Hindu Succession Act 1956: Order of Succession among Males
This article is on the Hindu Succession Act 1956, the order of succession among males.
This article is on the Hindu Succession Act 1956: the order of succession among males. It intends to explain the distribution of property among heirs in Class I and Class II Schedule and also critically analyses the shortcomings of this legislation. The Hindu Succession Act 1956 was drafted in order to govern the issue of property inheritance. This act was drafted with the objective of creating a standardized and comprehensive structure of succession as part of the Hindu Code Bill. The...
This article is on the Hindu Succession Act 1956: the order of succession among males. It intends to explain the distribution of property among heirs in Class I and Class II Schedule and also critically analyses the shortcomings of this legislation.
The Hindu Succession Act 1956 was drafted in order to govern the issue of property inheritance. This act was drafted with the objective of creating a standardized and comprehensive structure of succession as part of the Hindu Code Bill.
The legal heirs are divided into two categories, Class I and Class II. Class II has a series of sub-divisions amongst itself. The Hindu Succession Act 1956 made an attempt to equalize the access to property between men and women and underwent an amendment in 2005 for the same intent. Despite that, this act is not entirely free of patriarchal biases and limitations.
Hindu Succession Act 1956- Order of Succession among Males
The Hindu Succession Act of 1956 came into effect to regulate matters of property inheritance. This act was drafted with the intent to create a uniform and comprehensive structure of succession. It also attempted to bridge the gender disparity by ensuring equal inheritance rights between sons and daughters.
The applicability of this act is restricted to Hindus and subsets within Hinduism, including the Jains, Sikhs, Buddhists, Arya Samaj followers, Lingayat, Brahmo followers, Virashiva, and Prarthana Samaj followers. It is important to note that this act is not applicable to other religious communities in India, like Muslims, Christians, Jews and Parsis. This act applies to both legitimate and illegitimate children, as well as those who have converted into Hinduism or its subsets.
In the Hindu Joint Family, it was traditional for the Karta (the Patriarch) of the family to be responsible for the care and maintenance of all the family members and to look after all property matters. Hindu law did not see the need to standardize these familial equations, given the traditional nature and structure of the family, where several generations lived together under one roof.
In an attempt to create a uniform structure, Hindu law was codified. This act replaced The Hindu Law of Inheritance (Amendment) Act, 1929 and the Hindu Women’s Rights to Property Act 1937. Both of them stand repealed.
The Hindu Succession Act 1956 maintains the devolution of property as per the Mitakshara School. However, there is one exception- if a Mitashara Coparcener passes away and leaves behind any of the following family members – like a mother, widow, daughter, daughter’s children, son’s children, son’s widow, grandson’s widow, etc then his interest in the joint family property will devolve by succession.
The Hindu Succession Act 1956 handles matters of inheritance in the following categories:
The separate properties of a Mitakshara male
The separate and coparceners of a Dayabhaga male and
The undivided interest in the joint family property of a Mitakshara Coparcener.
I. Kinds of Succession
- Testamentary Succession: When a person passes away after making a functional will, succession of property is conducted as per the will, subject to regulations of the HSA 1956.[1]
- Intestate Succession: When a person passes away without having made a will, the succession of property occurs as described in HSA 1956.
II. Methods of division of property
- Per Capita: All individuals in that particular class will inherit the same share of the distribution. For instance, all children will share the same proportion of the property they inherit from the deceased Hindu male.
- Per Stirpes: This is a more generational method which presents a defined hierarchy. When a Hindu male dies intestate, then his property and assets are distributed and transferred to his legal heirs in accordance with the Hindu Succession Act 1956.
III. Legal heirs: Categories
(i). Class I heirs: The immediate family members of the Hindu male fall under this category. The property is divided equally amongst all of them. It includes the wife, son, daughter, and mother.
(ii). In the case of a deceased son: Wife and children will inherit his right, and all of them will be entitled to equal rights. As a consequence, the wife will have half of it, and the other half will get divided amongst the children. It will depend on the number of children there are, but each one will get the same percentage or share of the property.
(iii). In the case of a deceased daughter: Her children will inherit her share in equal proportion. However, the husband of the deceased daughter has no right in this property.
(iv). Class II Heirs: If there are no relatives present in the category of Class I heir, the property will be inherited by heirs in the Class II category. The list of relatives in Class II has been further divided into nine categories.
Category I:
Father
Category II:
Son’s daughter’s son
Son’s daughter’s daughter
Brother
Sister
Category III:
Daughter’s son’ son
Daughter’s son’s daughter
Daughter’s daughter’s son
Daughter’s daughter’s daughter
Category IV:
Brother’s son
Brother’s daughter
Sister’s son
Sister’s daughter
Category V:
Father’s father
Father’s mother
Category VI:
Father’s widow
Brother’s widow
Category VII:
Father’s brother
Father’s sister
Category VIII:
Mother’s father
Mother’s mother
Category IX:
Mother’s brother
Mother’s sister
As per the law, an heir in the initial category will exclude the heirs of later categories. It is essential to note that all heirs placed in the same category will inherit the same per capita share.
(v). Agnates: This essentially refers to the male descendants of the person who has passed away. For instance, the individual is an agnate of his father’s brother’s son[2].
(vi). Cognate: This is a term to describe the relationship of the person who passed away with others through adoption or blood but not entirely through males[3].
If Class I and Class II is absent of any heirs of the Hindu male that passed away, then the hierarchy claims preference for the agnates over cognates. If there are no agnates at all, the cognate may be regarded as an heir of the deceased person.
(vii). Government: In a situation where both Class I and Class II are absent of heirs, and the deceased male has neither agnates nor cognates, the property, assets, obligations and liabilities of the Hindu male will be passed on to the government[4].
In the case of Additional Commissioner of I.T. v. P.L. Karuppan Chettiar[5], the Court held that upon the passing away of a Hindu male, his property would devolve, first and foremost, on all the family members in Class I of the Schedule. The Class I heirs will inherit simultaneously, which will lead to the exclusion of Class II heirs.
In the case of Bhagwat Prasad Bhagat v. Shankar Bhagat[6], it was held that Section 8 and not section 6 of the Hindu Succession Act 1956 would be referred to govern the matters of inheritance.
It’s important to note that heirs related to an intestate by full blood are always prioritised compared to those who are heirs related by half-blood, as per Section 18 of the HSA 1956.
If two or more heirs succeed together to the property of an intestate, they shall take the property together as per capita and not per stirpes[7].
If a child is in the womb at the time of the passing away of an intestate, when the child is born, he or she will have the same right to inheritance as he or she would have had if they had taken birth before the passing away of the intestate. The inheritance shall be considered to have vested in them since the date of the death of the intestate.[8]
In a situation where two people have passed away in such circumstances that it is impossible to determine who died before whom, then for the objective of determining succession to property, it will be assumed that the younger individual survived the elder.[9]
IV. Critical Analysis of Section 8 and Schedule 7
Section 8 specifies the hierarchy of devolution of property in the case of a male Hindu. This section has categorized relatives into two classes according to which the property of a Hindu male will devolve. The estate of a deceased Hindu male will first be distributed to everyone equally in Class I.
In the absence of any class I relatives, the estate will devolve on the Class II relatives according to the order specified under Section 9 of the Act.
The Hindu Succession Amendment Act altered this to a certain extent –
Section 7: Amendment of Schedule. In the Schedule to the principal Act, under the sub-heading “Class 1”, after the words “widow of a pre-deceased son of a pre-deceased son,” the words “son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son” shall be added.
The following four heirs were added to the existing list of heirs in Class I, as a consequence of the amendment-
- Son of a pre-deceased daughter of a pre-deceased daughter;
- Daughter of a pre-deceased daughter of a pre-deceased daughter;
- Daughter of a pre-deceased son of a pre-deceased daughter; and
- Daughter of a pre-deceased daughter of a pre-deceased son.”
On closer inspection, however, one can observe certain relations appearing in both classes. This creates a lot of scope for confusion and misunderstanding.
| Class I | Class II |
| Daughter of a pre-deceased daughter of a pre-deceased son | Entry II (2) son’s daughter’s daughter |
| Daughter of a pre-deceased son of a pre-deceased daughter | Entry III (2) daughter’s son’s daughter |
| Son of a pre-deceased daughter of a pre-deceased daughter | Entry III (3) daughter’s daughter’s son |
| Daughter of a pre-deceased daughter of a pre-deceased daughter | Entry III (4) daughter’s daughter’s daughter |
Barring the slight change in language, such as the usage of the word “pre-deceased” in a few entries, the relations added in Class I can be observed in Class II already. The amendment also did not change the existing discrepancy of the relation of “mother” being placed in Class I of the Schedule while “father’s widow” is mentioned in Class II.
Father’s widow will logically include the mother in its ambit, in traditional circumstances. Therefore, the father’s widow must only restrict its meaning to the stepmother. Nevertheless, since it has not been expressly mentioned, it leads to confusion. There is little clarity in this regard.
The mother is placed in Class I, while the father occupies a position in Class II. The Hindu Succession Act, 1956, was introduced in the Rajya Sabha with mother and father, both included as Class I heirs. However, the joint parliamentary committee passed, by a majority, relegated the father to Class II and retained the mother’s position in Class I[10].
There has been clear discrimination committed by placing the father and mother under differing categories. The object of this act was to bring gender equality in matters of succession by standardizing the rules for inheritance. The discrimination that occurred by placing the mother and the father in separate classifications beats the purpose of this Act.
In the case of Leela Prasad v. Bhavani[11], the Court held that this section is discriminatory between a father and mother, thus depriving the father of the deceased the right to inherit a part of his son’s estate.
Also, the relation of the daughter’s son’s daughter has been transferred from Class II to Class I while the daughter’s son’s son retains its place in Class II. However, there is no difference in the degree of relationship to the intestate of the two.
Conclusion
The errors made in the amendment are glaring and reek of inefficient drafting. This would cause much confusion in cases as well as possible loss of rightful share to the deserving parties. These anomalies must be removed.
At the same time, it is important to note that the Hindu Succession Act of 1956 has brought clarity to matters of inheritance for the Hindu community, which was lacking in the absence of the codification of custom law.
[1] Section 30 of the Hindu Succession Act 1956
[2] Section 3(a) of the Hindu Succession Act 1956
[3] Section 3 (c) of the Hindu Succession Act 1956
[4] Section 29 of the Hindu Succession Act 1956
[5] Additional Commissioner of I.T. v. P.L. Karuppan Chettiar, AIR 1979 Mad 1
[6]Bhagwat Prasad Bhagat v. Shankar Bhagat, MANU/BH/0622/2009
[7] Section 19 of the Hindu Succession Act 1956
[8] Section 20 of the Hindu Succession Act 1956
[9] Section 21 of the Hindu Succession Act 1956
[10] Duncan J (1959), Available Here accessed 26 June 2020
[11]Leela Prasad v. Bhavani[1995] 1-Andh. LT. 814.