PROJECT WORK

OF

FAMILY LAW- II

ON

TOPIC: NODAL FEAUTERS OF HINDU SUCCESSION

ACT,2005

SUBMITTED BY: SUBMITTED TO:

MUNEER SIDDIQUI(GU15R0514) Prof. SADAF ALI KHAN

SEMESTER-VII (Assistant Professor of Law)

GLOCAL LAW SCHOOL

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 TABLE OF CONTENTS

 INTRODUCTION

 THE HINDU SUCCESSION ACT: DIVERGENCE FROM TRADITION

 CHANGES BROUGHT ABOUT BY THE HINDU SUCCESSION ACT OF 1956

Section 4: Overriding effect of the Act

Sections 8, 9 and 10: Succession to the property of a Hindu male

Section 14: Property of a female Hindu to be her absolute property

Section 21: Presumption in case of simultaneous deaths

Section 24 repealed: Certain widows remarrying may not inherit as a widow

Section 25: Murderer disqualified Section

26: Convert’s descendants disqualified

Section 28: Disease, defect, etc. not to disqualify

Section 30: Testamentary succession –

 CONCLUSION

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INTRODUCTION

‘Succession’ 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.

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. Speaking purely in legal terms, Black’s Law
Dictionary defines inheritance as “receipt of a property from an ancestor under the laws of
intestacy” i.e. “by bequest or device.”

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.

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 Hindu’s 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 Hindu’s Will Act, 1870 were, with some modifications, re- enacted in the Indian

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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.

The Hindu Women’s 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 Act’s 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’. 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.
However, if the intestate died before this Act came into force, his succession would obviously
be governed by pre- Act customs.
2. Sections 8, 9 and 10: Succession to the property of a Hindu male –

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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 Hindu’s property were of two kinds; stridhana and women’s
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 woman’s 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 women’s 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 stridhana and woman’s estate after the coming into force of this Act,
the source of acquisition of a female Hindu’s 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 –

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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 who’s 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. If the evidence before the Court was
balanced, the balance of probabilities was considered to be in the favour of the younger.
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:
– Son’s widow
– Son’s son’s widow
– Brother’s widow
Now, this Section has been omitted, 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

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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, 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 non- existent.”

7. Section 26: Convert’s 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.

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

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