Rights of Outgoing Partner

This article has been written by Sowbhagyalaxmi Hegde, pursuing a Paralegal Associate Diploma from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

Succession in Hindu law simply means the transfer of ancestral property from one generation to another, and it is envisaged under the personal laws of Hinduism. The Hindu law of succession governs the rules and regulations that govern the inheritance, partition, and distribution of property among family members. Succession under Hindu law holds significant importance in Hindu society’s social, cultural, and economic structure as it gives systematic strength to the family structure.

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In India, the Hindu Succession Act, 1956, governs succession and inheritance among Sikhs, Jains, Hindus, and Buddhists. The succession law clarifies the diverse and complex law that prevails among the Hindu communities. The Act has undergone several amendments, including the landmark Succession (Amendment) Act, 2005, which has given significant changes in gender equality and also removed a discriminatory provision in the matter of inheritance of property. This article deals with the historical background of Hindu succession laws, the basic principles of succession under Hindu law, and recent amendments and exceptions under Hindu succession law.

Historical background and evolution of Hindu succession law

Hindu Succession Laws in India have a complex history, dating back to ancient times when traditional society followed patrilineal inheritance. Over time, religious texts and customs influenced inheritance practices. The codification and modernisation of Hindu Succession Laws began during the British Colonial era, with legislation like the Hindu Wills Act of 1870 and the Hindu Disposition of Property Act of 1916. After India gained independence in 1947, the government recognised the need for social and gender equality and implemented reforms. The Hindu Succession  Act of 1956 provided equal rights to male and female heirs in succession and inheritance, while subsequent amendments expanded the rights of women, daughters and other disadvantaged sections. 

The Hindu Succession (Amendment) Act 2005 removed gender-based discrimination, granting daughters equal rights as sons are ancestral property. The evolution of Hindu succession laws reflects a progressive shift towards gender equality and individual rights within traditional Hindu inheritance practices.

Basic principles of Hindu succession

Mitakshara school

Most India follows the Mitakshara school, inspired by the historic legal work “Mitakshara” authored by Vijnanesvara. It acknowledges the idea of coparcenary, which describes the shared property ownership of the male members of a Hindu Undivided Family (HUF). According to the Mitakshara school, male descendants get birthright inheritance of ancestral property, constituting a coparcener. `The property is divided equally among the male coparceners and is passed down without being divided through the generations. The joint family structure, in which several generations live together and own property collectively, is valued at this school.

Dayabhaga school

West Bengal and some areas of Assam are the main centres of the dayabhaga school, which was founded by a scholar named Jimutavahana. The dayabhaga school does not acknowledge coparceners, in contrast to the Mitakshara school. The emphasis is instead placed on individual ownership and succession based on the closeness of kinship. According to the Dayabhaga school, there is no shared ownership among male family members and both male and female descendants can inherit property. This institution favours a more individualistic view of property rights and succession.

In the case of Danamma @ Suman Surpur vs. Amar (2018), the Supreme Court, in this decision, reviewed the Mitakshara School’s definition of partition and found that a coparencer’s simple demand for partition is sufficient to end the joint status and start the partition procedure. The Court stresses that the breakdown of joint family status does not require a real physical partition of the property. 

Succession of the property

Testimonial succession and importance of wills

In simple words, testimonial succession means the property transferred by the deceased individual by a will. Here, the individual only makes a valid will so that there will be no dispute in distributing the property among the blood kin after his demise. 

Creating a will is very important. In other words, we can say that the control of the individual over the property continues if he makes a will. In a will, the individual mentions who should hold his property after his tenure. It is also important that when there is any minor child or need to appoint a guardian, minimising the disputes over the property, etc.  So, the creation of the will plays a vital role in the Succession Act.

  1. Intestate succession and the Hindu Succession Act application:

When the person dies without any valid will, Section 3 of the Hindu Succession Act 1956,  or if the will doesn’t dispose of all the property of possession, then in such a case, intestate succession comes into the picture to distribute the property of the descent among the family members. 

The Hindu Succession Act of 1956 determines the rules for Hindus, Jains, Sikhs, and Buddhists. This Act provides for the order of succession, such as Class I heirs and Class II heirs, after the amendment’s equal rights for female heirs. It also excludes some of the relatives from being heirs through this act, such as stepdaughters, stepmothers, and step-siblings through intestate succession.

  1. Class I and Class II heirs and their entitlement to the property:

Class I and Class II heirs are groups qualified to inherit property without a will under Hindu succession laws in India.  Depending on the particular relationship to the deceased person, different parties may be entitled to different property. An outline of class I and Class II heirs and their rights is given below:

  1. Class I:
  • Sons and daughters: Whether they are married or not, every son and every daughter have an equal portion of the land.
  • Widow: Besides the children, the widow of the dead is also entitled to a portion of the property.
  • Mother: The widow, children, and mother of the dead are all entitled to a part of the property.
  • Widow of a predeceased son: If a deceased son left behind a widow, she is entitled to that portion of the estate.
  • Children of a predeceased son or daughter: If a deceased son or daughter has died, their children (deceased grandkids) are entitled to their parent’s portion of the estate.
  1. In the absence of any Class I heirs, the property will pass to Class II heirs. They  consist of the following people:
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  • Father: In the absence of Class I heirs, the dead person’s father receives the property.
  • Brother and sister: In the absence of Class I heirs or a father, the deceased’s brothers and sisters inherit the property, with each sibling receiving an equal part. 
  • Nephews and nieces: The deceased’s property is inherited by the nephews and nieces (children of predeceased brothers and sisters), with each receiving an equal share if there are no Class I heirs, such as the deceased’s father, brothers or sisters.

The Hindu Succession Act has been modified, particularly by the Hindu Succession (Amendment) Act of 2005, which significantly altered the inheritance regulations and enhanced the rights of daughters. These changes guarantee that females, regardless of whether they are Class I or Class II heirs, have the same rights to ancestral property as sons.  

  1. Rights of widows to the deceased husband’s property:

If widows come under the class I heirs, then the widow of the deceased husband has a right over the property.  Under Hindu Succession 1956, the Act gives a certain entitlement and protection to the widows. 

Absolute ownership rights vest with the widow of the deceased husband’s property, as she has the right to sell, manage and dispose of the property. She has full authority to deal with the further use of the property.  

This principle of succession in the Hindu Succession Act gives a prescribed framework for the distribution of property in testamentary and intestate succession.

Amendment for gender equality

The Hindu Succession Act of 1956 underwent essential changes in 2005, i.e., the Act got amended, and it was a landmark change. This amendment focused on gender equality and the rights to ancestral property. This amendment also had a significant effect on female felicity because, after the amendment, females could also claim their rights over ancestral property, which was also one of the reasons for female felicity.  

When we look into the amendment, there are some of the key provisions, which are.:

  1. Removal of gender bias: By giving daughters equal rights to inherited property, the amendment attempted to remove gender equality in Hindu inheritance laws. Before the amendment, daughters’ rights to coparcenary property, which mainly belonged to male heirs, were severely restricted. Regardless of when they were born before or after the 2005 amendment, daughters were granted the same rights as sons.
  2. Equal and coparcenary rights to the daughters: The amendment explicitly addressed the ideas of coparcenary, which denoted that the male members of a Hindu Undivided Family (HUF) shared ownership of ancestral property. In addition to their sons, females were given the right to become coparceners and receive an equal portion of the property. The ancient system of patriarchal rules that favoured male lineage, which was significantly altered by amendment, gave strength to women in the home and society.  
  3. Retrospective effect: The amendment’s retrospective applicability was one of the main factors. It made it clear that rights granted by the amendment would be retrospective, meaning daughters would still have an equal claim to ancestral property irrespective of the father’s death before the amendment. This made up for an injustice done to the daughters, who were denied their portion of property as there was discrimination against women. 
  4. Social and economic empowerment: The amendment had a significant effect on women’s social and economic advancement. It gave daughters a feeling of safety, acceptance, and financial independence. It closed the gender gap, advanced gender equality and gave women more authority within the family and society by giving them equal rights to ancestral property.

This Hindu Succession (Amendment) Act 2005 brought about a drastic change among the communities, and it strived for Article 14 of the Constitution, which is “equality.”. It just overlooked previous gender-based discrimination, questioned conventional patriarchal conventions, and acknowledged daughters equal rights to inherit familial property. The whole Hindu society accepted the changes by giving equal rights to the daughters in the ancestral property. It also brought significant changes to society. 

Exceptional circumstances in the Hindu Succession Act

The Hindu Succession Act provided a legal framework for the distribution of property. There will be certain special cases, so some exceptions have also been inserted in the Act. So, some of the exceptional cases are:

  1. Adoption: When the couple doesn’t have any biological children, they don’t lose their rights over their ancestral property. If the childless couple adopts a child in legal form, i.e., a legally adopted child, then such a child will have the same rights and obligations over the ancestral property of the adoptive parents.
  2. Illegitimate children: An illegitimate child is a child born out of wedlock. In the 1956 Act, the illegitimate child couldn’t claim any rights over the parental property. But the 2005 Amendment Act gave an illegitimate child a right over their mother’s property and even he can claim the father’s property if parental consent is proven.
  3. Women’s property (stridhan): Stridhan is a property or an asset that women have acquired in the way of gifts, inheritance, and self-acquisition. This gives an exclusive right to the women and it is not combined with joint family property. Women have a complete right over the Stridhan property regarding its disposal. 
  4. Conversion: When a person gets converted, they lose their rights over the ancestral property. The 2005 Amendment Act said that the conversion doesn’t take away the rights to ancestral property, but it has some restrictions over the coparcener or heirs.

Even in exceptional cases, the Hindu Succession Act gave protection to the individual and also gave rights and obligations to the individual over ancestral property. 

Relevant case laws

V. Tulasamma and Ors. vs. Sesha Reddi (dead) (1977)

In this case, the whole decision is very noteworthy because it made the rules for how the Hindu Succession Act should be interpreted to promote gender equality clear. The court highlighted that the act must be construed broadly in order to promote gender equality and prevent further gender-based discrimination. This ruling established a standard for similar instances in the future and affected how the court should address gender inequalities in succession rules.

Ms. Gita Hariharan and Anr. vs. Reserve Bank of India (1999)

In this case, the Supreme Court addressed the problem of discrimination against daughters concerning succession. According to the judge, the daughter’s claim to her father’s properties was unaffected by whether or not she was still living with her father at the time of his passing. It confirmed that girls, regardless of their marital status, have equal rights to inherit family property. This ruling helped establish the daughter’s equal and autonomous standing under succession rules.

Prakash vs. Phulavati (2016)

In this case, under the Hindu Succession (Amendment) Act, 2005, retroactive applicability was addressed in the Supreme Court decision. The Court decided that even if the father had gone away before the amendment took effect, the amendment guaranteeing daughters equal rights in coparcenary property would still apply to him. This decision made it very clear that daughters had an equal claim to inherited property.

Vineeta Sharma vs. Rakesh Sharma (2020)

This case established how the Succession (Amendment) Act, 2005, should be interpreted. No matter whether the father was still living or not at the time of the amendment, the court ruled that daughters have rights to coparcenary property by birth. Additionally, it was decided that the change is retroactive and supersedes any norms, practices, or previous rulings. The equal rights of daughters to inherited property were confirmed in this instant case.

Conclusion

This article gives an overview of the Hindu Succession Law. It traced its existence from the ancient period until 2005. Succession law evolved along with society. The enactment of Hindu Succession Law 1956 was amended in 2005, which gave gender equality to society. It abolished gender bias in the rights to property. Hindu succession law is an important law that governs the family and society. However, succession laws continue to evolve as required by society. Even the law takes care of individuals in their particular circumstances by giving them protection. Hindu succession law upholds individual rights, continuously preserving harmony in society.

References

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