Hindu Succession Act: Regulating Succession Laws

Hindu succession act(HSA), 1956 came into force on 17 June 1956. It came intending to regulate, amend and enact the law of intestate succession among Hindus.

This act shall further explore the applicability, basic terms and definitions and the rules for succession in males and females.

Application Of Hindu Succession Act

The Hindu Succession act extends to the whole of India.

The applicability of this act gets defined in section 2 of this act. This act applies to:-

1. All the persons who are Hindus by religion or in any of its forms or developments, including:

   • a Virashaiva,
   • a Lingayat, or follower of Brahmo,
   • Prarthana, or Arya Samaj
2. Any person who is a Sikh, Buddhist, or Jain by religion
3. Any person who is not a Christian, Muslim, Parsi or Jew by religion (when it gets proved that any custom or Hindu law would not govern the person).
4. Nothing in the Act applies to the members of the scheduled tribe defined under article 366 clause (25) of the Indian constitution.

The following persons are deemed as Hindus, Buddhists, Sikhs or Jainas by religion under this act:-

1. A legitimate or illegitimate child whose both parents are Hindus, Buddhists, Sikhs or Jainas by religion;
2. A legitimate or illegitimate child whose any one parent is Hindu, Buddhist, Sikh or Jaina by religion or brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
3. Any person who is converted or re-converted to Hindu, Buddhist, Sikh or Jaina religion

As per section 5 of the Hindu Succession Act 1956 of this act, this act does not apply to:-

1. Any property whose succession is regulated by the Indian Succession Act (ISA), 1925 because of the provision contained in section 21 of the special marriage act, 1954
2. Any estate descending to a single heir by the terms of any covenant or agreement entered into by any Indian ruler of any Indian state with the government of India or by any enactment made before the act’s commencement.
3. The Valiamma Thampuran Kovilagam estate and the palace fund administered by the palace administration board by reason conferred by proclamation(IX OF 1124) dated 29th June 1949, promulgated by the maharaja of Cochin

Section 6 of Hindu Succession Act, 1956 prescribes provisions for devolution of interest of coparcenary property.

The provision keeps the intestate property of a deceased male Hindu out of the scope of this act.

The deceased’s interest in the mitakshara coparcenary property shall devolve upon the surviving coparceners.

If the deceased gets survived by a female relative or a male relative who claims through such female relative specified in Class I of the schedule the interest in the property shall devolve upon them under Hindu succession act by intestate or testamentary succession and not by survivorship.

Property of a Male Hindu

Section 8 Hindu Succession Act, 1956 lays down the general inheritance rules in male Hindu dying intestate.

The intestate property of a deceased male Hindu shall devolve upon:-

(a) firstly, the heirs or the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs specified in class II of the Schedule;

(c) thirdly, if any of two classes do not have any heir of any of two classes, then upon the agnates of the deceased; and

(d) lastly, if there are no agnates, then upon the cognates of the deceased.

These terms ‘agnate’ and ‘cognate’ get defined under section 3 of the act.

“Agnate”– If two persons get related by blood or adoption wholly through males.

“Cognate”– If two persons get related by blood or adoption, not wholly through males.

Property of a Female Hindu

Section 14 of this act ensures the protection of the property belonging to a female Hindu.

The section states:

“any movable or immovable property belonging to a female Hindu was acquired by her before or after the commencement of this act shall be held by her as full owner and not as a limited owner”.

The provisions under the Act do not apply to any property acquired:

• by way of gift or under a will or
• any other instrument or,
• a decree or order of a court or
• an award that prescribes the terms of these awards, order, decree, gift or will, as a restricted estate in a property.

And Section 15 of Hindu Succession Act 1956 established the rules for inheritance in case of a property belonging to a female Hindu dying intestate.

Any property inherited by a female Hindu’s father or mother shall devolve upon the father’s heirs.

So, if female Hindu dies, intestate her property shall devolve upon:-

• Firstly upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
• secondly, upon the husband’s heir;
• thirdly, upon the mother and father;
• fourthly, upon the father’s heir; and
• lastly, upon the mother’s heir

Any property inherited by a female Hindu from her husband and father-in-law shall devolve upon the husband’s heirs and not upon the heirs referred to in section 15(1).

Heirs in relation to an intestate by full blood are given preference more than those related to an intestate by half-blood, as per section 18 of this act.

Disqualification from the Hindu Succession Act

Section 25-27 of this act lays the criteria for disqualification from the succession of intestate property. These are:-

1. A murderer or abettor of murder gets disqualified from inheriting the property of the person murdered or any other property in furtherance that offence gets committed(Section 25).
2. Any person converted to any other religion or ceases to be a Hindu; their descendant will get disqualified from inheriting any property belonging to any Hindu relative unless such descendants are Hindus at the time succession opens(Section 26).
3. If any heir gets disqualified from inheriting the property, it shall devolve if such person has died before succession(Section 27).

No person shall get disqualified from inheriting a property if such person is suffering from any disease, defect or deformity, etc.

Suppose a person dies intestate without leaving an heir qualified to succeed. In that case, that property will devolve upon the government subject to all the obligations and liabilities to which an heir would be subject.

The HSA, 1956, deals with the law of succession in the intestate property. Still, it is silent on the procedure and rules to deal with an inheritance of property by testamentary succession.

Section 30 just prescribes the provision to dispose of property by will or by testamentary succession by the provisions specified in the ISA (Indian Succession Act), 1925 or any other law for the time being in force and applicable to Hindus.

The Indian succession act, 1925

Unlike The Hindu succession act, 1956, the Indian succession act, 1925, deals with property inheritance by will or testamentary succession.

Section 5 of this act deals with the jurisdictional issues of the court in case of succession to the deceased’s person movable or immovable property.

The succession to the immovable property of a person in India shall be dealt with the law of India no matter wherever such person had his domicile at the time of his death.

The succession to the deceased person’s movable property of a deceased person shall be dealt with by the law of the country the person had his domicile at the time of his death.

The exception to this gets mentioned in section 19 of this act, which states that if a person doesn’t have proof of domicile, the movable property will get dealt with as per the law of India.

Application Of Indian Succession Act

As per section 4, This act shall not apply to Hindu, Muhammadan, Sikh or Jaina religions.

Domicile

A person can have only one domicile for his inheritance to the intestate property.

The legitimate child’s domicile is the country of domicile of his father at the time of his birth, in the case of a posthumous child, the country of domicile of his father’s death(section 7).

The domicile of an illegitimate child is the country of domicile of his mother at the time of his birth(section 8).

Under section 11 of this act, anyone may acquire a domicile in India. He can submit a declaration to an office appointed for this purpose by the state government provided that he should be residing in India for one year preceding such declaration.

The exception to this provision gets mentioned in section 12. An ambassador or consul of one country cannot acquire a domicile in another country. It’s because of his residence due to his posting in that country.

Nor any family member or servant can achieve that domicile status because of residing with that person.

The minor’s domicile gets derived from the origin of his parent’s domicile from whom he derived his origin’s domicile. He cannot acquire a new residence during minority.

A woman could acquire the domicile of her husband during and after her marriage if she had not the same domicile before as per section 15-16 of this act.

Probate of will

Definition of probate gets provided under section 2(f) of the Indian Succession Act,1956.

“Probate” means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.

Section 2(h) of the act defines will.

“Will”, a legal declaration of the intention of a testator concerning his property which he desires to carry into effect after his death.

A Probate is official proof of a will. Probate legalises the will and will’s executor; to transfer the properties in the name of the individuals to whom the property gets passed on.

The term probate, letter of administration and administration of assets get dealt with under part IX of the ISA, 1925.

Probate can only get granted to an executor appointed by the will; that appointment can be express or implied.

In probate proceedings, the court checks whether the will executed by the testator gets done at his free will and volition and whether he understands the nature of the disposition.

Probate granted by a court will give validity to the will until revoked, but it is a settled principle that a probate court cannot go into the will’s contents, even with the parties’ consent.

A minor or a person of unsound mind cannot get probate.

An application for probate can get made under section 276 of the ISA, 1925 by producing an original will or copy under exceptional circumstances.

A declaration shall be attached containing the time of the testator’s death:

• that the writing annexed is the last testament of the deceased,
• that there’s proper execution of the will,
• that the number of assets going to come in the petitioner’s hand.

In an application for probate, the petitioner should get named as the executor of the will.

Difference between Indian succession act and Hindu succession act, 1925

1. The most common difference between both the act is that The Hindu succession act(HSA), 1956 deals with the law of inheritance of an intestate property and,

   The Indian succession act(ISA), 1925, deals with the inheritance by testamentary succession or will.

2. If a proper will is written and executed, it gets dealt with under the ISA. But if there is no proper will, the case gets with under the HSA.

3. If a person converts himself from Hinduism to any other religion or ceases to be a Hindu, he can’t inherit the property under the HSA unless he transforms back to being a Hindu,

   The ISA deals with succession in all religions except Hindu, Muslim, Buddhist, Sikh or Jaina.

Hindu succession act 2005

Hindu succession amendment act, 2005 was enacted to prohibit gender-discriminatory provisions in the Hindu succession act, 1956.

This amendment act brought new provisions to HSA. It provided that a daughter of a coparcener will be a coparcener. And the daughter will acquire coparcenary rights by birth in the same manner as that of a son.

The daughter will have the same rights and liabilities in the coparcenary property as that of a son.

These provisions get enshrined in section 6 of the act.

This amendment also repealed sections 23 and 24 of the act.

Section 23 used to state that a female heir gets disentitled to ask for partition in respect of a dwelling house wholly inhabited by a joint family until the male heir chooses to divide their respective shares.

Section 24 also states that a widow gets denied to inherit her husband’s property upon her re-marriage.

This amendment applies to all state governments.

Case study Regarding Hindu Succession Act

Ramkali v. Mahila shyamwati

Is a widow in a void or voidable marriage entitled to the property if the court nullified the marriage after marriage?

No, In the case of Ramkali v. Mahila Shyamwati AIR 2000 MP 288, a widow is not entitled to inherit or claim the property of a husband if her marriage was void or declared null on the death of the husband by the court of law.

Bahadur v. Bratiya

Can a tribal woman inherit property under HSA, 1956?

In Bahadur v. Bratiya 2015, HP 1555 Himachal Pradesh high court decided that a tribal woman can inherit property under HSA, 1956 and not as per custom and usages to prevent them from social injustice and any exploitation.

José Paulo Coutinho v. Maria Luiza Valentina Pereira

Does a grant of probate by a probate court make it conclusive that the will is valid?

In this case, Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (2019) SCC 1190 Supreme court stated that a grant of probate by a probate court does not mean that the probate is valid even if it violates the law of inheritance. A probate court cannot decide whether the will is genuine or not.