INTRODUCTION

The text of Manu “sons take the property to the nearest sapinda, the inheritance next belongs”, is the foundation of the rules of inheritance amongst Hindus.[i] Prior to the enactment of the Hindu Succession Act, 1956, the ruling canon in determining the order of succession in the Mitakshara system was propinquity while in the Dayabhaga system it was religious efficacy. The Hindu Succession Act, 1956 and the rules for Hindus governed by the Marumakkattayam and Aliyasantana Laws, provide different schemes of succession for male and female intestates.

Under the Hindu Succession Act, for female intestates, there is further divergence linked with the source of the property that is the subject matter of inheritance. The property of a female intestate is classified into three categories, and the order of succession for each of the three categories differs. Rules for Hindus governed by the Marumakkathayan and the Aliyasantana laws provide for the categorisation of the property of a female into two, and here also, the heirs and of the order of succession vary for both the properties.

The relevant considerations for determining the inheritance law applicable to the property of a deceased are not only his religion but also his sect in the particular religious community, the sex of the intestate, his domicile at the time of his death, his status (if any of being a member of the scheduled tribal community) and also the type of marriage.

INTESTATE SUCCESSION

Sections 5 to 17 of the Hindu Succession Act of 1956 deal with intestate succession. Section 5 of the Hindu Succession Act specifies properties exempt from its provisions. It excludes properties governed by the Indian Succession Act, 1925, particularly when regulated by Section 21 of the Special Marriage Act, 1954. It also excludes estates that pass to a single heir by prior agreements with the Government of India or under pre-existing enactments. Additionally, the Act does not apply to the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board under Proclamation IX of 1124, issued by the Maharaja of Cochin.

Section 6 addresses the devolution of interest in coparcenary property. From the commencement of the Hindu Succession (Amendment) Act, 2005, daughters in a Mitakshara joint family acquire coparcener status by birth, granting them the same rights and liabilities as sons. This change does not invalidate any transactions or partitions made before December 20, 2004. Properties acquired by female Hindus under this provision are considered coparcenary property and can be disposed of by testamentary means. Upon the death of a Hindu post-Amendment, coparcenary property devolves by testamentary or intestate succession, with the daughter receiving an equal share to a son, and shares of pre-deceased relatives allocated to their descendants. Additionally, no court will recognize the pious obligation for debt recovery post-Amendment, except for debts contracted before the Act’s commencement.

Section 7 deals with the devolution of interests in properties governed by traditional laws such as marumakkattayam, nambudri, and aliyasantana. If a Hindu subject to these laws dies after the Act’s commencement, their property interests will be distributed according to testamentary or intestate succession under this Act instead of traditional laws. The share deemed to belong to the deceased will be calculated as if a partition had occurred among all living members just before their death. This applies to properties of tarwad, tavazhi, kutumba, or kavaru, ensuring that the deceased’s share is treated as absolute and not contingent on traditional claims.

Section 8 sets out the general rules of succession for male Hindus who die intestate. The distribution of property follows a specific hierarchy: firstly, it passes to the heirs listed in Class I of the Schedule; secondly, if no Class I heirs exist, it goes to the heirs in Class II; thirdly, if neither Class I nor Class II heirs are available, it is inherited by the agnates of the deceased; and lastly, if no agnates are present, it devolves to the cognates.

Section 9 details the order of succession among the heirs listed in the Schedule. Class I heirs inherit simultaneously and to the exclusion of all other classes. Among Class II heirs, those listed in the earlier entries take precedence over those in later entries.

Section 10 describes how to divide property among Class I heirs. The intestate’s widow (or widows) collectively receive one share. Each surviving son, daughter, and the mother of the intestate also receive one share each. The heirs from each pre-deceased son or daughter collectively receive one share, which is distributed such that the widow(s) and surviving children of the pre-deceased are treated equally. For heirs from the branch of a pre-deceased daughter, the distribution ensures equal shares among surviving children.

Section 11 explains the distribution among Class II heirs, where the property is shared equally among the heirs listed in a particular entry within Class II.

 

Section 12 provides rules for the order of succession among agnates and cognates. Preference is given to heirs with fewer or no degrees of ascent. If the degrees of ascent are equal or non-existent, preference is given to heirs with fewer or no degrees of descent. If neither rule applies, the heirs share the property equally.

Section 13 details how degrees of relationship are computed for determining the order of succession among agnates and cognates. Relationships are assessed from the intestate to the heir through both degrees of ascent and descent, including the intestate in the count. Each generation is considered a degree either ascending or descending.

Section 14 states that any property owned by a female Hindu, regardless of when it was acquired, shall be her absolute property. This includes movable and immovable property obtained through inheritance, partition, maintenance, gifts, personal skill, purchase, or any other means. However, if a property was acquired through a gift, will, decree, or award that specifies a restricted estate, the provisions of this section do not apply.

Section 15 outlines the rules for the succession of a female Hindu’s property when she dies intestate. The property first goes to her sons, daughters (including those of any pre-deceased children), and her husband. If none are present, it moves to the husband’s heirs, then to her parents, and subsequently to the heirs of her parents. Notably, property inherited from her father or mother, in the absence of children, goes to her father’s heirs, while property inherited from her husband or father-in-law, without children, goes to her husband’s heirs.

Section 16 specifies how the property of a female Hindu intestate should be distributed among her heirs. Heirs listed earlier in Section 15 are preferred over those listed later, and within the same entry, heirs share equally. If a pre-deceased child has surviving descendants, those descendants inherit the share that the child would have received. When the property devolves to the father’s or mother’s or husband’s heirs, it follows the same rules as if the property had been theirs and they had died intestate right after the intestate’s death.

For succession to the property of a female intestate, separate schemes are provided depending upon the source of acquisition of property available for succession. In the absence of children or grandchildren property inherited by a female for either of her parents in the capacity of their daughter, reverts to her father’s heirs.

Section 17 provides special rules for individuals governed by marumakkattayam or aliyasantana laws. It modifies Sections 8, 10, 15, and 23 of the Act for these individuals as follows: (i) Sub-sections (c) and (d) of Section 8 are replaced to include both agnates and cognates if there are no heirs in the first two classes. (ii) The order of succession in Section 15 is revised so that the mother, followed by the father and husband, are prioritized differently.

CONCLUSION

The Hindu Succession Act, 1956, represents a significant shift in the rules of inheritance for Hindus, addressing diverse needs and traditions within the community. The Act harmonizes succession laws for Hindus governed by different systems, including Mitakshara and Dayabhaga, and adapts the inheritance rules for both male and female intestates. For males, the Act outlines a structured hierarchy starting with Class I heirs, followed by Class II heirs, then agnates, and finally cognates. For females, the succession rules diverge based on the source of the property, with distinct provisions for property inherited from the father versus the husband. The Amendment Act of 2005 notably enhances the rights of daughters in Mitakshara coparcenary, equating them with sons in terms of inheritance and property rights.

Special provisions further accommodate those under traditional laws such as marumakkattayam and aliyasantana, ensuring that the transition to the Hindu Succession Act’s framework respects historical and cultural contexts.

 

[i] Adit Narayan v. Mahabir Prasad, 48 IA 8: (1921) 23 Bom LR 692.