Unit 3: Principles of Inheritance under

Hindu and Muslim Law

The unit contains the following topics:

a. The Hindu Succession Act, 1956: General Rules
of Succession of a Hindu Male and Female dying
Intestate under the Hindu Succession Act
b. Stridhan and Women‟s Estate
c. Principles of Inheritance under Muslim Law
(Sunni Law)
Prepared by: Shreya Mahajan
 Suggested Readings

Text Books:
1.Paras Diwan, Modern Hindu Law 282- 512 (Allahabad
Law Agency, Faridabad, 22nd edn.,1993)
2.Aqil Ahmad, Mohammedan Law 365-421 (Central Law
Agency, 25th edn., 2015)
3.Poonam Pradhan Saxena, Family Law- II Lectures 209-
253 (Lexis Nexis, 3rd edn., 2011)
4. Tahir Mahmood, The Muslim Law of India 234-291
(Law Book Company, 14th edn., 1980)
 Introduction to Succession laws

Hindu Succession Act, 1956

• Abolishes distinct Mitakshara and Dayabhaga laws of

succession, provides a uniform law for both
• Abolishes the concept of limited estate for Hindu woman
and replaced it with absolute ownership
• Two separate schemes of succession for male and female
intestates
• Property inherited by sons from F, GF, GGF becomes
separate property w.r.t. his progeny and not ancestral
property
• Modifies laws of Mitakshara coparcenary and its
devolution by survivorship by extending to class 1
female heirs and any male claiming through them

• The disqualifications for inheritance, disabilities and

defects were removed, for ex. Insane even though
not a coparcener was an heir for succession; an
illegitimate son who was not a coparcener can
succeed to property etc.

• Disposition of property by will allowed [Section 30]

 The old v. the new Hindu Succession Act:
Changes introduced by Amendment Act, 2005
• Abolition of concept of survivorship
• Introduction of daughters as coparceners
Law Commission Report- 17th Report on Property Rights
of Women: Proposed Reforms under Hindu Law
R. Kantha v. Union of India, AIR 2010 Kar 124
Ratio Decidendi: Coparcenary status to a daughter by
2005 amendment will not invalidate the partition that took
place in 1974 even if the State Amendment had bestowed
an equal right over the daughter.
• Marital status of daughter irrelevant
• Concept of notional partition
• Separation of son during the lifetime of the father, no
change upon his right to succession
• Abolition of the pious obligations of son to pay
father’s debt
• Derecognition of oral partition
• Introduction of 4 new class I heirs, total now raised
to 16 from 12- 11 females and 5 males
• Abolishing of section 23 related to the dwelling
house
• Abolishing of section 24 related to widows
 Application of the Act

• Who is a Hindu for the purpose of this act?

1. Hindu by religion
(a) To any persons who is a Hindu by religion in any of
its forms or developments including a Virashaiva, a
Lingayat or a follower of the Brahmo, Prathana or
Arya Samaj;
(b) To any person who is Buddhist, Jaina or Sikh by
religion; and
Test for religion:
(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 of family to which such
parent belongs or belonged;
2. Hindu by conversion
who is a convert or reconvert to the Hindu, Buddhist,
Jain or Sikh religion
3. Hindu by Deeming fiction/construction
To any other person who is not a Muslim, Christian,
Parsi or Jew by religion – All others

4. Hindu by custom/usage
It may not apply to those persons in point 3 if it is
proved that any such persons would not have been
governed by the Hindu law or by any custom or usage
as part of that law in respect of any of the matters dealt
with herein if this Act had not been passed, therefore if
certain customs under Hindu law are practiced,
deemed Hindu.
 Section 5 tells about which properties will it not apply

i) any property succession to which is regulated by the Indian

Succession Act, 1925, by reason of the provisions contained
in section 21 of the Special Marriage Act, 1954;
(ii) any estate which descends to a single heir by the terms of
any covenant or agreement entered into by the Ruler of any
Indian State with the Government of India or by the terms of
any enactment passed before the commencement of this Act;
(iii) the Valiamma Thampuran Kovilagam Estate and the
Palace Fund administered by the Palace Administration Board
by reason of the powers conferred by Proclamation (IX of
1124) dated 29th June, 1949, promulgated by the Maharaja of
Cochin.
 Definitions (Section 3)
• Clause (a) “Agnate”-one person is said to be an “agnate”
of; another if the two are related by blood or adoption
wholly through males;
• Clause (c) “Cognate”-one person is said to be a cognate of
another if the two are related by blood or adoption but not
wholly through males
• Clause (d) The expression “custom” and “usage” signify
any rule which having been continuously and uniformly
observed for a long time, has obtained the force of law
among Hindus in any local area, tribe, community, group or
family: Provided that the rule is certain and not
unreasonable or opposed to public policy; and Provided
further that; in the case of a rule applicable only to a family
it has been discontinued by the family;
F ----- BROTHER
M1 d2
Son
F------------------ bro
S1- d2 ------------ agnates

Atleast 1 person
son s3
F- brother
S1 s2
s3

Gf
S2
S4 s5
s3
F
S1 daughter
S3 s4---------------------cognates
Clause (e) “ full blood ” , “ half-blood ” and “ uterine blood ”-
(i) two persons said to be related to each other by full
blood when they are descended from a common ancestor
by the same wife, and by half-blood when they are
descended from a common ancestor but by different
wives;
(ii) two persons are said to be related to each other by
uterine blood when they; are descended from a
common ancestress but by different husbands
Explanation: In this clause "ancestor" includes the father
and "ancestress" the mother.
W1---------------F------------W HALF BLOOD BROS
S - S

F1---------------W-------------------F2 UTERINE B SIB

S1 D1
• Clause (f) “Heir” means any person, male or female,
who is entitled to succeed to the property of an
intestate under this Act
• Clause (g) “Intestate”, a person is deemed to die
intestate in respect of property of which he or she has
not made a testamentary disposition capable of taking
effect;
• Subsection (2): In this Act, unless the context
otherwise requires, words importing the masculine
gender shall not be taken to include females.
 Devolution of Property by Succession

• Testamentary succession: this is devolution by will

after the death of the testator – S.30
• Intestate succession- when the owner has not
disposed off his property by will and he dies

Both by will and without it, a person can devolve his

property, both joint (his share on partition only) as
well as his separate property