Unit-II

The Hindu Succession Act, 1956

There is no longer two schools of Hindu law basing their
inheritance on fundamentally different principles.
No longer are there different sub schools of the
Mitakshara creating confusions and complications.
Today we have one uniform law of succession for all
Hindus.
The basic classification of inheritance to the property of a
Hindu female and Hindu male still exists.

The Law of succession is classified as under:

 Testamentary Succession
 Intestate Succession
Intestate- die without making a will
Heir-any person who is entitled to succeed to property of
intestate
Descendants- offspring of a person.
Ascendants- Ancestors
Collaterals- descendants in parallel lines, brother &
sister
Agnates- when a person traces his relationship with
another wholly through males, he or she is agnate.
Cognates-whenever in the relationship of a person with
another, a female intervenes anywhere in the line, one is a
cognate to another.
Full blood-
Half blood-
Uterine blood-
 Devolution of coparcenary property of a Hindu
dying intestate
Sec 6- Devolution of interest in coparcenary property.
Sec 8-General rules of succession in the case of males.
Sec9- order of succession among heirs in the schedule.
Sec 10-12 Distribution of property
Sec 14-Property of a female Hindu to be her absolute property.
Sec 15-16 General rules of succession in the case of female
Hindu.
Sec 21- Presumption in case of Simultaneous deaths.
Sec 25-28- Disqualifications
Sec 29- failure of heir
Sec 30- Testamentary succession
 HINDU SUCCESSION ACT, 1956
The result of the codification of Hindu law in relation to
property was Hindu Succession Act, 1956. It amended and
codified primarily the laws of intestate succession and
touched briefly the law of testamentary succession as well
as the classical law of joint family and the coparcenary.

Although the Hindu Code Bill, 1948 as amended by the

select committee had in fact suggested abolition of the
coparcenary as it was discriminatory against women but
due to the strong traditional resistance at that time, it was
retained.
 Two primary changes
Two primary changes were brought in by the Hindu
Succession Act, 1956 having the effect of defeating the
application of doctrine of survivorship-

one of the basic incidents of coparcenary. This was

brought about by a presumption of a notional partition
effected immediately before the death of an undivided
coparcener so as to destruct his joint status at the time he
dies not due to his action but due to operation of law and

secondly by the voluntary act of making a bequest of

the undivided share by the coparceners.
Under Hindu Succession Act, 1956 a daughter
irrespective of her marital status has been made a
primary heir to the property of her father.

However, due to the continuation of the dual system of

property i.e. separate and ancestral, preferential
treatment was continued to be given to the son with
him getting an interest by birth in the ancestral
property, while denying to the daughter the same.
The Legislature without abolishing the dual property
system, tried to modify the rules in an attempt to give
better property rights to women in the coparcenary
property.
 concept of notional partition
Sec 6 HSA, 1956 interrupted the application of the doctrine
of survivorship, when a male Hindu governed by the
Mitakshara coparcenary died as an undivided member of
the family.

The Act provided that if in such cases this undivided

member has left behind him a class I female surviving
him or the son of a predeceased daughter, it will be
presumed that immediately before his death he had asked
for a partition (despite the fact whether he was competent
to ask for a partition or not) and his share in the
coparcenary property will devolve by intestate or
testamentary succession under Hindu Succession Act, 1956
and not in accordance with the doctrine of survivorship.
The notional partition is not a real partition. It
neither effects a severance of the status nor does it
demarcate the interest of the other coparceners or
those who are entitled to a share on partition. It has to
be used to demarcate the interest of the deceased
coparcener once that is done, rest should be
forgotten.
The share that is, ascertained after inflicting this
fictional partition is considered the separate property
of the deceased and in that, the daughter and the
widow succeed as primary heirs. The outcome is
that these females who would have been denied a right
in the ancestral property without there being any
partition will now get a share out of it.

For eg., where the joint family comprised the father

and his son and daughter, and the coparcenary
consisted of the father and the son, on the death of the
father since he leaves the daughter, a class I heir, it will
be presumed that he died after asking for partition.
His share in such partition will be 1/2of the total
family property; the other half going to the son.
This half that is calculated as the share of the father
will go by intestate succession to the class I heirs of the
father.
The son and daughter being the class I heirs will have
an equal share in this property and each will get 1/4th
share.
So the total share of son will be ½+1/4= ¾
And Daughter – 1/4
However in absence of the section 6, on the death of
the father, the son would be entitled to the complete
property under the doctrine of survivorship and the
daughter would get nothing.

So introduction of sec 6 in the Hindu Succession Act,

1956 did work to the advantage of women but could
not remove the discrimination and usher in the
concept of gender parity.
Section -6 After Amendment Act, 2005
[ 6 Devolution of interest in coparcenary property.
—(1)On and from the commencement of the Hindu
Succession (Amendment) Act, 2005*, in a Joint Hindu
family governed by the Mitakshara law, the daughter of a
coparcener shall,—
 by birth become a coparcener in her own right in the
same manner as the son;
 have the same rights in the coparcenary property as
she would have had if she had been a son;
be subject to the same liabilities in respect of the said
coparcenary property as that of a son,
After 20th day of December,
2004- any reference to a Hindu
Mitakshara coparcener shall be
deemed to include a reference
to a daughter of a coparcener
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.
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
(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.
4) After the commencement of the Hindu
Succession (Amendment) Act, 2005*, no
court shall recognise 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:
Section 8 -The Hindu Succession Act, 1956

8. General rules of succession in the case of males.—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.
Class I heirs- Son, daughter, 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 pre-
deceased daughter of a pre deceased daughter,
daughter of a pre-deceased daughter of a pre-deceased
daughter, daughter of a pre-deceased son of a pre-
deceased daughter, daughter of a pre-deceased
daughter of a pre deceased son.
Class I heirs are also called preferential heirs, as
presence of anyone of them excludes heirs in all
categories.

They are also called simultaneous heirs, as heirs in class

I inherit simultaneously-one does not exclude the other.
1) Son, Son’s Son, Son’s Son’s Son (S, SS, SSS)-
Son means legitimate son of propositus.
He can be natural born son or adopted son.
Not illegitimate child
Son of a void marriage and a son of annulled voidable
marriage will inherit the property of the father alone and
of no other relation.
Step son is not included in the expression son.
The meaning of son (S) applies mutatis mutandis to the
son of a predeceased son (SS) and to the son of a
predeceased son of a predeceased son (SSS).
2) Daughter, Son’s Daughter, Son’s Son’s daughter
(D,SD, SSD)
Daughter means a legitimate daughter, natural or
adopted.
If there are both natural born and adopted daughters,
they inherit equally.
There is no distinction between married, unmarried and
widowed daughters or between indigent and rich
daughter.
A divorced daughter is also entitled to inherit.
Same applies to son’s daughter and son’s son’s daughter.
3) Daughter’s son and Daughter’s daughter (DS and
DD)-
• Both natural born and adopted children of a predeceased
daughter are included.
• Illegitimate daughters and sons of a daughter are also
included because it is believed that illegitimate children
shall be deemed to be related to their mother and one
another.
• 4) Widow, son’s widow , son’s son’s widow-
(W,SW,SSW)
• Widow means the wife of a valid marriage.
• If the marriage was void the wife is not his lawfully wedded
wife and therefore she will not be his widow.
5) Mother- unchaste, divorced, remarried
But does not include step mother in Class I heirs

6) Daughter of a predeceased daughter of a

predeceased daughter, Son of a predeceased
daughter of a predeceased daughter (DDD, DDS)

7) Daughter of a predeceased daughter of a

predeceased Son, Daughter of a predeceased Son
of a predeceased daughter (SDD,DSD)
Class II
I. Father
II. Son’s daughter’s son
Brother
Sister
III. Daughter’s son’s son
IV. Brother’s son
Sister’s son
Brother’s daughter
Sister’s daughter
V. Father’s father
Father’s mother
VI Father’s widow
Brother’s Widow
VII Father’s brother
Father’s sister
VIII Mother’s father
Mother’s mother
IX. Mother’s brother
Mother’s sister.
Cat-1) Father is the only nearest heir who has not found
place in Class I, on the basis of propinquity-it is
considered that mother is having greater propinquity
than father.

Cat-2) Brother and Sister- Full blood and half blood.

The rule is when there is any brother or sister by full
blood, the brother or sister, by half blood is excluded.
The brothers and sisters by uterine blood are excluded.
All will inherit per capita.
Cat-3) DSS-per capita
Cat-4) BS, BD, SS,SD- they may be children of brothers
and sisters by full blood or half blood.
 But, children of brothers and sisters by uterine blood are
excluded.
Cat-5) FF,FM
It does not include step grandfather or grandmother
 Cat-6) FW, BW- father’s widow means stepmother.
She is the only step relation i.e., included among the heirs
Even if she had remarried at the time when succession
opens she will inherit.
Brother’s widow is not entitled to succeed if she had
remarried on the date succession opens.
Cat-7)FB,FS- full blood and half blood
Full blood excludes half blood
Uterine excluded
Cat-8)MF and MM- They take per capita
Cat-9) MB and MS- Natural as well adoptive
 Agnates
Agnates are as a rule are preferred over cognates,
howsoever remote an agnate may be, he will be preferred
over cognates.

Here, agnates and cognates as heirs are those agnates and

cognates who are not included in Class I and Class II heirs.

 Those agnates and cognates who have already found a

place among Class I and Class II heirs inherit the property
in accordance with the order of inheritance laid down for
Class I and Class II heirs.
Classification of agnates-
when a person traces his relationship to the propositus
wholly through males, he is an agnate, his sex or the
sex of the propositus is immaterial.

Agnates fall in three classes:

 a) Descendant agnates
 b) Ascendants agnates and
 c) Collateral agnates.
Classification of cognates:
whenever in between the propositus and the claimant a
female intervenes, the claimant is a cognate.

Cognates also fall in three classes:

Descendant cognates-
Ascendant cognates-
Collateral cognates-
FFM FFF

FF

[P]
Sec 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 the 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.
Section10-Distribution of property among
heirs in class I of the Schedule
1)—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.
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.
Sec-11 Distribution of property
among heirs in Class II of the Schedule
The property of an intestate shall be divided between the
heirs specified in any one entry in class II of the Schedule
so that they share equally.

Case-Mangal Singh v. Nathu Singh (1998) SCC 598- the

deceased was survived by 3 sons and 2 daughters of his
brother. They find place in Entry IV of Class II. It was held,
all these five would share the estate equally.
Sec 12- Order of succession
among agnates and cognates
The order of succession among agnates or cognates, as the
case may be, shall be determined in accordance with the
rules of preference laid down hereunder-
Rule-1 Of two heirs, the one who has fewer or no degree of
ascent is preferred.
Rule-2 Where the number of degrees of ascent is the same
or none, that heir is preferred who has fewer or no degree
of descent.
Rule-3 Where neither heir is entitled to be preferred to the
other under Rule-1 or Rule 2 they take simultaneously.
 Rule of preference

Descendants have priority to ascendants and

collaterals
Secondly, ascendants have priority to collaterals
thirdly., the nearer relative in degree has priority to the
remoter one
Fourthly, the relatives at equal distance of degree
inherit simultaneously.
Rule-1
Between Ascendants and descendants
 FFF
 FF
 F
 P
 S
 SS
 SSS
 SSSS
Between Ascendants
 FFFF
 FFF
 FF
 F
 P

Rule 2- Between collaterals

Between descendants
Sec 14- Property of a female Hindu
to be her Absolute Property-
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.
Sec- 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.
Entry (a) includes son, daughter, husband, son and
daughter of a pre-deceased son, son and daughter of a
predeceased daughter.
Sons and daughters- includes son and daughter by
natural birth, legitimate or illegitimate, posthumous
children and adopted children.
Step children are not included
Grand Children-sons and daughters of a predeceased
son will include only legitimate children by natural birth
or by adoption.
Illegitimate children are excluded.
Same is the case of daughters with this one exception that
her illegitimate children will be entitled to inherit as they
are related to mother.
Husband- lawfully wedded husband.
Divorced husband is not included
Husband of void marriage or of an annulled voidable
marriage is also not included.

Shares of heirs in entry (a)

Inherit simultaneously
Son, daughter and husband each take one share
Among the heirs of the branches of predeceased sons,
the predeceased daughter, the doctrine of
representation applies i.e., children take the same share
which the daughter or son would have taken had she or
he been alive.
Among heirs of a branch they take per capita
Entry b- upon the heirs of the husband- last husband of
proposita i.e., the one who was her lawful husband when
she died.
Section 10, 11 & 12
Entry c- Father and Mother
Natural mother as well as adoptive mother
Even if the proposita was illegitimate daughter of the
mother
Step mother not included
Father does not include step father
Entry d- Heirs of the father
Entry e- heirs of mother
Property inherited from Father or Mother- 15(2)
Category 1- Sons, daughters, sons and daughters of
predeceased son and sons and daughters of a pre
deceased daughter.
Category2- Upon heirs of the father
Default why not on father

Property inherited from Husband or father-in law

Category 1- Sons, daughters, sons and daughters of
predeceased son and sons and daughters of a pre
deceased daughter.
Category 2- upon the heirs of the husband
Section 16 in The Hindu Succession Act,
1956
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.
 Sec 21-HSA, 1956
Presumption in cases of simultaneous deaths-
where two persons have died in circumstances
rendering it uncertain whether either of them, and if
so which survived the other, then, for all purposes
affecting succession to property, it shall be presumed,
until the contrary is proved, that the younger survived
the elder.
Sec 25 – 28 Disqualifications
Section 25- Murderer Disqualified- A person who
commits murder or abets the commission of murder shall
be disqualified from inheriting the property of the person
murdered, or any other property in furtherance of the
succession to which he or she committed or abetted the
commission of the murder.
Sec- 26 Convert’s descendants disqualified- Where
before or after the commencement of this Act, a Hindu
has ceased or ceases to be a Hindu by conversion to
another religion, children born to him or her after
such conversion and their descendants shall be
disqualified from inheriting the property of any of
their Hindu relatives, unless such children or
descendants are Hindus at the time when the
succession opens.
 Succession when heir disqualified-Sec 27
If any person is disqualified from inheriting any
property under this Act, it shall devolve as if such person
had died before the intestate.

Section 28- Disease, defect, etc. Not to disqualify-

No person shall be disqualified from succeeding to any
property on the ground of any disease, defect or
deformity or save as provided in this Act, on any other
ground whatsoever.
 Escheat- Sec 29
Failure of heirs- If an intestate has left no heir
qualified to succeed to his or her property in
accordance with the provisions of this Act, such
property shall devolve on the government; the
government shall take the property subject to all the
obligations and liabilities to which an heir would have
been subject.
Testamentary succession Sec 30
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.