Hindu Succession Act, 1956: A Comprehensive Analysis of Property Rights and Inheritance, Summaries of Family Law

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Codified Hindu Law

Hindu Succession Act, 1956

Devolution of interest in coparcenary property.-- When a male Hindu dies after the commencement of this act , having at the time of his death an interest in a Mithakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this act. Provided that, if the deceased had left surviving him a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in Mithakshara Coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this act and not by survivorship. Explanation 1.--For the purposes of this section, the interest of a Hindu Mithakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."

How will it go as per the Hindu Succession Act?

This is done as per Sections 8, 9 and 10. The first step, as per Section 8, is to look for Class 1 heirs. All members of Class 1 take simultaneously and to the exclusion of all other heirs. In the absence of all Class 1 heirs, we look for Class 2 heirs. Here, one entry of heirs has preference over the other. Members within an entry take the property together. In the absence of Class II heirs, it goes to agnates. And then to cognates.

The above mentioned rules are laid out in Section 9. As per Section 10, all widows together take one share. If there is a pre- deceased heir, his branch will take his share. This is per stripes. It is them divided amongst members of his branch per capita.

Section 6(1) at the outset, elevates women to the same level as men. Gives them equal rights and liabilities over property. It, however, has a cut-off date of 20th December, 2004. No partition, alienation or transaction before this cut-off date can be challenged by the woman.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,― (a) the daughter is allotted the same share as is allotted to a son; (b) 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 such pre-deceased son or of such pre-deceased daughter; and (c) 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.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall recognise 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: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect― (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of

2005. had not been enacted.

As per Section 6(4), Doctrine of Pious Obligation has been abolished. Doctrine of Pious Obligation made sons liable for any debt incurred by father, grandfather or great grandfather. However, this is not applicable to a debt incurred before the commencement of the Act.

Section 14, for the first time, gives absolute ownership of property to women. All kinds of property are applicable here. Sub clause 2 of Section 14 makes it clear that if the property came to the woman with restricted rights, then sub clause 1 will not be applicable.

The rules to be complied with for division of shares are made clear under Sections 15 and 16. Section 15 lays down the sequence of heirs who are entitled to a share when a woman dies. Section 15(2) lays down that if the share of the father came to the woman, post her death that share will directly go back to the heirs of the father in absence of children. Similarly, if the share of the husband came to the woman, Section 15(3) lays down that it will only go to the husband’s heirs in the absence of children.

Prakash v Phulavati MANU/SC/1241/ The question that arose here was whether a woman, after 2005, can stake a claim to co parcenery under Section 6 if the Father/Karta was not alive. The appellants had argued that after the death of the father, she loses her right to property as the she ceases to be daughter of the house. They also argued that 6(1) that makes a woman co parcenery should be read harmoniously with Section 6(5). 6(5) places a cut off date of 20th December, 2004 for its application.

The respondent woman argued that the legislative intent behind the amendment was social welfare. If the amendment did not encompass women like her who were born earlier but was bestowed with co parcenery right after 2005, then it defeats the purpose of social welfare. The court rejected her arguments. It held that the whole of section 6 had to be read harmoniously. The cut off date had to be interpreted strictly. Thus it made the provision prospective in nature. It also said father/karta had to be alive.

The court held that though the partition itself is done owing to a member of the HJF passing away, the partition has to be completed and brought to its logical end. Which means each person has to get the share that is owed to them. It cannot be confined to merely distributing the deceased person’s share.

Vineeta Sharma v Rakesh Sharma (11.8.2020) SC

The question is of the interpretation of Section 6 and its nature. The judgment overrules two important case laws: Prakash v Phulwati and Danamma and Anr v Amar and Ors which laid down that father/karta has to be alive for the daughter to exercise her right under the amended Section 6. Otherwise, she can’t. The cases also stated that the effect of the provision is prospective only.