SUCCESSION

HSA 1956
 Concept
◦ The Act has preserved dual devolution of property:
By succession as well as under Mitakshara School when ancestral property involved.
◦ Based on propinquity:
Preference of heirs based on proximity of relationship/ nearness of blood
◦ Law of succession is classified into two types:
◦ 1. Testamentary – testator has freedom to bequeath the property, be it separate or
undivided interest in ancestral property.
◦ 2. Intestate- law of inheritance requires that devolution of property should take place
on the heirs solely based on nearness of relationship. It opens up when a person dies
without leaving a will.
◦ Succession opens up only at the time of death of the person re
his/her estate. Relevant
sections
◦ Succession can be divided in four parts: Basic Rules:
s. 6: devolution of interest
in coparcenary prop.
18- 22: general provisions

Rules in case of males:

In case of In case of S. 8: classes
males females s. 9-13

Rules in case of females:

s. 14, 15, 16

s. 25 - 28 s. 6, 18 -22 Disqualified due to

murder etc.
s. 25-28
 Features of the Act
Applicability
 to all Hindus.
 If someone married a Non Hindu under SMA, then by virtue of s. 18 & 21 HSA is NA because ISA will be applicable
due to civil marriage.
 If a person converts to another religion then not applicable.
 S. 4: purports to override all existing laws

 Daughters: By sub section 3 of s. 6, the Act has made it clear that daughters are coparceners in JFP and if a Hindu
dies leaving behind his JFP then his interest shall devolve by Test. Or Int. succn and daughter is allotted same share in
partition as son.
Features
 Conceptually:
 Rights in heirs are created irrespective of the generations they might have been removed from intestate.
{Remember: In previous module we learnt that coparcenary is created between LH+3 degrees below}

 Progressive amendments made in section 6 to increase in share of females

e.g. widow gets her own share in partition (if partition is happening due to sons) + share from husband’s portion during
intestate succession

 Notional: If a coparcener dies, interest in coparcenary is ascertained with help of notional partition.
 Applicability of the Act
◦ Persons governed by the Act:
◦ Hindu by birth
◦ Hindu by religion i.e. converts and reconverts to Hinduism
◦ An intention to convert is necessary
◦ Adoption of the Hindu way of life.
◦ Brahmos, Arya Samajis, Lingayats who may have deviated from Hinduism in matters of diet and ceremonial
observances
◦ Legitimate Children: where only one parent is a Hindu and the children are brought up as Hindus
◦ Illegitimate children:
◦ where both parents are Hindus
◦ where one of the parents is a Hindu for ex. mother is a Hindu and the children are brought up as Hindus
◦ If a person was not a Muslim, Christian, Parsi or Jew
◦ To persons not ousted from the application of Hindu law.
◦ To every other person who may be regarded as a Hindu unless he can show some valid local, tribal or family
custom to the contrary {under second module there are cases where HSA has been applied on tribals}.
◦ To Jains, Sikhs and to Buddhists.

5
 Contd…
◦ Practicing Hinduism is not a requirement:
◦ Even if a person renounces Hinduism with clear intention – till the time he does not
convert into another religion, Hindu law will be applicable to him.

◦ Time for determination of Religion:

◦ At the time of birth and not conception
◦ Example:
At the time of conception, if both parents were Christians and not Hindus, it does not
matter. Subsequently if they converted into Hindus and the Child is born after that, the
child would be considered a Hindu till he attains majority.

6
 Abolished Survivorship, retained Notional Partition

◦ Implication of survivorship: In case of death of coparcener, females wouldn’t get

anything as other males coparceners would get the share.
◦ First change in 1937: Hindu Women’s Right to Property Act gave right to widow of
coparcener to keep the share of property for her life. On her death the share would go
to survivors. But why was it
◦ Repealed in 1956 as provisions were made for women in the Act. essential to
incorporate women’s
◦ By the Act, survivorship applied in cases where male Hindu died as member of rights in 1956 Act?
coparcenary without leaving any class I female heir.
◦ Where he died leaving behind class I female heirs or son of daughter, notional partition
would be effected to calculate the deceased’s share. Journey from
Practically, it is extremely rare that person dying wont leave any Class I female heir. women’s estate to
her absolute
◦ Post 2005 amendment, survivorship completely abolished. property vis-à-vis
stridhan.
DEFINITIONS
Section 3
 S. 3
◦ Agnates:
 person tracing relation with another wholly through males.
 This person’s or deceased person’s biological sex is immaterial.
 Example: brother, brother’s son, son’s son, son’s daughter, father, paternal grand father,
paternal grandmother, great grandfather or great grandmother (paternal).
 Can be descendants, ascendants or collaterals.

◦ Cognates:
 wholly through females
 sister’s son/daughter, daughter’s son/daughter, maternal grandparents, paternal
grandmother’s father/mother, maternal uncles and aunts.
 can be descendants, ascendants or collaterals.
Contd.

◦ Intestate: dies without making will

◦ Heir:
 entitle to inherit property after someone dies intestate
 given in schedule of the Act
◦ Ascendants: Ancestors of a person upto any degree {above}
◦ Descendants: offsprings of a person, upto any degree {below}

◦ Collaterals:
 descendants in parallel lines
 common ancestor is traced then parallel generation drawn.
 example: brothers and sisters have parents in common as ancestors. They are collaterals.
Contd.

◦ Full blood: father & mother are same for two people

◦ Half blood:
 same father but diff. mothers.
 consanguine brother and sisters + called Agnates {trace commonality through father}

◦ Uterine blood:
 same mother, diff. fathers
 cognates as they inherit through females (common mother)

◦ Legitimate/illegitimate
◦ Propositus: person from whom line is traced for inheritance
 Interpretation
◦ Section 3 (1) (j) defines ”related” as related by kinship- provided that illegitimate children shall be
deemed to be related to their “mothers” and to “one another” and “their legitimate
descendants” will be related to “them” and to “one another”

◦ ”Related” as related by legitimate kinship

◦ Illegitimate Children related to one another; inheriting only from each other

◦ Illegitimate Children related to their mother; inheriting only from their mother

◦ Legitimate descendants of illegitimate children related to them and their own mother & not their
grandmother or any other relations.

◦ Wife’s/Mother’s property goes to all of her children irrespective of whether they are legitimate or
illegitimate & to her husband from legitimate/valid marriage i.e. not to husband from invalid marriage. For
example, Bigamous marriage.

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Contd.

◦ Legitimate children
 Section 8 HSA applies (Inherit from Father)

 Natural born out of valid marriage

 Adopted Children

 conceived at the time of death of person

 S 16 Hindu Marriage Act: Statutory Legitimate children born out void & voidable
marriage. (Separate property of parents + Ancestral property of parents. check
Revanasadiappa case)

 Judicial Legitimacy: To children born out of live in relationship as there is a

presumption of marriage (Separate property of parents. check Bharatmatha case)
13
 Comment
◦ Unfair implication of abolishing survivorship: separated child will also get share in succession
due to legal heirship
(No concept of Partition as such under the Act)
Example:
If a son has taken his share from JFP and separated but rest of the family remained joint. His
father dies later.
Under pre 2005 Act: s. 6 had words in explanation II ‘ divided coparceners and their heirs not
entitled to succeed u/s 6’. So, son or his heirs could not claim anything in intestacy because other
coparceners were there to make their claims.
Now: the son, and his heirs if he dies, can claim in father’s share by intestate principle.

Note: heirs of son will claim only if son has predeceased the father. They will be called widow of
pre deceased son, son of pre deceased son – Class I heirs.
 Notional partition
It is assumed that coparcener had received their shares seconds before their death
( assumption of life made: hence ‘notional’ )

A dies in 2015 leaving behind his widow, two sons with their wives, two daughters, one
daughter of first son, one daughter of second son. They are part of HJF and family owns
300 acres of land. Calculate shares. Also give the difference in daughter’s share in pre
and post 2005 era.
Notional partition pre 2005 Notional partition post 2005

◦ Done only if such male died leaving ◦ Applied even if male coparcener dies
behind female Class I heirs or son of without female heirs.
predeceased daughter. ◦ Applied in general for all successions.
 Notional/Deemed/Statutory Partition
◦ Mitakshara coparcenary
◦ Male Hindu dies as an undivided member of the coparcenary
◦ Left behind a Class I female heir or male heirs claiming through the class-I female heirs ex: son of a
pre-deceased daughter
◦ It would be presumed that immediately before death, he asked for partition
◦ His share devolves by intestate/testamentary succession if he left a will, not by survivorship
◦ Notional Partition enabled the daughters to get a share out of their father’s share in the
coparcenary property. If he had, not disinherited her by way of will.
◦ So, once a coparcener dies, coparcenary dismantles & the shares of the deceased coparcener as
well the other members entitled to get a share gets fixed.
◦ The ancestral property ceases to exist and the members of the joint family hold the property as
tenants in common and not as joint tenants.
◦ The share received by a coparcener after notional partition still remains coparcenary property qua
coparceners in his branch
◦ If there is a sole surviving coparcener in a branch, he can treat his share as separate property till
coparcenary is revived
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Question
◦ Son 1 dies in 2025 leaving behind Mother M and Brother (Son 2). Calculate shares in
HJF.
Section 6 (pre-2005)
Section 6. Devolution of interest of coparcenary property

When a male Hindu dies after the commencement of this Act, having at the time of his
death an interest in a Mitakshara coparcenary property, his interest in the property shall
devolve by survivorship upon the surviving members of the coparcenary and not in
accordance with this Act:

PROVIDED that, if the deceased had left him surviving a female relative specified in class
I of the Schedule or a male relative specified in that class who claims through such
female relative, the interest of the deceased in the Mitakshara coparcenary property
shall devolve by testamentary or intestate succession, as the case may be, under this Act
and not by survivorship.

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 Section 6 pre 2005 contd.
Explanation I:
For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been allotted to him if a partition of the property
had taken place immediately before his death, irrespective of whether he was entitled to claim
partition or not.

[NOTIONAL PARTITION]

Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the deceased or
any of his heirs to claim on intestacy a share in the interest referred to therein. - Example

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S. 6 in 1956
◦ Balancing between giving women equal rights and the need to preserve classical
Hindu law

◦ Giving women some rights in the coparcenary property

◦ Section 6, HSA, 1956 further diluted the concept of survivorship after the 1937 Act. It
preserved the concept of survivorship to the extent that the coparcener has not left
behind any class-I female heirs or any male claiming through such an heir.
 Example
◦ Hindu family comprises of Father F and two sons S1 & S2 forming undivided coparcenary.
F (1/3)
(1/3) S1 S2 (1/3)

If S2 dies:
 then as per survivorship F and S1 would have taken ½ each.
 Post amendment of 2005, now, it will be assumed that partition was effected just before S2’s
death and he had received his share i.e. 1/3. This is called notional partition.
 this 1/3 would now go via Will or intestate succession.

For intestate succession the Act is applied:

Father is class II heir, Brother is also class II but on second degree within class II. By applying rule of
preference, Father will get S2’s 1/3 share and S1 will keep his 1/3 only.
2005 Amendment Act
◦ Suggested by 173rd Law Commission Report:
◦ Primary aim: remove gender inequalities
◦ Major amendments:
◦ Introduction of daughters as coparceners
◦ Abolition of doctrine of pious obligation
◦ Abolition of doctrine of survivorship
◦ Concepts of coparcenary and joint family retained

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 After 2005
◦ Some principles of Classical Hindu law still applies, which has not
been specifically repealed by the Hindu Succession Act of 1956 and
the Amendment Act of 2005.

◦ The classical law still governs the rules of partition and remains
unmodified except for Section 6 of the HSA (as amended by the
Hindu Succession Amendment Act), which deals with devolution of
joint family property.

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 Daughters as coparceners- S 6 (1)
Section 6. Devolution of interest in coparcenary property.
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 [9.9.05], in
a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had
been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of
a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to
a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken place
before the 20th day of December, 2004 [date on which Bill was introduced in Parliament].

24
 Comments on 6 (1)
◦ Daughters are now vested with all rights including rights to seek partition and act as a Karta.
(Manu Gupta case)
◦ Daughter can start a joint family herself. [DEBATABLE]
◦ Prior to 2005: Females could not form or start a joint family on their own; they could continue it provided
they can add a male member

◦ This entitlement is given specifically from the commencement of the Act and on the date i.e.
9/9/2005, the person must be the “daughter of a coparcener”.
◦ A daughter will be coparcener by birth implying daughter born after the Amendment Act, 2005
◦ For a daughter born before 2005:
◦ The daughter and the father, both must be alive for the amended section to take
effect. If the father has died before the commencement of the Act, his case would be
governed by the pre-amended section 6. (Prakash v. Phulavati). if a daughter of a coparcener
died before the commencement of the Act, her heirs would have no right in the coparcenary property as she would
not have acquired any rights in the coparcenary property.
◦ Vineeta Sharma v. Rakesh Sharma - Not
necessary for the father coparcener to be alive as on
9.9.2005. The statutory fiction of partition does not cause actual partition. Its only purpose is
to determine share of deceased coparcener. Preliminary decree is not conclusive. Only
final decree concludes a partition.

25
Rationale:
◦ “Amended Section 6 nowhere provides as to what is to happen to a case where Hindu
died before commencement of 2005 Amendment Act. Obviously, Legislature did not
intend to leave any vacuum for the period prior to 9 September 2005 when the
Amendment Act came into force. Case of a Hindu, who died prior to 9 September 2005
continues to be governed by pre-amended Section 6.”
◦ See Puttalinganagouda vs The Union Of India, 19 February, 2015

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 CRITICAL ANALYSIS: SECTION 6 (1) (C)
◦ Sec. 6(1) (c) which takes away the right from the daughters to reopen petitions effected before
2004.
◦ Can this section be ultra vires of the provisions of the Constitution of India and thus void, as it
discriminated between the rights of coparceners on grounds of sex? As there is “no rational
basis to restrict the right of a daughter when the avowed object of the legislation is to create
equal rights as between a daughter and a son of a coparcener.
◦ Even if it can be accepted that the apparent object to so restrict the right was in order to
prevent litigation and to prevent settled positions from being disturbed. The same analogy
ought to apply to suits that are brought by the sons of a coparcener. The inconvenience and
hardship would be no different.

27
Daughters as coparceners: 6 (2)

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1)
shall be held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law for the time being in
force in, as property capable of being disposed of by her by testamentary disposition.

28
 Comments on 6 (2)
◦ This provision is only limited to coparcenary property and not any property.
◦ Such property could be disposed by her by testamentary disposition (Section 30)
◦ In case of partition- though the section has emphasized the rights of daughters, in case of
partition, apart from the sons and the daughters, the female members who were entitled to a
share on partition are still entitled to a share.
◦ The entitlement for a wife/widow of a coparcener has not been changed in any way.
◦ The only restriction is against the reopening of partitions and alienations which have taken
place before the cut-off date.
◦ Proviso to Section 1: Alienation/partition/testamentary disposition before 20 December 2004 not affected
◦ Marital Status of the daughter is irrelevant.
◦ All incidents of coparcenary ownership applies to her i.e. her children being daughters and
sons of coparceners will also have an interest by birth. [DEBATABLE]

29
 Comments on 6 (2)contd.

DAUGHTERS AS COPARCENERS:
◦ Interest by birth
◦ Same rights as sons
◦ Same liabilities as sons
◦ Daughters form a coparcenary with other siblings
◦ Incidents of coparcenary ownership: unity of possession and community of interest
◦ Daughter may ask for partition and get a share equal to that of a son
◦ Daughter may dispose of her interest in coparcenary property by will
◦ If she dies before partition, notional partition assumed to have taken place. Her share is
ascertained and goes to her heirs.
◦ Daughter can be a Karta

30
Daughters as coparceners (contd.)
◦ Distinction between:
◦ (1) female members born in the Hindu joint family
(daughter, sister), and (Members by birth: interest by
birth)

◦ (2) females who become members on marriage

(mother, wife, widow) (Members by marriage:
maintenance, residence (no change in legal
position))

31
 Abolition of doctrine of survivorship: 6 (3)

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall
devolve by testamentary or intestate succession, as the case may be, under this Act and not
by survivorship, and the coparcenary property shall be deemed to have been divided as if a
partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got
had they been alive at the time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre-deceased daughter; and (Rule of Representation)
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such child would have got had he or she been alive at the time of the
partition, shall be allotted to the child of such pre-deceased child of the pre-deceased
son or a pre-deceased daughter, as the case may be. (Rule of Representation)

32
 Abolition of doctrine of survivorship (contd.)

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been
allotted to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or not. (Notional
Partition)

33
 Comments on 6 (3)

◦ Section completely dilutes the concept of survivorship

◦ If a coparcener dies behind leaving an interest in the coparcenary property, it will be presumed
that he asked for partition right before he died and his interest then will pass on to his legal heirs
even though he has not left behind any class-I female heir, statutory partition will nevertheless
be affected.
◦ Section is limited to the coparcenary property.
◦ Separation of son during lifetime of father does not affect notional partition.
◦ The separated son or his heirs will still get a share on the death of the father.

34
EXAMPLE:
◦ Mitakshara coparcenary
◦ Joint family consists of F (father), S1 (son) and S2 (son)
◦ S1 dies
◦ Post-2005:
◦ No Class I Female heir is present, still there will be notional partition- Survivorship will not
apply.
◦ S1’s share: 1/3rd will not pass to F and S2 by survivorship but by Intestate succession.
◦ Father’s share: 1/3 (on notional partition) + 1/3 (Received by F as Class II Entry I heir. He
will be preferred over S 2 as brother is Class II Entry II heir. )
◦ S2: Son’s share: 1/3

35
Dilution of the doctrine of survivorship
◦ Pre-1937:
◦ Share fluctuated with births and deaths
◦ On death, property devolved by survivorship
◦ 1937-1956:
◦ Coparcener’s widow could hold his share. Survivorship applied on death/remarriage of widow
◦ 1956-2005:
◦ Survivorship confined to cases where male Hindu dies leaving undivided interest and did not
leave behind Class I heir or son of predeceased daughter
◦ Otherwise, notional partition or testamentary succession
◦ Post-2005:
◦ Abolition of doctrine of survivorship for male Hindus

36
 Caste disabilities Classical law, Pre- 1937 act 1956 2005
removal act, 1860 1937:

Removed religion Widows: No right Right to Partition S 6: List of Heirs Daughter

disqualification to demand given to the Schedule I (Female, was
partition but Widow: right to widow, Mother made
Inheritance widowed mother step into shoes of included) a
Removal of received share on deceased S 14: absolute right Coparcener
Disabilities Act, partition between coparcener. of ownership:
1928: brothers retrospective for S 30: She
Limited right females including can
Removed disability Didn’t have right of widows Will away
as a disqualification alienation S 30: Will away any Her
except congenital HJF/SP property Share in
lunacy. Now he is entitled any joint
to will away his family
share in property
coparcenary
37
Disposal of undivided interest by will
◦ Section 30. Testamentary succession
◦ Any Hindu may dispose of by will or other testamentary disposition any property, which
is capable of being so disposed of by him or by her, in accordance with the provisions
of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in
force and applicable to Hindus.
◦ Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or
the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property
of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything
contained in this Act or in any other law for the time being in force, be deemed to be
property capable of being disposed of by him or by her within the meaning of this
section.

38
Defeating the application of
survivorship
◦ Disposal of undivided interest by will
◦ Pre-1956:
◦ A coparcener could not dispose of his undivided interest in the coparcenary property by will
◦ When coparcener died, his interest devolved by survivorship
◦ Post-1956:
◦ A coparcener is empowered to make a will of his undivided interest in the coparcenary
◦ Post 2005:
◦ Inclusion of female Hindu as having a right of disposal of property by will

39
 Section 6 (4)
◦ After the commencement of the Hindu Succession (Amendment) Act, 2005, no court
shall recognize any right to proceed against a son, grandson or great grandson for
the recovery of any debt due from his father, grandfather or great-grandfather solely
on the ground of the pious obligation under the Hindu law, of such son, grandson or
great-grandson to discharge any such debt:
◦ Doctrine of Pious obligation not applicable after 2005

40
 Section 6 (4)

◦ Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect—
◦ (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the
case may be; or
◦ (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act,
2005 had not been enacted.
◦ Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-
grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be,
who was born or adopted prior to the commencement of the Hindu Succession (Amendment)
Act, 2005.

41
Comments on 6 (4)
◦ Section 6(1)(c): fixes liability upon a daughter as being the same as a son.
◦ Section 6(4): mentions liabilities but clarifies that daughter’s obligation is to be read
prospectively.

◦ Date of debt contracted is decisive for the law to be applicable.

◦ Only applicable to Debts contracted before 2005.
◦ Sons, grandsons and great-grandsons born before 2005 will be
liable for payment of such debts.

◦ Not applicable to son born or adopted after 2005.

◦ Not applicable to daughters.

42
Section 6 (5)
◦ Section 6(5) Nothing contained in this section shall apply to a partition, which has been
effected before the 20th day of December, 2004.

◦ Explanation. — For the purposes of this section “partition” means any partition made by
execution of a deed of partition duly registered under the Registration Act, 1908 (16 of
1908) or partition effected by a decree of a court.

43
 Daughter’s Coparcenary interest: Post 2005 amendment

◦ Daughter’s share in joint family property post 2005 amendment:

◦ Married Daughter: Now that daughter are also coparceners and according to Section 6
has all incidents of coparcenary, you have 2 options:
◦ (A) Since her children are already coparceners in their father’s family so they cannot
be coparceners in their mother’s family (maternal grandfather) as coparcenary in two
families is not concept of classical Hindu law. By application of Section 14 HSA, her
coparcenary interest will mature into her absolute property and will devolve as per
Section 15 HSA after her death.
◦ (B) Since as of now we do not have any case curbing the revival of coparcenary in
case of a daughter so you give her all rights under coparcenary and all revival of a
coparcenary thereby giving share to her children as a branch but not to her husband.
[(Section 6 (3) (b)]
◦ Unmarried Daughter:
◦ She can adopt a child and can continue her father’s joint family or coparcenary.

44
 Comments 6 (5)
◦ There should be Prospective application of HSA
◦ Classical law: Partition could be oral or in writing.
◦ HSA, 1956:
◦ Partition could be oral or in writing.
◦ Allows for statutory partition as requirement and not as an option
◦ Even if partition is not carried out by metes and bounds, the shares are fixed, determined and
allotted to all the coparceners including the deceased coparcener
◦ No requirement of registration for its validation
◦ HSA, 2005:
◦ Section 6(5) states that only registered partitions or decree by court will be recognized. This was
to avoid fraud or collusion to defeat a daughter’s rights.
◦ Statutory partition stands on a different footing from “partition” mentioned in Section 6(5) of the
Act since it derives its validation from a requirement of law.
◦ Statutory partition cannot be disturbed if it had taken place before the 20th December, 2004.
There is nothing in the Amendment Act to indicate that statutory partitions are rendered
nugatory.
◦ Law Commission Report 2008: suggested for amendment of Explanation to Section 6 of the Hindu
Succession Act, 1956 to include oral partition and family arrangement in the definition of “partition”. 45
DISQUALIFICATIONS
Under Hindu Succession Act 1956
 Repealed s. 24

◦ As per the section, son’s widow, son’s son’s widow and brother’s widow were disentitled
from inheritance if they remarried.
◦ But after repeal of s. 24, the effect of the section has not been clarified.
◦ Disqualification of remarriage is attached to those who become part of family due to
marriage, becomes widow on death of respective male members and then move out
by marrying someone else. These are not blood relatives unlike daughters, sisters,
mothers.
◦ The effect of this remarriage even after repeal remains the same: they cant inherit
because they are part of new family now.
◦ Widowed mother/ stepmother [relationship here is drawn with the child] not disqualified
even after remarriage. (if remarried after divorce then cannot get any share in capacity
of being wife; as after divorce she has ceased to be propositus’s wife)
 s. 25
◦ Murderers disqualified if:
 himself/herself murdered or abetted murder of propositus, for succession
 murdered someone else, other than propositus, for succession
◦ Based on equity, justice, good conscience. Public policy
◦ If murder committed to accelerate succession then such person should not reap benefits
◦ Applicable on both: testamentary as well as intestate succession

◦ Effect:
 disqualified person treated as non existent
 no title or right could be traced through him
 if heir is representative of disqualified heir, then they are also disqualified
 Examples:

1. Family consists of father (F), son (A) and a son of predeceased son (BS).
F
A [B]
BS
If A dies today, then in priority as per Class II heirs in schedule, F would get his share excluding BS.
But if BS murders F to secure his inheritance on A’s death, he would be disqualified from inheriting
property of intestate.

2. If killed accidentally in faction fight which is not in furtherance of succession, then no

disqualifications.

3. If father dies by heart failure due to son’s actions, then also no disqualifications. Because this is
responsibility of death but not murder.
 S. 26

◦ Converts disqualified
◦ Person who converts is not disqualified but his descendants are as they will now belong to
another religion.
◦ Children born after conversion- disqualified.
Example:
[P]
A B C
BS
P died leaving behind three sons: A, B & C. B had converted to Islam before P’s death. BS born
after conversion. – A, B & C all get 1/3 each. BS will have no claim if B dies before P.
If BS was born before conversion of B, then BS could claim share post conversion.
Velikannu v. R. Singaperumal (2005)
◦ Only Son killed his father for property.
◦ Questions arose:
 Being sole surviving coparcener can he still claim property under classical Hindu Law?
 Whether his wife, succeeding through her husband, can succeed to the property?
o Court:
o Both answered negatively.
o Under classical Mitakshara Law also, the son would be disqualified based on equity
and justice. This has been given legitimacy under the Act.
o Disqualification mean complete removal of the person from the stalk. Considered as if
the person never existed.
 Mohan Singh v. Rajni Kant
◦ In the word document provided in email.
SECTION 6
Devolution of interest
APPLICABILITY OF SECTION 6: RETROSPECTIVE OR NOT ?
Prakash v. Phulavati (2016)
Single judge bench of SC held- not retrospective. Applied only case when both father & daughter alive on
9/9/2005

Danamma @ Sumar Surpur v. Aman & Ors. (2018)

Division bench of SC held- amended s. 6 confers full rights of daughter despite father’s death in 2001.

Vineeta Sharma v. Rakesh Sharma (2020)

Three judge bench of SC finally settled: coparcenary rights are by birth and daughter can claim.
Retrospectively applied.
In Phulavati case, the SC held that amended s. 6 cannot apply S. 6 (1)
retrospectively. Both father and daughter should be alive on the
date of its commencement i.e. 9/9/2005. Only then it can be (1) On and from the
commencement of the Hindu
applied. Because, if father died on a date prior then sons would get Succession (Amendment) Act,
2005 (39 of 2005), in a Joint Hindu
their rights due to coparcenary rule and the share of propositus will family governed by the
be accordingly divided and daughter would only get her share in Mitakshara law, the daughter of
a coparcener shall,
the intestate succession of propositus’s property (ancestral share (a) by birth become a
that father received and his separate property). coparcener in her own right the
same manner as the son;
Danamma case overturned this decision and gave daughter full (b) have the same rights in the
rights as coparcener irrespective of the date of father’s death. coparcenary property as she
would have had if she had been
a son;
Vineeta Sharma case, highlighted the contradiction in above two
(c) be subject to the same
cases: liabilities in respect of the said
coparcenary property as that of
i) Person becomes coparcener by birth and not by a son, and any reference to a
Hindu Mitakshara coparcener
commencement of some ‘right’ given by the statute shall be deemed to include a
reference to a daughter of a
ii) Condition of daughter and father being alive on 9/9/2005 is coparcener:
unnecessary reading/addition of words into the legislative intent Provided that nothing contained
in this sub-section shall affect or
(which is to treat women equally by balancing Mitakshara rule invalidate any disposition or
and Article 14) alienation including any partition
or testamentary disposition of
property which had taken place
before the 20th day of
December, 2004.
 Note: UOI involved because it became a question of law of general importance that required interpretation by the SC.

UOI’s arguments against retrospective Petitioner’s argument in favour of

application retrospective application

◦ Solicitor general argued that Act was ◦ Amendment should be given full effect and
retroactive due to which daughters could depriving daughter by preventing
exercise their rights only on commencement. retrospective application is against her right to
equality.

◦ Another argument was that words ‘daughter

of a coparcener’ means daughter of a ◦ Legislature has not added the words ‘living
coparcener (person/father) who is alive at the daughter or living father’ in the amendment.
time of amendment.

◦ Reading such material into the act is against

◦ Sr. counsel R. Venkataramani argued that the intent of amendment which is to give
allowing retrospective operation would benefit to daughters and bring social parity in
introduce uncertainty in law and could lead family relations.
to increase in court cases.
 Court’s observations

◦ Reconciliation of retroactive application of Amendment and coparcenary rights is not feasible.

Retroactivity leads to a cut off date from which application starts but coparcenary is a classical
rule which is just recognition of a right by ‘birth’. Making daughters coparcener is akin to
acknowledging the fact that they are part and parcel of the family in which they are born just like
sons. Hence, they end up getting equal rights in ancestral property due to this birth right.
◦ The question of father’s death is irrelevant because his death would lead to the asset division. This
will happen by either mode of division: survivorship or succession. It does not lead to formation of
any rights. Even if father dies in 90s but property was not divided by choice of members (no
partition registered or recorded) and it is opened today then daughter’s right should be
considered.
◦ Purpose of amendment is to bring equality in personal laws and nothing should be read that
takes away this intention of the legislature.
◦ Mitakshara law is uncertain on its own due to fluctuating interest, hence this argument cannot be
accepted.
◦ Overruled phulavati case.
 Key points from the judgment

 Law commission report (174 th) recommended abolition of coparcenary system completely. But
the judgment clarified that notional partition settles shares of everyone in descent to the propositus
but HJF remains re other members including his descendants. It is not an end to the coparcenary as
sons will form their own coparcenary.
 but daughters cannot form their own coparcenary as they become part of husband’s family.
 one criticism of this system is that females (mothers, widows and daughters) end up becoming
double beneficiaries as they inherit from lineage as well as marriage while men only inherit from
single lineage.
 Court used broader interpretation of notional partition according to which an assumption is made
that actual partition had occurred immediately before death of the person in question. This gives
everyone their share in ancestral property.
 GURUPAD V. HIRABAI (1978)
Issue: Whether a widow is entitled to a share in
JFP incase of notional partition?

Premise: Mother gets a share equal to that of son, if

partition occurs during lifetime of coparcener
(husband). Can she claim this share as widow?
Facts
Khandappa Hirabai Wife

Gurupad Biyawwa Bhagirathi Dhandubai Shivpad

S D D D S

 Khandappa died in 1960 leaving behind widow Hirabai, 2 sons and 3 daughters.
 Hirabai filed suit for her 7/24 share in properties of Khandappa which was challenged by her son
Gurupad.

Division
Last holder, Khandappa, died in 1960, hence daughters were not coparceners but were class I heirs- HSA applies.

Notional partition of coparcenary property will be done first :

 Khandappa (assumed alive) takes ¼, Hirabai – ¼ , Gurupad – ¼ , Shivpad – ¼ .
 Khandappa’s 1/4th share will be divided between heirs as per succession Act (intestate
succession): widow, sons, daughters are class I legal heirs. Hence all take equal share in this ¼ .

So, now they all get ¼ * 1/6 = 1/24 each + initial ¼ for hirabai and sons.
Contd.

◦ (Pre 2005 amendment) Proviso to S. 6: If a Mitakshara Coparcener dies leaving behind a

female relative/ or a male relative claiming through female in class I, this undivided interest
will not devolve by survivorship, but by succession as provided under the Act.
◦ Explanation I to sec. 6: For the purpose of this section, the interest of a coparcener shall be
deemed to be the share in property that would have been allotted to him, if a partition had
taken place before his death, irrespective of whether he was entitled to claim partition or not.

Court’s observations on Hirabai’s claims:

Proviso gives formula for fixing share of claimant and explanation deduces share of deceased.
Explanation is intended to be explanatory of provisions contained in the section and it has to be
correlated to the subject matter of the main section. The explanation asks us to go for notional
partition (by using words: shall be deemed) and this legal fiction should be given full effect.

The statute requires us to make the assumption that partition had in fact taken place between
dying coparcener and others. This assumption is irrevocable. All consequences which logically
flow from real partition must be worked out. Heir’s shares must be ascertained on the basis that
they had separated and received a share in partition which took place during ‘lifetime’ of
deceased (propositus).
Contd.

 The inevitable corollary of this proposition is that the heir will get his or her share in the interest
which the deceased had in the coparcenary property at the time of his death, in addition to the
share which they received in notional partition.
 The interpretation of sec. 6 provisions in line with such observations ends up increasing the share
of female heirs- which was the objective behind enacting 1956 Act.
 By restricting the operation of fiction enacted by explanation I we shall take retrograde step.
Held:
Hirabai was entitled to 7/24 share (1/4 from notional partition + 1/24 from intestate succession).

Question:
P, a coparcener died in 1960 leaving behind his mother M and widow W. Thereafter, W adopted X as
her son. X sued for partition and claimed ½ share in JFP for which P was the last holder. Decide
whether X’s claim should be accepted by court? Calculate shares of all.

After P’s death: M - ½ and W - ½ . {If notional partition: p, w, m-1/3 each. P’s 1/3 * ½= 1/6 for M & W each. M =
1/3 + 1/6 = ½, same for W OR if treated as separate property of P then also both take as class I heirs i.e. ½ each}
X will take ½ in W’s share only.
 HEIRS
Class I & II
Note: Among Santhals, ‘Gharjamai’ has status of son.
 Class 1 Legal Heirs [ 16 after 2005 amendment]
Sons, Daughters, Widow, Mother, Son of a pre-deceased son, Daughter of a pre-deceased son, Son of a pre-deceased daughter,
Daughter of a pre-deceased daughter, Widow of a pre-deceased son, Son of a pre-deceased son of a pre-deceased son, Daughter of a
pre-deceased son of a pre-deceased son, Widow of a pre-deceased son of a pre-deceased son, Son of a predeceased daughter of a
predeceased daughter, Daughter of a deceased daughter of a predeceased daughter, Daughter of a predeceased son of a
predeceased daughter, Daughter of a predeceased daughter of predeceased son

Mother 1
[A] Wife 2
5 Widow of [Son 1] Son 2 3 Daughter 1 4 [Daughter 2]
Son 6 [Son] Daughter 7 Son 8 9 Daughter
Widow 10
Son 11 Daughter 12 [Daughter]
[Daughter] Son 13 Daughter14
Daughter 16 [Son]
Daughter 15
 Class I heirs
◦ Four new heirs introduced to make heirs of predeceased sons and daughters more equal.
(two generations of pre deceased daughters’ included just like sons’)
◦ Schedule is to be read with sec. 8 ( succession in case of males). All changes have been
made to this but none to category of heirs for female intestate succession.
◦ Key points for class I heirs:
Son, son’s son & son’s son’s son
 Means legitimate son – voidable marriage included
 adopted son
 child in womb at time of intestate’s death
 sons born after partition & division
 Illegitimate son- As per s. 16 of HMA 1955 includes children of void marriage, annulled
voidable marriage & would inherit father’s property (not from grandfather etc. Meaning that
as per s. 16 HMA they could not claim from ancestral property). But after Revanasidappa
case, such children would get ancestral share once father’s share has been carved out.
 Contd.
Daughter, son’s daughter, son’s son’s Daughter’s son and daughter’s
daughter daughter
◦ Same position as that of son ◦ Illegitimate daughters and sons of
◦ Marital status will not affect and all daughter are included as they are
daughters inherit equally related to their mother i.e. daughter.

Widow, son’s widow and son’s son’s

Mother
widow
Mother always a mother.
o Means wife of valid marriage only
Person dying could be her
o Void & annulled voidable marriage ?
legitimate/illegitimate/ adopted son.
o Divorced wife – if husband dies during
She could be remarried or divorced.
pendency of divorce proceeding
Step mother not included in expression
o Unchastity (HMA 1955)
‘mother’.
o Refer to s. 24 repealed
o Remarried widows are still class I heirs
SUCCESSION FOR
HINDU MALES
s. 8 onwards
 Context
◦ When a male Hindu dies without a will, leaving behind properties capable of
devolution by succession, following provisions of Hindu succession Act 1956 gets
activated:

i) If property left is ancestral (undivided interest) then section 6 r/w 8, 9 and 10 provide
scheme of succession (Notional + regular)

i) If property left behind is of separate character (accumulated of his own labour &
money) then section 8, 9 and 10 provides scheme of succession (regular)
 Succession in case of Males
◦ Difference in succession for Hindu males and females • simultaneously
Class I • Exclusion of all other heirs
Males • Preference rule
Section 8: general rules of succession of Males Class II • Kind of survivorship

• Through males
Hierarchy Agnates • Considered nearer
One set of legal heirs removes others.
• Not wholly through males
◦ ‘8. General rules of succession in the case of males.— cognates

◦ The property of a male Hindu dying intestate shall devolve according to the provisions of this
Chapter—
◦ (a)firstly, upon the heirs, being the relatives specified in class I of the Schedule;
◦ (b)secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II
of the Schedule;
◦ (c)thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased;
and
◦ (d)lastly, if there is no agnate, then upon the cognates of the deceased’
 Contd.
◦ 9. Order of succession among heirs in the Schedule.—
Among the heirs specified in the Schedule,
those in class I shall take simultaneously and to the exclusion of all other heirs;
those in the first entry in class II shall be preferred to those in the second entry;
those in the second entry shall be preferred to those in the third entry;
and so on in succession.
 Contd.

◦ 10. Distribution of property among heirs in class I of the Schedule.—

The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance
with the following rules:—
◦ Rule 1.—
The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.
+ on death of a widow her share goes to her own heirs, not by survivorship or to other widows.
◦ Rule 2.—
The surviving sons and daughters and the mother of the intestate shall each take one share.
◦ Rule 3.—
The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall
take between them one share.
◦ Rule 4.—
The distribution of the share referred to in Rule 3—
(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows
together) and the surviving sons and daughters gets equal portions; and the branch of his predeceased
sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons
and daughters get equal portions.
 Question
◦ Hari’s properties comprise of Rs. 8 lakhs that he had obtained on partition of ancestral properties, and
two houses in Delhi acquired by his own earning. He died in 1988 leaving behind widow, son S1 and an
unmarried daughter D. Determine shares of his heirs, if he is governed by Mitakshara Law.
What will be your answer:
◦ If Hari has left behind two widows and dies in 2008 ?
◦ If he dies in 2010?

Note: We have been considering the propositus as last holder till now i.e. having complete 1 whole of ancestral property that is being further
divided in his branch. But if his predecessor’s are also added then there will be two partitions. First between those predecessors and himself, then his
share between his line of coparceners and wife. In above example we should understand that there is a line of other coparceners above Hari who
are alive and Hari’s 8 lakh has been given to him in partition by them. But in partition claim of everyone has to be carved out, so this 8 lakh is not
entirely Hari’s, hence we divide this assuming that its ‘1 ancestral share’ of Hari as branch head that should go to others in his stalk as well.

1988: W & S1 each- 1/3 (ancestral share) + 1/9 (separate), D- 1/9 (separate)

Two widows: both take one share together- ¼ * ½ = 1/8 , on succession of Hari’s ¼*1/3 =
1/12 (1/12* ½= 1/24).
Thus each widow gets- 1/8 + 1/24 share

All get: ¼ + 1/12

 If sole surviving coparcener

◦ Property should devolve directly by intestate succession.

◦ Why?
 Illegitimate children
Section 6 (1)
….Explanation.—
The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—
◦ (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or
Sikhs by religion;
◦ (b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh
by religion and who is brought up as a member of the tribe, community, group or family to
which such parent belongs or belonged;……
 Live in relationships
◦ D. Velusamy v. D. Patchaiammal (2010)
After death of his wife in 1945 C started living in live in relationship with S which was in the
nature of marriage as husband and wife. It was accepted by society and all. This
continued until C’s death in 1979. Respondents and other 4 daughters were born out of
this relationship.
SC noted:
◦ Law always presumes in favour of marriage
◦ They lived for several years together hence s. 114 of evidence act can be used to
make presumption of marriage.
◦ By this the children are not illegitimate but this can be rebutted by giving evidence.
 Pre & post 2005 example
HJF consists of Father F, his wife W, his son S with two children S1 & D1, his daughter D with a daughter D4 and a predeceased
daughter D3 with son S2 & daughter D2. F died. Calculate shares of all family members.

F --- W

S D [D3]

S1 D1 D4 S2 D2

Before 2005 amendment After 2005 amendment

◦ Notional: F, W & S= 1/3 each ◦ Notional: F, W, S, D, [D3]= 1/5 each

◦ Intestate: F’s 1/3 amongst all class I legal heirs- ◦ Intestate: F’s 1/5 amongst all class I heirs-
W, S, D, [D3] W, S, D, [D3]
W- 1/3 + 1/12 W- 1/5 + 1/20 = 1/4
S- 1/3 + 1/12= 5/12 *1/3 = 5/36 S- 1/5 + 1/20 = ¼ * 1/3= 1/12
S1 & D1- 5/36, 5/36 S1 & D1- 1/12 each
D- 1/12 * ½ = 1/24 D- 1/5 + 1/20= ¼ * ½= 1/8
D4- 1/24 D4- 1/8
S2 & D2 – 1/12 of D3 * ½= 1/24 each S2 & D2- ¼ of [D3] * ½= 1/8 each
HINDU WOMAN’S PROPERTY
Sections 14, 15, 16
General
◦ Act made revolutionary changes for women from Hindu religion.
◦ First time woman could become absolute owner.
◦ Inherit from husband (intestate), male counterparts
◦ Widows given importance, 2005 made sweeping changes to daughter’s position
◦ But scenario remains largely unchanged as women still have to assert their rights:
mother shares equally with children/ widow share equally when son predeceases her.
But when a married daughter dies, the mother ranks after husband’s heirs. [s. 15, 16]
 Property succession incase of Hindu females
◦ Two types of property:
Coparcenary and Inherited property
For coparcenary: notional partition- becomes separate character then intestate amongst her
heirs as per section 16
For separate/inherited property: section 15
Both sections: 15 & 16 are applicable on property which is absolute property of woman as per
section 14(1).
Property falling under 14 (2) will not come under s. 15 & 16 for succession (in same order).

ORDER OF SUCCESSION IN CASE OF FEMALE HINDU’S DEATH WITHOUT WILL IS NOT SIMILAR TO
HINDU MALE DYING INTESTATE.
Reason: linked to strong emphasis on conservation & protection of property in the family of male
hindu.
 Contd.
◦ Limited estate has been abolished and so long woman is alive she has absolute power over all
types of property but for intestate succession the ‘SOURCE OF PROPERTY’ is material.
◦ For succession such property can be divided in following heads:
i) Property inherited by female from her father or mother
ii) Property inherited by female from her husband/father in law
iii) Property obtained from other sources such as by gift etc.

NOTE: IF FEMALE HINDU DYING INTESTATE HAS CHILDREN THEN i) & ii) will not become active and
children will take their share.

Section 15 deals with succession of property and s. 16 deals with rules.

Prospective in operation, does not govern succession to property of female hindu who died
before Act came into force.
 15 (1)- general property; S. 14 (1)
◦ If property received in gift then woman can give it to anyone. On her death it goes as per hierarchy
of heirs mentioned for female hindu dying intestate.
◦ 15 (1) deals with all properties ‘other than that which was inherited by a female Hindu from her
parents, husband or father in law’.
◦ If property received from above relations in form of gift, will, purchase, prescription- then it is general
property for the purposes of 15 (1).
◦ Self acquired property
◦ If inherited from Brother or sister or brother-in-law: then also general property for 15 (1).
14(1): “Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation : In this sub-section, "property" includes both movable and immovable property acquired
by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of
maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or
by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and
also any such property held by her as stridhana immediately before the commencement of this Act.”
 Properties acquired before commencement of the Act
◦ Widow had limited estate but after the Act came into force this limited estate could mature to full
ownership. Giving her absolute right over the property.

Two conditions are required for this conversion:

1. Possession of property in limited capacity: actual or constructive

◦ If widow lost her possession of limited estate by transfer in favour of third party before
commencement of the Act then no conversion into full ownership. As no possession. (alienee also
wont receive anything as ‘no one can transfer a better title than what he himself possesses’-
‘nemo dat quod non habet’.

◦ Reconveyance: retransferring the limited estate by the third party, in whose favour the widow
had transferred that interest previously. [giving back]. If such retransfer happens after 1956 Act
came into force then also it will convert into her absolute ownership if her right is called in
question subsequent to it.
If a widow transfers her LE before commencement and it is retransferred
after commencement of this Act, should it become her absolute
property?
Jagannathan Pillai v. Kunjithapadam Pillai (1987)
◦ Widow received property before commencement as limited estate. This estate was transferred in
favour of a stranger via registered sale deed. The alienee retransferred the property via registered
deed in favour of the widow. This happened after commencement of the Act.
Note: widow not in possession on date of commencement of the Act but became in its possession
after retransfer.
Court observed: possession is to be seen from the date when her right is questioned. If she possess
the property on that date then it should be treated as her separate property with full absolute right
over the property. Because 14 (1) says property possessed …’before or after commencement’…

By reversal of transaction the reversioners (husband’s heirs) will not attain any vested right in that
estate that has now been converted to her full absolute ownership. Because reversioners have only
‘chance of succession’ (she may or may not die during their lifetime).
 2. Remarriage
◦ If the widow has taken possession of the estate before remarrying then it matures into her
absolute ownership.
◦ If husband died before 1956, widow took life estate and remarried after 1956 Act, it will convert
into her full ownership.

Constitutional validity of s. 14 (1) has been challenged few times. but court has clarified the
position saying that as per Article 15 (3) State can enact provisions for women and children. It
does not lead to discrimination.
This section was enacted to give relief to women who end up in difficult circumstances after
husband’s demise.
 Separate property- full ownership
Section 14 has converted limited ownership of hindu female into full ownership.
14. Property of a female Hindu to be her absolute property.―
(1) Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited
owner.
Explanation.―In this sub-section, “property” includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or
arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or
under a will or any other instrument or under a decree or order of a civil court or under an award
where the terms of the gift, will or other instrument or the decree, order or award prescribe a
restricted estate in such property.
Contd.
◦ 14 (1) has been given retrospective effect. Two conditions must be fulfilled for this:
1. Ownership must vest in her, and
2. She must be in possession of the estate when the Act came into force.

Ownership entails title

Possession: actual or constructive
When a woman has ownership of property vested in her she will be deemed to be in
possession, and if ownership don’t vest in her, even if she in actual possession she will not
be deemed to be in possession.
 Contd.
◦ If property is not in her possession when Act came into force-
Old Hindu Law would apply.
Life estate will be functional as it was abolished by 14 (1) i.e. after the Act came into force.
People who would end up claiming their share in abovementioned property are called
reversioners. They are the heirs of last full owner.
Reversioners have contingent interest and not vested. Because as long as a woman has
possession of property they could not lay claim on it. Their chance of taking that property is only
based on her death. She might or might not die during their lifetime.
If a widow alienated property before 1956, reversioners could take following steps;
 sue to declare the alienation void
 after her death file for possession based on improper alienation from the alienee.
14 (1) and (2) mentions almost same mode of acquiring property i.e. gift, wills etc. but
consequence mentioned are different. One has to see whether property falls under 14(1)
or (2).
This was resolved by SC in Tulsamma v. Sesha Reddy.

◦ 14 (2) applies where grant itself is source or origin of interest created, and not where grant is merely
declaratory or definitive of preexisting right.
Facts: The properties in suit were allotted to Tulsamma under a compromise in 1945. As per the
compromise deed appellant had only taken life interest and there was restriction on her from
alienating the properties. She remained in possession till 1956 and alienated in 1960-61.
Issue:
whether the property received by widow as compromise in lieu of her maintenance becomes her
absolute property?
Whether such acquisition of property by widow, be it in partition or in lieu of maintenance right,
should be understood as ‘pre-existing’ right and covered by 14 (1) and not 14(2)?
Court observed:
 widow’s right to maintenance is against the JFP (jus ad rem). Therefore, if specific property is
allotted to her in ‘lieu of her maintenance claim’ it satisfies this claim of hers. This is her right out of
marriage and not out of compromise deed or court decree.
Contd.

◦ It would not be a grant without any preexisting right in favour of the widow.
◦ The compromise is merely recognizing and documenting a preexisiting right.
Hence the court concluded:
 s. 14 must be liberally construed to enlarge the interest of the widows.
 Word ‘any property’ is of wide amplitude.
 14(2) doesn’t refer to any transfer that merely recognizes a preexisting right but talks about only
such instances where the grants, wills or gifts create rights in the female.
 whether a restricted estate has been created has to be construed always from the facts.
 three essentials to determine applicability of 14 (1) or (2) can be considered: i) antecedents of the
property, (ii) possession of property (iii) existence of female’s right in property
Held: properties in present case, were allotted to widow under compromise in lieu of satisfaction of
her pre existing claim for maintenance. The widow is absolute owner and restrictions mentioned in
court decree (out of compromise) shall be ignored.
 SECTION 15
◦ 15. General rules of succession in the case of female Hindus.—
◦ (1)The property of a female Hindu dying intestate shall devolve according to the rules set out in section
16,—
◦ (a)firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter)
and the husband;
◦ (b)secondly, upon the heirs of the husband;
◦ (c)thirdly, upon the mother and father;
◦ (d)fourthly, upon the heirs of the father; and
◦ (e)lastly, upon the heirs of the mother.

◦ (2)Notwithstanding anything contained in sub-section (1),—

◦ (a)any property inherited by a female Hindu from her father or mother shall devolve, in the absence of
any son or daughter of the deceased (including the children of any pre-deceased son or daughter)
not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs
of the father; and
◦ (b)any property inherited by a female Hindu from her husband or from her father-in-law shall devolve,
in the absence of any son or daughter of the deceased (including the children of any pre-deceased
son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein,
but upon the heirs of the husband.
 SECTION 16

◦ 16. Order of succession and manner of distribution among heirs of a female Hindu.—
◦ The order of succession among the heirs referred to in section 15 shall be, and the distribution of the
intestates property among those heirs shall take place according to the following rules, namely:—
◦ Rule 1.—Among the heirs specified in sub-section (1) of section 15, those in one entry shall be
preferred to those in any succeeding entry and those included in the same entry shall take
simultaneously.

◦ Rule 2.—If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own
children alive at the time of the intestate’s death, the children of such son or daughter shall take
between them the share which such son or daughter would have taken if living at the intestate’s death.

◦ Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and
(e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to
the same rules as would have applied if the property had been the father’s or the mother’s or the
husband’s as the case may be, and such person had died intestate in respect thereof
immediately after the intestate’s death.
 Entry a of s. 15
◦ Sons and daughters, grandchildren and husband
 Simultaneously & equally [ branch rule]
 legitimate, illegitimate, adopted children (even by single woman]
 children of void voidable marriages- included
 step-children: not included [ they take from father]
 grandchildren: illegitimate or ones from void voidable marriage not included because by s. 16
HMA they take from parents
 deceased parents of children should also be legitimate:
Hindu woman w married H in 2020 who was already married hence bigamy attracted. Void
marriage. Two sons, S1 & S2 born out of this. S1 and S2 could inherit W’s property due to s. 16 but if
during lifetime of W, S2 dies leaving behind daughter S2D, then S1 alone will inherit W’s property.
S2D is not deemed to be related to W.
The relationship between children born out of void/voidable marriage is between parents and
them but they are not related to other relative of parents.
Husband

◦ Lawfully married, not divorced

◦ Desertion or judicial separation: included
◦ If husband murders her?
◦ In case of voidable marriage petition for which is pending?
Heirs of husband

◦ Date of opening of succession is not date of death of husband but that of woman.
◦ Property deemed to be that of husband, hence succession in case of males apply i.e. s
8.
◦ Husband deemed to have died immediately after her death (though he has died
already that is why his heirs have come to the forefront)
◦ In such scenario, as property is deemed to belong to husband, step son of female will
end up taking share as son of husband.
Hindu woman dies intestate, leaving behind her step son and her brother. Here her
property will go to step son through husband.
Critique
◦ Heirs of the husband are considered near in relation to a childless widow as compared to her own
parents or siblings.
◦ Thus, woman’s blood relations are relegated to an inferior position in comparison to relations born
out of marriage.
◦ When hindu male dies, wife’s relatives will never inherit. Lack of gender equality.
◦ Males’ property is more his as compared to that of females’.
174th Law commission report also observed “the provision of section 15(2) of HSA is indicative again of
a tilt towards the male… These provisions depict that property continues to be inherited through the
male line from which it came either back to her father’s family or back to her husband’s family.”

In Mamta Dinesh Vakil v. Bansi S. Wadhwa (2012), the Bombay High Court did observe that
discrimination between female and males does not pass the test of constitutionality and declared s.
15 violative of consti. But the matter is pending in appeal in same HC.
 Entry c- father and mother of proposita, d- heirs of father, e, heirs of
mother

Entry c:
◦ Not including step father/ mother
◦ Adoptive father mother included
◦ Step father/mother could succeed as heir of mother and latter as heir of father.
◦ Mother inherits from illegitimate children as well.
Entry d:
◦ S. 8 applies
◦ Father deemed dead right after
Entry e:
◦ Same as above
◦ S. 15, 16 applies
15 (2) a
◦ Property inherited from father/mother
◦ Exception to 15 (1)
◦ Stridhan is general as per 15 (1)
◦ If property received as per 15 (2) but nature changed then 15 (1) applies.
 Bhagat Ram v. Teja Singh (2002)
{Succession to the property of female hindu- originally inherited from her Mother}

◦ Two sisters inherited property from their mother on her death. After inheriting one sister died without
any child. Her share was taken by the remaining sister as ‘her father’s heir’ u/s 15 (2)(a). After
inheriting this property she entered into a sale agreement for the same. This sale was challenged by
the brother in law of deceased sister. He claimed the property as an heir of husband u/s 15(1)(b).
They contended i) that deceased female acquired property from her mother in the year 1951 and at
that time female had only limited right over property but due to s. 14(1) of HS Act she became full
owner and hence it is her general property and need not go back to source and hierarchy of s. 15 (1)
applies. (ii) 15 is prospective in operation and it should be construed to include only property that is
inherited after commencement of the Act – court negated this completely saying that was never the
intention of legislature. Source matters.
◦ Issue: whether the suit property would devolve on legal heirs of father or on heirs of the husband.
◦ Observations: if female hindu dies intestate leaving inherited property and without entry 1 heirs then
property is traced back to the source. In this case the property is taken by sister as she is the legal heir
of the father because as per s. 15 it’s the father’s heirs who take it as the source.
◦ Held: Sale is valid.
Property inherited by a female from her mother goes back to heirs of the father under the explanation
that its going back to heirs of parents but if male inherits then it remains within the heirs mentioned in
schedule- gender justice?
 Omprakash v. Radhacharan (2009)
woman’s self acquired property covered by 15(1) and not 15 (2)

◦ Narayani Devi, aged 15 years, was married. Within three months of marriage her husband died
and she was driven out by in laws. She came back and lived with her parents till she died.
During her lifetime she left substantiall property which she had acquired with hard work (her
own separate property). Dispute arose on the properties. Claimed by her mother and brother
as her heirs and also by brothers of dead husband as his heirs falling under 15 (1).
◦ Mother and her brother insisted that 15 (2)(a) should be made applicable as they were with
her throughout and contributed to her education when she came back, supported her.
◦ SC gave decision in favour of applicability of 15 (1) i.e. heirs of the husband.
Court said for inherited property source is traced and 15b (2) is applied as exception. But for self
acquired property there are no clear provisions, hence it falls under 15 (1).
“…..sentiments or sympathy aloe would not be a guiding factor in determining the rights of the
parties which are otherwise clear or unambiguous. If contention of mother/brother is to be
accepted we will have to interpret 15(1) in a manner not contemplated by the Parliament.”

Note: 207th law commission report suggested that clause c should be added to sec.15 which would
deal with self acquired property of female hindu dying intestate and issueless. This property to be
inherited by both husband and parent’s heirs SIMULTANEOUSLY.
 Pratibha Rani v. Suraj Kumar
Stridhan of a woman is her absolute property

◦ Pratibha Rani, the appellant, married Suraj Kumar in 1972. She had filed a criminal complaint citing
harassment, dowry demand, wrongful gain by inlaws and husband by keeping her jewellery etc.
(stridhan).
◦ Held: The stridhan property of a married woman cannot acquire the character of a joint property of
both the spouses as soon as she enters her matrimonial home so as to eliminate the application of
section 406 IPC. The position of stridhan of a Hindu married woman's property during coverture is
absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it
in any manner she likes-She may spend the whole of it or give it away at her own pleasure by gift or
will without any reference to her husband. The entrustment to the husband of the stridhan property is
just like something which the wife keeps in a bank and can withdraw any amount when ever she
likes without any hitch or hindrance. Ordinarily, the husband has no right or interest in it with the sole
exception that in times of extreme distress, as in famine, illness or the like, the husband can utilize it
but he is morally bound to restore it or its value when he is able to do so. This right is purely personal
to the husband and the property so received by him in marriage cannot be proceeded against
even in execution of a decree for debt.
◦ This case overruled following: Vinod Kumar Sethi & Ors v. State of Punjab and Anr, 1982, in which full
bench of P & H HC held that once a woman joins her married house, whatever stridhan she has
purchased becomes joint property as soon as she enters her matrimonial home.
 Derha v. Vishal (2023)
Share of deceased in coparcenary on date of death has to be decided first in
order to ascertain shares of heirs

Issue: How should the properties be divided amongst legal heirs of Phannuram who died in 1959?
Facts:
Phannuram Sahu dies in 1959 leaving behind his one daughter Kesar Bai form first wife and one son
Vishal and daughter Keja Bai from another wife. Both wives had predeceased him. After his death a
partition was effected in 1964 (as pointed out in this case) and 1/3 share each were taken by
Phannuram’s nephew Ramnath(from one brother), his sister in law (another brother) and his son
Vishal. Kesar Bai asked for her share in Phannuram’s property from Vishal which he denied. She had
made a will in 1980 giving her estate to her son Derha. In 1991, Kesarbai filed suit for partition against
Vishal in TC in Chattisgarh. She claimed her share in the coparcenary properties along with mesne
profits. During pendency of this suit she died n 1998 and Derha succeeds on her estate due to will.

Trial Court decreed the suit on 06.11.1996, holding that Derha was entitled to 1/3rd share in the suit
scheduled agricultural land and a 1/3rd share in two house properties. The Trial Court also held him
entitled to mesne profits @ ₹.400 per annum from 1979 till separate possession was delivered to him.
 Contd.

◦ In Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and others [(1978) 3 SCC 383],
a 3-Judge Bench of this Court dealt with Section 6 of the Act of 1956 in depth. It was held therein
that, in order to ascertain the shares of the heirs in the property of a deceased coparcener, the first
step is to ascertain the share of the deceased himself in the coparcenary property and Explanation
1 to Section 6 provides a fictional expedient, namely, that his share is deemed to be the share in the
property that would have been allotted to him if a partition had taken place immediately before his
death.
It was pointed out that once that assumption has been made for the purpose of ascertaining the
share of the deceased, one cannot go back on the assumption and ascertain the shares of the heirs
without reference to it, and all the consequences which flow from a real partition have to be logically
worked out, which means that the shares of the heirs must be ascertained on the basis that they had
separated from one another and had received a share in the partition which had taken place during
the life-time of the deceased.
In effect, the Bench held that the inevitable corollary of this position is that the heir will get his or her
share in the interest which the deceased had in the coparcenary property at the time of his death, in
addition to the share which he or she received or must be deemed to have received in the notional
partition.
 Contd.

◦ Vishal and Keja filed appeal which was dismissed. They approached HC in second appeal.
Held that Derha would be entitled to 1/6th share in the suit properties, i.e., the agricultural land
and two dwelling houses. Aggrieved by the reduction of his share, Derha filed the present
appeal by special leave.
◦ In SC appellants contended that it was not coparcenary property but joint property only. This
was denied by the SC as 1964 partition was never called in question.
◦ The issue that remained was how the said properties were to be divided amongst the legal
heirs of Phannuram upon his death in 1959, i.e., after the advent of the Hindu Succession Act,
1956.
◦ Section 6 of the Act of 1956 would govern the situation.
 Using Khandappa case reasoning:

◦ It was held in above case that, in order to ascertain the shares of the heirs in the property of a
deceased coparcener, the first step is to ascertain the share of the deceased himself in the
coparcenary property and Explanation 1 to Section 6 provides a fictional expedient, namely,
that his share is deemed to be the share in the property that would have been allotted to him
if a partition had taken place immediately before his death.
◦ It was pointed out that once that assumption has been made for the purpose of ascertaining
the share of the deceased, one cannot go back on the assumption and ascertain the shares
of the heirs without reference to it, and all the consequences which flow from a real partition
have to be logically worked out, which means that the shares of the heirs must be ascertained
on the basis that they had separated from one another and had received a share in the
partition which had taken place during the life-time of the deceased.
◦ In effect, the Bench held that the inevitable corollary of this position is that the heir will get his
or her share in the interest which the deceased had in the coparcenary property at the time of
his death, in addition to the share which he or she received or must be deemed to have
received in the notional partition.
 Contd.

◦ Applying this principle, the share of Phannuram would first have to be determined as on the
date of his death. He had two brothers (with LH) and Vishal had his own coparcenary with
Phannuram. Hence it will require double partition.
Phannuram – 1/3 (1/3 to brother A, 1/3 to other brother – their LH will take )
Due to Vishal’s coparcenary
◦ Therefore, he would be entitled to a share by birth of one-half of the 1/3rd share allotted to the
Deceased. The other one-half of the 1/3rd share belonged to the Deceased and, as he died
intestate, the same would devolve upon his Class I heirs, who, at the time of his death, were his
daughter and Plaintiff-Kesar Bai and his son-Vishal and another daughter-Keja Bai, the
Respondents herein. The Deceased’s other-half of the 1/3rd share would be divided equally
among them.
 Key points
Gopal, a coparcener, met with an accident on Jan. 1, 1995 and
was admitted to the hospital. He posted a letter on Jan. 6, 1995 • Women did not get
expressing his intention to separate from the family. He also share in partition before
1937, only maintenance.
executed a will on Jan. 7,1995 with respect to his undivided
widow was given life
coparcenary interest in favour of his wife Lata. Gopal died the same estate in 1937.
day. The letter was received by family on Jan. 10, 1995. Lata, being
• 1956 Act deals with
the only heir of Gopal, claims her interest in coparcenary property
intestate/testamentary
via will. 1. Will she succeed? succession.
Also, discuss her claims under following circumstances: • S. 30 of 1956 Act allows
will of undivided share in
2. If Gopal had died without making a will in: JFP. Prior to Act, no such
(i) 1937 (ii) 1953 (iii) 1995 wills were considered
valid.
3. If Gopal had died in 1952 after executing the will.
• Communication of
4. If Gopal’s share in JFP had been attached in an execution intention must reach
proceeding after he posted the letter but before his death. during lifetime.
• Widow is class I legal heir
5. If property is Attached on 9th Jan. After posting letter (6), making
as per Succession Act.
will (7) and his death (7) but before communication of his intention
(10). • Rights accruing between
date of expression of
intention & knowledge.
 Answer
1. Letter reached after Gopal’s death. As per the principle, communication must reach during
lifetime of person demanding the partition. But in view of s. 30 HSA 1956, will made by a person
of his undivided interest in JFP is considered valid. Hence, Lata can succeed to Gopal’s share in
JFP under the will.
2. before 1937, pure survivorship rule would have applied and Lata would have received only
maintenance from other family members.
(i) In 1937: Lata would get limited life estate in husband’s property and after her death survivor
would take back the share.
(ii) 1953: same
(iii) 1995: Lata would still get Gopal’s property being class I heir of Gopal. Proviso of s. 6 for
devolution of coparcenary interest of deceased would apply.
3. In 1952 such wills were considered invalid. Validation came only with 1956 Act. Lata would still
get life estate due to (now repealed) Hindu women’s Right to Property Act 1937.
4. If share attached before death then Lata cannot get any property, because vested rights are
preserved between the mentioned time period.
In Babu kishva case, property in question was separate property.
GENERAL RULES
S. 17 onwards- for reference