October 4, 2022

Explained: Hindu Succession Act, 1956

The Hindu Succession Act, 1956 regulate the intestate succession among Hindus. Intestate means that person who died without making any will in respect of his property. This Act only applicable to Hindus.

It was the part of that Hindu Code Bill, which witnessed a big protest, So, government passed Hindu Code Bill in parts.

The definition of Hindu in this act is same as it is given in those other personal statutes of Hindus which regulate the marriage, divorce, adoption, maintenance, guardianship matters among Hindus.

Who are Hindus?

This act has application to-

(a) 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, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion.

Hindu by birth

The act further explained that the following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be: ―

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina 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;

(bb) any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jaina or Sikh; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

Marriage under Special Marriage Act, 1954

This act does not apply to those persons who solemnised their marriage under Special Marriage act and their children. (Section 21 of SMA)

Devolution of Coparcenary Property

In 2005, a remarkable addition has been made in this act, when parliament passed historic amendment act which gave the equal right to daughters to be coparcener in coparcenary property. Shastric Hindu Law denied daughters to be coparcener, however, now this restriction has been removed by amendment act, 2005.

After the 2005, the daughter of a coparcener shall, ―

  • by birth become a coparcener in her own right the same manner as the son;
  • have the same rights in the coparcenary property as she would have had if she had been a son;
  • 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.

Sub-section (2) further added the power in the treasury of daughters when it provided that,

Any property, which is got by female Hindu as being a coparcener, that property shall be held by her and she will be capable to dispose that property through will. No law can restrict her from doing so.

Partition of share

After the death of Hindu, his property will be partitioned among his/her heirs in the same manner as if the partition had taken place, and they will get shares as follows-

  • the daughter will be allotted the same share as is allotted to a son;
  • 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 them.
  • 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-deceased daughter, as the case may be.

Pious duties to pay debt

In Hindu shastric law, it was (is) considered a pious duty to pay debt of deceased father, grand-father or great-grandfather, however, sub-section (4) of section 6 removed such liability of son, grandson or great-grandson to pay the debt. And directed the court to not recognise such right to recover debt of ancestors from their descendants.

However, section 6(1) still binds daughters and sons for the liabilities of coparcenary property, if any.

Rules of Succession among Hindus

Property of Male Hindu (Section 8)

The property of a male Hindu dying intestate shall devolve as follows: ―

(a) firstly, upon the heirs, being the relatives specified in class I 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 cognates of the deceased.

Cognate and Agnate Meaning

“Agnate” ―one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males. (Section 2(1)(a))

“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. (Section 2 (1) (c))

THE SCHEDULE

Heirs in class I

(we will replace ‘pre-deceased’ word with ‘dead’ for good readability)

  • Son; daughter;
  • widow; mother;
  • Dead Son’s son and daughter
  • Dead Daughter’s son and daughter
  • Widow of Dead son
  • Son and Daughter of dead son’s son
  • widow of a Dead son’s son
  • son and daughter of dead daughter’s dead daughter
  • son and daughter of dead daughter’s dead son

Class II

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.

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.

Order of succession among heirs (Section 9)

Among the heirs specified in the Schedule,

  • Class I Heirs shall take simultaneously and to the exclusion of all other heirs;
  • 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.

Distribution of Property among Heirs in Class I (Section 10)

The property in class I shall be distributed according to following rules-

Rule 1.―The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.

Rule 2.―The surviving sons and daughters 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.

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.

Distribution of Property in Class II (Section 11)

In class II, the property shall be divided equally in any one entry in class II.

Distribution of property among Cognates and Agnates (Section 12)

The order of succession among agnates or cognates, 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 heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously.

In computation of degrees among ascent or descent, every generation constitutes a degree either ascending or descending. (Section 13)

Property of Female Hindu (section 14)

Any property possessed by a female Hindu, shall be held by her as full owner of property and not as limited owner.

This ‘property’ includes both movable or immovable property acquired by a female Hindu-

 -by inheritance or devise, or

-at a partition, or

-in lieu of maintenance or 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.

Which property does not include

This section does not apply to following properties-

-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.

Distribution of female Hindu Property (Section 15)

The property of a female Hindu dying intestate shall devolve according to the rules

(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.

Further Rules

-Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter and the children of them, upon the heirs of father.

-Any property inherited by a female Hindu by her husband or from her father-in-law shall devolve, in the absence of any son or daughter and their children, upon the heirs of the husband.

General provisions relating to succession

  • Full blood Heirs shall be preferred over Half Blood Heirs. 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; (Section 18)
  • If two or more heirs succeed together to the property of an intestate, they shall take the property, ―
  • per capita and not per stirpes; and
  • as tenants-in-common and not as joint tenants. (Section 19)
  • A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate. (Section 20)

Disqualified Heirs

– 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. (Section 25)

– Where, 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 any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens. (Section 26)

– No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity. (Section 28)

Escheat (Section 29)

If an intestate has left no heir qualified to succeed, 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.