CONTENTSCHAPTERS PAGE NO. 1.INTRODUCTION ANDHISTORICAL
BACKGROUND..5
2. GENERAL RULES OF SUCCESSIONFOR MALES AND FEMALES8
3.GENERAL PROVISIONS RELATINGTO SUCCESSION(S.18-28).12
4.CONCLUSION...20
BIBLIOGRAPHY...22
INTRODUCTION & HISTORICAL BACKGROUND
There are certain general provisions relating to the succession,
as laid down from section 18 to 28 of the Hindu Succession Act,
1956. These provisions apply to all the properties irrespective of
the fact whether it is left by a male or a female Hindu dying
intestate. These provisions are supplementary to the provisions in
section 5 to 17 of the Act. Moreover, the provisions are not only
explanatory but some of them lay down substantive rules involving
legal principles.Before 17 June 1956 the succession of Hindus was
regulated by classic Hindu law.[footnoteRef:1] The Hindu Succession
Act[footnoteRef:2] is a codification of the Hindu law of intestate
succession and came into operation on 17 June 1956. It introduced
key changes to classic Hindu law of intestate succession. The Hindu
Succession Act is, to a large extent, a codification of the Hindu
law of succession.[footnoteRef:3] It makes provision for certain
changes to the classic Hindu law of succession, and although it is
in essence a codification of the Mitakshara law of succession, it
is uniformly applicable to all the schools of Hindu law in
India.[footnoteRef:4] [1: Mullas principles of Hindu law vol I
(19ed 2005) 101363 and C Rautenbach Hindu law of succession(2ed
2006) 269287.] [2: Act 30 of 1956.] [3: It does not make provision
for the survivorship as a mode of devolution regarding the joint
family property.] [4: Desai Mullas principles of Hindu law vol II
(19ed 2005) 283284.]
Classic Hindu law allows two modes of devolution, namely
survivorship of coparcenary property, and succession of separate
property. Only males are entitled to a share in the coparcenary
property. Upon the death of the male coparcener his share in the
coparcenary property falls back into the coparcenary and the rest
of the surviving coparceners shares are adjusted accordingly. The
wife or other female heirs of the deceased coparcener, have no
right to the coparceners in the coparcenary property.Section 6 of
the Act, before its amendment in 2005, introduced the first
revolutionary change to the Hindu law of succession by affording a
female heir,[footnoteRef:5] and the son of a daughter of a deceased
Hindu, a share in the coparcenary property.[footnoteRef:6] If a
coparcener dies leaving a female heir, his share in the coparcenary
property will devolve by means of succession and not
survivorship.[footnoteRef:7] The share of the deceased coparcener,
who succeeds, is calculated by taking his share immediately before
the time of his death into consideration.[footnoteRef:8] In 2005,
section 6 as discussed above, was replaced by a new section
6,[footnoteRef:9]which removed the gender discriminatory provisions
in the old section 6. In terms of the new provisions, a daughter of
a coparcenar in a joint Hindu family becomes a coparcener in her
own right. She has equal rights and responsibilities in the
coparcenary property and is allotted the same share as a son. [5:
As specified in Class I of the Schedule.] [6: M Shastri Status of
Hindu women: a study of legislative trends and juridical behaviour
(1999) 123, 130136.] [7: In terms of Explanation 2 of s 6 a
partitioned coparcener who has separated himself from the
coparcenary before the death of the deceased is excluded from
taking a share in succession.] [8: Explanation 1 of s 6.] [9: In
terms of the Hindu Succession (Amendment) Act 39 of 2005 which came
into operation on 9 September 2005. The Act is not retroactive and
partitions before 9 September 2005 have to conform to the old
section 6.]
The abolition of the limited womans estate was the second most
important inroad into the classic Hindu law of
succession.[footnoteRef:10] In terms of classic Hindu law, if a
female inherited property from a male or stridhana from another
female, she received only a limited womans estate which meant that
she was the owner of the property for as long as she lived, but
although she had full and exclusive ownership of the property
during that time, her ownership was restricted in all other
respects. Section 14(1) of the Act abolished the limited womans
estate and converted existing limited womans estates into full
estates.[footnoteRef:11]If a female acquires property in any way
whatsoever, she becomes the full owner of such property without any
limitations. Furthermore, section 14(1) is retroactive and applies
to limited womans estates and property acquired before the
commencement of the Act. [10: Ministry of Information and
Broadcasting Government of India Hindu law reform (1965) 32.] [11:
Vidya v Nand Ram 2001 10 SCC 747.]
Under classic Hindu law, stridhana was classified in various
categories. Section 15 of the Act abolishes this classification and
provides for only one uniform scheme of succession of
stridhana.[footnoteRef:12] [12: GCV Subba Rao, Family law in India:
Hindu law and Mohammedan law (1995) 314.]
Section 23 used to limit the right of a female regarding the
dwelling house to a right of residence only. Although female
beneficiaries became owners of the dwelling house left by the
deceased in equal shares with the male beneficiaries, they were not
allowed to have the house partitioned. Such a right was only
available to the male beneficiaries.[footnoteRef:13] The purpose of
section 23 was to protect the rights of the sons of the deceased
who act as the providers of the joint family, and who rely on their
right to reside with their families in the dwelling house. If a
female had the right to claim partition of the dwelling house, it
could be disruptive to the families living in it. Such an argument
can equally be applied to the right of the male beneficiaries of
the deceased. They have the right to claim partition regardless of
whether such partition would be disruptive to the female
beneficiaries having a share in the dwelling house. Section 23 was
repealed by the Hindu Succession (Amendment) Act of 2005 and it is
nowadays possible for a female to claim partition of the dwelling
house. [13: S Yadav Women, Law and Judiciary in India in Sharma
(ed) Justice and social order in India (1994) 309.]
Although these changes have been applauded by Indian scholars,
some are of the opinion that the changes are not comprehensive
enough to remove all gender discriminatory provisions in the Hindu
law of succession.
GENERAL RULES OF SUCCESSION FOR MALES AND FEMALES
General Rules of Succession to the property of a Hindu male The
Hindu Succession Act, 1856, still retains the dictionary of the old
Hindu law where succession to the property of a Hindu male and a
Hindu female was dealt with separately. Sections 8 to 13 deal with
succession to the property of a Hindu male. The heirs of a Hindu
male are broadly of four types Class I, Class II, agnates and
cognates. The persons included in these categories are mentioned in
the Schedule to the Act.Section 8 lays down the order of priority
among these classes of heirs by laying down that the property will
first go to the Class I heirs and in their default to Class II
heirs, failing which to agnates and thereafter to cognates.Section
9 lays down that Class I heirs are simultaneous heirs, i.e., no one
excludes the other, all take simultaneously in accordance with the
rules of distribution of property among them, while Class II heirs,
who are listed in nine categories in the Schedule, the heirs in the
previous category are preferred to later categories.Section 10 lays
down rules of distribution of property among Class I heirs. Section
11 lays down rules of distribution of property among a category of
Class II heirs. Section 12 lays down that agnates, however remote,
will always be preferred over a cognate, however proximate. Section
13 provides the modes of computation of degrees among the agnates
and cognates for the purpose of determining their order of
succession. This is a divergence from classical Hindu law, where
all the coparceners succeeded to the property of the deceased and
all other relations, however proximate and all the legal heirs of
the deceased were excluded.
General Rules of succession in the case of females:Under the
law, prior to the Act, succession to a females property varied
according as the property was her Stridhan technically so called,
or was acquired by her by inheritance or by partition, etc. If it
was the former, it went to her heirs and if it was the later, it
went to the heirs of a person from whom she had inherited it from
whose share it was taken out on partition, etc. It also varied
according as she was married or unmarried, and according as she-
was married in an approved or in an unapproved form. The rules of
descent again were different in different schools. This Act ignores
all such distinction for the succession to females property and
provides a uniform law for all female Hindus, married or unmarried,
belonging to one school or another.The act by section 14 confers
absolute ownership on all females in respect of all properties in
their possession, whether acquired before or after the commencement
of the Act. And section 15 lays down the rules for the devolution
of such property on the death of the female in the event she has
not made a testamentary disposition of the same under section
30.Devolution of property:The property of a female Hindu dying
intestate shall devolve according to the rules set out in Section
16:(a) Firstly, upon the sons and daughters (including the children
of any predeceased 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.In order that properties which may
have been inherited by a female Hindu and which on her death may
not got to be in families who should not reasonably have any
expectations in respect thereof, sub-section (2) makes a very
important exception in respect of such property. It provides that
where a female Hindu had inherited property from her father or
mother and she died leaving behind neither children nor grand
children, though she might have left behind her husband the
property would not go to her husband but revert to the heirs of the
father. Similarly, any property inherited by a female Hindu from
her husband or from her father-in- law would devolve in the absence
of any children or grandchildren of the deceased, upon the heirs of
the husband. As to who will be the heirs in such cases, will be
determined in accordance with Rule 3 laid down in section 16, which
provides that the property would devolve in the same order and
according to the same rules as would have applied if the property
had been the fathers or the husbands as the case may be, and such
person had died intestate in respect thereof immediately after
intestates death. In view of the proviso to the definition of
related in section 3 (j). It appears that the heirs of a female
Hindu will include her illegitimate children born from another
husband also. Thus, it appears that in case a female Hindu, who had
inherited property from her husband, dies intestate and leaves
behind children from her previous husband, such children along with
the children of the second husband will succeed simultaneously to
her. Reference may also be made to the general provisions relating
to order of succession and manner of distribution among heirs of a
female provided for in section 16. Besides the above order of
devolution,, other rules of succession are that all the heirs of
any one of the above classes will take the property
simultaneously[footnoteRef:14], per stripes and as tenant-in-common
and where an intestate leaves the children from a predeceased son
or daughter of her, the children of each predeceased son of a
daughter will take between them such share which they said
predeceased son or daughter would have inherited had he or she been
alive at the time of the intestates death.[footnoteRef:15] [14:
Sec. 16, rule 1.] [15: Sec. 16, rule 2.]
In the case of a property held by the intestate by inheritance
it will devolve on the heirs of a person from whom she had
inherited that property in such a manner as if the devolution is to
take place of the property of that person and that person had died
immediately on the death of the intestate. The same principle will
apply to the cases where property other than inherited property is
to devolve and the heirs are of classes (b), (d) and (e) mentioned
above, that is they are the heirs of the husband, the father or the
mother. In these cases the property will devolve upon the heirs of
the husband, the father or the mother in the same manner, as if
property devolving is the property of the said husband, the father
or the mother, as the case may be, and the husband, the father or
the mother had died immediately after the death of the
intestate.[footnoteRef:16] [16: Sec. 16, rule 3.]
This principle of property inherited by a female devolving on
her death on the heirs of the person from whom she had inherited is
governed by the devolution of inherited property of a female under
the original Hindu Law also. Thus, while the Act seeks to change
the law of devolution in respect of all property passed by a female
it maintains that with regard to property acquired by her by
inheritance. Another important point worth noting is that unlike
the textual law in the absence of the son or daughters and the
husband, the heirs of the husband have been given preference to the
mother, the father and their heirs; and therefore, the chances of a
property possessed by a female, being lost to the family to which
she comes to belong after her marriage, have been removed.
GENERAL PROVISIONS IN RELATION TO SUCCESSION (section 18 to
28)
There are certain general provisions relating to the succession,
as laid down from section 18 to 28 of the Hindu Succession Act,
1956. These provisions apply to all the properties irrespective of
the fact whether it is left by a male or a female Hindu dying
intestate. Section 18 talks about half blood and full blood
relations and succession among them, whereas section 19 deals with
per stripes and per capita rules. Section 20 is about succession
regarding posthumous child. Section 21 and 22, deal with
presumption in cases of simultaneous death and preferential right
or right of pre-emption respectively. Concept of Escheat, wherein
absence of any legal heirs, property passes to the government and
other rules till section 28 of the act are expressly dealt under
the chapter of general rules of succession. Moreover, the
provisions are not only explanatory but some of them lay down
substantive rules involving legal principles.Full blood preferred
to half-blood- Section 18. Section 18 states that, Heirs related to
an intestate by full- blood shall be preferred to heirs related by
half-blood, if the nature of the relationship is same in every
other respect.Section 18 lays down a rule of general applicability
to male and female heirs alike but the applicability is subject to
the words, if the nature of the relationship is the same in every
other respect. From the provisions of the section it is clear that
a full-blood relation is preferred to half-blood relation. But the
rule cannot be invoked when a particular heir is preferred to
another by operation of any rule affecting the order of
succession.The words full-blood and half-blood have been explained
in section 2 (e) of the Act. 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
makes it clear that the heirs related by full-blood shall be
preferred to heirs related by half-blood, provided the nature of
relationship is same in every other respect. Thus, the full sisters
daughter shall be preferred to half brothers son. Similarly a full
sister excludes a half sister.Mode of succession to two or more
heirs- Section 19 Section 19 of the act provides that, If two or
more heirs succeed together to the property of an intestate they
shall take the property(a) Save as otherwise expressly provided in
this Act, per capita and not per stripes; and(b) As
tenants-in-common and not as joint tenants.The section lays down a
general rule of distribution of the property. It says that when two
or more heirs succeed to the property of an intestate, they take
the property per capita and as tenants-in-common unless there is an
express provision to the contrary. Instances of exceptions to the
general rule about distribution per capita are laid down under
Rules 1, 3 and 4 of section 10 and Rule 2 of section 16, etc.JOINT
TENANCY AND TENANCY-IN-COMMON.Joint tenancy is the ownership of
property in common by several persons having a right of
survivorship. On the death of one of the joint tenants, the
property vests in the survivor or survivors to the exclusion of the
heirs of the deceased joint tenant. The tenancy in common arises
where two or more persons are entitled to property in such manner
that they have an undivided possession but distinct estate in equal
or unequal shares either by the same or different title. No one of
them is entitled to the exclusive possession of any part of the
property, each being entitled to whole in common with the others.
On the death of any of them, his heirs succeed to the property left
by the deceased. In short, joint tenancy means joint ownership with
the right of survivorship, and tenancy-in-common means joint
possession with separate ownership without the right of
survivorship.The section lays down a presumption in case of
simultaneous deaths that the younger person survived the older,
until the contrary is proved. This operates only in cases where
persons die in circumstances rendering it uncertain as to who died
first.[footnoteRef:17] [17: Madambath Rohini v. Devi, AIR 2002 Ker.
192.]
Right of Child in Womb- Section 20Section 20 provides that, 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, and the inheritance shall be deemed to vest
in such a case with effect from the date of the death of the
intestate.A child in the mothers womb is presumed to be born before
the death of the intestate, although subsequently born. To quote
Mulla, It is by fiction or indulgence of the law that the rights of
a child born in justo matrimonio are regarded by reference to the
moment of conception and not of birth and the unborn child in the
womb, if born alive is treated as actually born for the purpose of
conferring on him benefits of inheritance. The child in embryo is
treated as in esse for various purposes when it is for his benefit
to be so treated. The view is not peculiar to the ancient Hindu Law
but one which as adopted by all mature systems of jurisprudence.
This section recognizes that rule of beneficient indulgence and the
child in utero although subsequently born is to be deemed to be
born before the death of the intestate and inheritance is to be
deemed to vest in the child with effect from the date of the death
of the intestate.[footnoteRef:18] But for the purposes of the
application of the provisions of section 20, it is essential that
child must be in womb at the time of the death of the propositus
and the child must be born alive. [18: Mulla, D.F., Principles of
Hindu Law, Ed. XVI (reprint, 1994) p. 841.]
Presumption in cases of simultaneous deathSection 21.-- Section
21 provides that, Where two persons have died in circumstances
rendering it uncertain whether either of them, and if so which,
survived the other, then, for all purposes affecting succession to
property, it shall be presumed, until the contrary is proved, that
the younger survived the elder.It may happen that two persons die
in an accident or calamity under such circumstances that it is
impossible to ascertain which of them died first. In such a
situation, it may be presumed that both of them died simultaneously
or that one of them succeeded the other. There may be controversy
regarding inheritance in such situations as to who will succeed to
whos property.Before the enactment of this Section, there was no
answer to such questions. The burden of proof was on the party who
asserted the affirmative.[footnoteRef:19] If the evidence before
the Court was balanced, the balance of probabilities was considered
to be in the favour of the younger.[footnoteRef:20] [19: Digendra
Kumar Roy v. Kuti Mian, AIR 1944 Cal 132.] [20: Yeknath v.
Lakshmibai, AIR 1922 Bom 347.]
According to this Section, the presumption of survivorship
applies, by which the younger is presumed to have survived the
older. In this Section, younger means younger in status not in age
and only when the status is the same, younger in age. Thus if an
uncle aged thirty years and a nephew aged thirty five years, die in
a plane crash or a ship wreck, it will be presumed that the nephew
died later, even though he is older in terms of actual age. On the
other hand, if two brother die simultaneously in any accident or
calamity, the brother younger in age is presumed to have died
later. This is a peculiar feature of this Act, as it was altogether
not provided for at all in the classical law or the previous
legislations regarding Hindu succession.Preferential right to
acquire property in certain casesSection 22.---Section 22 provides
a preferential right to other heir or heirs to acquire property
when one of them desires to transfer his or her interest in the
property inherited. Section 22 runs as follows:(1) Where, after the
commencement of this Act, an interest in any immovable property of
an intestate, or in any business carried on by him or her, whether
solely or in conjunction with others, devolves upon two or more
heirs specified in class I of the Schedule, and any one of such
heirs proposes to transfer his or her interest in the property or
business, the other heirs shall have a preferential right to
acquire the interest proposed to be transferred.(2) The
consideration for which any interest in the property of the
deceased may be transferred under this section shall, in the
absence of any agreement between the parties, be determined by the
court on application being made to it in this behalf, and if any
person proposing to acquire the interest is not willing to acquire
it for the consideration so determined, such person shall be liable
to pay all costs of or incident to the application.(3) If there are
two or more heirs specified in class I of the Schedule proposing to
acquire any interest under this section, that heir who offers the
highest consideration for the transfer shall be preferred.
Explanation.- In this section," court" means the court within the
limits of whose jurisdiction the immovable property is situate or
the business is carried on, and includes any other court which the
State Government may, by notification in the Official Gazette,
specify in this behalf.Section 22 recognises the rules of
pre-emption which has the tendency to raise clogs on the full sale
and purchase of property. But the rule of preferential right to
acquire property or business in certain cases is subject to certain
rules laid down under this section. The provisions of the section
were necessary in order to safeguard the interests of the co-heirs,
otherwise the very foundations of the Hindu family would have been
shattered. The preferential right to acquire property in certain
cases as is provided under this section is limited only to those
cases where the property has devolved upon two or more heirs
specified in class I of the schedule.The preferential right can be
claimed within 1 year of alienation and not after 13
years.[footnoteRef:21] The right of co-heir to seek transfer of
property proposed to be sold is only a personal right which is
neither transferable nor heritable.[footnoteRef:22] By exercising
the preferential right to purchase the share of a co-heir in the
business or estate, the strangers can be prevented from stepping
into the joint business or estate. [21: Aushutosh Chaturvedi v.
Prano Devi, 2008 S.C. 2171.] [22: Kamak Goel v. Purshottam Das,
1999 P&H 254.]
Section 23 Has Been Deleted From The Act By Virtue Of Hindu
Succession (Amendment) Act, 2005.Section 23 used to limit the right
of a female regarding the dwelling house to a right of residence
only. Although female beneficiaries became owners of the dwelling
house left by the deceased in equal shares with the male
beneficiaries, they were not allowed to have the house partitioned.
Such a right was only available to the male
beneficiaries.[footnoteRef:23] The purpose of section 23 was to
protect the rights of the sons of the deceased who act as the
providers of the joint family, and who rely on their right to
reside with their families in the dwelling house. If a female had
the right to claim partition of the dwelling house, it could be
disruptive to the families living in it. Such an argument can
equally be applied to the right of the male beneficiaries of the
deceased. They have the right to claim partition regardless of
whether such partition would be disruptive to the female
beneficiaries having a share in the dwelling house. Section 23 was
repealed by the Hindu Succession (Amendment) Act of 2005 and it is
nowadays possible for a female to claim partition of the dwelling
house. [23: S Yadav Women, Law and Judiciary in India in Sharma
(ed) Justice and social order in India (1994) 309.]
Section 24 repealed: Certain widows remarrying may not inherit
as a widow In classical Hindu law, certain female heirs if they had
remarried after the death of their spouses, before the succession
opened were disqualified from inheriting the property of the
deceased intestate, for being unfaithful to their obligations
widows. Under the Hindu Widow Remarriage Act, 1956, if a Hindu
widow remarried, she could not inherit the property of her deceased
husband. Under this Section of the Act, only three female heirs
were disqualified on such grounds, namely: Sons widow Sons sons
widow Brothers widow Now, this Section has been
omitted[footnoteRef:24], rendering such disqualification null and
void, which is a great diversion from Hindu traditional law. [24:
Omiitted by Section 5, Act 39 of 2005.]
Section 25: Murderer disqualified 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. It is a general
policy of practically all the systems of law that no one should be
allowed to reap the benefits of his crime. Such provision however,
was not specifically provided for in traditional Hindu law. It was
a disqualification in the Dayabhaga school, but not provided for in
the Mitakshara school. Furthermore, even in the Dayabhaga school,
only the murderer himself was disqualified, not the abettor of the
murder. This Section however, disqualifies both a murderer and an
abettor to murder. The Joint Select Committee on the Hindu
Succession Bill observed:A murderer even if not disqualified under
the traditional Hindu law from succeeding to the estate of the
person whom he has murdered is so disqualified upon the principles
of justice, equity and good conscience.In the case of Kenchava v.
Girimallappa,[footnoteRef:25] the Privy Council held that the
murderer is not to be regarded as the stock for a fresh line of
descent but should be regarded as non- existent. [25: (1924) 51 IA
368.]
Under section 25 the murderer as well as the abettor of murder
is disqualified. But if he is acquitted on the basis of benefit of
doubt, the disqualification does not attach to him.[footnoteRef:26]
[26: Chamanlal v. Mohanlal, 1977 Del. 97.]
Section 26: Converts descendants disqualified Where, before or
after the commencement of this Act, 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.Under the old Hindu law, conversion
of any Hindu person into another religion was a disqualification
which was later removed by the Caste Disabilities Removal Act of
1850 and upheld by this Act. However, although conversion does not
disqualify a person form succeeding to the property of an intestate
under this Act, his descendants are disqualified from inheriting
such property unless such children or descendants are Hindus at the
time when the succession opens.[footnoteRef:27] [27: S.26, Hindu
Succession Act, 1956.]
Thus, the children of a convert and their descendants are
disqualified. But if at the time of death of the intestate, any of
them are Hindu, they are no longer disqualified.Effect of
DisqualificationsSection 27-- If any person is disqualified from
inheriting any property under this Act, it shall devolve as if such
person had died before the intestate.This means that no title or
right to succeed can be traced through the disqualified person. As
the disqualified person is deemed to have died before intestate, it
follows that no person can claim a right of inheritance to such
property, through him or her. For, this can only happen if the
property had vested in the disqualified person, and he or she had
thereafter immediately died. The property, in fact, never vests in
the disqualified person. Therefore, a disqualified person cannot be
a fresh stock of descent and a person claiming as an heir of the
disqualified person cannot inherit.
Section 28: Disease, defect, etc. not to disqualify Disease,
deformity and unchastity are no longer
disqualifications.[footnoteRef:28] Section 28 runs: [28: Girija
Singh v. Gyanwati Devi, 2001 Pat. 20.]
No person shall be disqualified from succeeding to any property
on the ground of any disease, defect or deformity, or save as
provided in this Act, on any other ground whatsoever.Under the old
Hindu law dome diseases, deformities and unchastity were
disqualifications of heirs, though they were not the same in both
Dayabhaga and Mitakshara law. According to the Mitakshara law, some
disqualifications were: congenial lunacy or idiocy, adoption of a
religious order (i.e. taking a sanyas) and unchastity of widows.
According to the Dayabhaga law, the disqualifications were:
blindness, deafness, dumbness, want of any limb or organ since
birth, idiocy, lunacy, unchastity of widows and, any virulent and
incurable form of leprosy rendering one unfit for intercourse.The
widowed mother and widowed stepmother are not disqualified from
inheritance even if they have remarried.[footnoteRef:29] If she has
remarried during the lifetime of her husband, her second marriage
is void and therefore she would not be considered to have
remarried. If she has remarried after divorcing her husband, and
therefore has ceased to be his wife so, she will not be his widow
when propositus dies. But the subsequent marriage of the widow is
no disqualification.[footnoteRef:30] [29: Kasturi Devi v. Deputy
Div. Commr., 1976 S.C. 2595.] [30: Aruna v. Madhava, 2005 Kant.
422.]
CONCLUSION
Before 17 June 1956 the classic Hindu law of succession applied
to the estates of deceased Hindus. Since then the classic rules
have been modified and codified to a large extent. Major changes to
the classic rules have been introduced by means of legislation. The
most important legislation regarding the Hindu law of succession is
the Hindu Succession Act that came into operation on 17 June 1956.
Although the Hindu Succession Act is a clear break with the classic
Hindu law of succession, it is not free of discrimination. The fact
that there are two different schemes of succession for males and
females may be seen as unequal treatment. In terms of the schedule
to the Act, the mother of the deceased is a Class I heir and the
father a Class II heir. The result is that the father of the
deceased only inherits if there are no Class I heirs. This may also
be seen as discriminatory.Before 1956, several disqualifications
were recognized which prevented an heir from inheriting property.
Not only the disqualified heir could not take property in
inheritance, but he or she also did not transmit any interest to
his or her own heirs, as a disqualified person was treated as
having predeceased the propositus. Under the pre-1956 Hindu Law of
succession, the disqualifications under the Dayabhaga and the
Mitakshara schools were different. The former contained a longer
list. Some disqualifications were common. Under both the schools,
an heir who was criminally responsible for the death of the
propositus was disqualified. Under Dayabhaga school, unchastitity
was a disqualifications for all women but under Mitakshara law,
only proposituss own widow was disqualified. Under Mitakshara law.
congenital idiots and lunatics were excluded from inheritance.
Under Dayabhaga law, insane persons, or persons born blind, lame or
deaf and dumb, lepers and impotents were also excluded.The Hindu
Succession Act, 1956, has simplified the law and reduced such
disqualifications to the barest minimum.Section 23 of the Hindu
Succession Act, which prohibited a female heir to claim partition
of the house she inherited, was repealed in 2005. Although the
Hindu Succession Act, 1956, and its amendments have gone a long way
in simplifying the rules regulating succession among the Hindus,
there are various discrepancies still to be solved. Apart from some
discrimination in the Hindu law of succession, the law as it is
applied in India today shows a positive reform with regard to the
position of females. It clearly shows that rules of personal law
based on religion are not above reform in order to bring them into
conformity with social and legal change. The women in India are not
properly informed of their rights in terms of the Hindu Succession
Act. There is an urgent need for the proper propagation and
popularization of their rights so that they can be exercised
effectively.There is scope of change in the amended Act also.
However, it cannot be argued that The Hindu Succession Act has not
made any revolutionary change in the law relating to succession,
especially for female Hindus. It has been a huge relief for females
who were devoid of property rights under the traditional Hindu
law.
BIBLIOGRAPHYBOOKS Das, P.K.: Handbook on Hindu Succession:
Universal Law Publishing, 2012. Professor Kusum: Family Law
Lectures- Family Law II. Nagpur: LexisNexis Butterworths Wadhwa,
2013. Agarwala, R. K.: Hindu Law.Allahabad: Central Law Agency,
2013. Diwan, Paras : Family Law. Faridabad: Allahabad Law Agency,
2012.
INTERNET SITES
http://www.mightylaws.in/878/succession-hindu-law-analysis-hindu-succession-act-1956
http://www.lawteacher.net/indian-law/essays/gender-justice-in-hindu-succession-laws.php
http://www.legalserviceindia.com/articles/gehsa.htm
http://www.shareyouressays.com/117221/general-rules-of-succession-in-the-case-of-a-female-hindu-in-the-hindu-succession-act
http://www.jlp.bham.ac.uk/volumes/50/bates-art.pdf
19 | Page