The Hindu Succession Act, 1956 : A view

Hindu Succession Act
Hindu Succession Act

Hindu Succession Act, 1956 came into force on 17th June, 1956 dealing with intestate succession among Hindus and is based on the rule of succession of Mitakshara principle of propinquity, i.e. preference of heir on the basis of proximity of relationship. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by Mitakshara and Dayabhaga Schools as also to those in certain parts of southern India who were previously governed by the Murumakkattayam, Aliyasantana and Nambudri Systems. The Act applies to any person who is a Hindu by religion in any of its forms or developments; or to any person who is a Buddhist, Jain or Sikh by religion; to any person who is not a Muslim, Christian, Parsi or Jew by religion as per section 2 of Hindu Marriage Act. But it will not apply in the case of a Testamentary disposition and will be governed by the Indian Succession Act, 1925.

Earlier, concerning with women’s estate they had only limited estate in respect of this kind of property. Although, she had powers of possession, management and enjoyment of such property, but in actual sense, she had no power of alienation or transfer except in few cases.

But the passing of the Hindu Succession Act, 1956 brought about historic changes in respect with rights of Hindu women to succeed to property, which includes both movable and immovable property. Also, relating to women’s estate this Act gave retrospective effect and abolished the limited ownership of Hindu women and converted into full ownership in respect of the property held by her as women’s estate.

This Act had many loopholes and women’s ownership of property and was subject to certain limitations, and was also biased against them. But the Hindu Succession (Amendment) Act, 2005 (39 of 2005) was a pathbreaking effort made by government after almost fifty years. It came into force from 9th September, 2005. The Amendment Act, 2005 is to remove gender discriminatory provision in the HSA, 1956. The 2005 Act covers inequalities on: agricultural land, Mitakshara joint family property, parental dwelling house and certain widow’s rights.

After amendment it deleted the provision Section 4(2) from the Code. It provides for an overriding application of the provisions of the Act; seeks to repeal all existing laws, whether in the shape of enactments or otherwise, which are inconsistent with this Act. After Amendment Act 2005 the Customary Hindu Law of Succession ceased to have effect. The inheritance of which was subject to the devolution rule specified in State-level tenurial laws. And where these laws were silent HSA applied by default. In Delhi, Haryana, Himachal Pradesh, Punjab, Jammu and Kashmir and Uttar Pradesh, the tenurial laws are highly gender unequal, primacy is given to male line of descent and women come very low in the order of heirs. Also, women get only a limited estate, and lose the land on remarriage. But now, it brings all agriculture land at par with other property and makes Hindu women’s inheritance rights in land legally equal to men’s across the States. This can potentially benefit millions of women dependant on agriculture for survival and would give economic security.

Secondly, the Amendment Act 2005 deletes Section 23 from the Code, thereby giving all daughters irrespective of their marriage the same rights as sons to reside in or seek partition of the family dwelling house. Section 23 was hostile discrimination against female heirs. It denies a married daughter the right to residence in an inherited parental home unless she is widowed, deserted or separated from her husband. It also denies female heir who has inherited house along with male member of a family from asking for her share of the property if any member of the family resides in the inherited house, until the male heirs also agreed. However, male heir has no such restriction. After the deletion of this proviso gives the same rights as that of son to all daughter either married or unmarried right to reside in or seek partition of the parental dwelling house.

Prior to Amendment Act 2005 section 6 of HSA states that if the deceased had left a surviving female relative specified in Class I of the schedule I or a male relative specified in that class who claims through such female relation, the interest of a deceased in Mitakshara coparcenary property shall devolve by testamentary of intestate succession under the Act and not as survivorship. This means that females cannot inherit ancestral property as males do and female also cannot ask for partition only sons can ask for it. When one of the coparceners dies then a female gets share of his interest as an heir to the deceased. Under this schedule there are four primary heirs namely son, daughter, widow and mother. The principle of representation goes up to two degrees in the male line of descent whereas; the female line of descent goes only upto one degree. Thus proviso is violative of the equal rights of women guaranteed under the Constitution in relation to property rights.

After amendment the gender discrimination proviso has been removed and now, gives equal rights to daughters in the Hindu Mitakshara joint family property as to sons have. As a birthright as sons to share can now, claim for partition and presumably can also become karta, while also sharing the liabilities. Also, makes the heirs of predeceased sons and daughter more equal by including as Class I heirs. Thus, it strengthens daughters economically and symbolically. This will enhance their confidence and if her marriage breaksdown then she would have an option to go to her parental and may reside out of her birthright.

Lastly, the amendment act 2005 deleted the section 24 from the HSA, 1956 which barred certain widows, from inheriting the deceased property if they had remarried. This section disqualifies certain female widows they are: widow of a pre-deceased son of the deceased or, widow of a predeceased son of a predeceased son of the deceased or, widow of a brother of the deceased. But it doesn’t explicitly say that the widow must be related to the intestate as the widow of a predeceased son of her husband by another wife, who, if otherwise, becomes entitled to succeed, property gets disqualified if she remarries before the succession opens. But after amendment it enables all widows to inherit property even after remarriage. Thus, will be benefited by millions of female as widows and daughters.

Deepa Jyoti Khakha