HINDU SUCCESSION LAW: A STUDY OF ITS DYNAMISM
Family Law- II
Submitted By-
Sanchayeeta Karmakar
SF0120049
5th Semester, 3rd Year
National Law University and Judicial Academy, Assam
Contents
CHAPTER- I INTRODUCTION...............................................................................................3
OVERVIEW...........................................................................................................................3
RESEARCH QUESTION......................................................................................................4
Hindu Law, R. K. Agarwal, 21st (Reprint Edition), Central Law Agency, 2005...................4
SCOPE AND OBJECTIVES.................................................................................................5
RESEARCH METHODOLOGY...........................................................................................5
TABLE OF CASES...............................................................................................................5
TABLE OF STATUTES........................................................................................................5
CHAPTER- III SUCCESSION FROM 1937 TO 1956.............................................................8
CHAPTER- IV HINDU SUCCESSION AFTER ACT OF 1956............................................10
CHAPTER- V CONCLUSION................................................................................................12
BIBLIOGRAPHY....................................................................................................................13
TABLE OF CASES
1. Narasimhachari vs. Andalammal, (1978) 2 M.L.J. 524
2. Sham Lai vs. Amar Nath, (1970) 1 S.C.J. 503
3. Shamlal vs. Amamath, AIR 1970
TABLE OF STATUTES
1. The Hindu Law of Inheritance (Amendment) Act 1929
2. THE HINDU WOMEN RIGHTS TO PROPERTY ACT, 1937
The Hindu Succession Act, 1956
3. The Hindu Succession (Amendment) Act, 1956
CHAPTER- I INTRODUCTION
OVERVIEW
The succession law deals with the processes and regulations for the transfer of a person's
property upon his or her death, whether intestate or testate. The welfare of a deceased
person's property, over which they no longer have control to transfer it, is greatly
influenced by succession rules. Both intestate and testate succession are covered by Hindu
succession rules. It lays down the guidelines through which a deceased person's property
is distributed.
Hindu succession laws date back thousands of years and have been regularly altered to
meet modern social demands. Different pieces of legislation, both in the independent,
secular republic and under the British colonial control, made significant changes to the
Hindu succession laws. Hindu succession laws have been in place since the Vedic era, but
they differ significantly from those in use today in India. Women and children had the
same status as chattels in prehistoric times. They had no ownership stake in the combined
family assets. Sons began to be taken into account in proprietary concerns as time went
on, but the status of women remained unchanged.
As previously stated, the Hindu succession laws have undergone a number of changes,
and only recently have women's property rights begun to be acknowledged in family
estates. This took so long because there were numerous challenges since there are two
primary schools of Hindu law, Mitakshara and Dayabhaga, which have vastly different
views on succession. This is also a result of the conservative judicial perspective on
women's property rights.
With new laws and revisions over the years, women now have a right to family property.
Even though it has long been stated in the Constitution that "The State shall not
discriminate against any person on grounds only of religion, race, caste, sex, place of
birth, or any of them," it took a long time to accomplish and was only completed in 2005.
In addition to the outdated nature of the old legislation, the narrow-minded and
conservative court interpretations are another reason for the slow pace of reform.
So, through this paper we will be doing a thorough analysis of the development of the
Hindu succession law, which is being supplemented from time to time by various
legislations from colonial legislature to independent Indian Parliament.
RESEARCH QUESTION
• What is succession?
• What was the status of women before the act of 1956 and after the act of 1956?
• How has the right of women evolved?
LITERATURE REVIEW
Hindu Law, R. K. Agarwal, 21st (Reprint Edition), Central Law Agency, 2005
A book published before the revolutionary change in 2005 came into force was taken into
account for this research so that a clearer picture with solely views of the Classical Hindu
Law could be taken into account to study ‘Coparcenary’. The incidents of coparcenary
and rights of coparceners were studied. Various aspects of the 1956 Act (such as dwelling
house) were also studied from this book.
Family Law II, Dr. Poonam Pradhan Saxena, 3rd edition, 2011
The book has given an exhaustive account in his book of Family Law about the
technicalities of the Hindu Succession Law. It explains the intent of the legislations
very well. The book includes the landmark judgements of the courts which clarifies the
position of the judiciary, regarding the Hindu Succession Law.
SCOPE AND OBJECTIVES
Scope: The scope of this project is limited to the study of various acts supplementing the
Hindu Succession laws and its development from the time to time.
Objectives:
• To study the development of Hindu succession law through various
legislations.
• To study the change in the status of the female property rights.
RESEARCH METHODOLOGY
The research methodology that has been adapted in this research paper is doctrinal in
nature and analytical methods as both primary and secondary sources have been studied
and analysed to understand and appreciate the subject matter of the research.
CHAPTER- II SUCCESSION OF PROPERTY IN HINDUS BEFORE 1937
Early Hindu succession in India was exclusively centred on the sapindas, or the male
heirs. The two primary schools of Hindu law prior to 1956 were Mitakshara and
Dayabhaga. Each having a unique set of inheritance-related principles. The intestate
successions among Hindus belonging to various schools weren't uniform.
The Hindu law deprived the women of their property rights. They were only entitled the
rights of their stridhan, as a result they were dependent on the desire of the males. In the
vedic ages, the women held equal social status and rights as of a man. They were
educated, took part in philosophical debates like men. 1 The daughters didn’t hold the right
to hold, acquire or dispose of the property. But the daughter had the right in the father’s
property if she lives in his father’s house throughout her life. 2 But the daughters couldn’t
claim share with her brothers as written in Rigveda that “a son born of the body does not
transfer wealth to sister”.3 And the married daughters have the right to inherit their
father’s property if there was no brother.4 So, it can be easily said that the sisters didn’t
have any right if there’s a brother.
Differences about how sapindas should be viewed in terms of inheritance problems also
appear at this point. According to Mitakshara law, only agnates could inherit the property,
regardless of how little contact they had with the deceased. The Dayabhaga, on the other
hand, was more lenient in this regard; it permits cognates to inherit the property in the
same way that a person can inherit the property of his maternal grandfather in the absence
of a maternal uncle. In the Mitakshara system, each son received an equal share of his
1
Pandharinath. H. Prabhu, Hindu Social Organisation, Popular Prakashan Bombay, 1979, pg 258.
2
Rigveda II, 17.
3
Rigveda III, 31-32.
4
Rigveda III, 31-32.
father's property at birth, and upon his father's death, he received the property by
survivorship (a relationship known as coparcenary). However, in the Dayabhaga system,
a son can only receive a share of his father's property upon his father's passing. Women
no longer have any rights to their father's property under Hindu succession law because
they join their husband's family.
The Hindu Law of Inheritance (Amendment) Act came into 1929, legislating the
extension of the daughter’s property right. The provision was as followed;
“A son’s daughter, daughter’s daughter, sister and sister’s son shall, in the order so
specified be entitled to rank in the order of succession next after a father ‘s father and
before a father’s brother, provided that a sister’s son shall not be included, if adopted after
the sister’s death”.5
This act had a limited scope, it did not make any significant change in the property rights
of the Hindu women. This act provided property rights neither to the widows nor to the
daughters. This act met with a great hostility and hence the provision giving daughters
right in the father’s property were excluded.
HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937
Up until 1937, no significant legislation or change in the position of women's property
rights could be observed. In 1937, the Hindu Women's Right to Property Act was
promulgated which became operative from April 14, 1937. Section 2 of the Act provided
that, notwithstanding any rule of Hindu law or custom to the contrary, the provisions of
section 3 shall apply where a Hindu dies intestate.
Under section 3 of the Act, when a property upon which a Hindu has a power of
disposition by testament and if a Hindu is governed by Dayabhaga school then such
property is his separate property as well as ancestral property in his hands and his share in
joint family property. If a Hindu is governed by Mitakshara school then such property
means his separate property. The Act, under Mitakshara law, puts the widow as a member
of the joint family, in the place of her deceased husband and the husband’s interest in the
joint family property, even though undefined, vests immediately upon the death of the
5
The Indian Council Act, 1929, Section 2.
widow and does not devolve by survivorship. Further, any interest devolving on a Hindu
widow under the provisions of section 3 shall be the limited interest known as a Hindu
woman’s estate, provided, however, that she shall have the same right of claiming
partition as a male owner. The right of claiming partition of the joint family property was
conferred on the widow as any other coparcener is entitled to do.
However, this law did not apply to the possessions of Hindu Women. It was applied on
the Hindu widows whose husband had died intestate. 6 The Hindu Women's Right to
Property Act, 1937 applied only to the separate property left by a Hindu male. It did not
apply either to the coparcenary property or the property of a Hindu female. 7 This act did
not provide for a Hindu widow to claim her share from the other sharers and coparceners.
Also, the statute provided for restrictions regarding alienation of the her share of property
by such Hindu woman.8
6
Sham Lai vs. Amar Nath, (1970) 1 S.C.J. 503
7
Shamlal vs. Amamath, AIR 1970
8
Narasimhachari vs. Andalammal, (1978) 2 M.L.J. 524
CHAPTER- IV HINDU SUCCESSION AFTER ACT OF 1956
In view of the cons of the earlier legislation, the Hindu Succession Act, 1956 was
promulgated to provide for a uniform set of provisions to all Hindus.
Hindus now have access to a standardised system of succession law according to the
Hindu Succession Act of 1956. It eliminates disparities in property rights between men
and women. The first was that the widow, daughter, and daughter of a pre-deceased son
will have equal portion as of a son and daughter was also granted share equal to son in her
father's property. The legislation brought four significant modifications to the Hindu
Succession laws. Second, compared to the Mitakshara and the Dayabhaga, it recognised
more female heirs. Thirdly, the statute completely eliminated all forms of discrimination
created by the previous law. The mother will now succeed her son instead of the father as
a result of the act, which also strengthened the mother's position relative to the father in
succeeding the son.
In stridhan, the sons were also given right of inheritance equal to the daughter. And the
stridhan was made as her absolute property. 9 This act made uniform law for Hindus as
well as to those who are not Muslim, Christian, Parsi or Jew by religion. 10 A list of heirs
for the intestate succession was also created under this law, and it was based simply on
natural affection rather than religious dogma. The nicest element of this act is that it
grants the daughter the rights to succeed her father in the event of an intestate succession,
something she was unable to do prior to the passage of this act.
The act formed four classes of heirs namely, Class I of schedule, Class II of schedule,
Agnates and Cognates. The principle for the succession under this law is the Mitakshara
principle of propinquity10, i.e., preference of heir on the basis of proximity of relationship.
This modern Hindu Law is a secular law and it has no such significant religious
affiliation.
9
Section 14, Hindu Succession Act,
956 10 Section 2, Hindu Succession
Act, 1956
10
Paras Diwan, Modern Hindu Law, Allahabad Law Agency, (1997), p.339
The act gives the provision and general rules for the devolution of the property of an
intestate male11 and female12 separately. In old law, when a son who was disabled and
defected was ousted from the property rights but this act has ended this discrimination
under section 28 of the act. Section 20 of the Hindu Succession Act provides about the
right of a child in womb.
It states that a kid who was in the womb at the time of an intestate's death and is later born
alive has the same right to inherit from the intestate as if the child had been born before
the intestate. In such a circumstance, the inheritance is presumed to have vested as of the
intestate's death.
State Amendments to the Act
Four states revised the Section 6 of the Hindu Succession Act of 1956 and added
unmarried females as coparceners in the same way as a son before the Hindu Succession
(Amendment) Act of 2005 was passed.
The amendment became operative in the state of Andhra Pradesh on September 5th,
198513. Since this date, the daughter has been a coparcener, and as a result, she is now the
owner of all coparcener rights. She became qualified to request a division of her share in
the joint family property in her own right and she could also challenge the unpermitted
alienations carried out by the Karta in order to protect and preserve her share, for
example, she acquired a right by birth in the coparcenary property, was empowered to
hold the joint possession and joint title of the same. She had the right to demand a
partition, to contest an unauthorised alienation, and to reopen an unfair partition if she
had been wrongfully denied a share from 1985 until 2005, i.e., the effective date of the
central legislation that expressly saved the partitions affected prior to 20th December,
2004.
11
Section 8, Hindu Succession Act, 1956
12
Section 15, Hindu Succession Act, 1956
13
Andhra Pradesh Hindu Succession (Amendment) Act, Act 13 of 1986.
Further, the Act was amended in the states of Tamil Nadu in the year 1989 14, Maharashtra
in the year 199415 and Karnataka in 199416. In these states, daughters in a joint household
who were unmarried at the time the Act was passed were made coparceners in the same
way as the sons, giving them the right to receive shares in the event that the coparcenary
property is divided, just like the males. The modifications further state that the share that
would have gone to the daughter will instead be allocated to the child if, at the time of
partition, the daughter is dead but has left behind a child. 17 The part that would have gone
to the daughter would be distributed to the grandchild of the predeceased daughter if there
is no child but there is a grandchild of a deceased daughter.18
However, there wasn't much justice to be served even after this statute was put into effect.
The act only partially succeeded in ending discrimination against women. They were not
afforded the same rights in the property as sons. Still lacking coparcenary rights to the
joint family estate were the daughters.
Hindu Succession (Amendment) Act, 2005
The amendment to the Hindu Succession Act of 1956 came into being in the year 2005 as
Hindu Succession (Amendment) Act of 2005. This act provides various provisions
relating the succession by females as daughter and widows. The amendment upholds the
article 14, 21 of the Constitution of India, by making provision non-discriminatory to
daughters and widows and by repealing such discriminatory provision from the act. The
main features amendments made to the act are as follows:
1. Substitution to the section 6 of the act: it conferred the coparcenary rights to the
daughter as of a son. Now the daughter also has the right to call partition at any
point of time whether married or unmarried.
2. Omission of section 23 of the act: This section disabled the female heirs to ask for
the partition of the dwelling house.
14
Tamil Nadu Hindu Succession (Amendment) Act, Act 1 of 1990.
15
Maharashtra Hindu Succession (Amendment) Act, Act 40 of 1994.
16
Karnataka Hindu Succession (Amendment) Act, Act 23 of 1994.
17
Andhra Pradesh Hindu Succession Amendment Act, Act 13 of 1986, sec. 29A(i)
18
Ibid., sec. 29A(ii)(a).
3. Omission of the section 24 of the act: This section disabled the widows of a
predeceased son or widow of pre-deceased son of pre-deceased son or the widow
of a brother to inherit the property in case she has re-married.
4. Amendment to section 30 of the act: In section 30 of the principal Act, for the
words "disposed of by him", the words "disposed of by him or by her" shall be
substituted.
5. Amendment of Schedule. - In the Schedule to the principal Act, under the
subheading "Class 1", after the words "widow of a pre- deceased son of a pre-
deceased son", the words "son of a pre- deceased daughter of a pre- deceased
daughter; daughter of a pre- deceased daughter of a pre- deceased daughter;
daughter of a predeceased son of a pre- deceased daughter; daughter of a pre-
deceased daughter of a pre- deceased son" shall be added.
In the Case of Gurupad v Hirabai19 (AIR 1978 SC 1239) where one Kandappa died in
1960 leaving behind his widow (Hirabai), two sons and three daughters. Hirabai filed
a suit for partition and a separate possession of a 7/24 share in the properties of
Kandappa. The suit was challenged by Gurupad, a son of the deceased coparcener.
The court held that the explanation to Section 6 i.e., legal fiction should be given its
due and full effect. The assumption which the statute required to be made is ‘that a
partition had in fact taken place’ between the deceased and the coparceners
immediately before the death. This interpretation will further the legislative intention
with regard to the enlargement of the share of the female heirs, qualitatively and
quantitively. Section 6 is a measure to ameliorate or improve the lot of Hindu women.
The widow’s share must be ascertained by adding the share to which she is entitled at
a notional Partition during her husband’s lifetime and the share which she would get
in her husband’s interest upon his death.
In the case of Ganduri Koteshwanamma v Chakiri Yanadi 20, the Supreme Court held
that the passage of a preliminary decree in a partition dispute does not invalidate
daughters' rights in coparcenary property under the modified Section 6. In terms of
partition lawsuits, the partition doesn't become official until a final decree is issued. In
19
AIR 1978 SC 1239
20
AIR 2012 SC 169 : (2011) 9 SCC 788
such cases, the preliminary decree would need to be modified in accordance with the
2005 amendment to reflect the change in the statute.
In the case of Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik 21, the Orissa High
Court held that "Submission that the daughters, who are born only after 2005, will be
treated as coparceners, is not accepted. If the provision of the Act is read with the
intention of the legislation the irresistible conclusion is that S. 6 (as amended by Act
39 of 2005) rather gives a right to the daughter as coparcener, from the year 2005.
whenever they may have been born. They can claim for partition of the property
which has not been partitioned earlier".
CHAPTER- V CONCLUSION
Since traditional Hindu law has been documented, it is easy to draw the conclusion that
women had been denied the ability to inherit throughout that time. They were not deemed
eligible to inherit their father's or their husbands' property according to traditional Hindu
law. It was believed that if women were allowed control over any property, they would
abandon all of the responsibilities assigned to them by customary law. Dayabhaga
appeared to be giving the women some relief, but Mitakshara had a strong predisposition
against them. Although there were many changes made from the colonial government to
the independent Indian assembly addressing the status of women. However, they were
unsuccessful in achieving gender equality. Following the passage of the 2005 amendment,
it became abundantly obvious that women are not being treated as a lesser race by
21
AIR 2008 Ori 133 : (2008) 106 CLT 98 : 2008 Supp (1) OLR 740
society, and as a result, some equality between the sexes in terms of inheritance rights
was achieved.
BIBLIOGRAPHY
Books:
• Pandharinath. H. Prabhu, Hindu Social Organisation
• Paras Diwan, Modern Hindu Law
• Dr. Poonam Pradhan Saxena, Family Law II (3rd Edition, 2011)
• Hindu Law, R. K. Agarwal, 21 st (Reprint Edition), Cases:
• Sham Lai vs. Amar Nath, (1970) 1 S.C.J. 503
• Shamlal vs. Amamath, AIR 1970
• Narasimhachari vs. Andalammal, (1978) 2 M.L.J. 524Statutes:
• The Hindu Law of Inheritance (Amendment) Act 1929
• THE HINDU WOMEN RIGHTS TO PROPERTY ACT, 1937
• The Hindu Succession Act, 1956
• The Hindu Succession (Amendment) Act, 1956
Article:
Ayushi Singhal, The Right to Property Of Hindu Women,
https://www.lawctopus.com/academike/right-property-hindu-women/
Karine Bates, The Hindu Succession act: One Law, Plural Identities,
https://www.tandfonline.com/doi/citedby/10.1080/07329113.2004.10756581?
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