The distribution of the property among Hindus can be traced back to ancient Hindu laws. Though there were several schools and customs practiced throughout the country relating to inheritance, the present day laws of inheritance have been enacted with the aid of principles derived from two ancient schools i.e., Mitakshara system and Dayabhaga system. The legislated product of these consolidated practices is the Hindu Succession Act which was passed by the parliament in the year 1956. The aim of the Act was to eliminate the different schools of law relating to inheritance and compile them into one universal and comprehensive system of succession.
The preamble of the Act indicates that this is an Act applicable only to intestate succession of Hindus. Unlike the ancient Hindu laws, this Act i.e. ‘The Hindu Succession Act’ applies to all Hindus including Buddhists, Jains and Sikhs. Moreover, it is applicable to those people who have converted into Hinduism or any other religion on which this Act applies. However, this Act is not applicable to other religions like Muslims, Christians, Jews and Parsis. Also, this Act does not apply to the property of a Hindu who has married under ‘Special Marriage Act’ to a non-Hindu.
Basics of Succession Law Under the Hindu Succession Act
Application of the Act
The Hindu Succession Act is applicable to determine the inheritance of certain categories of properties of males based on ancient Hindu practices. These include:
- The separate properties of a Mitakshara male
- The separate properties and coparceners’ properties of a Dayabhaga male and
- The undivided interest in the joint family property of a Mitakshara Coparcener.
Types of Succession
Testamentary Succession – This is the type of succession where the propositus leaves behind a will to be executed on his death.
Intestate Succession- If the propositus dies without a will the division of property among his legal heirs is to be governed by these laws.
Methods of Division of Property
Per Capita – Under this method all the individuals under a particular class or category will inherit the same share of the property.
Per Stirpes – Under this method there’s a certain hierarchy according to which the shares are distributed among individuals.
Prospective Nature of the Act
The Hindu Succession Act is, in general, prospective in nature. Section 8 of the Act which talks about devolving of the property of a Hindu male dying intestate was held inapplicable in a case where succession had opened before the commencement of the Act. In another case, Supreme Court has held that the section applies to a case where on death of a male intestate, devolution of his property happens post the commencement of the Act.
Succession of A Hindu Male
Section 8 to Section 13 talks about devolution of the property of a Hindu Male dying intestate. These sections apply to intestate property only. Section 8 offers a novel and comprehensive scheme of succession.
There are certain categories of heirs listed in The Hindu Succession Act. These include:
- Class I heirs,
- Class II heirs,
- Cognates and,
List of Heirs in Each Category and their Share in the Property
Class I heirs- Class I heir originally consisted of twelve relatives. Consecutively, four more heirs were added to the list. Class I heirs include mother, widow, daughter, son, widow of a predeceased son, son of a predeceased son, daughter of a predeceased son, widow of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased daughter, and son of a predeceased daughter. Four new heirs which were added by 2005 Amendment are: son of a predeceased daughter of a predeceased daughter, daughter of a predeceased daughter of a predeceased daughter, daughter of a predeceased son of a predeceased daughter, and daughter of a predeceased daughter of a predeceased son.
Distribution of share in Class I – Section 10 of the Act talks about distribution of the property of the Hindu male dying intestate. The property of the propositus is first distributed among heirs in Class I, ignoring all other categories of heirs. Among Class I heir list there is no priority in distribution of the property. The rules of distribution are
- Mother, sons and daughters take one share each. For instance, if A dies leaving behind his mother M, a son S and two daughters D1 and D2, each of them will take one share each i.e., 1/4th share of the property will be given to each of them.
- Widow of the deceased takes one share of the property. If there is more than one widow, all of them together take one share which is divided equally among them.
- Among the heirs of the predeceased son/daughter, each branch gets the share which their parent would have taken and that share is distributed among themselves. For instance, if A dies leaving behind his daughter D, widow (W) and son (SS) of a predeceased son, predeceased daughter’s sons DS and DS1. Distribution starts from the point where branches meet. There are three branches, thus each will take 1/3rd share i.e., D will take 1/3rd. The next branch has two heirs; thus, W and SS will take 1/6th share each. The third branch also has two heirs, thus DS and DS1 will take 1/6th share each.
The courts have adjudged in a landmark case, that upon the death of a Hindu male, his property will be distributed equally among heirs present in Class I. If there are heirs present in Class I of the schedule, it will result in the exclusion of every other category of heirs i.e., Class II, agnates and cognates will not be considered.
Class II heirs – The list of relatives present under this Class is not random and the relatives are placed according to categories which decides the distribution of the property. There are nine categories present inside this class in the following order:
Category I – Father
Category II – Son’s daughter’s son, son’s daughter’s daughter, brother, sister.
Category III – Daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s daughter’s daughter.
Category IV – Brother’s son, brother’s daughter, sister’s son, sister’s daughter.
Category V – Father’s father, father’s mother.
Category VI – Father’s widow (Step-mother), brother’s widow.
Category VII – Father’s brother, father’s sister.
Category VIII – Mother’s father, mother’s mother.
Category IX – Mother’s brother, mother’s sister.
Distribution of share in Class II heir – If there are no heirs present in Class I, property will be distributed among Class II heirs. The rule under this Class is different from that of Class I. As per the law, an heir in the initial category will exclude the heirs of later category. Further, heir under same category gets equal amount of share of the property. For instance, if heir in category I is present, it will exclude all the other categories and will take the entire share of the property. Further, if heir of category I is not present but each of the heir in category II are present, they will share equal part of the property among themselves. In a case it was observed by the court that a entry in any particular category under Class II heir does not have any priority over any other entry in that same category.
Agnates and Cognates
If no specified heirs in Class I and II are present, the property is distributed among agnates and cognates. Among agnates and cognates, preference is given to former over latter.
A person who traces his relationship with the other person through males is known as agnate to that person. Few examples of agnates would be father’s father, brother’s son, son’s son, son’s daughter, father’s sister etc.
Whereas, while tracing the relationship of two persons, there intervenes a female anywhere between them, they are called cognates to each other. Few examples of cognates would be father’s sister’s son, sister’s son, mother’s brother, daughter’s son etc.
The rules governing distribution of property among agnates and cognates are same. The rules are
Rule 1 says that out of two or more cognates or agnates present as the case maybe, the one who has less or no degrees of ascent from the propositus shall be preferred. That is to say, the lesser the degree of ascent, more the preference.
Rule 2 says that where the degrees of ascent between two or more cognates/agnates are same, the one with lesser or no degrees of descent shall be preferred.
Rule 3 says that even after applying rule 1 and 2 where two or more cognates/agnates cannot be said to be nearer to the propositus, they take simultaneously. This means that the property will be distributed equally among the respective cognates/agnates.
Devolution to the Government
If a Hindu dies without any heir in Class I or Class II neither any agnate nor any cognate, then his property will be transferred to the government. When the government takes the property as a heir, it also takes all the obligations and liability of the propositus.
Under Section 18 of The Hindu Succession Act 1956, it is mentioned that heirs related to the propositus by full blood are always given preference over heirs related by half-blood. Further, Section 19 says that if two or more heirs qualify together to the property, the property shall be distributed as per capita and not per stirpes.
Section 20 of the Act talks about child in womb. Under this section, if the propositus passed away while the child is in womb, after the birth of the child he or she will have the share in the property.
Critical Analysis of Section 8
Though the 2005 Amendment of The Hindu Succession Act empowered women and gave them the right to the share, it failed in bridging the gap between genders. Firstly, the daughter’s son’s son and daughter’s son’s daughter have been placed in different classes though there is no distinction in the relationship other than the gender. Secondly, it can be seen that mother is placed in Class I whereas father is placed in Class II of the list. The parliamentary Bill introduced in Rajya Sabha in pursuance of this Act did not provide for such a discrimination. Therefore, there seems to be no philosophical, legal or cultural justification for the same. This is a clear sign of discrimination by placing father and mother in different classes. The object of this Act was to remove gender discrimination but the fact that it places father and mother in different class clearly goes against the very object it was enacted in pursuance of. The Indian courts have also held that this section of the Act is discriminatory as it deprives the father to inherit a preferential part in his deceased son’s property.
The Hindu Succession (Amendment) Act, 2005, basically aimed at removing gender discrimination in the Hindu Succession Act. It amended Section 6 of the Act to give daughters of the deceased equal right as that of a son. It aims at making this Act gender neutral and empowering daughters and women in general to own property in case of death of their parents. An application of the amendment can be seen in the extension of the principle to hold that the daughter has the birth right of being a coparcener irrespective of her father being dead or alive before the amendment.8
Prior to the commencement of this Act, law regarding succession of property of a Hindu was not uniform and it depended mostly on schools and region. This Act however codified the Hindu laws and made it uniform for every Hindu no matter the region they reside. This Act also aimed to protect women from patriarchy laws and giving them equal rights to own property. This goal was achieved finally after the 2005 Amendment of the Act. This Amendment made these laws gender neutral and protected women from discrimination while acquiring property of their parents.
 Md. Abdul Samed v. Durban Hussain, ILR 26 AII 119 (PC).
 Eramma v. Verrupanna & Ors., (1966) 2 SCR 626.
 The Hindu Succession Act, No. 30 of 1956, S.8.
 The Hindu Succession (Amendment) Act, No. 39 of 2005.
 Additional Commissioner of I.T. v. P.L. Karuppan Chettiar, (1979) AIR Mad 1.
 Arunachalathammal v. Ramachandran, (1963) 1 MLJ 254.
 Musini Leela Prasad v. Musini Bhavani, (1995) 1 ALT 814.
Author Details: Shubham Shukla (Christ University)