Hindu Succession Act

Introduction

1.1 The Hindu Succession Act, 1956 governs the law relating to intestate succession among Hindus. The Act overrides the erstwhile uncodified Hindu Law.

1.2 This Act would have no application in case there is a will. The Act would thus, only apply in a case where a Hindu male or female dies without making a will and leaves behind property.

1.3 Application

The Act applies only in case of intestate succession to the following:

(i) Any person who is a Hindu, Jain, Sikh or Buddhist by religion.

(ii) Any person who is not a Muslim, Christian, Parsi or a Jew.

(iii) Any person who becomes a Hindu, Jain, Sikh or Buddhist by conversion or reconversion.

(iv) Legitimate / illegitimate child whose one or both parents is a Hindu, Jain, Sikh or Buddhist by religion. However, in case only one parent is a Hindu, Jain, Sikh or Buddhist by religion, then the child must be brought up by such parent as a member of his community, family, etc.

The Act overrides all Hindu customs, traditions and usage and specifies the heirs entitled to such property and the order or preference among them. The Act lays down separate rules for succession for males and females.

1.4 Escheat

In case there are no heirs of an intestate who are qualified to succeed to the property in accordance with the provisions of the Act, then such property would devolve upon the Government and Government would take such property.

Male Intestate Succession

2.1 Legal Position : The rules governing intestate succession of a Hindu male are specified in Section 8 to 13 of the Act. These rules are the substratum of the Act as they lay down how the property and the estate of a Hindu male will pass on to his heirs in case he fails to make a will or makes an invalid will – Manshan vs Tej Ram (1980) Suppl SCC 367. The property of an intestate Hindu male devolves on the following heirs in the order specified below.

(a) Firstly, upon his Class I heirs

(b) Secondly, if there is no Class I heir, then upon his Class II heirs

(d) Fourthly, if there is no Agnate, then upon his Cognates

2.2 Order of Succession : The Order of succession is in the order specified above.

2.3 Class I heirs : The Schedule to the Act specified the following 12 heirs as Class I heirs:

Son, Daughter, Widow, Mother, Son/Daughter of a predeceased son/daughter, Widow of predeceased son, Son/Daughter/Widow of a predeceased son of a predeceased son.

The above Class I heirs take the property simultaneously and in priority succession to all other heirs. Amongst themselves the distribution is as follows :

(i) The Intestate’s widow and if there are more than one such widow, then all of them taken together, take one share. The widow is permitted to receive this share even if she subsequently remarries. In the case of Cherotte Suganthan (D) vs. Cherotte Bharathi AIR 2008 SC 1467 it was held that the subsequent remarriage does not divest widow of her property.

(ii) The intestate’s children, mother and widow each take one equal share. It does not matter whether the daughter is unmarried or married. She gets an absolute share equal to that which the son gets.

(iii) The heirs in the branch of each predeceased child take one share between them.

(iv) The distribution of the share among the heirs in the branch of the predeceased son is so made that his widow/s and the sons and daughters each get an equal share. Further, the branch of his predeceased sons also get the same portion.

In case the distribution of the share is to be made among the heirs of the predeceased daughter, then it is so made that the surviving sons and daughters get equal portions.

It may be noted that the terms ‘son’ and ‘daughter’ include both those which are natural and those which are adopted.

It is very important to bear in mind that the mother of the deceased also has an equal share as a Class I heir. The mother is entitled to share even if the son is adopted or is illegitimate. Similarly, it must be remembered that the father is not a Class I heir but he is a Class II heir.

In the case of the son who inherits any property from his father the same would be treated as his separate individual property and it would not become the joint family property of the son. This view has been laid down by several Supreme Court decisions, such as Ram Rakhpal, 67 ITR 164 (SC).

III. Female Intestate Succession

3.1 Absolute Property : The rules governing intestate succession of a Hindu female are specified in Sections 14 to 16 of the Act. Prior to the coming into force of the Hindu Succession Act, a Hindu widow had a very limited interest in property inherited by her and she had no power on disposition over the said property. This disqualification has been done away with by Section 14 of the Hindu Succession Act, 1956.

The Act provides that any property acquired by a Hindu female shall be held by her as full owner and not as a limited owner. This includes both movable and immovable property which have been acquired by her:

(i) by inheritance or device;

(ii) at a partition;

(iii) in lieu of maintenance or arrears of maintenance;

(iv) by gift from any person, who may or may not be a relative, before or after her marriage;

(v) by her own skill or exertion;

(vi) by purchase or by prescription;

(vii) as Stridhana before the commencement of the Act;

(viii) in any other manner whatsoever.

Thus, a female Hindu has absolute power to deal with her property and she can dispose of her property by way of will, gift, etc. Earlier, a female Hindu did not have any power to dispose of her property by will. But now that embargo has been removed by virtue of the statutory provision.

3.2 Exception : However, in case the property has been acquired by her by way of a gift or under a will or under a decree / order of a civil court or under an award, the terms of which prescribe a restricted estate in such property, then she would not be treated as full owner in respect of such property. Thus, if the instrument by virtue of which she acquires the property specifies any restrictions, then those restrictions would be valid and would override the provisions of the Act.

3.3 Devolution of Property : Under Section 15 (1), The property of an intestate Hindu female devolves on the following heirs in the order specified below:

(a) Firstly, upon her sons and daughters (including the children of any predeceased children) and husband;

(b) Secondly, upon the heirs of her husband;

(d) Fourthly, upon the heirs of her father;

(e) Fifthly, upon the heirs of her mother.

The succession is in the order specified above. Thus, the children and husband of a female Hindu take the property in preference to all other specified heirs.