thereto with legislative intent in regard to the enlargement of share of the female heirs, qualitatively and quantitatively; Gurupad v. Hira Bai , AIR 1978 SC 1239. 1. Subs. by Act 39 of 2005, sec. 3, for section 6 (w.e.f. 9-9-2005). Section 6, before substitution, stood as under: 6. Devolution of interest in coparcenary property.When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.For the purposes of this 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.

Explanation 2.Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.. * Date of commencement 9-9-2005.

4. Certain widows re-marrying may not inherit as widows.1[24.

Certain widows re-marrying may not inherit as widows. [ Rep. by the Hindu Succession

(Amendment) Act, 2005 (39 of 2005), sec. 5 (w.e.f. 9-9-2005) .]] 1. Section 24, before repeal by Act 39 of 2005, stood as under: 24. Certain widows re-marrying may not inherit as widows. Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married.

25. Murderer disqualified.A person who commits murder or abets the commission of murder shall be disqualified from

26. Converts descendants disqualified.Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.

27. Succession when heir disqualified.If any person is disqualified from succeeding to any property on the ground of any disease, defect r deformity, as save as provided in this Act, on any other ground whatsoever.

28. Disease, defect, etc. not to disqualify. No person shall be disqualified form succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever.

29. Failure of heirs.If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.

State Amendments Chapter IIA Andhra Pradesh: After Chapter II, insert the following Chapter, namely: Chapter IIA Succession by survivorship 29A. Equal rights to daughter in coparcenary property. Notwithstanding anything contained in section 6 of this Act (i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth, become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son; (ii) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a predeceased daughter, if such child had 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 of the pre-deceased daughter as the case may be; (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) 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 will or other testamentary disposition; (iv) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.

29B. Interest to devolve by survivorship on death. When a female Hindu dies after the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986 having at the time of her death an interest in a Mitakshara coparcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship. Explanation I .For the purposes of this section the interest of a female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death irrespective of whether she was entitled to claim partition or not. Explanation II .Nothing contained in the proviso this section shall be construed as enabling a person who before the death of the deceased, had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein. 29C. Preferential right to acquire property in certain cases. (1) Where, after the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986 an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29A or section 29B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made toit in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application. (3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation. In his section court means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Andhra Pradesh Gazette, specify in this behalf.

[Vide Andhra Pradesh Act 13 of 1986, sec. 2 (w.r.e.f. 5-9-1985).] Maharashtra: After Chapter II, insert the following Chapter, namely: CHAPTER IIA SUCCESSION BY SURVIVORSHIP 29A. Equal rights of daughter in coparcenary property. Notwithstanding anything contained in section 6 of this Act (i) in a joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall, by birth, become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son; (ii) at a partition in a joint Hindu family referred to in clause (i), the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a predeceased daughter, if such child had 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 of the pre-deceased daughter as the case may be; (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) 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 will or other testamentary disposition; (iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994;

(v) nothing in clause (ii) shall apply to a partition which has been effected before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994; 29B. Interest to devolve by survivorship on death. When a female Hindu dies after the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994, having, at the time of her death, an interest in a Mitakshara coparcenary property by virtue of the provisions of section 29A, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation I.For the purposes of this section, the interest of a female Hindu in Mitakshara coparcener property shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not. Explanation II.Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased, had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein. 29C. Preferential right to acquire property in certain cases. (1) Where, after the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994 an interest in any immovable property of any intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29A or section 29B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application. (3) If there are two or more heirs proposing to acquire any interest under this section, then, the heir who offers the highest consideration for the transfer shall be preferred.

Explanation .In this section court means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf. [Vide Maharashtra Act 39 of 1994, sec. 2 (w.e.f. 22-6-1994).] Tamil Nadu: After Chapter II, insert the following Chapter, namely: Chapter IIA Succession by survivorship 29A. Equal rights to daughter in coparcenary property. Notwithstanding anything contained in section 6 of this Act, (i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in thesame manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son; (ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to son: Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allotable to the pre-deceased child of pre-deceased son or of a predeceased daughter, if such child had 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 of the pre-deceased daughter, as the case may be; (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) 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 will or other testamentary disposition:

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989; (v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989. 29B. Interest to devolve by survivorship on death. When a female Hindu dies after the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, having at the time of her death, an interest in a Mitakshara coparcenary property by virtue of the provisions of section 29A, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation I. For the purposes of this section, the interest of a female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not. Explanation II. Noting contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein. 29C. Preferential right to acquire property in certain cases. (1) Where, after the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29A or section 29B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of, or incidental to, the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation. In this section court means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on and includes any other court which the s tate Government may, by notification in the Tamil Nadu Government Gazette, specify in this behalf. [Vide Tamil Nadu Act 1 of 1990 sec. 2 (w.r.e.f. 25-3-1989).]

Succession in Hindu Law: Analysis of the Hindu Succession Act, 1956

February 28th, 2012 11:01 pm @ Raabia Abuzer Shams

2
Introduction to Hindu law of Succession
Succession[1] implies the act of succeeding or following, as of events, objects, places in a series. In the eyes of law however, it holds a different and particular meaning. It implies the transmission or passing of rights from one to another. In every system of law provision has to be made for a readjustment of things or goods on the death of the human beings who owned and enjoyed them.

The rules of succession are, in modern systems of law, subject to many rules. Such rules may be based on the will of a deceased person. However, there are cases in which a will cannot be expressed, when the person holding the property may have died intestate. In such cases, there need to be some broadly accepted rules upon which the property shall devolve upon those succeeding him. There can be no doubt, however, that these rules primarily are the characteristics of the social conditions in which that individual lived. They represent the view of society as to what ought to be the normal course of succession in the readjustment of property after the death of a citizen.

Lahoti Family: One of the largest joint families in India

It is upon this basis that noted author Mulla states, the law of inheritance comprises of rules which govern devolution of property, on the death of the person, upon other persons solely on account of their relationship with the former.[2] Speaking purely in legal terms, Blacks Law Dictionary defines inheritance as receipt of a property from an ancestor under the laws of intestacy i.e. by bequest or device.[3]

The Hindu Succession Act: Divergence from tradition

The Hindu law of succession underwent its first modification by the Caste Disabilities Removal Act, 1850, a general statute, i.e., which applied to all communities and by which conversion ceased to be a disqualification. The Act applied only to the person who had either renounced his religion or was deprived of caste, but it did not enable his descendants to claim the benefit of the provision. This is also the position under the Hindu Succession Act of 1956.[4] Since the traditional Hindu law did not provide for testamentary succession, the Hindus were permitted to dispose of their property by will for the first time by the Hindus Will Act, 1870. In this regard, Madras passed the Hindu Transfer of Bequests Act in 1914 and finally the Central Legislature passed the Hindu Disposition of Property Act in 1916. The provisions of the Hindus Will Act, 1870 were, with some modifications, re - enacted in the Indian Succession Act, 1925, which now governs the testamentary succession among Hindus. It is also permitted by Section 30 of the Hindu Succession Act, 1956. The Hindu Inheritance (Removal of Disabilities) Act, 1928, removed the disqualification of congenital lunacy and idiocy. Though this statute has not been expressly repealed, a similar provision has been enacted in the Hindu Succession Act, 1956.[5] The Hindu Womens Right to Property Act, 1937, was passed to amend the Hindu law of all schools so as to confer greater rights on certain women than they had. It conferred upon the widow of a man, the right to inherit to the property even when he left behind a male issue. The Rau Committee on the Hindu Law Reforms submitted a comprehensive Report and a draft Hindu Code Bill in 1948 which proposed to reform and codify the entire Hindu law. Finally, the Hindu Marriage Act was passed in 1955 and the Hindu Succession Act and Hindu Minority and Guardianship Act were passed in 1956.

Changes brought about by the Hindu Succession Act of 1956

The Act has drastically changed the old Hindu law of inheritance. The modern law is applicable to all Hindus, they belong to Mitakshara or Dayabhaga school. No longer are the schools and sub- schools of Hindu law relevant in respect of the law of succession. The modern law also overrides the customary mode of succession. This does not mean, however, that the modern law is a complete divergence from the classical law. 1. Section 4: Overriding effect of the Act Section 4 relates to the Acts overriding effect. It repeals all pre - Act laws which are inconsistent with the provisions of the Act. Any scriptural rule and interpretation in force prior to the coming of force of this Act are abrogated so far as they are inconsistent with the Act. It has been a unique feature of Hindu law that a valid custom was given overriding effect over the traditional Hindu law. As early as 1868, the Privy Council laid down that under Hindu system of law, clear proof of custom will out- weigh the written text of law.[6] Thus, custom was part of Hindu law. Clause (a) of Section 4 abrogates all those customs so far as those are inconsistent with the provisions of the Act, unless expressly saved.[7] However, if the intestate died before this Act came into force, his succession would obviously be governed by pre- Act customs.[8] 2. Sections 8, 9 and 10: Succession to the property of a Hindu male The Hindu Succession Act, 1856, still retains the dictionary of the old Hindu law where succession to the property of a Hindu male and a Hindu female was dealt with separately. Sections 8 to 13 deal with succession to the property of a Hindu male. The heirs of a Hindu

male are broadly of four types Class I, Class II, agnates and cognates. The persons included in these categories are mentioned in the Schedule to the Act. Section 8 lays down the order of priority among these classes of heirs by laying down that the property will first go to the Class I heirs and in their default to Class II heirs, failing which to agnates and thereafter to cognates. Section 9 lays down that Class I heirs are simultaneous heirs, i.e., no one excludes the other, all take simultaneously in accordance with the rules of distribution of property among them, while Class II heirs, who are listed in nine categories in the Schedule, the heirs in the previous category are preferred to later categories. Section 10 lays down rules of distribution of property among Class I heirs. Section 11 lays down rules of distribution of property among a category of Class II heirs. Section 12 lays down that agnates, however remote, will always be preferred over a cognate, however proximate. Section 13 provides the modes of computation of degrees among the agnates and cognates for the purpose of determining their order of succession. This is a divergence from classical Hindu law, where all the coparceners succeeded to the property of the deceased and all other relations, however proximate and all the legal heirs of the deceased were excluded. 3. Section 14: Property of a female Hindu to be her absolute property In traditional Hindu law, a female Hindus property were of two kinds; stridhana and womens estate. This Section of the Hindu Succession Act has abolished the division of property belonging to a woman into these two categories. It has converted a womans estate and stridhana into her full estate. This Section is the continuation of the main object of this Act, namely to grant better rights to women. It applies to those womens properties which were in the possession of the woman when the Act came into force. Sections 15 and 16 of the Act deal with the general rules of succession to the property of a Hindu female dying intestate and the order of succession. It is interesting to note that although there is no such thing as stridhanaand womans estate after the coming into force of this Act, the source of acquisition of a female Hindus property is still important, as the order of heirs depends upon the source of the property of a Hindu female. 4. Section 21: Presumption in case of simultaneous deaths It may happen that two persons die in an accident or calamity under such circumstances that it is impossible to ascertain which of them died first. In such a situation, it may be presumed that both of them died simultaneously or that one of them succeeded the other. There may be controversy regarding inheritance in such situations as to who will succeed to whos property. Before the enactment of this Section, there was no answer to such questions. The burden of proof was on the party who asserted the affirmative.[9] If the evidence before the Court was balanced, the balance of probabilities was considered to be in the favour of the younger.[10] According to this Section, the presumption of survivorship applies, by which the younger is presumed to have survived the older. In this Section, younger means younger instatus not in age and only when the status is the same, younger in age. Thus if an uncle aged thirty years and a nephew aged thirty five years, die in a plane crash or a ship wreck, it will be presumed that the nephew died later, even though he is older in terms of actual age. On the other hand, if two brother die simultaneously in any accident or calamity, the brother younger in age is presumed to have died later. This is a peculiar feature of this Act, as it was altogether not provided for at all in the classical law or the previous legislations regarding Hindu succession. 5. Section 24 repealed: Certain widows remarrying may not inherit as a widow In classical Hindu law, certain female heirs if they had remarried after the death of their spouses, before the succession opened were disqualified from inheriting the property of the deceased intestate, for being unfaithful to their obligations widows. Under the Hindu Widow

Remarriage Act, 1956, if a Hindu widow remarried, she could not inherit the property of her deceased husband. Under this Section of the Act, only three female heirs were disqualified on such grounds, namely: Sons widow Sons sons widow Brothers widow Now, this Section has been omitted[11], rendering such disqualification null and void, which is a great diversion from Hindu traditional law. 6. Section 25: Murderer disqualified It is a general policy of practically all the systems of law that no one should be allowed to reap the benefits of his crime. Such provision however, was not specifically provided for in traditional Hindu law. It was a disqualification in the Dayabhaga school, but not provided for in the Mitakshara school. Furthermore, even in the Dayabhaga school, only the murderer himself was disqualified, not the abettor of the murder. This Section however, disqualifies both a murderer and an abettor to murder. The Joint Select Committee on the Hindu Succession Bill observed: A murderer even if not disqualified under the traditional Hindu law from succeeding to the estate of the person whom he has murdered is so disqualified upon the principles of justice, equity and good conscience. In the case of Kenchava v. Girimallappa[12], the Privy Council held that the murderer is not to be regarded as the stock for a fresh line of descent but should be regarded as nonexistent. 7. Section 26: Converts descendants disqualified Under the old Hindu law, conversion of any Hindu person into another religion was a disqualification which was later removed by the Caste Disabilities Removal Act of 1850 and upheld by this Act. However, although conversion does not disqualify a person form succeeding to the property of an intestate under this Act, his descendants are disqualified from inheriting such property. Thus, the children of a convert and their descendants are disqualified. But if at the time of death of the intestate, any of them are Hindu, they are no longer disqualified. 8. Section 28: Disease, defect, etc. not to disqualify Under the old Hindu law dome diseases, deformities and unchastity were disqualifications of heirs, though they were not the same in both Dayabhaga and Mitakshara law. According to the Mitakshara law, some disqualifications were: congenial lunacy or idiocy, adoption of a religious order (i.e. taking a sanyas) and unchastity of widows. According to the Dayabhaga law, the disqualifications were: blindness, deafness, dumbness, want of any limb or organ since birth, idiocy, lunacy, unchastity of widows and, any virulent and incurable form of leprosy rendering one unfit for intercourse. 9. Section 30: Testamentary succession The ancient Hindu laws of succession did not permit any alienation of the coparcenary property by way of will. After the death of a coparcener, his interest was to be distributed equally amongst the remaining coparceners. But this Section has changed the principle and allowed a Hindu, male or female, to alienate their property by way of a will nama, in accordance to the provisions of the Indian Succession Act, 1925.

Conclusion

Although the Hindu Succession Act, 1956, and its amendments have gone a long way in simplifying the rules regulating succession among the Hindus, there are various discripencies still to be solved.

Firstly, the explanation of the amended Section 6 defines partition as any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of court. This definition of partition does not include oral partition and family arrangement. Since the amended Act has failed to include oral partition and family arrangement within the definition of partition, which are common and legally accepted modes of division of property under the Hindu Law, the Commission undertook this subject suo motu. Secondly, the amended Section 6 includes the daughter into the coparcenary, but no other female has been given recognition as a member of the coparcenary. Furthermore, it is only the daughter of the common male ancestor who has been included and not the daughters of all the coparceners. Justice cannot be secured for one category of women at the expense of another. It is impossible to deal with succession laws in isolation. Thus, there is scope of change in the amended Act also. However, it cannot be argued that The Hindu Succession Act made a revolutionary change in the law relating to succession, especially for female Hindus. It has been a huge relief for females who were devoid of property rights under the traditional Hindu law.

Females have been granted right to inherit the property under the Hindu Succession Act