This article discusses the journey of a Hindu succession laws from the Mitakshara era to the present era where the women have been empowered
Traditionally the inheritance to the property among Hindus was largely governed through the principles enshrined in the treaties of MItakshara and Dayabhaga. Under these principles greater property rights were available exclusively to male members of the family. The women effectively did not have property rights. Such gender disparity against women was felt to be deep rooted andtherefore to curb such discrimination Hindu Succession Act, 1956 was brought into force.
Before coming into being of Hindu Succession Act, 1956 (1956 Act), immovable properties amongst the Hindus were considered coparcenary properties, wherein only the male heirs had the right to the property. The right was acquired in the coparcenary property by a male heir by virtue of his birth; the share in the property varied with the birth and death of the male Hindus.Such families were addressed as Joint Hindu family and also known as Hindu undivided family (HUF). Women were the members of the HUF, however were not coparceners. One thing that can be noted is that a daughter, wife or mother did not have directly any right in HUF properties. Their right accrued only after the death of related male member to them. Their right to the HUF property comes not in their direct individual capacity but this only arises (as heirs of the deceased) after the death of the male member with whom they are directly related to. Therefore, due to this reason they were also unable to claim partition during the life time of their related male member of the HUF family.
Hindu Succession Act, 1956 was introduced as a progressive legislation which for the first time provided effective right to women in the property. Though prior to 1956 Act, an Act called Women right to property Act, 1937 was available, however the same were available only to widow of a Hindu dying intestate. The shadow of the traditional male dominated society was evident in the 1956 Act. Section 6 of the 1956 Act in the opening line mentioned that the property shall devolve by survivorship; however where there is a female heir or a male claiming through the female, the devolution shall take place under this Act. Under Section 6, the succession was divided into two parts: a. Succession in respect of Coparcenary properties (HUF); b. Succession in respect of Non-Coparcenary properties Before we proceed further it is necessary to understand what the meaning of expressions is mentioned above.
Thereafter we would discuss how the property would be succeeded in the event of the person dying intestate (without leaving a Will).
JOINT HINDU FAMILY PROPERTY/COPARCENARY PROPERTY:
HUF property/coparcenary property referred to any property which is acquired by any Hindu by way of succession from his father, paternal grandfather or paternal great grandfather. The inherited property is in contrast with self-acquired property of his father. To qualify a property to be a HUF property firstly, this property should be four generation old; secondly it should not have been divided by the users in the joint Hindu family as once a division of the property takes place, the share or portion which each Coparcener gets after the division becomes his or her self acquired property. Apart from this separate/individual property (including self acquired properties) of male member of HUF thrown into common stock of the family; and properties acquired or purchased with joint efforts of family using HUF properties may also be considered as HUF properties.
NON-COPARCENARY PROPERTIES /SEPARATE/SELF ACQUIRED PROPERTY:
Non-coparcenary properties would include properties which are either self-acquired property, purchased by an individual from his resources or any property he acquired as a part of the division of any Ancestral/Coparcenary property or acquired as a legal heir or by any Testamentary document such as ‘Will’ etc.
SUCCESSION IN CASE OF COPARCANERY PROPERTY
1956 Act was enacted during the times when the society was male oriented;women did not have any rights in the properties. Perhaps the government of the time found it difficult to push such a revolutionary bill, thus Section 6 left a window to allow the properties to be inherited by the male heirs where the properties were owned by the coparcenary. The gap in section 6 of 1956 Act was filled by the Hindu Succession (Amendment) Act, 2005; making daughter coparcener in the Mitakshara Hindu joint family property. The current position of law on coparcenary properties is that daughters have a right of inheritance in the coparcenary property, which they acquire by birth. The share in the property is acquired by birth both by sons and daughters in equal share in the method discussed above. e.g. Suppose A has two sons and a daughter then each one of them will have 1/4th share in the property including the father. The daughter acquires such share by birth at par with the sons and can also claim the partition of her share in the property. This amendment is progressive and has held women at par with men in respect of all properties inherited.
SUCCESSION IN CASE OF NON-COPARCENARY PROPERTY
In this category of properties, separate provisions for the inheritance have been made, based on the gender. 1. Rules of Succession in case of Male: the property of a Hindu male dying intestate shall be governed through the provisions enshrined in section 8 of the Act. The provision provided that property shall devolve though succession: • Firstly upon class I heir •
In case of no class I heir upon class II heirs •
If there is no heirs of two classes upon agnates •
If no agnates then upon cognates
The order of succession is in the order specified above. Thus, Class I heirs take the property in exclusion to all others and so on and so forth.
Class I heirs :
The following are Class I heirs – Son, daughter, widow, mother, son / daughter of a predeceased son/daughter, widow of a predeceased son, son/daughter/widow of a predeceased son of a predeceased son, son/daughter of a predeceased daughter, daughter of a predeceased son of a predeceased daughter, daughter of a predeceased daughter of a predeceased son. The above Class I heirs take the property in priority succession to all other heirs. Amongst them the distribution is as follows: (i) The intestate’s children, mother and widow each take one equal share. (ii) The heirs in the branch of each predeceased child take one share between them. It may be noted that the terms ‘son’ and ‘daughter’ include both those which are natural and those which are adopted.
Class II heirs :
The following heirs are Class II heirs – I. Father II. Son’s daughter’s children and Siblings III. Daughter’s grandchildren IV. Children of Siblings V. Father’s parents VI. Father’s widow, Brother’s widow VII. Father’s siblings VIII. Mother’s parents IX. Mother’s siblings Among the heirs specified in Class II, those in the first entry take the property simultaneously and in exclusion to those in the subsequent entries and so on and so forth. Thus, if the father is surviving, he takes the property in exclusion to all other Class II heirs, Agantes and Cognates. As regards the heirs specified in one entry all of them get an equal share in the property.
Agnates and Cognates
Two people are called Agnates of each other if they are related (by blood or by adoption) wholly through males. Agnates could be males or females. Thus, a father’s brother’s daughter is an Agnate but a father’s sister’s son is not an Agnate because the relation is not entirely through males.
On the other hand, are called Cognates of each other if they are related (by blood or by adoption) but not wholly through males and similarly Cognates also could be males or females.
Rules of Succession in case of Female:
The property of a Hindu female dying intestate shall be governed through the provisions enshrined in section 15 of the Act. The provision provided that property shall devolve though succession:•
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
The order of succession is in the order specified above. Thus, the heirs in the first entry take the property simultaneously and in exclusion to all others and so on and so forth. Thus, the children and husband of a female Hindu take the property in preference to all other heirs specified. The order of devolution as regards her husband’s heirs would be as if it was her husband’s property and he had died intestate. The same principle would apply as regards devolution on her father’s heirs.
In case there are no heirs of an intestate who are qualified to succeed to the property in accordance with the provisions of the Act, then as per Section 29 of the Act, such property would devolve upon the Government.
The author of this Article is Anupam Srivastava who can be reached at firstname.lastname@example.org