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Hindu Succession

Act, 1956
1
SCHEME OF HSA:
1. Section 1-5: Preliminary
2. Section 6 & 30: Devolution of Interest in
coparcenary property
3. Section 8-13: General rules of Succession to
property of a Male Hindu
4. Section 14-16: General rules affecting
Succession to property of a female intestate
5. Section 7, 17: Rules for succession to the
property of male & female Hindu Intestate
under Malabar & Aliyasantana systems
(Matrilineal systems)
6. Section 18 to 29: General provisions 2

relating to successions
Basic scheme of Hindu Succession
Act, 1956
• Came into force on 17June 1956
• “to amend and codify the law relating to intestate succession among
Hindus.”
• The governing law for inheritance is the Hindu Succession Act, 1956.
• To lay down a comprehensive and uniform law of succession for Hindus
• The Hindu Succession Act primarily deals with the devolution of property
of a person dying intestate.
• The nature of property primarily being separate or self-acquired.
• Mainly governs the law of intestate succession, but also touches upon
testamentary succession and amends the classical law on coparcenary
property
• The joint family system and the division of property into separate and
coparcenary property has been retained
• This list of heirs has been changed by the Hindu Succession Act, 1956 3
and daughters were included in the list of Class I heirs in the Schedule.
• Separate schemes for male and female intestate.
CHAPTER 1.
PRELIMINARY
SECTION 1-5, HSA, 1956

4
Preamble:
• An Act to amend and codify the law relating to intestate
succession among Hindu.
• Uniform system of inheritance for persons governed by
Mitakshara and Dayabhaga
• Also applies to Matrilineal families governed by Aliyasantana,
Marumakkatayam, Nambudari laws.

5
Section 1 Short title and extent.—
• (1) This Act may be called the Hindu Succession Act, 1956.
• (2) It extends to the whole of India except the State of Jammu
and Kashmir.

• COMMENTS:
• Extra Territorial application is removed unlike HMA
• Doctrine of Lex loci rei sitae (“Lex situs”):
• 'the place where the thing is”: a term of private international law.
• Law governing the transfer of title to property is dependent upon,
and varies with, the location of the immovable property.

6
Territorial Application of the
Act
• The HSA excludes the following from its
Territorial Application:
• Excludes marriages under SMA (except marriage of
two Hindus)
• Hindus in J&K (They are governed by the J&K Hindu
Succession Act, 1958)
• Hindus of Goa, Daman and Diu (Portuguese Civil Code)
• Dadra and Nagar Haveli and Pondicherry (French Civil
Code)
• Scheduled Tribes (Customs)
7
Section 2. Application of Act
(1) This Act applies-
(a) to any person, who is a Hindu by religion in any of its forms or
developments including a Virashaiva, a Lingayat or a follower of the Brahmo,
Parathana or Arya Samaj.
(b) to any person who is Buddhist, Jaina or Sikh by religion, and
(c) to any of other person who is not a Muslim, Christian, Parsi or Jew by
religion unless it is proved that any such persons would not have been
governed by the Hindu law or by custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been
passed.
Explanation.- The following persons are Hindus, Buddhists, Jains or Sikhs by
religion, as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jains or Sikhs by religion.
(b) any child, legitimate or illegitimate one of whose parent is a Hindu,
Buddhists, Jain or Sikh by religion and who is brought up as a member of the
tribe, community, group or family to which such parent belongs or belonged.
8
(c) any person who is convert or re-convert to the Hindu, Buddhist, Jain or
Sikh religion.
Section 2. Application of Act
(2) Notwithstanding anything contained in sub-section (1),
nothing contained in this Act shall apply to the members of any
Scheduled Tribe within the meaning of clause (25) of article 366
of the Constitution unless the Central Government, by
notification in the Official Gazette, otherwise directs.
(3) The expression “Hindu” in any portion of this Act shall be
construed as if it included a person who, through not a Hindu by
religion, is, nevertheless, a person to whom this Act applies by
virtue of the provisions contained in this section.

9
Comments on Section 2:
• Persons governed by the Act:
• Hindu by birth
• Hindu by religion i.e. converts and reconverts to Hinduism
• An intention to convert is necessary
• Adoption of the Hindu way of life.
• Brahmos, Aryas, Samajists, Lingayats who may have deviated from Hinduism in
matters of diet and ceremonial observances
• Legitimate Children: where only one parent is a Hindu and the children are
brought up as Hindus
• Illegitimate children:
• where both parents are Hindus
• where one of the parents is a Hindu for ex. mother is a Hindu and the
children are brought up as Hindus
• If a person was not a Muslim, Christian, Parsi or Jew
• To persons not ousted from the application of Hindu law.
• To every other person who may be regarded as a Hindu unless he can show some 10
valid local, tribal or family custom to the contrary
• To Jains, Sikhs and to Buddhists.
Contd…
• Practicing Hinduism is not a requirement:
• Even if a person renounces Hinduism with clear
intention – till the time he does not convert into
another religion, Hindu law will be applicable to him.
• Time for determination of Religion:
• At the time of birth and not conception
• At the time of conception, if both parents were
Christians and not Hindus, it does not matter.
Subsequently if they converted into Hindus and the
Child is born after that, the child would be considered
a Hindu till he attains majority. 11
Ouster from the application of the
Hindu Succession Act
• Conversion
• Marriage to non-Hindu under the special marriage act.
• Section 18 and 21 of the Special Marriage Act.

12
Section 3: Definitions and
Interpretations:
• Section 3(1)(a): Agnate: Related to the deceased wholly through
males.
• Section 3(1)(c): Cognate: Related not wholly through males (for
example there is an intervening female relation)
• Section 3(1)(e)(i): Full blood: Descended from common ancestor by
same wife
• Section 3(1)(e)(i): Half blood: Descended from common ancestor
by different wives
• Section 3(1)(e)(ii): Uterine blood: Descended from common
ancestress but by different husbands
• Section 3(1)(g): Intestate: Not made a Testamentary disposition
• Section 3(1)(f): Heir: Any person entitled to succeed to the
property of Intestate 13
Section 3: Definitions and
Interpretations:
• Section 3 (1) (j) defines ”related” as related by kinship- provided
that illegitimate children shall be deemed to be related to their
“mothers” and to “one another” and “their legitimate
descendants” will be related to “them” and to “one another”
• ”Related” as related by legitimate kinship.
• Illegitimate Children related to one another i.e. Illegitimate children
only inherit from each other
• Illegitimate Children related to their mother i.e. Illegitimate children
only inherit from their mother
• Legitimate descendants of illegitimate children related to them and
their own mother & not their grandmother or any other relations.
• Wife’s/Mother’s property goes to all of her children irrespective of
whether they are legitimate or illegitimate & to her husband from 14
legitimate/valid marriage i.e. not to husband from invalid marriage.
For example, Bigamous marriage.
Section 3 (j) defines ”related”
• Legitimate children
• Section 8 HSA applies (Inherit from Father)
• Natural born out of valid marriage
• Adopted Children
• Post humus sons: conceived at the time of death of
person
• S 16 Hindu Marriage Act: Statutory Legitimate children
born out void & voidable marriage. (Separate property of
parents + Ancestral property of parents. See
Revanasadiappa)
• Judicial Legitimacy: To children born out of live in
relationship as there is a presumption of marriage 15
(Separate property of parents. See Bharatmatha)
Section 4. Overriding effect of Act
Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or
usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with
respect to any matter for which provision is made in this Act.
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus in so
far as it is inconsistent with any of the provisions contained in
this Act.
• Complete enactment
• Doesn’t apply to matters expressly saved from operation & where
no provisions have been made in the act. Example, doesn’t affect
law relating to joint family & partition
• Prospective and not retrospective except Section 14 & Section 26 16
Comments on Section 4
• The Act supersedes:
• The rules of succession contained in any central or state
enactment or in any law, whether in the shape of
enactments or otherwise, which are inconsistent with
this Act or any matter dealt by the Act.
• Example: Punjab customary laws.
• Example: S. 6 will apply in case of undivided interest of a male
Hindu .
• Example: A devolution prescribed by S. 36(5) of the Madras
Aliyasantana Act will give way to provisions of S. 7 of the present
Act.
• Example: Kerala Joint Hindu Family System (Abolition) Act , 1975
not in contravention of this Act as it does not repeal Section 17 of 17
HSA but joint family in Kerala and & old Marumakkatayam laws
Repealed Section 4 (2)
• (2) For the removal of doubts it is hereby declared that
nothing contained in this Act shall be deemed to affect the
provision of any law for the time being in force providing for
the prevention of fragmentation of agricultural holdings or
for the fixation of ceilings or for the devolution of tenancy
rights in respect of such holdings.
• For example, UP land Ceiling Act will prevail over HSA before
2005.
• Agricultural land was kept outside the purview of Section 6, HSA.

18
Repealed Section 4 (2)
• Confusion has been created by this repealing:
• ‘Land’ is a State Subject but ‘Inheritance & Succession’ are mentioned in
‘concurrent list, entry V’
• Art. 256 suggests that Centre should be competent to legislate on a subject.
Whether Centre is competent to legislate agricultural land is a matter of
dispute. If a parallel State law exist, conflict may arise over central or state
legislations that are diverse in content.
• Legislature has not provided any express provision that confirms the
application of HSA to agricultural property over and above any State law,
that also deals with the same.
• These State laws dealing with fragmentation of agricultural holdings or for the
fixation of ceilings apply to the inhabitants of the State uniformly irrespective
of their religion.
• All inhabitants of a particular State to whom HSA doesn’t apply, such as non
Hindus would still be governed by the State laws while property of those
subject to HSA will devolve in a different manner. An exception would be
19
created in favor of Hindus generally diversifying the application of laws
governing agricultural property.
Section 5- This Act shall not apply
to-
• (i) any property succession to which is regulated by the Indian
Succession Act, 1925 by reason of the provisions contained in
section 21 of the Special Marriage Act, 1954.
• To be read with: Special Marriage Act, 1954:
• Section 21. Succession to property of parties married under Act:
• Not-withstanding any restrictions contained in the Indian
Succession Act, 1925 , with respect to its application to members
of certain communities, succession to the property of any person
whose marriage is solemnized under this Act and to the property
of the issue of such marriage shall be regulated by the provisions
of the said Act and for the purposes of this section that Act shall
have effect as if Chapter III of Part V (Special Rules for Parsi
Intestates) had been omitted therefrom. 20
Section 5- This Act shall not
apply to-
• (ii) any estate which descends to a single heir by the terms of
any covenant or agreement entered into by the Ruler of any
Indian State with the Government of India or by the term of
any enactment passed before the commencement of this Act.
• Impartible properties & Rule of lineal descendancy
• Rule of Primogeniture abrogated by HSA
• (iii) the Valiamma Thampuran Kovilagam Estate and the Palace
Fund administered by the Palace Administration Board by
reason of the powers conferred by Proclamation (IX of 1124)
dated 29th June, 1949, promulgated by the Maharaja of
Cochin
• Kerala State has passed Kerala Act, 1961 for partition of this
21
property.
SECTION 6, HSA,
1956-SEPTEMBER, 2005

22
Section 6 (pre-2005)
Section 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,
23
as the case may be, under this Act and not by survivorship.
Section 6 contd.
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.
[NOTIONAL PARTITION]
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.
24
EXAMPLE:
• Mitakshara coparcenary
• Joint family consists of F (father), S1 (son) and S2 (son)
• S1 dies
• Post-1956:
• No Class I Female heir is present, therefore no notional
partition- Survivorship will apply. S1’s share will pass to F and
S2.
• Father’s share: ½;
• S2: Son’s share: ½

25
Defeating the application of
survivorship: Notional partition
• Presumption of notional partition effected immediately before
death
• Balancing between giving women equal rights and the need to
preserve classical Hindu law
• Giving women some rights in the coparcenary property
• Section 6, HSA, 1956 further diluted the concept of
survivorship after the 1937 Act. It preserved the concept of
survivorship to the extent that the coparcener has not left
behind any class-I female heirs or any male claiming through
such an heir.

26
Class I heirs
• Son
• Daughter
• Widow
• Mother
• Son of a pre-deceased son
• Daughter of a pre-deceased son
• Son of a pre-deceased daughter
• Daughter of a pre-deceased daughter
• Widow of a pre-deceased son
• Son of pre-deceased son of a pre-deceased son
• Daughter of a pre-deceased son of a pre-deceased son
• Widow of a pre-deceased son of a pre-deceased son 27
Notional/Deemed/Statutory Partition
• Mitakshara coparcenary
• Male Hindu dies as an undivided member of the coparcenary
• Left behind a Class I female heir or male heirs claiming through the
class-I female heirs ex: son of a pre-deceased daughter
• It would be presumed that immediately before death, he asked for
partition
• His share devolves by intestate/testamentary succession if he left a
will, not by survivorship
• Notional Partition enabled the daughters to get a share out of their
father’s share in the coparcenary property. If he had, not disinherited
her by way of will.
• So, once a coparcener dies, coparcenary dismantles & the shares of
the deceased coparcener as well the other members entitled to get a
share gets fixed.
• The ancestral property ceases to exist and the members of the joint
family hold the property as tenants in common and not as joint
tenants.
• The share received by a coparcener after notional partition still
remains coparcenary property qua coparceners in his branch 28
• If there is a sole surviving coparcener in a branch, he can treat his
share as separate property till coparcenary is revived
Example: Pre-1956:Classical
Hindu law
• Joint family consists of father, daughter and son
• Father dies
• Pre-1956:
• Son gets the entire coparcenary property as a sole surviving
coparcener

29
Illustration 1, Proviso and
Explanation I: Section 6, HSA1956

• Joint family consists of father, daughter and son


• Father dies
• Post-1956:
• Daughter (Class I heir) is present, therefore notional partition
• Father’s share: ½; Son’s share: ½
• Son and daughter get ½ x ½ = ¼ each
• Total share of daughter: ¼
• Total share of son: ¼ + ½ = ¾
30
Illustration 2, Proviso and
Explanation I: Section 6, HSA1956
M (1/3 + 1/3)

S1 S2 (1/3)

S1: Received 1/3rd on notional partition which devolved by


Succession to his legal heirs.
M: 1/3 on notional partition+ 1/3 (S1’S share which devolve by
succession as Mother is Class I heir)
S2: Received 1/3rd on notional partition but did not receive
anything out of S1’s share being Class II heir
31
Illustration: Explanation II
Section 6, HSA,1956
F

S1(1/3) S2 D1
• 1980: Partial Partition: S1 asked for Partition during the lifetime of F
and received his share 1/3rd out of coparcenary property.
• F, S2 and D1 stayed joint.
• After death of F in 1999, following shares will be assigned, assuming
the remaining 2/3rd HJF property as 1-
• F: ½ (His share which is his Separate property would devolve by
Succession on S2 and D1 but S1 being the separated son will not get
anything out of F’s separate share received on notional partition)
• S2: ½ (Notional Partition)+ ¼ (By Succession as Class I heir)
32
• D1: ¼ (By Succession as Class I heir)
SUMMARY OF THE RULE:
• (i) When a male Hindu dies after the commencement of the Hindu
Succession Act, 1956, having at the time of his death an interest in
Mitakshara coparcenary property, his interest in the property will
devolve by survivorship upon the surviving members of the
coparcenary (vide Section 6).
• (ii) To proposition (i), an exception is contained in Section 30
Explanation of the Act, making it clear that notwithstanding
anything contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property is property that can be disposed of
by him by will or other testamentary disposition.
• (iii) A second exception engrafted on proposition (i) is contained in
the proviso to Section 6, which states that if such a male Hindu had
died leaving behind a female relative specified in Class I of the
Schedule or a male relative specified in that Class who claims
through such female relative surviving him, then the interest of the
deceased in the coparcenary property would devolve by
testamentary or intestate succession, and not by survivorship. 33
• (iv) In order to determine the share of the Hindu male
coparcener who is governed by Section 6 proviso, a partition is
effected by operation of law immediately before his death. In
this partition, all the coparceners and the male Hindu's widow
get a share in the joint family property.
• (v) On the application of Section 8 of the Act, either by reason
of the death of a male Hindu leaving self-acquired property or
by the application of Section 6 proviso, such property would
devolve only by intestacy and not survivorship.
• (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act,
after joint family property has been distributed in accordance
with Section 8 on principles of intestacy, the joint family
property ceases to be joint family property in the hands of the
various persons who have succeeded to it as they hold the
property as tenants in common and not as joint tenants.
34
State Interventions: How to
bring complete gender parity?
• Abolition of the distinction between separate and joint family
property: Kerala Joint Family (Abolition) Act, 1975
• Introduction of daughters as coparceners: Andhra Pradesh
Hindu Succession (Amendment) Act, 1985

35
SECTION 6,
HINDU SUCCESSION
(AMENDMENT) ACT,
2005 36
2005 Amendment Act
• Suggested by 173rd Law Commission Report:
• Primary aim: remove gender inequalities
• Major amendments:
• Introduction of daughters as coparceners
• Abolition of doctrine of pious obligation
• Abolition of doctrine of survivorship
• Concepts of coparcenary and joint family
retained
37
After 2005
• Some principles of Classical Hindu law still applies, which
has not been specifically repealed by the Hindu
Succession Act of 1956 and the Amendment Act of 2005.
• The classical law still governs the rules of partition and
remains unmodified except for Section 6 of the HSA (as
amended by the Hindu Succession Amendment Act),
which deals with devolution of joint family property.

38
Daughters as coparceners- S 6
(1)
Section 6. Devolution of interest in coparcenary property.
(1) On and from the commencement of the Hindu Succession
(Amendment) Act, 2005 [9.9.05], 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
39
testamentary disposition of property which had taken place before the
20th day of December, 2004 [date on which Bill was introduced in
Parliament].
Comments on 6 (1)
• Daughters are now vested with all rights including rights to seek
partition and act as a Karta. (Sujata Sharma v. Manu Gupta)
• Daughter can start a joint family herself. [DEBATABLE]
• Prior to 2005: Females could not form or start a joint family on their own;
they could continue it provided they can add a male member

• This entitlement is given specifically from the commencement of the


Act and on the date i.e. 9/9/2005, the person must be the “daughter of
a coparcener”.
• A daughter will be coparcener by birth implying daughter born after the
Amendment Act, 2005
• For a daughter born before 2005:
• The daughter and the father, both must be alive for the amended
section to take effect. If the father has died before the commencement
of the Act, his case would be governed by the pre-amended section 6.
(Prakash v. Phulavati).
• So, if a daughter of a coparcener died before the commencement of the
Act, her heirs would have no right in the coparcenary property as she would 40
not have acquired any rights in the coparcenary property.
Rationale:
• “Amended Section 6 nowhere provides as to what is to
happen to a case where Hindu died before commencement of
2005 Amendment Act. Obviously, Legislature did not intend
to leave any vacuum for the period prior to 9 September
2005 when the Amendment Act came into force. Case of a
Hindu, who died prior to 9 September 2005 continues to be
governed by pre-amended Section 6.”
• See Puttalinganagouda vs The Union Of India, 19 February,
2015

41
CRITICAL ANALYSIS: SECTION 6 (1) (C)
• Sec. 6(1) (c) which takes away the right from the daughters to
reopen petitions effected before 2004.
• Can this section be ultra vires of the provisions of the
Constitution of India and thus void, as it discriminated
between the rights of coparceners on grounds of sex? As there
is “no rational basis to restrict the right of a daughter when
the avowed object of the legislation is to create equal rights
as between a daughter and a son of a coparcener.
• Even if it can be accepted that the apparent object to so
restrict the right was in order to prevent litigation and to
prevent settled positions from being disturbed. The same
analogy ought to apply to suits that are brought by the sons of
a coparcener. The inconvenience and hardship would be no 42
different.
Daughters as coparceners: 6
(2)
(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.

43
Comments on 6 (2)
• This provision is only limited to coparcenary property and not any
property.
• Such property could be disposed by her by testamentary disposition
(Section 30)
• In case of partition- though the section has emphasized the rights of
daughters, in case of partition, apart from the sons and the daughters,
the female members who were entitled to a share on partition are still
entitled to a share.
• The entitlement for a wife/widow of a coparcener has not been
changed in any way.
• The only restriction is against the reopening of partitions and
alienations which have taken place before the cut-off date.
• Proviso to Section 1: Alienation/partition/testamentary disposition
before 20 December 2004 not affected
• Marital Status of the daughter is irrelevant.
• All incidents of coparcenary ownership applies to her i.e. her children 44
being daughters and sons of coparceners will also have an interest by
birth. [DEBATABLE]
Comments on 6 (2)contd..
DAUGHTERS AS COPARCENERS:
• Interest by birth
• Same rights as sons
• Same liabilities as sons
• Daughters form a coparcenary with other siblings
• Incidents of coparcenary ownership: unity of possession and
community of interest
• Daughter may ask for partition and get a share equal to that of
a son
• Daughter may dispose of her interest in coparcenary property by
will
• If she dies before partition, notional partition assumed to have
taken place. Her share is ascertained and goes to her heirs. 45
• Daughter can be a Karta
Daughters as coparceners
(contd.)
• Distinction between:
• (1) female members born in the Hindu joint
family (daughter, sister), and (Members by
birth: interest by birth)

• (2) females who become members on


marriage (mother, wife, widow) (Members by
marriage: maintenance, residence (no change
in legal position))
46
Abolition of doctrine of
survivorship: 6 (3)
(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 (Rule of Representation)
(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- 47
deceased daughter, as the case may be. (Rule of Representation)
Abolition of doctrine of
survivorship (contd.)
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. (Notional Partition)

48
Comments on 6 (3)
• Section completely dilutes the concept of survivorship
• If a coparcener dies behind leaving an interest in the coparcenary
property, it will be presumed that he asked for partition right
before he died and his interest then will pass on to his legal heirs
even though he has not left behind any class-I female heir,
statutory partition will nevertheless be affected.
• Section is limited to the coparcenary property.
• Separation of son during lifetime of father does not affect
notional partition.
• The separated son or his heirs will still get a share on the
death of the father.
49
EXAMPLE:
• Mitakshara coparcenary
• Joint family consists of F (father), S1 (son) and S2 (son)
• S1 dies
• Post-2005:
• No Class I Female heir is present, still there will be notional
partition- Survivorship will not apply.
• S1’s share: 1/3rd will not pass to F and S2 by survivorship but
by Intestate succession.
• Father’s share: 1/3 (on notional partition) + 1/3 (Received by
F as Class II Entry I heir. He will be preferred over S 2 as
brother is Class II Entry II heir. )
50
• S2: Son’s share: 1/3
Dilution of the doctrine of
survivorship
• Pre-1937:
• Share fluctuated with births and deaths
• On death, property devolved by survivorship
• 1937-1956:
• Coparcener’s widow could hold his share. Survivorship applied on
death/remarriage of widow
• 1956-2005:
• Survivorship confined to cases where male Hindu dies leaving
undivided interest and did not leave behind Class I heir or son of
predeceased daughter
• Otherwise, notional partition or testamentary succession
• Post-2005: 51
• Abolition of doctrine of survivorship for male Hindus
Caste disabilities Classical law, 1937 act 1956 2005
removal act, Pre-1937:
1860

Removed religion Widows: No right Right to Partition S 6: List of Heirs Daughter


disqualification to demand given to the Schedule I was
partition but Widow: right to (Female, widow, made
Inheritance widowed mother step into shoes of Mother included) a
Removal of received share on deceased S 14: absolute Coparcener
Disabilities Act, partition coparcener. right of
1928: between ownership: S 30: She
brothers Limited right retrospective for can
Removed Didn’t have right females including Will away
disability as a of alienation widows Her
disqualification S 30: Will away Share in
except congenital any HJF/SP any joint
lunacy. property family
Now he is property
entitled to will 52
away his share in
coparcenary
Disposal of undivided interest
by will
• Section 30. Testamentary succession
• Any Hindu may dispose of by will or other testamentary
disposition any property, which is capable of being so
disposed of by him or by her, in accordance with the
provisions of the Indian Succession Act, 1925 (39 of 1925), or
any other law for the time being in force and applicable to
Hindus.
• Explanation.— The interest of a male Hindu in a Mitakshara
coparcenary property or the interest of a member of a
tarwad, tavazhi, illom, kutumba or kavaru in the property of
the tarwad, tavazhi, illom, kutumba or kavaru shall
notwithstanding anything contained in this Act or in any other
law for the time being in force, be deemed to be property
capable of being disposed of by him or by her within the 53
meaning of this section.
Defeating the application of
survivorship
• Disposal of undivided interest by will
• Pre-1956:
• A coparcener could not dispose of his undivided interest in the
coparcenary property by will
• When coparcener died, his interest devolved by survivorship
• Post-1956:
• A coparcener is empowered to make a will of his undivided
interest in the coparcenary
• Post 2005:
• Inclusion of female Hindu as having a right of disposal of property
by will
54
Section 6 (4)
• After the commencement of the Hindu Succession (Amendment)
Act, 2005, no court shall recognize 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:
• Doctrine of Pious obligation not applicable after 2005

55
Section 6 (4)
• 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 56
(Amendment) Act, 2005.
Comments on 6 (4)
• Section 6(1)(c): fixes liability upon a daughter as being the
same as a son.
• Section 6(4): mentions liabilities but clarifies that daughter’s
obligation is to be read prospectively.

• Date of debt contracted is decisive for the law to be


applicable.
• Only applicable to Debts contracted before 2005.
• Sons, grandsons and great-grandsons born before
2005 will be liable for payment of such debts.

• Not applicable to son born or adopted after 2005.


57
• Not applicable to daughters.
Section 6 (5)
• Section 6(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.

58
Daughter’s Coparcenary interest:
Post 2005 amendment
• Daughter’s share in joint family property post 2005 amendment:
• Married Daughter: Now that daughter are also coparceners and
according to Section 6 has all incidents of coparcenary, you have 2
options:
• (A) Since her children are already coparceners in their father’s
family so they cannot be coparceners in their mother’s family
(maternal grandfather) as coparcenary in two families is not
concept of classical Hindu law. By application of Section 14 HSA,
her coparcenary interest will mature into her absolute property
and will devolve as per Section 15 HSA after her death.
• (B) Since as of now we do not have any case curbing the revival of
coparcenary in case of a daughter so you give her all rights under
coparcenary and all revival of a coparcenary thereby giving share
to her children as a branch but not to her husband. [(Section 6 (3)
(b)]
• Unmarried Daughter:
• She can adopt a child and can continue her father’s joint family or 59
coparcenary.
Comments 6 (5)
• There should be Prospective application of HSA
• Classical law: Partition could be oral or in writing.
• HSA, 1956:
• Partition could be oral or in writing.
• Allows for statutory partition as requirement and not as an option
• Even if partition is not carried out by metes and bounds, the shares are fixed,
determined and allotted to all the coparceners including the deceased
coparcener
• No requirement of registration for its validation
• HSA, 2005:
• Section 6(5) states that only registered partitions or decree by court will be
recognized. This was to avoid fraud or collusion to defeat a daughter’s rights.
• Statutory partition stands on a different footing from “partition” mentioned in
Section 6(5) of the Act since it derives its validation from a requirement of law.
• Statutory partition cannot be disturbed if it had taken place before the 20th
December, 2004. There is nothing in the Amendment Act to indicate that
statutory partitions are rendered nugatory. 60
• Law Commission Report 2008: suggested for amendment of Explanation to
Section 6 of the Hindu Succession Act, 1956 to include oral partition and family
arrangement in the definition of “partition”.
HYPO:
• A Mitakshara family having coparcenary property
consisted of X, his mother M, his brother B, his
sister S, his wife W, two daughters D1 and D2, his
son XS and XS’s wife XSW. Ascertain with reasons
the shares of the claimants on the death of X if
• (a) X dies in 1925
• (b) X dies in 1945
• C) X dies in 1958
• D) X dies in 2008
61
CASES: Section 6
• Gurupad Khandappa Madgum v. Hirabai Khandappa Magdum,
AIR 1978 SC 1239 (Section 6)
• Prakash and Ors. v. Phulavati and Ors., MANU/SC/1241/2015-
MANNAT MITTAL (Section 6)
• Uttam v. Saubhag Singh, (2016) 4 SCC 68 (Section 6)
• Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr.
AIR2012SC169- SIDDHI JAIN (Section 6)
• Shalini Sumant Raut & Ors v. Milind Sumant Raut & Ors. and
Dr. Gautam Manohar Raut & Anr. 2013(5)BomCR430- ADITI
LADHA (Section 6) 62
Gurupad Khandappa Magdum v.
Hirabai Khandappa Magdum, AIR
1978 SC 1239
(Died 1960) F W (Hirabai: Plaintiff)

S1 (Gurupad: Def) S2 D1 D2 D3

• Issues:
• Whether females are entitled to a share in joint family
properties when there is no actual but notional partition to
ascertain the share of deceased coparcener?
• Whether this deemed or notional partition results in general
partition and brings about severance of status among all the
surviving coparceners? 63
Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum
HIRABAI (KHANDAPPA)

DAUGHTER DAUGHTER DAUGHTER


GURUPAD SHIVAPAD
1 2 3
• F (Khandappa) dies in 1960 leaving behind his wife – the
plaintiff/R-1, two sons- Gurupad and Shivapad- the defendants D-1
(Appellant) and D-2 and three daughters- D-3,4 and 5.
• Plaintiff (a Hindu widow) claimed partition and separate
possession of a 7/24th share in joint family property which
consisted of her husband, herself and their two sons.
• The plaintiff alleged notional partition i.e. If a partition were to
take place during her husband's lifetime between himself and his
two sons, the widow would have got a 1/4th share in such joint
family property. The deceased husband's 1/4th share would then
devolve, upon his death, on six sharers (2 sons, 3 daughters and
her), the Plaintiff and her five children, each having a 1/24th share
therein. Adding 1/4th and 1/24th, the Plaintiff claimed a 7/24th
share in the joint family property. [1/4th + 1/24th ( ¼ X 1/6) =
7/24th.]
• D-2- D-5 admitted the plaintiff’s claim and the claim was 66
contested by D-1.
REASONING AND HOLDING:
• The Hindu Succession Act came into force on June 17, 1956. Khandappa
having died after the commencement of that Act, in 1960, and since he had
at the time of his death an interest in Mitakshara coparcenary property, the
pre-conditions of Section 6 are satisfied and that section is squarely
attracted. By the application of the normal rule prescribed by that section,
Khandappa's interest in the coparcenary property would devolve by
survivorship upon the surviving members of the coparcenary and not in
accordance with the provisions of the Act.
• But, since the widow and daughter are amongst the female relatives
specified in class I of the Schedule to the Act and Khandappa died leaving
behind a widow and daughters, the proviso to Section 6 comes into play and
the normal rule is excluded. Khandappa's interest in the coparcenary
property would therefore devolve, according to the proviso, by intestate
succession under the Act and not by survivorship. Testamentary succession
is out of question as the deceased had not made a testamentary disposition
though, under the explanation to Section 30 of the Act, the interest of a
male Hindu in Mitakshara coparcenary property is capable of being
disposed of by a will or other testamentary disposition.
• There is thus no dispute that the normal rule provided for by Section 6 does
not apply, that the proviso to that section is attracted and that the decision 67
of the appeal must turn on the meaning to be given to Explanation 1 of
Section 6. The interpretation of that Explanation is the subject-matter of
acute controversy between the parties.
• In order to ascertain the share of heirs in the property of a deceased
coparcener it is necessary in the very nature of things, and as the very
first step, to ascertain the share of the deceased in the coparcenary
property. For, by doing that alone can one determine the extent of the
claimant's share.
• Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly
fictional, that 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 that property had taken place immediately
before his death.
• What is therefore required to be assumed is that a partition had in fact
taken place between the deceased and his coparceners immediately
before his death. That assumption, once made, is irrevocable.
• The assumption which the statute requires to be made that a
partition had in fact taken place must permeate the entire process of
ascertainment of the ultimate share of the heirs, through all its
stages. To make the assumption at the initial stage for the limited
purpose of ascertaining the share of the deceased and then to ignore
it for calculating the quantum of the share of the heirs is truly to 68
permit one's imagination to boggle.
DECISION:
• The Court held that there was no reason to ignore the 1/4th
share that the widow was entitled to on partition of joint
family property. As per Classical law, in a partition between
father and sons, wife is entitled to a share equivalent to that
of the sons. And Classical Hindu law still applies where HSA is
silent. (Section 4 (1), HSA)
• There was no evidence to the fact that there was no joint
family in existence which D-1 alleged.
• Hence the widow was entitled to 7/24th of the share.

69
Ganduri Koteshwaramma and
Anr. v. Chakiri Yanadi and Anr

F ( 1st Defendant) (Father)

B (2nd Defendant) C (3rd


(Brother) Defendant) ( D (4th Defendant)
A (Plaintiff) (Sister)
(Brother) Sister)
Ganduri Koteshwaramma and Anr.
vs Chakiri Yanadi and Anr., AIR
2012 SC 169
• Issue: Whether partition in terms of proviso to Section 6 (amendment
Act 2005) means a preliminary order of the court for partition?
• Explanation to 6(5) states that partition effected before 20.12.2004,
which are made by a registered deed of partition or by a decree of the
court cannot be reopened by daughters claiming to be coparceners
under the Amendment Act.
• Joint family consisted of Father, two sons and two daughters.
• One of the sons filed a suit for partition, the father died during the
pendency of the appeal.
• A preliminary decree of partition was passed in 1999.
• During the pendency of the suit, the 2005 amendment Act came into
force.
71
• The daughters made an application for the modification of the decree
taking into consideration the new law.
Reasoning:
• 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 9th September, 2005. The
Legislature has now conferred substantive right in favor of the
daughters. According to the new Section 6, the daughter of a
coparcener 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.
Hence, Appellants were entitled to the benefits of Hindu
Succession (Amendment) Act, 2005
72
Reasoning:
• Held, partition that legislature had in mind was undoubtedly
partition completed in all respects and which had brought about
an irreversible situation. Preliminary decree which merely
declared shares which was themselves liable to change did not
bring about any irreversible situation. Hence, unless partition of
property was effected by metes and bounds, daughters could not
be deprived of benefits conferred by Act.
• Moreover, final decree is always required to be in conformity
with preliminary decree but that does not mean that
preliminary decree, before final decree is passed cannot be
altered or amended or modified by Trial Court in the event of
changed or supervening circumstances even if no Appeal has
been preferred from preliminary decree. Judgment of the High
Court was accordingly set aside. 73
HOLDING:
• The Trial Court took into consideration the new amendment
and allowed the application but thereafter their plea was
rejected by the High Court.
• By way of Special Leave Petition, the daughters appeal against
the order of the High Court.
• The Supreme Court held that preliminary decree did not
come under the ambit of partition as defined in Section 6
and hence the decree could be modified according to the
new law.
• Further there were provisions in the CPC for ex Section 97
which allowed for the court to pass a new preliminary decree
if there was any supervening event that changed the
circumstances of the case which included an amendment to
the existing law. 74
CRITICAL ANALYSIS:
• The court did consider the concept of statutory partition, oral
partition or family arrangement.
• After the case of Prakash v Phulawati, the daughters can not
be considered as coparcener on the date of commencement
of the Act as Father died during the pendency of appeal.

75
Shalini Sumant Raut & Ors v. Milind Sumant Raut & Ors. and
Dr. Gautam Manohar Raut & Anr. 2013(5)BomCR430

• Issue:
• Whether coparceners have a right in the intestate’s undivided
interest under Section 6 of the Act?
• What is the nature of property in the hands of an heir on
notional partition?
• Rajaram (common ancestor) died on 23.11.1991
• Rajaram died intestate leaving behind eight children (5 sons and
3 daughters) and several grandchildren.
• Suit for declaration filed by the plaintiffs claiming co-ownership
and partition in the suit properties.
• Suit properties claimed to be ancestral properties.
76
(Rajaram) Widow (?)

(Sumant) S2 S3 S4 S5 (Sunanda) D2 D3

Sumant's Widow Sumant's


Daughter

77
RAJARAM BALKRISHNA RAUT

S1 S2 S3 S4 S5 D1 D2 D3

GCn

n=Grandchildren who are the children of the predeceased or deceased children of


Rajaram
Analysis and Conclusion:
• The fact that the suit was for partition and all parties were
claiming a share in the partition was conclusive of the property
being ancestral in nature.
• Rajaram died on 23.11.1991 and therefore the law at the time of
the intestate would be Section 6 of the HSA prior to the law as
amended in 2005.
• His interest in the coparcenary property would devolve upon the
sons and daughters according to Section 8 of the HSA and not by
survivorship.
• The interest of the deceased which devolves on the heirs on
notional partition according to Section 8 will be the separate
property in the hands of the heir. The other coparceners would
continue to have their coparcenary interest in the rest of the
ancestral joint family property. What is excluded from the
79
category of coparcenary property would be the father’s share in
the coparcenary property which devolved by Section 8.
Prakash Vs Phulavati, (2016) 2 SCC 36]
• Issue: Whether Hindu Succession (Amendment) Act, 2005
(‘the Amendment Act’) will have retrospective effect.
• Facts: According to the case of the plaintiff, the suit
properties were acquired by her late father (Yeshwanth
Chandrakant Upadhye) by inheritance from his adoptive
mother Smt. Sunanda Bai.
• After the death of her father on 18th February, 1988, she
acquired the share in the property as claimed.
• The suit was contested mainly with the plea that the plaintiff
could claim share only in the self acquired property of her
deceased father and not in the entire property.
• During pendency of the suit, the plaintiff amended the plaint
so as to claim share as per the Amended Act of 2005 i.e. the
plaintiff became coparcener and was entitled to inherit the
coparcenary property equal to her brothers, 80
FATHER Died on 18th
February 1988.

PRAKASH PHULAVATI
PRAKASH AND ORS V PHULAVATI
AND ORS
Facts contd..
• The stand of the Defendants-Appellants was that the claim of
the Plaintiff had to be dealt with only under Section 6 of the
Hindu Succession Act, 1956 as it stood prior to the
amendment by Act 39 of 2005. The Defendants-Appellants
have contended that the amended provision of Section 6 has
no application in the present case.
• The defendants argued that Father of the Plaintiff died on
18th February, 1988 and was thus, not a coparcener on the
date of commencement of the Amendment Act.
• The Hon’ble Karnataka High Court had held that daughters
would be entitled to equal share even if father had died prior
to September 9, 2005, when litigations over partition were
pending in courts.
• The defendants appealed this decision of HC.
83
Reasoning & Holding:
• The text of the 2005 amendment, the apex court said, itself clearly
provides that the right conferred on a ‘daughter of a coparcener’ is ‘on
and from the commencement of the Hindu Succession (Amendment)
Act, 2005.”
• In view of plain language of the statute, there is no scope for a different
interpretation than the one suggested by the text of the amendment.
An amendment of a substantive provision is always prospective unless
either expressly or by necessary intendment it is retrospective. In the
present amendment Act of 2005, “There is neither any express
provision for giving retrospective effect to the amended provision nor
necessary intendment to that effect.”
• Contention of the Plaintiff that the Amendment should be read as
retrospective being a piece of social legislation cannot be accepted.
Even a social legislation cannot be given retrospective effect unless so
provided for or so intended by the legislature.
• In the present case, the legislature has expressly made the Amendment
applicable on and from its commencement and only if death of the
coparcener in question is after the Amendment. Thus, no other 84
interpretation is possible in view of express language of the statute
Decision:
• Hindu Succession Act, 1956 — S. 6 [as substituted by Hindu
Succession (Amendment) Act, 39 of 2005] —Applicability:
• S. 6 is not retrospective in operation. It applies only when both
coparcener and his daughter were alive on date of commencement
of Amendment Act i.e. 9-9-2005, irrespective of date of birth of
daughter and coparcener who died thereafter.
• We are unable to find any reason to hold that birth of the daughter
after the amendment was a necessary condition for its
applicability.
• ‘All that is required is that daughter should be alive and her father
should also be alive on the date of amendment,”
• The case was remanded back to the High Court for fresh
consideration.

85
UTTAM v. SAUBHAG SINGH &Ors 2016
(GF ) W

S1 S2 S3 S4

GS

GF- Jagannath Singh, died in 1973 (survived by wife and four sons)
S1- Saubhag Singh (one of the respondents), father of the plaintiff or
appellant.
GS- Uttam Singh (plaintiff or appellant), born in 1977, demanded
partition in 1998 property) and first filed the suit in 1999.
(wants 1/8th share in the coparcenery property)
Jagannath
Widow (deceased)

F B1 B2 B3

S
Uttam v. Saubhag Singh, 2016 (3) SCALE 92
(Died in 1973) F-W

S1 S2 S3 S4

S (Born in 1977, claimed partition in 1998)

• Issue: Whether a grandson born after statutory partition of the


property of grandfather could claim reopening of partition and a
share thereof.
• Facts:
• A joint family consisted of the father (Jagannath Singh), the mother
(Mainabai) and his four sons.
• The father died in 1973 and thereafter the fourth son had a son, who
is the plaintiff in this case.
• He claimed a share in the joint family property by virtue of him being 88
a coparcener.
Holding and Decision:
• Section 6, prior to its amendment in 2005, would govern the facts of this
case.
• On the death of when the plaintiff’s grandfather (Jagannath Singh) in
1973, the proviso to Section 6 would apply in as much as Jagannath
Singh had left behind his widow, who was a Class I female heir. Equally,
upon the application of explanation 1 to the said Section, a partition
must be said to have been effected by operation of law immediately
before his death.
• Therefore the joint family ceased to exist after the said statutory
partition and all the heirs and legal representatives of would succeed to
his interest as tenants-in common and not as joint tenants. The share of
the grandfather distributed in accordance with Section 8 of the Hindu
Succession Act, 1956 and survivorship will not apply.
• Hence the plaintiff was not entitled to demand partition as against the
Joint family.
• The plaintiff could still claim from his father’s share received on partition
(but not as heir) as S1 was no longer a sole surviving coparcener for his
branch after his son was born in 1977 and his father’s property would 89
not be treated as separate property after his birth.
DANAMMA @ SUMAN SURPUR V AMAR &
ORS
(Gurulingappa (Sumitra) (Def. 8)
Savadi) Died during pendency of
Died in 2001 the suit

Danamma (Def Mahandanda (Def 7) (Arunkumar) Sarojini Vijay


6) (Def. 1) (Def. 2) (Def. 5)
Appellants in
present case

Sheetal (Def. 3)Amar (PLAINTIFF)Triveni (Def. 4)

Respondent 1
91
Mamta Dinesh Vakil
Vs. Bansi S. Wadhwa
Family Tree
Suit 86 of 2000
F M
(F2) (M2)

S (X) (H) B
B2 S1 S2 S3
4

• (X) is the deceased Hindu female named Nimmi L. Wadhwa and (H) is
her husband who is dead as well.
• (X) has 4 sisters one of whom is the plaintiff named Mamta Dinesh Vakil
• N is the niece of (X) who was nominated along with two others on her
will
• B2 is the brother of (X) While S1, S2, S3, S4 are her four sisters
• B is the brother of (H) and the brother in law of (X)
Suit 48 of 2005

FS (F) (M) MS (MB)

(x)

• (X) is the deceased male Hindu named Shri Hargovind Raja


• Plaintiff is the Paternal Aunt and is denoted by FS
• The Defendant/ Caveatrix is the Maternal Aunt denoted by MS
• (X) inherited the property from his maternal uncle who is denoted by
(MB)
Mamta Dinesh Vakil
v
Bansi S. Wadhwa
MANU/MH/1869/2012
• The court addressed two petitions combined together, namely
Suit 48 of 2005 and Suit 86 of 2000.
• Both the suits relate to will probate of a deceased Hindu in
each case, who died leaving distant heirs
• The main issue addressed was with regards to the
constitutional validity of Section 8 and Section 15 of the Hindu
Succession Act.
Family Tree- Suit no. 48, 2005
Mamta Vakil- Bansi S.
Mother Wadhwa-
Plaintiff Father of
(SISTER) of (SISTER) Defendant
(Acclaimed Deceased
deceased Caveator
Paternal Aunt)
(Maternal
Aunt)

Deceased Male
Hindu
Family Tree- Suit no. 86, 2000
Mother Father-in-law and
Father of of Mother-in-law of
deceased Decease deceased
d

Deceased Husband Husband’s


B1 S1 S2 S4 Female of Brother
S3 Hindu deceased (Caveator/
(Petitioner Defendant)
2)

Niece of
Deceased
(Main
Petitioner)
Suit no. 48, 2005
• FACTS AND CLAIMS:
• The deceased in Suit No.48 of 2005 is a male Hindu. The Plaintiff in Suit No.48 of
2005 claims to be the paternal aunt of the deceased. Her claim of relationship is
not admitted. The defendant/Caveatrix is the maternal aunt of the deceased. Her
relationship is not challenged. The Plaintiff claims to be an heir nearer in the line
of succession to the deceased than the Defendant/Caveatrix who is the maternal
aunt of the deceased.
• She claims to fall in Item VII of Class II of the Schedule to Section 8 of the Hindu
Succession Act. She claims to exclude the maternal aunt who is shown to fall under
Item IX of Class II of the Schedule to Section 8 of the Hindu Succession Act (HSA).
• 2. The Defendant filed her Caveat and challenged the relationship of the Plaintiff
and also the Constitutional Validity of the aforesaid items of the Hindu Succession
Act as being unreasonable and discriminatory as giving preference to the father's
relatives over the mother's relatives. She has claimed that under Sections 8 and 15
of the HSA, which deal with the properties of Hindu males and Hindu females
dying intestate respectively, are gender discriminatory.
• 3. She has also claimed that Section 8 of the HSA is discriminatory as it does not
make any distinction between properties acquired by a deceased male from his
father and his relatives or from his mother and her relatives. She claims
discrimination on the ground that the source of the estate of the deceased Hindu
male is not seen under Section 8 of the HSA as the source of the estate of a
deceased female Hindu is seen under Section 15 of the HSA .
Suit no. 48, 2005
• ISSUES:
1. Whether the plaintiff proves that she is the paternal aunt of the
deceased.
2. Whether the plaintiff is entitled to claim beneficial interest under
the will of the deceased without probate being granted of such
will.
3. Whether the plaintiff proves that the properties mentioned in the
Schedule to the petition belonged to the deceased.
4. Whether Entry 7 of class II of the Schedule to the HSA is
unconstitutional and unreasonable.
5. Whether the persons brought on record as legal heirs are in fact
legal heirs of the deceased the original Plaintiff.
6. Whether S.8 and S.15 of the HSA read together show that either
of these sections is discriminatory and unreasonable and hence
unconstitutional.
Suit no. 86, 2000
• FACTS:
• The Plaintiff is the sister of the deceased female Hindu. She has applied for
Letters of Administration with the Will of the deceased dated 15th, March
1995.
• She claims that the estate of the deceased essentially comprising one flat was
the absolute property of the deceased under Section 14 of the HSA, the
deceased having purchased the said property with the help of her parents,
brothers and sisters. She claims that only the brothers and sisters of the
deceased, who was a married Hindu female, were her heirs and legal
representatives since the property left by the deceased was her absolute
property under Section 14 of the HSA. She has shown five heirs of the
deceased who are one brother and four sisters of the deceased including the
Petitioner.
• The Caveator is the deceased’s brother-in-law being the brother of her
deceased husband. He claims the estate of the deceased sister-in-law
under Section 15 (1) (b) of the HSA as one of the heirs of the deceased's
husband.
Suit no. 86, 2000
• ISSUES:
1. Whether the last will of deceased female is validly
executed?
2. Whether the last will of the deceased female is
forged?
3. What reliefs, if any, is the plaintiff entitled to?

4. Whether the devolution of property of a female


Hindu dying intestate under Section 15 of the HAS
are discriminatory and unreasonable ad hence,
unconstitutional?
Suit no. 86, 2000
• For issues 1,2 and 3, the court held:
• With regards to issue 1-
• Due execution and attestation of the will as required under
S.63 of ISA was validly done as the will was handwritten and
she was deposed to be in sound mental state while writing it.
Furthermore, it was only post the death of deceased and her
husband that the caveator made inquiries in the Society office
and came to know of the will as a nomination.
• With regards to issue 2-
There was not enough proof to prove beyond reasonable doubt
that any sort of forgery had taken place. The burden was on
defendant to prove that all six signatures were forged but no
particular proof of it was provided.
• With regards to issue 3-
Letters of administration of will to be granted to plaintiff.
Arguments on Constitutionality of
S.8 and S.15, HMA
• Additional solicitor general argued that the rationale behind this
differentiation was family ties and not gender.
• Father's father and father's mother in item V take precedence over
mother's father and mother's mother in item VIII. Similarly father's
brother and father's sister in item VII take precedence over mother's
brother and mother's sister in item IX. It is here that gender
inequality still persists.
• The rules relating to the succession of Hindu females for the items
specified in Section 15 are wholly distinct and different from those
relating to succession of Hindu males in class I of the Schedule. The
codification of the old Hindu law has not kept pace with the
constitutional mandate of gender equality and in removing gender
disparity completely.
• The gender equality towards which the legislation of 1956, which
applied to Hindus went only thus far. Whereas gender equality was
brought out amongst the successors in class I of the schedule, it fell
short amongst items V to IX of Class II of the schedule. The ISA of
1925 had made greater strides towards gender equality in this
regard.
• It is, therefore, unmistakably clear that there is gender
To determine whether the mere difference in the rules of
succession between male and female Hindus would tantamount
to such discrimination as is frowned upon by the Constitution,
the discrimination sought to be made must be because of a
reason or a justification. The reason may be individous or
because of certain characteristics which take resort to the
umbrella of culture, tradition, ties or the like. Every such
discrimination is abhorred in the constitution. Only if a
discrimination is made on the ground of sex, caste, religion and
also on another ground, where the former grounds become
secondary in importance, that the discrimination would be
upheld as not infringing the mandate under article 15(1).
• The distinction in the rules of inheritance and succession governing
simplicitor Hindu males and Hindu females is distinctly hit by the
principles embodied in Article 15(1) of the Constitution as being a
discrimination only on the ground of sex.
• Whilst the property inherited by a female Hindu from her husband
or her father is legislated to remain within that family, the property
of a male Hindu under the schedule to Section 8 of the Hindu
Succession Act is not legislated to remain in that line itself. Class II
of the schedule shows the heirs to be not only the sons but also the
daughters, not only the brothers' sons but also the sister's sons, not
only the brother's daughters but also the sister's daughters. Hence
the rules of succession for males and females from the same family
desirous of maintaining the same extent of unity and family ties are
wholly different. The reasonableness, if any, in the classification
under Section 15(2) is, therefore, absent in Class II under Section 8
of the HSA.
• Mr. Setalwad argued, and that is correct, that there is no discrimination
also in items II, III and IV of class II. Since that is so it would require some
good reasoning to make a specific distinction in items V and VIII and
items VII and IX. It is argued by Mr. Setalwad that in the family having a
common ancestor with children, an outsider is legitimately kept at bay
to preserve ties of a marital home. The result is that it preserves the
family property within the family. In fact this is factually incorrect.
Putting a father's brother and father's sister in item VII would not result
in preserving the family property within the father's family away from
the outsider because the father's married sister would have gone
outside the father's family. In Suit No.48 of 2005 that has actually been
the result given the number of heirs that have sought precedence over
the mother's sister being the lineal descendants of the father's sister
and hailing from another family. A family property would, therefore, not
be preserved within the family despite the purported aim of such
gender discrimination. Consequently, the argument of Mr. Setalwad that
the classification in class II though showing a distinction does not result
in a discrimination because the distinction is not arbitrary is difficult to
accept.
• The contention of Mr. Setalwad that the aspect of discrimination is
outside the purview of all personal laws because all communities in India
are governed differently by their respective personal laws does not
mean that anything relating to personal laws can be legitimately
discriminatory between sexes as much as between castes and religions.
Though the personal laws are for different religions, there are no personal
laws for different sexes. The personal law relating to a given community
would govern both males and females of that community. Such personal
laws after the enactment of the Constitution must follow the mandate of
absolute equality of the Constitution within that community subject to
affirmative action in favour of women and children as allowed
under Article 15(3) though the personal laws of the Hindus may be
different from those of Muslims and others, the personal laws of
Christians may be different from Parsis and others. The analogy does not
even apply to persons of two sexes from a single community.
Decision
• The issue relating to constitutional Validity in both the above
suits are answered in the affirmative to declare Sections
8(b) (c) and (d) r/w the Class II of the Schedule of the HSA as
also Section 15(1) of the HSA unreasonable as discriminatory
and, therefore, unconstitutional and ultravires as being
violative of Article 15(1) of the Constitution of India.
SOME GENERAL PRINCIPLES
(SECTION 20, 21, 29)
&
DISQUALIFICATIONS
(SECTION 25-28)
111
Section 18. Full blood
preferred to half blood
• Heirs related to an intestate by full
blood shall be preferred to heirs
related by half blood, if the nature of
the relationship is the same in every
other respect.

112
Section 19. Mode of succession
of two or more heirs
• If two or more heirs succeed together to the property of an
intestate, they shall take the property,—
• (a) save as otherwise expressly provided in this Act, per capita
and not per stirpes; and
• (b) as tenants-in-common and not as joint tenants.

113
Section 20. Right of child in womb
A child who was in the womb at the time of the
death of an intestate and who is subsequently
born alive have the same right to inherit to the
intestate as if he or she had been born before the
death of the intestate, and the inheritance shall be
deemed to vest in such as case with effect from
the date of the death of the intestate.

114
Right of child in womb
• Knowledge of factum of pregnancy
irrelevant
• Property deemed to be vested in the child
from the date of the death of the intestate

115
Section 21. Presumption in cases of
simultaneous deaths

Where two persons have died in circumstances


rendering it uncertain whether either of them, and
if so which, survived the other then, for all
purposes affecting succession to property, it shall
be presumed, until the contrary is proved, that the
younger survived the elder.

116
Section 22: Preferential right to
acquire property in certain
cases.
• (1) Where, after the commencement of this Act, 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
upon two or more heirs specified in class I of the Schedule, 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 117
consideration so determined, such person shall be liable to pay all
costs of or incident to the application.
• (3) If there are two or more heirs specified in class I of the
Schedule 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.

118
23 Special provision respecting
dwelling houses
• Rep. by the Hindu Succession (Amendment) Act, 2005 (39 of
2005), sec. 4 (w.e.f. 9-9-2005) .]]
• Section 23 of the Act disentitles a female heir to ask for
partition in respect of a dwelling house wholly occupied by a
joint family until the male heirs choose to divide their
respective shares therein.

• It is also proposed to omit the said section so as to remove


the disability on female heirs contained in that section.

119
Section 23: Comments
• Section 23 of the Hindu Succession Act, 1956 on one hand
recognized the qualified right of residence of Class I female heirs
and on the other hand bars such female heirs from seeking
partition of the dwelling house until the male heirs agree to
divide their shares in the house.
• It was contended by several scholars that Section 23 of the Act
is per se discriminatory as it provides male heirs with the
absolute right to seek partition, while making right of female
heirs contingent on the right of male heirs.
• The objective of the section is to prevent the fragmentation of
a family dwelling house at the instance of a female heir to the
prejudice of the male heirs. This section reflects one of the
ancient Hindu law tenets that treasured the dwelling house of
the family as an impartible asset. The section merely
postpones a woman's right to claim partition until the male
120
heirs choose to divide their respective shares therein.
• Feminist scholars argued that:
• There is absolutely no point in recognizing a
"contingent right", since restriction is unreasonable
in the light of Article 14 of the Constitution. As a
consequence of this decision a woman cannot claim
partition in the property that belongs to her even if
she wants to live separately.
• It is contended by scholars that the proviso to the
section also discriminates between female Class I
heirs on the basis of their marital status.18 The
proviso to the section grants right of residence to
daughters, but only until they are unmarried.19 It
denies married daughters the right to residence in
the ancestral dwelling house but at the same time
grants such right to married sons. 121
Section 24
• Section 24[1] of the Hindu Succession Act, 1956
seeks to prevent certain sections of widows from
inheriting property of the intestate if she has
remarried.
• It reads as follows:
• “Any heir who is related to an intestate as the
widow of a pre-deceased son, the widow of a
pre-deceased son of a predeceased 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 succession opens, she has 122
remarried.”
Escheat: Section 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.

123
Section 25. Murderer
disqualified
A person who commits murder or abets the
commission of murder shall be disqualified from
inheriting the property of the person murdered, or
any other property in furtherance of the
succession to which he or she committed or
abetted the commission of the murder.

124
Murderer
• Murderer (commission/abetment) of the
intestate cannot inherit the property of the
intestate
• Murder committed in furtherance of succession
• Murder not of the intestate
• Murder of intestate’s heir to accelerate
succession in his/her favour
• Disqualified for both intestate and testamentary
succession
125
Section 26. Convert’s 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.

126
Converts
• For HSA to apply, intestate must be a Hindu
• Classical law: Heir must also be a Hindu
• Caste Disabilities (Removal) Act, 1850:
• Converts can inherit the property of a relative
of the former religion. So non-Hindus could
inherit from Hindus
• Only the convert personally protected
• Descendants of converts not protected
127
Section 27. Succession when heir
disqualified
If any person is disqualified from inheriting any
property under this Act, it shall devolve as if such
person had died before the intestate.

128
Succession when heir disqualified
• Disqualified heir presumed dead
• If the next heir is representative of the
disqualified heir, such heir also disqualified
(public policy, equity and good conscience)
• E.g. a family consists of A, his son S and S’s wife
SW. S murders A. Both S and SW are disqualified.

129
Section 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.

Persons with mental disabilities can inherit.

130
Vellikannu V. R.
Singaperumal
Ramaswami Konar Wife (Divorced)
(Dead)

X Son Wife (Plaintiff)


(Defendant 2) (Defendant 1)
Vellikannu vs. R. Singaperumal, AIR 2005 SC 2587
• Issue: Does Section 25 read with Section 27 mean that the heir
will be treated as predeceased or non –existent?
• Family consisted of father, son and his wife.
• Defendant is the son and the plaintiff is the wife.
• The son was convicted of murdering his father under Section 302
of the IPC.
• Since he murdered his father, he was not entitled to inherit and the
wife/plaintiff claimed that she alone could claim all the property
left by the deceased.
• She claimed that Section 25 read with Section 27 would entitle her
to claim as the widow of a predeceased son.
• The Supreme Court held that Section 25 read with Section 27
doesn’t mean that the murderer predeceased the intestate but it
means that the murderer was non-existent for the family and 132
therefore no relationship through him can be created. Hence the
plaintiff was not entitled to inherit.
INTESTATE SUCCESSION
TO THE PROPERTY OF A
MALE HINDU
(SECTION 8-13)
133
Section 8. General rules of
succession in the case of males
The property of a male Hindu dying intestate shall devolve
according to the provisions of this Chapter-
• (a) firstly, upon the heirs, being the relatives specified in class
1 of the Schedule.
• (b) secondly, if there is no heir of class I, then upon the heirs,
being the relatives specified in class II of the Schedule.
• (c) thirdly, if there is no heir of any of the two classes, then
upon the agnates of the deceased, and
• (d) lastly, if there is no agnate, then upon the cognate of the
deceased.

134
Classification of heirs & Devolution of property
• Class-I
• All persons in the list of Class-I heirs inherit simultaneously
• Even if one Class-I heir is alive, the property will not go to Class-II
heirs
• Take the property as their separate property
• Subsequent remarriage does not divest them of the property
vested in them
• The Class- I heir is more expansive than the classical Hindu law and
includes heirs such as mother and daughter of the intestate.
• After 2005, 4 new heirs have been introduced.
• Class-II (if no Class-I heir is alive)
• Class-III (Agnates) (if no Class-I and Class-II heir is alive)
• Class-IV (Cognates) (when none of the above is alive)
• Basis: Nearness of relationship
• Includes relations by blood, adoption and marriage 135

• Heirs of a person have to be determined in relation to the law


in force at the time of death of the person.
Property
• Separate property
• Property held by sole surviving coparcener
• Share obtained on partition (in the absence of male issues)
• Undivided share of a male in Dayabhaga coparcenary
• Undivided share of a male in Mitakshara coparcenary (post-
1956/2005)

136
Nature of Property:
• Only the separate property of the male intestate.
• After 1956, it also included the undivided coparcenary interest in
case he was survived by a class-I female heir or a son of a
predeceased daughter.
• After 2005, property included undivided share in the coparcenary in
all situations.
• Property inherited from ancestor under Section 8 is separate
property in the hands of the heir.
• Also, if a divided coparcener by way of inheritance u/s 8, inherits
what used to be joint family property before division, that property
will be considered to be separate property in the hands of the heir.
• Also includes property that he might have inherited from his father
or grandfather after the Act came into force.
• Prospective : The word “shall” devolve indicates that the section is
prospective in its application. 137
• Law to be governed is according to the date of death.
Class I heirs
• Son
• Daughter
• Widow
• Mother
• Son of a pre-deceased son
• Daughter of a pre-deceased son
• Son of a pre-deceased daughter
• Daughter of a pre-deceased daughter
• Widow of a pre-deceased son
• Son of pre-deceased son of a pre-deceased son
• Daughter of a pre-deceased son of a pre-deceased son
• Widow of a pre-deceased son of a pre-deceased son
Added in 2005:
• 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 pre-deceased son of a pre-deceased daughter 138
• Daughter of a pre-deceased daughter of a pre-deceased son
Son
• Natural born son
• Adopted son
• Not step son
• Posthumous son
• Not illegitimate son
• Son having physical or mental infirmities
• Son born out of void or voidable marriage that is annulled by
court decree: deemed legitimate for purpose of inheritance of
his father’s property
• No distinction between a divided and undivided son
• Children born out of a live-in relationship 139
Daughter
• Marital status is irrelevant.
• Under Section 14, she takes the share as an absolute owner.
• Natural born daughter
• Adopted daughter
• Not step-daughter
• Not illegitimate daughter
• Daughter born out of void/voidable marriage that was
annulled: deemed legitimate for inheritance of father’s
property
• No distinction between married and unmarried daughters,
even if she marries a non-Hindu under SMA
140
Children born of a live-in relationship?
Facts:
• A (male) was having relationship with B (female) for long time;
• After the death of his wife in 1945, A had live-in-relationship
with B and started living as husband and wife;
• Their relationship continued till the death of A on 31.12.1979
and therefore, they lived together as husband and wife for a
long period;
• Two sons and four daughters were born out of this relationship;
and
• Their relationship as husband and wife had been accepted not
only by the society but also by the family members.
141
Should the sons and daughters be recognized as Class-I heirs?
Held:
• Live-in- relationship continued for such a long time; projected
themselves as husband and wife
• Cannot be termed in as “walk-in and walk-out” relationship
• Presumption of marriage
• Children entitled to inherit property

Madan Mohan Singh & Ors. vs Rajni Kant & Anr. (Supreme
Court, 13 August 2010)

142
Widow
• Valid marriage
• Divorced wife not included
• Now she takes her share absolutely and not as a
limited right.
• If there are more than one widow, all of them
take one share together.
• Remarriage is also not a ground for
disqualification.
143
Mother
• Biological mother
• Adoptive mother
• Not stepmother
• Where biological mother gives her son in
adoption, she will not be entitled to inherit his
property
• Marital status of mother irrelevant
• Single woman may adopt a son and will be
entitled to inherit his property as a Class-I heir 144
Son and daughter of predeceased
son/daughter
• Natural born or adopted
• Son and daughter must be legitimate.
Conferment of legitimacy subsists only
between parents and children.
• Predeceased son/daughter must be
legitimate, not born out of void or voidable
marriage that was annulled
145
Widow of a predeceased son
• ‘Widow’, not ‘wife’
• Must be a widow on the date of the death of the
intestate
• If she remarries before the death of the intestate,
not entitled to inherit the property
• If there is a divorce before date of death of
intestate, not entitled to inherit the property
• Widow of an illegitimate son, or son born out of
void/voidable marriage: Not entitled to inherit
146
Son and daughter of pre-deceased son
of a pre-deceased son
• Legitimate
• Natural born or adopted

147
Widow of a pre-deceased son of a
pre-deceased son
• No divorce or remarriage
• Legitimate son

148
Son and daughter of a pre-deceased
daughter of a pre-deceased daughter
• Legitimate natural born, or
• Adopted

149
Daughter of a pre-deceased son of
a pre-deceased daughter
• Before 2005: Class-II heir, Entry IV
• Her brother (son of a pre-deceased son of a
pre-deceased daughter): Still Class-II heir

150
Daughter of a pre-deceased
daughter of a pre-deceased son
• Before 2005: Class-II heir, Entry IV
• Her brother (son of a pre-deceased
daughter of a pre-deceased son): Still
Class-II heir

151
Section 9. Order of succession
among heirs in the Schedule

Among the heirs specified in the Schedule, those


in class I shall take simultaneously and to the
exclusion of all other heirs, those in the first entry
in class II shall be preferred to those in the second
entry, those in the second entry shall be preferred
to those in the third entry, and so on in succession.

152
Section 10. Distribution of property
among heirs in class 1 of the Schedule
The property of an intestate shall be divided among the heirs in
class I of the Schedule in accordance with the following rules:-
Rule1.- The intestate’s widow, or if there are more widow than
one, all the widows together, shall take one share.
Rule 2.- The surviving sons and daughter and the mother of the
intestate shall each take one share.
Rule 3.- The heirs in the branch of each pre-deceased son or
each pre-deceased daughter of the intestate shall take between
them one share.

153
Rule 4.- The distribution of the share referred to in Rule 3-
• (i) among the heirs in the branch of the pre-deceased son shall
be so made that his widow (or widows together) and the
surviving sons and daughters get equal portions, and the
branch of his pre-deceased sons gets the same portion;
• (ii) among the heirs in the branch of the pre-deceased
daughter shall be so made that the surviving sons and
daughters get equal portions.

154
Section 11. Distributions of
property among heirs in class II of
the Schedule
The property of an intestate shall be divided between
the heirs specified in any one entry in class II of the
Schedule so that they share equally.

155
Class-II heirs
• When no Class-I heir is alive

156
Class-II heirs
I. Father
II. (1) Son’s daughter’s son,
(2) son’s daughter’s daughter,
(3) brother,
(4) sister.
III. (1) Daughter’s son’s son,
(2) daughter’s son’s daughter,
(3) daughter’s daughter’s son,
(4) daughter’s daughter’s daughter.

157
Class-II heirs (contd.)
IV. (1) Brother’s son,
(2) Sister’s son,
(3) brother’s daughter,
(4) Sister’s daughter.
V. Father’s father, father’s mother.
VI. Father’s widow, brother’s widow.
VII. Father’s brother, father’s sister.
VIII. Mother’s father, mother’s mother.
IX. Mother’s brother, mother’s sister.
Explanation.- In this Schedule, references to a brother or sister
do not include references to a brother or sister by uterine
158
blood.
Father
• Includes adoptive father
• Not stepfather
• Not putative father of an illegitimate son
• Son born out of void/voidable marriage: father is
entitled to inherit the property

159
Mother and Father
• HSA: Mother excludes the father
• Indian Succession Act: Father excludes the
mother
• Parsis, Islamic law: Both mother and father
placed on an equal footing

160
Son’s daughter’s son/ Son’s
daughter’s daughter
• Daughter of predeceased daughter of a predeceased
son: Class-I heir
• Son of a predeceased daughter of a predeceased son:
Class-II heir

161
Brother and sister
• By blood: full blood, half blood, uterine blood
• By adoption

162
Section 3. Definitions and
interpretations
Section 3(1)(e): “full blood”, “half blood” and “uterine blood”-
• (i) two persons are said to be related to each other by full
blood when they are descended from a common ancestor by
the same wife, and by half blood when they are descended
from a common ancestor but, by different wives.
• (ii) two persons are said to be related to each other by uterine
blood when they are descended from a common ancestress
but by different husbands.
• Explanation.- In this clause “ancestor” includes the father and
“ancestress” the mother

163
Full blood excludes half blood
Section18. Full blood preferred to half blood.-
Heirs related to an intestate by full blood shall be
preferred to heirs related by half blood, if the
nature of the relationship is the same in every
other respect.

164
Uterine blood
• Not Class-II heirs
• Inherit as cognates

165
Children from void/voidable
marriage
• Deemed to be related only to the parents
• Not treated as ‘brother’ or ‘sister’

166
Entry III
III. (1) Daughter’s son’s son
(2) daughter’s son’s daughter (Class-I)
(3) daughter’s daughter’s son (Class-I)
(4) daughter’s daughter’s daughter (Class-I)
• Son of a predeceased son of a predeceased
daughter left in this Entry
• Legitimate
• Birth or adoption 167
Entry IV: Children of brothers and
sisters
IV. (1) Brother’s son,
(2) Sister’s son,
(3) brother’s daughter,
(4) Sister’s daughter.
• Children of uterine brothers and sisters excluded
• Children of full-blood brothers and sisters exclude children of
half-blood brothers and sisters

168
Entry V
• Father’s father, father’s mother
• Paternal grandparents
• Intestate must be legitimate, not born out of void/voidable
marriage
• Father must be legitimate, not born out of void/voidable
marriage

169
Entry VI
• Father’s widow, brother’s widow
• Father’s widow: who was not intestate’s mother
• Brother’s widow: Widow of full-blood excludes widow of half-
blood brother. A uterine brother not inlcuded.
• Must be a valid marriage
• ‘Widow’: Father/brother died. Not a divorce.
• If remarries before death of intestate, not entitled to inherit.
She may remarry later.

170
Entry VII
• Father’s brother, father’s sister.
• Full-blood brother or sister of father excludes half-blood
brother/sister
• Uterine brother and sister excluded

171
Entry VIII
• Mother’s father, mother’s mother.
• Legitimate

172
Entry IX
• Mother’s brother, mother’s sister.
• Full-blood excludes half-blood
• Uterine blood excluded

173
Class-II heirs
I. Father
II. (1) Son’s daughter’s son
(2) son’s daughter’s daughter,
(3) brother,
(4) sister.
III. (1) Daughter’s son’s son,
(2) daughter’s son’s daughter,
(3) daughter’s daughter’s son,
(4) daughter’s daughter’s daughter.

174
Class-II heirs (contd.)
IV. (1) Brother’s son,
(2) Sister’s son,
(3) brother’s daughter,
(4) Sister’s daughter.
V. Father’s father, father’s mother.
VI. Father’s widow, brother’s widow.
VII. Father’s brother, father’s sister.
VIII. Mother’s father, mother’s mother.
IX. Mother’s brother, mother’s sister.

175
Rules when no Class-I heir is
present
I. If father is alive, he takes the entire property to the
exclusion of all others
II. Son’s daughter’s son, brothers, sisters: share equally
III. Daughter’s son’s sons share equally
IV. Children of brothers and sisters share equally
And so on.

176
Section 8. General rules of
succession in the case of males
The property of a male Hindu dying intestate shall devolve
according to the provisions of this Chapter-
• (a) firstly, upon the heirs, being the relatives specified in class
1 of the Schedule.
• (b) secondly, if there is no heir of class I, then upon the heirs,
being the relatives specified in class II of the Schedule.
• (c) thirdly, if there is no heir of any of the two classes, then
upon the agnates of the deceased, and
• (d) lastly, if there is no agnate, then upon the cognate of the
deceased.

177
HYPO:
• Satish died in 2010 leaving behind his wife, mother, two
daughters and one pre-deceased son’s widow and a daughter.
How would his property devolve by Hindu law?

178
Class-III heirs (Agnates)
• When no Class-I heir and Class-II heir is alive
• Section 3(1)(a): (a) “agnate”- one person is said to be an
“agnate” of another if the two are related by blood or
adoption wholly through males.
• Agnate himself/herself may be male or female
• Direct ascendants/ direct descendants / collaterals

179
Class-IV heirs (Cognates)
• When no Class-I heir, Class-II heir and agnate is alive
• Section 3(1)(c) “cognate”- one person is said to be a cognate
of another if the two are related by blood or adoption but not
wholly through males.
• “Not wholly through males”: Even if a single female
intervenes, it will become a cognatic chain
• Cognate himself/herself may be male or female
• Agnates exclude cognates, even if agnates are remoter in
relation

180
Section 13. Computation of
degrees
(1) For the purposes of determining the order of succession
among agnates or cognates, relationship shall be reckoned
from the intestate to the heir in terms of degrees of ascent
or degrees of descent or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be
computed inclusive of the intestate.
(3) Every generation constitutes a degree either ascending or
descending.

181
Section 12. Order of succession
among agnates and cognates.-
The order of succession among agnates or cognates, as the case
may be, shall be determined in accordance with the rules of
preference laid down hereunder:
• Rule 1- Of two heirs, the one who has fewer or no degrees of
ascent is preferred.
• Rule 2.- Where the number of degrees of ascent is the same
or none, that heir is preferred who has fewer or no degrees of
descent.
• Rule 3.- Where neither heirs is entitled to be preferred to the
other under Rule 1 or Rule 2 they take simultaneously.

182
Rules: Summary of Section 12 & 13
• Each generation is called a degree.
• First degree: intestate
• Degrees of ascent: Upwards direction
• Degrees of descent: Downwards direction
• An agnate who has only descent degrees, is preferred over the
one who has only ascent degrees
• In computation of degree, whether of ascent or of descent has
to be counted inclusive of the intestate.

183
Agnates: Categories
• Pure Descendants: Agnates who are related to the intestate
by no degree of ascent.
• For example- son’s son’s son’s son, son’s son’s son’s
daughter.
• Pure ascendants: Agnates who are ascendants and no
degrees of descent.
• Ex: Father’s father’s father, Father’s father’s mother.
• Collaterals: Agnates who are collaterals: related by both
ascent and descent.
• EX: father’s brother’s son, father’s brother’s daughter.

• RULE: Agnates who are Pure Descendants are preferred over


Pure ascendants and Pure ascendants are preferred over 184
Collaterals.
Cognates: Categories
• Pure Descendants: Cognates who are related to the intestate
by no degree of ascent.
• For example- son’s daughter’s son’s son.
• Pure ascendants: Cognates who are ascendants and no
degrees of descent.
• Ex: Father’s mother’s father.
• Collaterals: Cognates who are collaterals: related by both
ascent and descent.
• EX: father’s sister’s son

• RULE: Cognates who are Pure Descendants are preferred


over Pure ascendants and Pure ascendants are preferred over
Collaterals. 185
Rules on Collaterals:
• Where an heir has both ascent and descent degrees, each
of them has to be seen separately and not cumulatively
• Where two collaterals have ascent and descent degrees,
the one with fewer ascent degrees will be preferred
• Where the number of degrees of ascent is the same or
none, that heir is preferred who has fewer or no degree
of descent.
• Where neither heir is entitled to be preferred to the other
under the previous rules (same degree of ascent and
descent), they take simultaneously.
• In case of collaterals, the degrees of ascent computed
from the intestate are inclusive of him and the common
ancestor but in counting the degrees of descent from the
ancestor, only generations of descent are computed, that
is, the ancestor does not constitute a degree of descent. 186
ILLUSTRATION OF RULES
mentioned under Section 12 &
13:

187
Rule 1: Zero or Fewer degrees of Ascent

1. AGNATE: Brother’s son’s daughter (2 degrees of ascent, 3


degrees of descent) & Paternal Uncle’s son (3 degrees of
ascent and 2 degrees of descent)
2. COGNATE: Son’s daughter’s son’s son (Zero ascent, 4
degrees of descent) & Sister’s daughter’s son (2 degrees of
ascent, 3 degrees of descent)
3. Brother’s Daughter’s Daughter (2 degrees of ascent, 3
degrees of descent) Mother’s sister’s son (3 degrees of
ascent , 2 degrees of descent)
4. Sister’s daughter’s daughter (2 ascent, 3 descent) &
maternal uncle’s son (3 ascent)
5. Mother’s sister’s son (3 ascent) & Father’s father’s son (4
ascent)
188
6. Uterine brother (2 ascent) & father’s sister’s son (3 ascent)
Rule 2: Same ascent, fewer
degrees of descent
• AGNATE: Brother’s son’s daughter (2 degrees of ascent, 3
degrees of descent)& Brother’s son’s son’s daughter (2
degrees of ascent, 4 degrees of descent)
• COGNATE: Sister’s daughter's daughter (2 degrees of ascent,
3 degrees of descent) & Brother’s son 'daughter's son (2
degrees of ascent, 4 degrees of descent)
• Uterine Brother & Full Brother’s son

189
Rule 3: Same ascent, same
descent
• Sister’s daughter daughter (2 degrees of ascent, 3 degrees of
descent) & Brother’s daughter’s son (2 degrees of ascent, 3
degrees of descent)
• Son’s son ‘s son’ son & Son’s son ‘s son’ daughter
• Father’s mother’s father & mother’s mother’s mother

190
What if even cognates are absent?
• Doctrine of escheat: government takes the property

191
Property inherited from father by
son
• Classical law: Ancestral in son’s hands
• Post-HSA: Separate property of son

192
What is the nature of father’s separate property
inherited by the son under Section 8 in the son’s
hands?
• Property of a male Hindu dying intestate devolves according to
Section 8, HSA
• Class I: Includes son, son of pre-deceased son, but not grandson
when son is alive
• Son takes the property in his individual capacity, not as Karta of
his joint family
• Reasoning:
• Even when the son (S2) of son (S1) is intended to be excluded if son
(S1) is alive, he will end up getting a right by birth in the property
• Two classes within Class-I: males in whose hands it is joint family
property as regards their male issues; female heirs who take the 193
property as their separate property
• Section 4: Act has overriding effect in case of doubt
• Preamble: To “amend” the law on intestate succession

Commissioner of Wealth-tax v. Chander Sen, [1986] 161 ITR 370 (SC)

194
CWT v. Chander Sen, AIR 1986 SC
1753
Rangi Lal

Chander Sen

S S
• Case on Nature of property inherited from father dying
intestate under HSA
• Issue: Whether the property inherited by a Hindu from his
divided father dying intestate (by virtue of Section 8 and not
by survivorship) under the provisions of the Hindu
Succession Act is former’s separate property or joint family
property?
CWT V. Chander Sen

(Mother)

Rangi Lal (Wife)

Chander Sen

Grandson(1) Grandson(2) 196


Facts:
• The HUF had immovable property and a business.
In 1961, by partial partition between the father
and the son, the business was divided and
continued to be carried on as partnership. The
house property was still joint.
• In 1965, Rangi Lal died leaving behind Chander
Sen, grandsons and about Rs. 2 lacs in account
books of the firm in his name. His mother and
wife had predeceased him and he had no other
issue except Chander. Thereafter the business was
carried on by Hindu Undivided Family consisting
of Chander Sen and his sons.
• It would be difficult to that the property which devolved on a
Hindu under Section 8, HSA would be HUF property in his hand
vis-a vis his own son; that would amount to creating two
classes among the heirs mentioned in Class I, the male heirs in
whose hands it will be joint Hindu property vis-a-vis son and
female heirs with respect to whom no such concept could be
applied and contemplated. It may be mentioned that heirs in
Class I of the Schedule under Section 8 of the Act included
mother, daughter of a predeceased son, etc.
• The express words of Section 8 of HSA, 1956 cannot be ignored
and must prevail. The preamble to the Act reiterates that the
Act is, inter alia, to ‘amend’ the law, with that background the
express language which excludes son’s son but includes son of a
predeceased son cannot be ignored. Section 8 of the HSA should
be taken as self-contained property of a Hindu dying intestate.
Therefore, the property which devolved on a Hindu on the death
of his father intestate after coming into force of HSA, 1956, did
not constitute HUF property consisting of his own branch
including his sons.
Analysis and Conclusion:
• It is necessary to bear in mind the preamble to the HSA, 1956.
The preamble states that it was an Act to amend and codify
the law relating to intestate succession among Hindus. In view
of the preamble to the Act i.e., that to modify where
necessary and to codify the law, it is not possible when
Schedule indicates heirs in Class I and only includes son and
does not include son’s son but does include son of a
predeceased son to say that when son inherits the property in
the situation contemplated by Section 8 he takes it as Karta of
his own undivided family.
• Furthermore, it is clear by Section 4 that one should look at
the Act in case of doubt and not to the pre-existing Hindu law.
Holding:
• The court held that if income from assets
inherited by a son from his father from
whom he had separated by partition, then
it cannot be assessed as income of Hindu
undivided family of son.
• Property which devolved by virtue of
Section 8 of the HSA is his separate
property and not joint family property.
INTESTATE SUCCESSION
TO THE PROPERTY OF A
FEMALE HINDU
(SECTION 14-16)
201
Section 14. Property of a female
Hindu to be her absolute property
(1) Any property possessed by a female Hindu, whether acquired before
or after the commencement of this Act, shall be held by her as full
owner thereof and not as a limited owner.
Explanation- In this sub-section, “property” includes both movable and
immovable property acquired by a female Hindu by inheritance or
devise, or at a partition, or in lieu of arrears of maintenance, or by gift
from any person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any such
property held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property
acquired by way of gift or under a will or any other instrument or under
a decree or order of a civil court or under an award where the terms of
the gift, will or other instrument or the decree, order or award prescribe
a restricted estate in such property.
Rights under Classical Hindu
Law: Stridhan
• Property given as gifts to woman by her parents, husband and other
relations at the time of marriage or on other occasions
• Property acquired by her own exertions
• Property given as maintenance
• Larger powers of disposal, as compared to non-stridhan
• Gifts and bequests from non-relations: If married, required
husband’s consent to alienate
• Thus, the restrictions imposed by Hindu law on the proprietary
rights of a woman depended on her status as a maiden, as a married
woman and as a widow. The scheme of devolution in case of
Stridhan was different.
• There was no clarity about Stridhana and over what kind of property
did the woman have absoluter ownership. Absolute power of
alienation was only restricted to some kind of property.
Rights under Classical Hindu Law:
Non-stridhan
• Property inherited from a male or female relation
• Property received at the time of partition
• Limited owner
• During her lifetime, could enjoy the property without any
interference
• No power to transfer the property (except in case of
necessity/for religious purposes)
• After her death, property did not go to her heirs
• ‘Reversioners’: Heirs of the last full owner, who would be
entitled to succeed to the estate of such owner on the death of
the limited owner
• Right of reversioners: spes successionis (no right in property till
the female is alive)
Hindu Women’s Right to Property
Act, 1937
• To reduce dependency on other male members
in the family for her maintenance
• Limited estate terminable on death/remarriage
• Property went back to husband’s family
Changes introduced by Section
14 HSA
• Converts limited ownership to full ownership
• The Act confers full and heritable capacity of the female heir and
this section dispenses with the traditional limitations on the
powers of a female Hindu to hold and transmit property.
• Distinction between stridhan and non-stridhan abolished
• Women in possession of property as limited owners before the
Act: Now hold the property as full owners
• E.g.: In 1950, a coparcener S dies leaving behind his widow W. She
takes possession of the property as per the 1937 Act. In 1956, her
limited ownership converted to full ownership
• In the above example, W dies (or remarries) in 1953. The property
goes to S’s heirs. W’s heirs cannot now take benefit of Section 14,
HSA.
• The term female Hindu means and includes any female Hindu. A
daughter being a female Hindu would be covered within the ambit
of this section.
Possession: “Possessed” by a Female Hindu-
• This section is retrospective in effect
• Affect the incidents of woman’s property that might be
acquired and held by a female after the coming into force of
the Act, but also in respect of property already acquired by
her in the past and possessed by her
• Widow inherited property of her deceased husband or
acquired the same interest as her husband under the Hindu
Women’s Right to Property Act, 1937- was in actual or
constructive possession as recognized by law, the Act
converted the limited ownership into absolute ownership.
• Possession: Actual / Constructive / Possession in law
• Possession under this section signifies a valid title to the
property. It need not be actual physical possession or
personal occupation of the property by the female but may be
possession in law.
• Possession without right of ownership: Provision not
applicable. E.g. as lessee. Must be a limited owner before the
Act.
Limited interest does not convert
to absolute estate when:
1. Female dies before the commencement of the
Act. Property goes to reversioners who get a
vested title to it, or
2. She remarries before the commencement of
the Act- Property goes to reversioners who get a
vested title to it
3. She relinquishes her interest or transfers the
property to another person and loses possession
and does not regain possession.
What if a woman transfers her
limited interest before 1956?
• Limited interest: limited powers of transfer
• E.g. A widow W has a limited ownership over a
certain property
• She (unlawfully) transfers her limited interest to
a person A before1956 and thus loses possession
• Would the limited estate mature into an
absolute estate post-1956?
Loss of possession due to transfer
of limited interest
• The interest does not mature into an absolute
interest under Section 14(1)
• W could not convey a better title that what she
had
• Such alienee holding possession will not get a
better title at the time of the transfer and even
after passing of HSA
• Reversioners (last holder’s heirs) get a valid and
absolute title
Regain of possession?
• Possession regained before 17 June 1956: Limited
ownership converts to full ownership
• The temporary loss of interest would not be adverse to
her case and her limited interest would convert into
absolute ownership by the Act and the Reversioner’s
would get no right in the property.
• Possession regained after 17 June 1956: Limited
ownership converts to full ownership if woman has
possession of the limited estate at the time when the
right is called into question, even if she was not in
possession at the time of commencement of the Act
[Jagannathan Pillai v. Kunjithapadam Pillai, AIR 1987 SC
1493]
Section 14 (2)
• Three conditions
• The female gets an interest from an instrument or document that is
written
• It is this document or instrument that creates a right for the first
time in her favor
• The language of the document embodies the terms prescribe a
limited estate to her.
• Any life interest or limited ownership given to a female by virtue of a will
or an award will not mature into absolute ownership.
• It would depend on the facts of each case whether the same is covered
by the first or the second sub section
• If the female Hindu already had right over the property, a decree or an
instrument could not take away that right.
• Property given in lieu of maintenance as there is a preexisting right
cannot be covered under the ambit of Section 14 (2). 212
Section 15. General rules of succession
in the case of female Hindus
(1) The property of a female Hindu dying intestate shall devolve
according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the
children of any pre-deceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father,
(d) fourthly, upon the heirs of the father, and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-
section (1),—
(a) any property inherited by a female Hindu from her
father or mother shall devolve, in the absence of any
son or daughter of the deceased (including the
children of any pre-deceased son or daughter) not
upon the other heirs referred to in sub-section (1) in
the order specified therein, but upon the heirs of the
father, and
(b) any property inherited by a female Hindu from her
husband or from her father-in-law shall devolve, in
the absence of any son or daughter of the deceased
(including the children of any pre-deceased son or
daughter ) not upon the other heirs referred to in sub-
section (1) in the order specified therein, but upon the
heirs of the husband.
Application of the Section:
• Property that a woman holds as an absolute owner,
irrespective of the mode of its acquisition.
• Includes both movable and immovable property
• Does not include the property which the Act does
not apply to
Succession depends upon the
source of acquisition:
Three types of properties:
• 1. Property that a female Hindu inherited from her
parents (Section 15(2)(a))
• 2. Property that a female Hindu inherited from her
husband or father-in-law (Section 15(2)(b))
• 3. any other property (Section 15(1))
Any property except that which is
inherited from parents/husband/
father-in-law: Examples

• Property inherited from any other


relation, like husband’s brother
• Property received from
parents/husband/father-in-law by gift,
will, settlement, etc.
• Self-acquisitions
General rule of succession
1. Sons and daughters (including the children of
any pre-deceased son or daughter) and the
husband
2. Husband’s heirs
3. Mother and father
4. Father’s heirs
5. Mother’s heirs
• Former category excludes the later
Clause (a)
• Son
• Daughter
• Son of a predeceased son
• Daughter of a predeceased son
• Son of a predeceased daughter
• Daughter of a predeceased daughter
• Husband
Son and Daughter
• Biological children
• Adopted children
• Legitimacy is not relevant- Illegitimate & legitimate children.
• Marital status of mother is not relevant nor is the validity of
the marriage.
• Does not include step-children
• If two children are born from two separate husbands, they
both inherit together
Illustration:
• A female Hindu dies leaving behind a son from a first
marriage, a daughter born from a second marriage and then
was in a relationship with a married man, H and gave birth to
two sons S1 and S2.
• All the children are entitled to inherit mother’s property.
Children of predeceased son and
daughter
• Grandchildren must be the legitimate children
of their parents born out of a valid marriage

• Children of predeceased illegitimate children are


not related to their grandmother by virtue of
Section 3(1)(j) – they are only related to their
parents and to each other.
Husband
• Spouse of a valid marriage
• No divorce:
• Does not include a divorce husband
• Includes husband who has been deserted by her or was living
apart under a decree of judicial separation.
• Void marriage- does not inherit from the wife but where a
marriage is voidable- pending decree, he can inherit from
the wife.
Clause (b): Husband’s heirs
• See Sections 8-13
• Assumed that the property belonged to the husband, and
the husband died on the date of death of the intestate
female
• They inherit in the absence of children, grandchildren and
husband.
• Widow of male descendants are not the primary heirs but
can inherit under Clause b.
Clause (c): Mother and father
• Placed on an equal footing
• Biological parents
• Adoptive parents
• If intestate was an illegitimate daughter: only mother inherits
• If intestate was born out of void/voidable marriage: both
parents inherit
• Stepmother not included (inherits as father’s heir)
• Stepfather not included (inherits as mother’s heir)
• If any of the heirs of the husband is present, parents of the
intestate do not inherit
Clause (d): Father’s heirs
• See Sections 8-13
• Presumed that property belonged to the father and
he died on the date of death of intestate
• Intestate’s brothers and sisters (half-blood or full-
blood) get included here
Clause (e): Mother’s heirs
• Presumed that the property belonged to the
mother and she died on the date of death of
intestate
• Intestate’s uterine brother or sister get included
here
Property inherited from father or
mother
Section 15(2). Notwithstanding anything
contained in sub-section (1),-
(a) any property inherited by a female Hindu from
her father or mother shall devolve, in the absence
of any son or daughter of the deceased (including
the children of any pre-deceased son or daughter)
not upon the other heirs referred to in sub-section
(1) in the order specified therein, but upon the
heirs of the father
S. 15 (2) (a)Property inherited from
either of the parents (Mother or Father)
1. Son, daughter, children of predeceased son/daughter
2. Heirs of father:
• Presumed that the father died on the date of the death of
the deceased.
• Inherited means to inherit as an heir. Does not include
property received by will or a gift.
• Even if inherits property from her father, sells it and buys
another property- that would be her general property.
• Where she dies issueless- no children or grandchildren-
even in the presence of the husband- will revert back to
the father’s heirs
• If property was inherited from mother, it will revert back to
father if alive or upon heirs of father
Property inherited from husband
or father-in-law
(2) Notwithstanding anything contained in sub-section (1),-
(b) any property inherited by a female Hindu from her husband
or from her father-in-law shall devolve, in the absence of any
son or daughter of the deceased (including the children of any
pre-deceased son or daughter) not upon the other heirs referred
to in sub-section (1) in the order specified therein, but upon the
heirs of the husband.
Property inherited from husband or
father-in-law
• Property inherited from husband as his widow
• Property inherited from father-in-law as widow
of predeceased son
Property inherited from husband
or father-in-law
1. Son, daughter, children of predeceased son/daughter
2. Heirs of husband
• If she dies issueless (no children and no
grandchildren), the property reverts back to the
husband’s heirs.
• If she remarried after inheriting the property and died
leaving behind issues from her second husband, she
has not died issueless and her children and husband
will get the property but if she dies issueless- the
second husband will not get anything and it will revert
back to the first husband’s heir.
What if she remarries?
• A woman W is married to a man H1. W inherits
H1’s property on his death. After H1’s death,
she marries H2. Who will inherit W’s property
that she inherited from H1, after her death?
• If she has children (or grandchildren) from her
second marriage to H2, children will inherit the
property along with H2
• If she has no children (or grandchildren), heirs
of H1 will get the property
What if no heir of husband is alive?
• If a woman inherits property from her husband,
and no issues or heirs of husband exist?
• The property treated as general property of the
intestate not inherited from
parents/husband/father-in-law
• Doctrine of escheat does not apply
Section16. Order of succession and manner of
distribution among heirs of a female Hindu
• The order of succession among the heirs referred to in
section 15 shall be, and the distribution of the intestate
property among those heirs shall take place according to
the following rules, namely:-
• Rule 1 .- Among the heirs specified in sub-section (1) of
section 15, those in one entry shall be preferred to
those in any succeeding entry and those including in the
same entry shall take simultaneously.
• Rule 2.- If any son or daughter of the intestate had pre-
deceased the intestate leaving his or her own children
alive at the time of the intestate’s death, the children of
such son or daughter shall take between them the share
which such son or daughter would have taken if living at
the intestate’s death.

• Rule 3.—The devolution of the property of the intestate on


the heirs referred to in clauses (b), (d) and (e) of sub-
section (1) and in sub-section (2) to section 15 shall be in
the same order and according to the same rules as would
have applied if the property had been the father’s or the
mother’s or the husband’s as the case may be, and such
person had died intestate in respect thereof immediately
after the intestate’s death.
Rules:
• Each son, daughter and husband: one share each
• Where a son/daughter predeceased the female
intestate, but is survived by a child/children, the
branch takes a share.
• Within one branch, the children of predeceased
children take equal shares among themselves..
Hypo: Allot the shares with
reasons
• Hypo 1: Hindu female dies and is survived by her husband H
and one son S1 and one daughter D1 and two daughters of a
predeceased daughter D 2.
• Hypo 2: Hindu female dies leaving behind a husband, one son
S1 and two daughters of a predeceased son S 2, two
daughters of an illegitimate predeceased daughter D1.
• Hypo 3: A Hindu woman dies leaving behind her husband’s
father and her mother.
• Hypo 4: A Hindu woman dies leaving behind her husband’s
father, mother and a daughter of a predeceased daughter of a
predeceased daughter, a son of a predeceased son of a
predeceased son.
HYPO:
• Draupadi, a Hindu female married Arjun after the death of his first
wife. Arjun already had a son Abhimanyu from his first marriage.
Later Draupadi and Arjun had two daughters Meera and Neena.
Meera died leaving a daughter Naina from her live-in relationship.
Neena against the wishes of her parents changed her religion and
became Christian to marry James. Neena died leaving behind her
husband James and two Christian sons Mathew and Alex. Alex grows
up and converts to become Hindu. Draupadi dies in 2010 leaving
behind Arjun, Abhimanu, Naina, James, Mathew and Alex.
• (i) Determine the shares of the heirs with reasons if Draupadi
died with her self-acquired property.
• (ii) Determine the shares of the heirs with reasons if Draupadi,
having only inherited property from her father, died issueless just
within 1 month of her marriage with Arjun in 1957 leaving behind 238
her sister, physically challenged brother and mother.
(i) Part I

C: refers to Christian
H: refers to Hindu

Draupadi Arjun FW

(Neena)(C) James (C) (Meera) Abhimanyu (Step-son)

Alex (H) Mathews (C) Naina


(Born out of live-in relationship)
239

Type of Property: Draupadi died leaving behind her self-acquired property.


• In this case, the property will devolve upon the legal heirs of
Draupadi as per Section 15 (1) (a) of HSA. The property shall
devolve upon sons, daughters and husband.
• Abhimanyu being the step-son will not inherit from Draupadi.
• Section 26, HSA will be applicable to Alex and Mathews. Alex
being Hindu will be entitled to inherit the share of his mother
since Section 26 allows the descendants of converts to inherit
if they are Hindus when succession opens. James and Mathews
are Christians and will not inherit from Draupadi.
• Section 3 (j) HSA will be determine Naina’s right to inherit.
Naina is judicially legitimate daughter of Meera. Section 3 (j)
mentions that their ‘legitimate descendants of illegitimate shall
be deemed to be related to them and to one another’. Children
born out of live-in relationships are entitled to inherit from the
separate property of their parents. See Madan Mohan Singh &
Ors. vs Rajni Kant & Anr. (Supreme Court, 13 August 2010).
So, Naina will only inherit separate property of het own
mother Meera but not of her grandmother Draupadi.

• Shares out of Draupadi’s property: Arjun- 1/2, Alex- ½ 240


(ii) Part II

(Father) Mother

Sister Brother Draupadi Arjun (Husband)


(Physically
Challenged)

Type of Property: Draupadi inherited property from her father. 241


• In this case, Section 15 (2) (a) applies. Since Draupadi
died issueless, her property will devolve upon the legal heirs
of father i.e. Mother, Sister and Brother (Section 8 HSA).
Arjun will not inherit anything after death of his wife
Draupadi. See Bhagat Ram v. Teja Singh, AIR 2002 SC 1.
• Shares out of Draupadi’s property: M- 1/3rd, Sister-1/3rd,
Brother- 1/3rd. Brother will not be disqualified on ground of
his disability (Section 28, HSA).

242
CASES:
• Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628
• Jagannathan Pillai v. Kunjithapadam Pillai, AIR 1987 SC 1493
• Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi, AIR
1977 SC 1944
• Bhagat Ram v. Teja Singh, AIR 2002 SC 1
• Jayalakshmi Ammal v. Kaliaperumal, AIR 2014 Mad 185
• Omprakash v. Radhacharan, 2009(7) SCALE 51
• Dhannulal and Ors. v..Ganeshram and Ors., AIR 2015 SC 2382

243
Pratibha Rani v. Suraj Kumar, AIR
1985 SC 628
• Issue: Whether misappropriation of Stridhan amounted to
criminal breach of trust under the IPC? Whether the husband or
any other relative has the power to alienate stridhan?
• Facts:
• The complainant – appellant was married to Suraj Kumar-
Accused No.1 (Respondent).
• Accused No.2 is the father and Accused No. 3 to 5 were brothers
and Accused No. 6 is the brother-in-law.
• All the accused demanded dowry.
• The appellant’s parents gave by way of dowry – jewelry and
clothes worth RS. 60,000 which was taken into possession by the
accused.
• The appellant was abused and beaten up by accused No.1 and
was turned out along with her children.
FATHER(Respon
dent5)

W H B1(Respond B3(Responde
(Appellant) (Respondent ent2) B2(Responde nt 4)
1) nt 3)
• The articles were never given by the accused to the
complainant for her use and possession of the same was
illegally, dishonestly retained by the accused in order to make
a wrongful gain to themselves and wrongful loss to the
complainant.
• The parents of the appellant had directed the accused at the
time of marriage to give the articles to the appellant for her
use.
• A perusal of the articles revealed that most of the articles
could not be used by the husband and they were actually
given for the use of the appellant.
• Articles included sarees, bangles, silver articles, diamond and
gold sets
246
DECISION:
• The court held that a pure and simple entrustment of stridhan
without creating any rights in the husband excepting putting
the articles in his possession does not entitle him to use the
same to the detriment of his wife without her consent.
• It was held that the accused having dishonestly
misappropriated the articles handed over to them in a
fiduciary capacity have committed the offence of criminal
breach of trust under section 406 of IPC.

247
Jagannathan Pillai v.
Kunjithapadam Pillai AIR 1987 SC
1493

(Husband) Wife Alienee


(Died Pre Status ?
HSA, 1956) Transferred by Sale/
Gift(Pre HSA, 1956)

Property W Acquired Property Property


Limited Re Transferred
Estate (Pre by Registered
HSA) Document (Post
HSA, 1956)
Jagannathan Pillai v. Kunjithapadam
Pillai, AIR 1987 SC 1493
• Issue: Whether conveyance of property which had been alienated by
the widow comes to her with absolute title?
• Facts:
• A Hindu female acquired property before the commencement of the
Act which was termed as the widow’s estate.
• She did not at the time of acquiring the property have absolute rights
over it.
• She transferred the property in favour of an alienee by a registered
document of ‘sale’ or ‘gift’.
• The property was transferred back to her by the alienee after the
enforcement of the Act.
• The Court held her to be the absolute owner of the property in
question. It stated that a Hindu woman will have absolute ownership
over a property, if she has actual or constructive possession of a
property before or after commencement of the Act.
• The temporary loss of possession does not matter.
Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi, AIR
1977 SC 1944

250
Vaddeboyina Tulasamma v.
Vaddeboyina Sesha Reddy

Step Brother --------------------------[X] ---------------------------------W


[ V. Sesha Reddy, Respondent]
[Tulasamma/ Appelant]
Vaddeboyina Tulasamma v.
Vaddeboyina Sesha Reddi, AIR 1977
SC 1944
• Issue: Whether property allotted to a widow for an already
existing right under an instrument, decree, order or award will
be governed by Section 14(1) or 14(2)?
• V. Reddy, the husband of the appellant died in the year 1931 as
an undivided member of a joint family with his step brother S.
Reddy (respondent)
• The appellant in 1944 filed a petition for maintenance against
the respondent.
• The respondent filed an Interlocutory application (I.A) for
recording a compromise between the appellant and the
respondent which the appellant opposed. The I.A was
dismissed.
• There was a decree in favour of the appellant in the
maintenance suit and she filed execution proceedings.
• Appeal was filed against the decree by the respondent which was
dismissed.
• A compromise was arrived at during the execution proceedings
which was recorded by the Execution Officer under CPC and the
appellant was allotted properties and was to enjoy only a limited
interest with no power of alienation.
• According to the terms of the compromise, the properties were to
revert back to the respondent after the death of the appellant.
• Appellant remained in possession even after the coming of the Act
in 1956 and in 1961 she leased out some properties and even sold
some properties.
• The respondent filed a suit for declaration that the alienations
made by the appellant were not binding and could remain valid
only till the lifetime of the appellant.
• As according to 14(2), she had acquired the property only with a
limited interest by way of a compromise. The Munsiff held that
the widow only had a limited interest.
• The appellant filed an appeal before the District Judge who
reversed the findings of the lower court. The respondent filed an
appeal before the HC which held that 14(2) was applicable as
compromise was an instrument contemplated by Section 14(2).
Therefore the appellant filed an appeal in the SC.
• The SC held that “The Hindu female's right to maintenance is not
an empty formality or an illusory claim being conceded as a
matter of grace and generosity, but is a tangible right against
property which flows from the spiritual relationship between the
husband and the wife..” “
• Sub-section (2) of Section 14 applies to instruments, decrees,
awards, gifts etc. which create independent and new titles in
favour of the females for the first time And has no application
where the instrument concerned merely seeks to confirm,
endorse, declare or recognize pre-existing rights.
• “The use of express terms like "property acquired by a female
Hindu at a partition", "or in lieu of maintenance" "or arrears of
maintenance" etc. in the Explanation to Section 14(1) clearly
makes Sub-section (2) inapplicable to these categories which
have been expressly excepted from the operation of Sub-
section (2).”
• Thus property received in lieu of maintenance even if it was
acquired by way of a decree of the court or award, it would be
governed by Section 14(1) and not 14(2) as this a pre-existing
legal right.
• The appellant had full and absolute ownership over the suit
property and the alienation was valid without any restrictions.
Bhagat Ram v. Teja Singh, AIR
2002 SC 1

256
BHAGAT RAM (D) BY LRS. VS. TEJA SINGH (D) BY LRS.
(06.11.2001 - SC)
M {MOTHER OF S AND
I}

T X S I
{BROTHER {HUSBAND OF S: PRE- {DECEASE {SISTER OF S}
OF X} DECEASED}
D}
Bhagat Ram v. Teja Singh, AIR 2002
SC 1
• Issue: Property inherited from mother- whether 15(1) or 15(2)
applicable?
• Facts:
• Kehar Singh was the owner of some land, he dies prior to
partition and his widow and two daughters migrated to India.
• The widow- Kirpo, in lieu of the property in Pakistan was allotted
some property in India.
• Kirpo died in 1951 and the two daughters- Santi and Indro
inherited the property equally.
• Santi died in 1960 and property left by her was mutated in the
name of the surviving sister Indro. Smt Indro had entered into
an agreement with Bhagat Ram and Bhagat Ram had filed a suit
for specific performance for sale.
• The brother of Santi’s deceased husband Teja Singh filed a suit
alleging that after Santi’s death, the property should devolve on
the husband’s heirs according to Section 15(1).
• The court held that since Santi had inherited the property from
her mother, 15(2) was applicable. If the property held by a
female was inherited from her father or mother, in the absence
of any son or daughter of the deceased including the children of
any pre-deceased son or daughter, it would only devolve upon
the heirs of the father, in this case, her sister Smt. Indro was the
only legal heir of her father.
• Even if the husband was alive, the property would have devolved
on Indro. Hence Teja Singh had no right in the property.
Omprakash v. Radhacharan, 2009(7)
SCALE 51
• Issue: whether the self-acquired property of the female dying
intestate would devolve according to Section 15(1) or 15(2)?
• Facts:
• N. Devi was married to Dindayal. Dindayal died within three
months of marriage
• She never stayed in her matrimonial home and was driven out of
that home immediately after the death of her husband.
• She had various bank accounts and a large sum in a PF account.
• Property of N.Devi was self acquired property and were not
inherited from the parents.
• N.Devi has never visited her husband’s home and never met the
heirs of the husband who were now claiming rights over N.Devi’s
property.
Holding:
• The court held that “it is now a well settled principle of law
that sentiment or sympathy alone would not be a guiding
factor in determining the rights of the parties which are
otherwise clear and unambiguous.”
• It held that since 15(1) read with Section 16 makes it
abundantly clear that the self acquired property of a Hindu
female dying intestate shall devolved according to Section
15(1) and 16 and hence it would go to the heirs of the pre-
deceased husband.
Jayalakshmi Ammal v.
Kaliaperumal, AIR 2014 Mad 185
• The Madras high court has made it clear that the moment
property is given in favour of a Hindu woman, she becomes
the absolute owner despite the restrictions and limitations
contained in the settlement deed.
Actual Family

Swarnatham
Jayalakshmi
mal Dharamraj
Ammal
Wife 1 Pillai
Wife 2
(2nd Defendant) Husband
(Plaintiff 2)
(seller)

Kaliaperu Iyyappan
mal Son from
1st marriage 2
Defendan (1st Plaintiff-
t deceased)
(buyer)
(not
family
member)
Relatable Family

Wife Husban Wife


1 d 2

Son from
Facts
• H- W1: no children, together for 26 years
• 19.11.1965: W1 registered document consented to husband’s
second marriage. H wrote settlement deed in f/o W1 for first
item.
• 03.12.1965: H married W2, walking out of 26 yr old marriage
with W1
• 1982: S born
• 22.09.1982: Sold property to buyer
• S filed suit, died. Represented by W2.
• “W1 to enjoy property till her lifetime and the property would
revert back to H if no issues born to W1. “- Settlement deed.
Facts
• "Dharmarajapillai, who lived with Swarnathammal(first wife) for
26 years, had married Jayalakshmi Ammal (second wife) with
the former's consent on November 19, 1965 as the couple had
no children.
• Consent was expressed through a registered document executed
by the first wife in favour of her husband.
• The same day Dharmarajapillai executed a settlement deed in
which it was mentioned that first wife can enjoy the property
till her lifetime and after that it will revert back to him.
• The first wife after the death of her husband alienated the
property. The second wife on behalf of her minor son challenged
this alienation. The minor son died during the pendency of the
suit and the second wife as his heir claimed the suit property.
• Jayalakshmi Ammal contended that the power conferred under
the settlement was only a limited one and not absolute.
Issues
• Does the settlement deed executed by H in favor of W1 to
facilitate second marriage confers limited estate or absolute
estate upon setlee?
• If did not fall under s. 14(2)HSA, whether it would get enlarged
into absolute estate by virtue of s. 14(1) of HSA since property
towards her pre-existing right to maintenance. ?
Analysis
• Taking second wife during subsistence of first marriage is
matrimonial injury and cruelty to first wife.
• Recognized ground for first wife to seek divorce
• Alleged consent which is not proved to be voluntary and valid,
will not exonerate her husband from paying maintenance
• Conferment of property with limited rights can only offer
solace to minimum extent
• According to HSA, 1956 S. 14(1) includes present case hence,
she has absolute rights and can sell property.
Analysis continued..
The object of Section 14 is two-fold :
(1) to remove the disability of a female to acquire and
hold property as an absolute owner and
(2) to convert the right of woman in any estate held by
her as a limited owner into an absolute owner.
The provision was retrospective in the sense that it enlarged the
limit of the estate into an absolute one even if the property was
inherited or held by the woman as a limited owner before the Act
came into force. Any property acquired under the 1937 Act held
in capacity of a limited owner was now converted to her absolute
estate.
• Section 14 (2) is merely a proviso to Section 14(1) and has to
be interpreted as a proviso and not in a manner so as to
destroy the effect of the main provision.
• Section 14(2) does not refer to any transfer which merely
recognizes a pre-existing right without creating or conferring a
new title on the widow;
Decision:
• Rejecting the contention, the judge said the express language used in
the settlement deed interpreted in the light of Section 14 of the Hindu
Succession Act, would lead to the conclusion that what was conferred
was only an absolute one and not a limited estate.
• The judge said "the recitals in the documents reveal the expectation in
the mind of the settler that he would get back the property at any cost.
There is an assumption that the first wife will predecease him. He would
live and enjoy the property after her death.“
• The settlement was made in lieu of her maintenance rights and thus she
became absolute owner from moment, she was placed in possession of
suit property, despite limitations and restrictions contained in
instrument of settlement deed
• Therefore the first wife has got every right to dispose the property and
the sale is valid. Therefore purchaser of the property is succeeded and
the appeal is dismissed."
• The judge said the amendment was brought to the Section 14 of the
Hindu Succession Act to take care of such documents existing with
fraudulent intentions.
• The section says "any property acquired by a Hindu female before or
after the commencement of this act shall be held as full owner and not 272
as a limited owner and hence the sale of property by the first wife is
valid," the judge said.
• While delivering the judgment, the judge made some
observations about the status of married women who do not
become pregnant.
• "Though women are not alone the cause for the issue yet the
problem of infertility has broken many homes, separated many
couples and caused disharmony between the couples while
they are living together," she observed.
• She further said "the most inhumane form of insult is the
husband, who getting married while the first wife is alive,
trying to justify the second marriage in the name of giving gift
of property to first wife."
• Therefore, the second wife was not entitled to the suit property.
Held
• Interpretation that women will get only limited rights will
encourage more men to create broken families and to
promote illegal activities (#Bigamy)
• When property given to Female Hindu towards her
maintenance after commencement of the act (1956) she
becomes ABSOLUTE OWNER thereof from moment she is
placed in possession of said property despite limitations and
restrictions contained in instrument
• Sale in favor of buyer (sale by W1) confirmed
Dhannulal and Ors. Vs.
Ganeshram and Ors.
S

275
276
Facts:
• Plaintiff: Plaintiff-Ganeshram, the grandson of Sumitrabai
• Defendants: Phoolbasa Bai (D1) & sons of her brother Gayaprasad,
Defendant Nos. 1-4.
• The suit property was originally owned by Shivram who had a
daughter Sumitrabai and a son Chhatrapati.
• The Plaintiff-Ganeshram, the grandson of Sumitrabai, filed a suit for
declaration of ownership, possession and damages in relation to the
suit property against Defendant Nos. 1 to 5.
• The Plaintiff challenged the validity of the Will dated 18.08.1977
purported to have been executed by Phoolbasa Bai in favour of the
sons of her brother Gayaprasad, Defendant Nos. 1-4.
• The Plaintiff also challenged the validity of the sale deed purported
to have been executed by Phoolbasa Bai in 1987 in favour of 277
Defendant No. 5 in relation to a portion of the suit property.
• The Plaintiff alleged that Sumitrabai (Plaintiff's grandmother) had
become the owner of the suit property by adverse possession
having stayed therein, after the death of her husband Mangal,
with her father Shivram till his death in 1932 and till her own
death in 1976.
• Phoolbasa Bai was alleged to have been the mistress and not the
legally wedded wife of Chhatrapati and their son was alleged to
have died unmarried and issueless in 1967.
• The sale deed and the Will purported to have been executed by
Phoolbasa Bai were alleged to be illegal.
• The suit was contested firstly by filing joint written statement by
the original Defendants namely Phoolbasa Bai and Gaya Prasad
stating that after the death of Shiv Ram the entire property was
succeeded by Chhatrapati (his only son) as Sumitrabai was a
married daughter.
• It was further pleaded that Phoolbasa Bai, being the lawful
wedded wife of Chhatrapati, became the owner of the suit
property after Chhatrapati's death in 1945. 278
• Phoolbasa Bai died during the pendency of the suit in the year
1992.
Decision:
• Issue: Whether Deceased was not legal wife of Original
Owner's only son and Plaintiff's grandmother-daughter of
Original Owner's daughter had become owner of suit
property by adverse possession?
• Phoolbasa Bai was living with the joint family when
Chhatrapati was alive for the last 20 years, but there is no
evidence of valid marriage.
• Held, relationship of Original Owner's only son and Deceased
had not been denied and they had been living together as
husband and wife in joint family . There was strong
presumption in favour of validity of marriage and legitimacy
of its child for reason that alleged relationship were
recognized by all persons concerned . Law presumes in
favour of marriage and against concubinage, when man and
woman have cohabited continuously for long time .
279
• The Court held that the Deceased was legally married wife of
Original Owner's son.
Decision:
• Issue: Validity of Will. Whether Will in question was rightly alleged
to be legal ?
• Will purported to be executed by 1st Defendant-Deceased was not
proved as per law .
• Held, execution of document does not mean mechanical act of
signing document or getting it signed, but intelligent appreciation of
contents of document and signing it in token of acceptance of those
contents . Proof of Will stands in higher degree in comparison to
other documents. It is only after executant puts his signature,
attesting witnesses shall put their signatures in presence of
executant . Suspicious circumstance appeared to be that when Will
was being executed, thumb impression over alleged Will was also
taken by beneficiaries and document-writer was shown to be scribe
of document, whereas document was not scribed by him .
• However, Deceased although filed written statement before her
death, but she did not whisper anything about Will in written
statement.
• The Will was not proved as per law, but upheld the sale deed
executed by Phoolbasa Bai in favour of Defendant No. 5. 280
• Now the question arises, what should be the legal position
after the death of Smt. Phoolbasa and her son namely
Mannulal when it has been held that the alleged will
executed in favour of Defendants Nos. 1 to 4 was not proved.
• Certainly these properties were succeeded by her from her
husband or from her father-in-law, therefore, according to
Section 15(2)(b) of the Hindu Succession Act, this shall
devolve, in the absence of any son or daughter of the
deceased (including the children of any predeceased son or
daughter) upon the heirs of her husband.
• In this case, if we look to the pedigree set forth in the plaint,
the succeeding heir of her husband, namely Chhatrapati,
would be sister's daughter which finds place as serial No. 4 in
Entry IV of Class II of Schedule. When Radha Bai, the sister's
daughter is said to be alive on the date of succession
according to the plaint allegations itself, then the Plaintiff, in
the reversionary right will not get the ownership of the
281
property.
Jupudy Pardha case

282
283
RULES REGARDING
MATRILINEANL SYSTEM
(SECTION 7, 17)
284
17. Special provisions respecting
persons governed by
marumakkattayam and
aliyyasantana laws.-
• The provisions of sections, 8,10, 15 and 23 shall have effect in
relation to persons who would have been governed by the
marumakkattayam law or aliyasantana law if this Act had not
been passed as if-
• (i) for such clauses (c) and (d) of section 8, the following had
been substituted, namely :- ” (c) thirdly, the there is no heirs
of any of the two classes, then upon his relatives, whether
agnates or cognates”.
• (ii) for clauses (a) to (e) of sub-section (1) of section 15, the
following had been substituted, namely:-
• “(a) firstly, upon the sons and daughters (including the children
of any pre-deceased son or daughter) and the mother.
• (b) secondly, upon the father and the husband.
• (c) thirdly, upon the heirs of the mother.
• (d) fourthly, upon the heirs of the father, and
• (e) lastly, upon the heirs of the husband”.

• (iii) clause (a) of sub-section (2) of section 15 had been


omitted.
• (iv) section 23 had been omitted.
CLARIFICATIONS
ON
AMBIGUOUS AREAS
287
Daughter’s Coparcenary interest:
Post 2005 amendment
• Daughter’s share in joint family property post 2005 amendment:
• Married Daughter: Now that daughter are also coparceners and
according to Section 6 has all incidents of coparcenary, you have 2
options:
• (A) Since her children are already coparceners in their father’s
family so they cannot be coparceners in their mother’s family
(maternal grandfather) as coparcenary in two families is not
concept of classical Hindu law. By application of Section 14 HSA,
her coparcenary interest will mature into her absolute property
and will devolve as per Section 15 HSA after her death.
• (B) Since as of now we do not have any case curbing the revival of
coparcenary in case of a daughter so you give her all rights under
coparcenary and all revival of a coparcenary thereby giving share
to her children as a branch but not to her husband. [(Section 6 (3)
(b)]
• Unmarried Daughter:
• She can adopt a child and can continue her father’s joint family or 288
coparcenary.
Share of Husband under Section 15 (2)
where a female did not die issueless
• Under section 15(2)(a) and (b) in case woman leaves
behind her children or grandchildren (in case of
predeceased children) then the husband also gets a share.
• As long as a woman’s children or grandchildren (in case of
predeceased children) are alive then source of property
doesn’t matter and give the property as per section
15(1)(a).
• Only when the children or grandchildren (in case of
predeceased children) are not alive you should go to
section 15(2)(a) and (b) and consider the source of
property. In that case do not allot any share to husband
289
but pass it on to heirs of father (sec 15(2)(a) and to heirs of
husband (sec 15 (2)(b)).
Share of Father in Property inherited
from Mother under 15 (2) (a)
• In case where the female intestate inherited the property
from her mother and died issueless (i.e. No children or
children of her pre-deceased children); the property will
devolve upon the Father and not upon heirs of father.
• This property will devolve upon the heirs of father only after
his death.

290
Statutory legitimate/Judicially
legitimate/ illegitimate child
• Treat these benefits as personal for such children.
• These benefits cannot be extended their
descendants whether legitimate or illegitimate.
Therefore, don’t apply Rule of representation in such
cases.
• Thus, grandchildren of intestate (representing pre-
deceased children) will only inherit if both the
grandchild and the predeceased child were
legitimate.
• There is lack of clarity from both the legislature or
judiciary regarding the rights of legitimate
descendants of statutory legitimate/Judicially
legitimate /illegitimate children 291
Convert’s Hindu Wife
• She is not covered under Caste Removal
of Disabilities Act, 1850 as it only protects
the personal right of inheritance of
convert and not of his wife or
children/descendants
• Section 26 only covers Convert’s
descendants who are Hindus and not the
wife of Convert even if she is a Hindu. So,
she doesn't inherit under Section 26 HSA. 292
ARTICLES

293
Lucy Carrol, Daughter’s Right of Inheritance in India, Modern
Asian Studies, Vol. 25 No.4 (Oct, 1991)
• The law of succession has been changed, giving equal right of inheritance to the daughter
along with the son under Hindu Succession Act, 1956, and abolished the woman's limited
estate in the context of intestate succession. However, did not affect the concept or
constitution of joint family property UNTIL 2005 and concept of NOTIONAL PARTITION
applied. Thus, rather than attempting a wholesale reform of the Mitakshara system, the
Hindu Succession Act merely tinkered with it.
• Before the Hindu Succession Act I956, the Hindu daughter was excluded from
succession to her father's property by the presence of a son, a son's son, a son's son's
son, or a widow.
• The daughter's right to maintenance until marriage and to her marriage expenses
• Further, when a woman did succeed to property, she held it in limited, as opposed to
absolute, estate. She was entitled to possess, use, and enjoy the property, but not to
waste or alienate it, during her tenure-i.e., usually until her death, but in some
circumstances marriage or remarriage would bring her tenure to an end.
• Both before and after the Hindu Succession Act, the position of the widow or mother
was and is considerably superior to that of the daughter.
• A Mitakshara father can severely alter his daughter’s rights of succession to his separate
property by convert his separate property into joint family property-either by declaring
it so to be and treating it as such (there may be tax advantages in so doing)
• Section 30 HSA allows a Mitakshara father to bequeath his joint property interest in a
Will (as well as his separate property) to his thereby disinheriting his daughter
• Before HSA: Given the exclusion of daughters as heirs to the property of
their father, dowry represented-and arguably still represents in the vast
majority of Hindu families-the daughter's major right in the property of her
own family. The attempt to abolish or render illegal dowry transactions is to
negate even further the daughter's property rights in her family of her birth.
• After HSA 1956, the daughters take their shares as absolute, separate
shares; do not become members of the coparcenary unit by virtue
ownership of these shares. Perhaps one or more of the coparceners will buy
them out; more likely perhaps, the daughters may be encouraged to forego
their shares in favour of their brothers.
• The problem of dowry should be seen in the context of other property rights
of the daughter, and criticism and condemnation of the dowry system should
be coupled with advocacy of reform of the daughter's rights as an heir to the
property of her natal family.
• MUSLIM LAW is frequently criticized because it gives daughters a equal to
only half that taken by a son. However, Mitakshara law, even after the
Hindu Succession Act, is much harsher in it’s treatment of the daughter as an
heir to joint family property in the presence of a son. Further, given the fact
that a Muslim is permitted to dispose of a maximum of only one-third of his
estate by will, a Muslim daughter cannot be totally disinherited by her father
in the way a Hindu daughter can be deprived of her new rights under HSA
Section 30 or the Mitakshara daughter deprived of any inheritance to her
father’s interest in joint family property by the even simpler renouncement by
him in favour of his other coparceners.
• Devolution under DAYABHAGA LAW before HSA 1956: There was no distinction
under the pre-i956 law in regard to the devolution of property held by a
Dayabhaga male depending on whether the property was joint family property
as well as his own separate property; his undivided interest in joint family
property as well as his separate property passed by inheritance to the same heirs
in the same hierarchy of preference. Before 1956 in both Mitakshara and
Dayabhaga the daughter was an heir to the separate property of her father if he
left neither son, son's son, son's son's son, or widow. The absence of a rule of
survivorship in Dayabhaga meant that a daughter might well figure as an heir to
her father's joint family property, which she could never do in Mitakshara, unless
her father were a sole surviving coparcener.
• AFTER HSA, 1956: All Dayabhaga property passes under the 1956 Act in
intestate succession.
• The absence in Dayabhaga of both male birthright in joint family property and
succession by survivorship means that the Hindu Succession Act had a much
more comprehensive and dramatic effect on the legal position of the
Dayabhaga daughter than on the Mitakshara daughter. Since the son does
not take a share of the Dayabhaga father's property on birth, all of the
father's property passes by inheritance. Since all Dayabhaga property passes
by inheritance, in the absence of a will, it all comes under the intestate
provisions of the Hindu Succession Act which make sons and daughters
simultaneous and equal heirs.
• REFORM OPTIONS: There are two approaches that could be
taken towards amelioration of the Mitakshara daughter’s
position:
• Option I: Creation of birth right for females: The daughter as well
as the son could be given a right by birth in the joint family
property. This has one clear advantage in that the daughter, if she
had such a birthright, could not be disinherited either by her
father’s will or by his renunciation in favour of the coparceners
(renunciation cannot be in favour of any particular coparceners
and must be in favor of the coparcenary group as a whole).
• Because Women are not members of the coparcenary under
Hindu Mitakshara law and therefore they are not entitled to
claim partition in coparcenary property, and such exclusion of
daughters has led to the creation of socially pernicious dowry
system with its attendant social ills. In order to eradicate this ill
by positive means which will simultaneously ameliorate the
condition of women in Hindu society, it is proposed to confer
equal rights on Hindu women along with male members so as
to achieve the constitutional mandate of equality by suitable
amending the HSA.'
• REFORM OPTIONS: Option 2: Abolition of birthright and
survivorship: This approach has the advantage of
tremendous simplicity, coupled with the fact that it would
assimilate the Mitakshara system to that of the Dayabhaga,
thus constituting a step in the evolution of a Uniform Civil
Code. The suggestion that the right by birth presently
enjoyed by Mitakshara males be abolished-simple, obvious,
and elementary as it may appear to the outsider-is nothing
less than revolutionary in context of the immense
emotional appeal that the concept of male birthright has
for men.
• The disadvantage of reform which improves the position of the
Mitakshara daughter as an intestate heir is that the intestate
heir can be disinherited by will.
• Perhaps it might be worth considering adopting in Hindu law
the principle of Muslim law which limits the testamentary
freedom of an individual to a given proportion of his estate (in
Muslim law this proportion is one-third), and requires the
remaining bulk of the property to pass according to the rules
of intestate succession.
TAKE AWAY:

• Abstract legal rights are one thing; what happens down on


the ground is often something quite else. The Hindu
Succession has been in force for thirty years and, as far as I
am aware, there has been no research into its actual
impact and implementation.
• Has the Dayabhaga daughter claimed and obtained her
share of the property? if not, why not?
• Are daughters even aware of their new rights?
• Are wills being used to disinherit daughters? etc., etc.

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