SUMMARY OF THE HINDU SUCCESSION ACT 1956
Introduction to the act
The Hindu Succession Act 1956 deals with property rights and inheritance. This act gives a broad view of who can be given the property and the rights available for both males and females while acquiring a property.
Section 2 of Hindu Succession Act 1956 talks about the applicability of this law. This law is applicable to anyone who is a Hindu, Jain, Buddhist, Sikh by religion. Any person who is not a Muslim, Christian, Parsi or Jew by religion unless otherwise proven by law that this particular person does not come under the ambit of this law. This section is not applicable to the Schedule tribes covered under the meaning of section 366(25).
KINDS OF PROPERTY UNDER HINDU SUCCESSION ACT 1956
According to Hindu Succession Act 1956 there are two kinds of property
- Ancestral Property– This kind of property is passed down from by four generations of the male lineage and the property should be undivided during this time.
- Self-acquired Property– These kind of properties are bought by an individual with his own earning and without the assistance of family funds. The property which is acquired through a will is also a self acquired property.
The scope of the Hindu Succession Act 1956 covers the division of ancestral property in a Hindu joint family. In a Hindu Joint family there are members and co-parceners. So what is the difference between the two?
MEMBERS AND CO-PARCENERS
The basic structure of any Hindu joint family comprises of the Karta or the head of the family, his wife, his son, his daughter, daughter-in-law, son-in law, grandson etc. All of them are members of the family but not co-parceners.
Co-parceners are those individuals who can claim their right on the ancestral property. For example when a person, owning an ancestral property dies, the property, would by default pass down to his son, grandson, great-grandson and so on. Section 6 of the Hindu Succession Act 1956 deals with this aspect and was called as Survivorship rule.
The main criticism of section 6 of Hindu Succession Act 1956 was that the survivorship rule allowed only the male lineage to be co-parceners. The women were not given equal rights over the property and this was discriminatory in nature. Although the Hindu Succession Act 1956 did say that women would have equal rights over the property, the Mitakshara law of parcener did not allow females to be co-parceners of a property.
TYPES OF SUCCESSION
There are two kinds of succession- Testamentary and Intestate Succession. These kinds of succession is applicable for only self- acquired property.
- Testamentary Succession – When an individual’s property is divided on the basis of a will made before his death, this kind of succession is called testamentary succession. Under the will, the person is allowed to pass down his property to anyone he wishes.
- Intestate Succession – When a person dies without creating a will. Then his property is passed down according to divided into classes-
IN CASE OF MALES
If a male dies intestate, the property would go to-
- Class I heirs- this class basically consists of the deceased’s wife, son, daughter. They would have the very first claim on the property.
- Class II heirs- in the absence of the class I heirs, the property can be claimed by the class II heirs which consist of the deceased’s father, sibling, sibling’s children, living children’s children.
- Class III heirs- In the absence of class I and class II heirs the property can pass down to class III heirs which are called as Agnates or the distant blood relatives of the male lineage
- Class IV heirs- In the absence of the class I, class II and agnates the property can be claimed by Cognates or the distant blood relative of the female lineage.
IN CASE OF FEMALES
If a female dies intestate, the property goes to-
- The very first claim of the property would go to her husband, son, daughter.
- In case of their absence, the property would go to the heirs of the husband.
- The property would pass down to the parents of the deceased in absence of the above mentioned claimants.
- The fourth claimants of the property will be the heirs of the father.
- The fifth claimant of the property will be the heirs of the mother
THE 2005 AMENDMENT TO HINDU SUCCESSION ACT
The Hindu Succession (Amendment) Act 2005 was assented by the president on 5th September 2005 and came into effect from the 9th September 2005. This amendment was brought about to end the discrimination in the Hindu Succession Act 1956, section 6,thus abrogating the survivorship rule. Under this amendment of the section if a person dies intestate the property would be inherited to class I heirs which consist of the widow, son and daughter of the deceased and the property would be divided equally among them. In the absence of class I heirs due to any reason then the property would pass down to class II heirs and so on. This act also amended the section 4, section 23, section 24 and section 30 of the act.
This amendment was brought as a solution and it was declared that daughters also have an equal right and liability in the father’s property just like the sons and daughters are entitled to this right since birth.
CONFUSION BEHIND THIS ACT
Though this act was brought about as a solution, there were certain confusions surrounding this amendment. The enforcement date of this act was 9th September 2005. The main question was that ,will this law be applied retrospectively or is it applicable for future cases only? This meant that if a person died in 2002 that is before the enforcement of this amendment, would the daughter still be entitled to the property and would she be a co-parcener?
CASES WHICH SOLVED THIS CONFUSION
- The case of Prakash & others vs Phulavati &others, which came in 2016, dealt with the above question that whether this law will have a retrospective effect or no. This case was headed by a two judges bench Justice Anil Dave and Justice A K Goel in the Supreme Court and they held that the rights under this amendment would be available to those daughters whose fathers were living on the date of enforcement of this amendment. This has been declared as a landmark judgement for it held that only living daughters of living co-parceners are entitled to the property.
- The second case regarding the same question came up in 2018. In the case of Danamma vs Amar, the Supreme Court was headed by a two judges bench- Justice AK Sikri and Justice Ashok Bhushan, this time held that the rights under the 2005 amendment would be applicable to the daughter even if the father is not alive on the enforcement date of the amendment, thus making both the daughters and sons equally liable for the property and this right is given to both of them since birth.
- Even though in 2018, the judgement was passed in favor of daughters having equal rights over the father’s property, there were still some confusions and confusions on whether to follow the 2016 judgement or the 2018 one. Finally, in 2020 the case of Vineeta Sharma vs Rakesh Sharma put an end to all the speculations surrounding the applicability of this amendment. The earlier cases were headed by a two judge bench but in this case it was headed by a three judge bench and they were Justice Arun Mishra, Justice Abdul Nazeer and Justice M.R Shah. The Supreme Court in this case clearly said that daughters and sons have an equal liability over a property and that this right is given to them since birth and whether the father is alive or dead, it doesn’t affect the right of the daughter.
The case of Vineeta Sharma vs Rakesh Sharma was declared a landmark case as it finally settled the confusions regarding property rights. The current status of the law is that both the son and daughter have an equal liability and right over the property irrespective of whether the father was alive in 2005 or not and there will be equal division of the property. This amendment was instrumental in bringing a change in society and women’s right.
Author: Vaishnavi Menon,
MIT WPU School of Law, 1st year