hindu succession act, 1956

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Page 1: Hindu Succession Act, 1956

Presented by :Anand

Abhishek Anuraag

Page 2: Hindu Succession Act, 1956

The Hindu Succession Act, 1956 was passed by the parliament of India to amend and codify the law relating to intestate or unwilled succession, among Hindus.

The Act lays down a uniform and comprehensive system of inheritance and applies to persons, governed by both the Mitākṣarā and Dāyabhāga schools .

This Act prescribes for matters of succession when an individual (a Hindu male or female) dies without prescribing for how his/her property shall devolve upon his/her death i.e. rules of intestate successionThe Hindu woman's limited estate is abolished by the Act. The Act was amended in 2005 by Hindu Succession (Amendment) Act, 2005.

Page 3: Hindu Succession Act, 1956

Who does it apply to?

To any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or follower of the Brahmo, Prarthana or Arya Samaj

Those who fall under the term Hindu within the Indian Legal system, including Buddhists, Jaina, and Sikh.

To any other person who is not a Muslim, Christian, Parsi or Jew by religion

This Act, extends to the whole of India, except the State of Jammu and Kashmir.

Page 4: Hindu Succession Act, 1956

HISTORICAL ASPECTsUnder ancient system, rights of sons (as junior members

of family) were recongnised and they acquired equal interest with their father in the coparcenary property

The principle of Consanguinity is applied, following the doctrine ‘he who inherits property, also offers the panda’

Difficulties arose on account of:-Difference in the law of inheritance of the two schools,

Mitakshara and Dayabhaga;Existence of various Hindu schools of Law;The matriarchal system prevailing in some southern

parts of the countryComplicated problem of the inheritance and other

matters related with Stridhana (woman’s property). To address this problem, the Hindu Woman’s Right to Property Act, 1937 was enacted, but the same was not proved to be satisfactory

Page 5: Hindu Succession Act, 1956

HSA, 1956 and its scheme

Responding to the persisting Problems Hindu Succession Act, 1956 was enacted and came into force from June 17 1956.

The Act, as the Statement of Reasons and Objects reads, amends and codifies the law relating to intestate succession among the Hindus

The entire Hindu Succession Act, 1956 can be divided into three parts.

First Part is general and contains definitions, scope and extent of applicability of the Act,

Second part deals about inheritance that takes place when a Hindu (male or female) dies intestate i.e. without a will.

The third part, though having only one section, is related to Testamentary succession wherein any Hindu can dispose of his property by a will in accordance with the provisions of Indian Succession Act, 1925.

Page 6: Hindu Succession Act, 1956

Sections 8-13 lays down a set of general rules for succession to the property of a male Hindu, including the rules to ascertainment of the shares and portions of the various heirs.

Sections 15-16 deals with the separate and general rules for the succession of the property of the female Hindu dying intestate is laid under.

Section 17 provides for certain modifications and changes in the general scheme of succession to the property of male and female Hindus in relation to persons hitherto governed by the Malabar and Aliyasantana law.

Sections 18-28 of the Act are headed ‘General provisions relating to succession’ and lay down rules which are supplementary to the provisions in sections 5-17.

Page 7: Hindu Succession Act, 1956

SUCCESSION OF A HINDU MALE DYING INTESTATE

Sections 8 to 13 lay, generally, the order of succession when a Hindu Male dyes intestate. The rules herein laid under the section are pivotal and have to be read along with the Schedule. They also have to be read with other sections (9 to 13) in the chapter which contain supplementary and only merely explanatory provisions, which lay down the substantive rules involving legal principles.

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-

firstly, upon the heirs, being the relatives specified in class I of the Schedule;

secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

thirdly, if there is no heir of any of two classes, then upon the agnates of the deceased; and

lastly, if there is no agnate, then upon the cognates of the deceased.

Page 8: Hindu Succession Act, 1956

HEIRS IN CLASS I AND CLASS IICLASS I--- Son; daughter; widow; mother; son of a pre-deceased

son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased 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; fathers' sister. VIII.   Mother's father; mother's mother. IX.      Mother's brother, mother's sister.

Page 9: Hindu Succession Act, 1956

AgnatesA person is said to be agnate of another if the two are related by blood or by adoption entirely or wholly through males.It is important to note that agnates of the intestate do not include the widows of lineal descendents of the widows of those who may be related to the intestate as lineal male descendents because the definition of agnates does not extend to relatives by marriage but is confined to relatives by blood or adoption.Here since these widows are not relatives by blood but relatives by marriage, they are not covered in agnates.

Also, there is no degree of relationship beyond which kinship is not recognised so that an agnate howsoever remotely related to the intestate is entitled to succeed as an heir. The relation by agnates also does not distinguish between male or female heirs. So long as the two are related on lineal male lines, they are covered under the definition of agnates. Also, there is no distinction between those related by half or full blood. However, those related by uterine blood are excluded.

CognatesA person is said to be a cognate of another if the two related by blood or adoption but not wholly through males. In a cognate relationship, it does not matter as to whether there is intervention of one or more females. So long as one female exists in the line, it becomes a cognate relationship. Similar to that in agnates, persons related to the intestate by marriage are not included in the cognate relationship and thus widow or widowers of those related on cognate lines are not included in cognate relationship and the relationship is formed only if the two are related by blood or adoption.

Page 10: Hindu Succession Act, 1956

Order of succession - HeirsAs per Section 9, among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the 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.Accordingly, Class I heirs may be termed as preferential heirs of the intestate for the property. When, however, there are no heirs in Class I i.e. there is no preferential heir of the intestate, his property devolves upon the heirs specified in the second category of heirs enumerated in the nine entries in Class II of the Schedule to the Act.

Distribution of property among heirs in class I The object of section 10, is to deal with shares to which the heirs are entitled to where there are more than one to take simultaneously. The widow, the son, the daughter and the mother of the propositus take equal share. This does not mean that these four categories will get each 1/4th share. This section lays down rules as to how much every heir shall get to his or her share. The four rules are :-

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

Page 11: Hindu Succession Act, 1956

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 pre-deceased son shall be so made that his widow (or widow together) and the surviving sons and daughters get equal portions; and the branch of his predeceased 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.

The four rules in section 10 have to be read with the rules under section 19 of the Act which gives tow basis rules incase two or more heirs succeed together to the property of the intestate. They are,(a) save as otherwise expressly provided in the Act, per capita and not per strip; and (b) As tenants-in-common and not as joint tenants. This is subject to any express provision to the contrary.

Page 12: Hindu Succession Act, 1956

Distribution of property among heirs in class Ii

Under Section 11, the property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally. it is important here to note that the legislation does not lay down any rule of discrimination between any male or female heir. They all stand in aequali jura and take per capita.

Order of succession - agnates and cognates

This is determined in accordance with the following rules of preference(u/s 12 )

Rule1-Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule2- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.

Rule3- Where neither heirs is entitled to be preferred to the other Rule 1 or Rule 2 they take simultaneously.

Page 13: Hindu Succession Act, 1956

SUCCESSION OF A HINDU female DYING INTESTATE

The great ancient lawgiver Manu had described the good woman as a profoundly non-autonomous self, ruled by father in childhood, by husband in youth, by son in old age. The Constitution of India enshrines the principle of gender equality in its Preamble and Parts III, IV and IVA pertaining to Fundamental Rights, Fundamental Duties and Directive Principles respectively. Keeping all these in mind provisions were made for uprooting the cause in form of HAS, 1956.

The restrictions imposed by the Hindu law on the roprietary rights of women depended upon her status as a maiden, as a married woman and as a widow. They also depended upon the source and nature of property.

Page 14: Hindu Succession Act, 1956

Multifarious effects of Section 14

Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.[u/s 14(1)]

The Act overrides the ‘the old law on the subject matter of stridhana

Declared a female as full owner of the property. Now she can sell, dispose and alienate the property without any restriction on her rights

The Act confers full heritable capacity on the female heirdeclare a Hindu widow, in cases falling under this section, to be the absolute owner of the property

The section gives retrospective effect to the Act and thus any property acquired by the female whether before or after this Act but in possession of her at the time of the commencement of the Act shall become her and she shall have full ownership over it.

Page 15: Hindu Succession Act, 1956

General rules

Section 15 propounds a definite and uniform scheme of succession in the property of a female Hindu who dies intestate after the commencement of the Act. The rules laid down under this section are to be read with section 16. This section groups the heirs of a female intestate into five categories as laid in subsection (1).

u/s 15 The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16:

firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

 secondly, upon the heirs of the husband;  thirdly, upon the mother and father; fourthly, upon the heirs of the father; and  lastly, upon the heirs of the mother.

Page 16: Hindu Succession Act, 1956

However subsection (2), similar to the scheme of section 14, is in the nature of anexception to the general rule as laid in subsection (1). The two exceptions are, if a female dies without leaving any issue then,

In respect of property inherited by her from her father or mother, that property will devolve not according to the order laid down as in subsection (1) but upon the heirs of her father, and

in respect of the property inherited by her from her husband or father-in-law, that property will not devolve according to the order laid down in subsection (1) but upon the heir`s of her husband.

It is important to note that the two exceptions herein referred are confined to only the property inherited from the father, mother, husband and father-in-law of the female and does not affect the property acquired by her by gift or other by other device. The section has changed the entire concept of stridhana and the mode and manner of acquisition of property by the female,

Page 17: Hindu Succession Act, 1956

The order of succession, as by the effect of rules under section 15 can be summerised as follows

The general order of succession laid down in entries (a) to (e) in subsection (1) applies to all property of a female intestate however acquired except in case of property inherited by her from her father, mother, husband or father-in-law.

In case of a female intestate leaving a son or a daughter or a child of a predeceased son or of a predeceased daughter, that is leaving any issue, all her property, howsoever acquired, devolves on such issue regardless of the source of acquisition of the property and such issue takes the property simultaneously; and if the husband of the intestate is alive they take simultaneously with him in accordance with entry (a). In such a case, subsection (2) does not apply.

In case of a female intestate dying without issue but leaving her husband, the husband will take her property, except property inherited by her from her father or mother which will revert to the heirs of the father in existence at the time of her death.

Page 18: Hindu Succession Act, 1956

In case of female intestate dying without issue property inherited by her from her husband or father-in-law (the husband being dead), will go the heirs of the husband and not in accordance with the general order of succession laid in subsection (1).

In case of a female intestate dying without issue property inherited by her from her father or mother will revert to the heirs of the father in existence at the time of her death and not in accordance with the general order of succession laid down in subsection (1).

Page 19: Hindu Succession Act, 1956

distribution among heirs of a female Hindu order and mannerThe order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place, according to the following rules, namely:-Rule 1- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously.Rule 2- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.Rule 3- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death.

Page 20: Hindu Succession Act, 1956

Rule 1 explicitly declares that among the heirs enumerated in entries (a) to (e) of section 15, those heirs referred to in prior entry are to be preferred to those in any subsequent entry and those included in the same entry are to succeed simultaneously.

Rule 2 states that in case of the children of a predeceased son or daughter, they shall not take per capita with the son and daughter of the intestate but shall take per stripes i.e. the children and the predeceased son or daughter shall succeed to the property of the intestate as if the predeceased son or daughter was alive at the time of inheritance.

Rule 3 is applicable only when succession is in terms of entry (b), (d) or (e) of section 15(1). This rule 3 is to be invoked when under rule 1 the heirs of the husband or the father or the mother are to be ascertained for purpose of distribution of property.

Page 21: Hindu Succession Act, 1956

The Hindu Succession (Amendment) Act, 2005The Hindu Succession (Amendment) Act, 2005 is a landmark.

After 50 years, the Government finally addressed some persisting gender inequalities in the 1956 Hindu Succession Act (1956 HSA), which itself was path-breaking. The 2005 Act covers inequalities on several fronts:agricultural land; Mitakshara joint family property; parental dwelling house; and certain widow's. The amendment has come into operation from 2005The Hindu Succession (Amendment) Act, 2005 was seeks to make two major amendments in the Hindu Succession Act, 1956.

First, it is proposed to remove the gender discrimination in section 6 of the original Act.

Second, it proposes to omit section 23 of the original Act, which disentitles a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein.

Page 22: Hindu Succession Act, 1956

The Hindu Succession (Amendment) Act is to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters under Section 6:The daughter of a coparcener cell by birth become a coparcener in her own right in the same manner as the son;

The daughter has the same rights in the coparcenary property as she would have had if she had been a son;

The daughter shall be subject to the same liability in the said coparcenary property as that of a son; and any reference to a Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener;

The daughter is allotted the same share as is allotted to a son.The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;

The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter.

After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt

Page 23: Hindu Succession Act, 1956

OF A CHILD in wombSuccession of 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 as if he or she had been born before the death of the intestate.

Page 24: Hindu Succession Act, 1956

CRITICAL OBSERVATIONS UPON THE ACT

The Act of 1956 indeed, to some extent, represents women's interests in matrimonial property as clearly provided for under the Act under different places such as Class I heirs (which has eight female heirs in the total of twelve survivors in the Class I heirs) and though the changes in law relating to succession brought about by the Act may be called as of radical nature considering the traditional and pre codified Hindu Law nevertheless the enactment is still infected with various lacunas, discriminatory in nature, supporting the perpetuation of inequality on basis of sex, much against the mandate of constitution.The one major factor which has contributed in continuing the inequality between sons and daughters is the retention of the Mitakshara coparcenary (section 6), an anachronism in present day.

Retention of Mitakshara coparcenary brings about inequality in the same class of heirs on the basis of sex. Besides, it has also meant continuation of two rights both of which affect the rights of female heirs detrimentally. The first is right of the coparcener to renounce his right in coparcenary.

Page 25: Hindu Succession Act, 1956

The result of this is that on his death he will have no interest in the joint family which could be distributed among class I heirs. This deprives female heirs of any share, while son's share as coparcener is ensured. The second of such characteristics is the right to convert self acquired property to coparcenary property. The effect of this is that the share of female heir is refused because in the self acquired property she would have had the right to inherit equally with the male members as class I heirs.