1. Introduction to Hindu Succession Act, 1956

In 1956, the Hindu Succession Act,[1] came into effect, granting appropriate succession and inheritance rights to lineal descendants (male) of the father up until the 3rd consecutive generation next to the holder. According to the Act, there are 2 kinds of properties,

  1. Ancestral Property
  2. Self-Acquired Property

Self-Acquired property is one that has been acquired by the holder on his own during his life and he has complete ownership of the property. This kind of property can be inherited by anyone on the basis of a Will that the holder might have formulated before his death. In the case of Ancestral property or a situation where the holder did not make a Will before dying, the laws of succession come into play.

In a joint family, everyone is called a member of the family but not everyone is a coparcener. A coparcener is one who possesses inheritance rights as per the Act. Under the Act, only the male lineage (class I heirs) up to the 3rd generation next to the holder was supposed to have inheritance rights in the ancestral property (before the amendment of Section 6 of the HSA Act, 1956). This was known as the ‘survivorship rule’.[2] The women were only able to claim a share in the self-acquired property of the father after his death and not otherwise. Daughters were also denied the right to ask for their share in the paternal house till the male members of the family took cognizance in this regard (later fixed by the Amendment to the Act in 2005). This was biased against women and was the primary problem of the Act.

  • Hindu Succession Amendment Act, 2005[3]

In a revolutionary stride towards the fortification of rights of women in India, with effect from 9th September 2005, the Hindu Succession Amendment Act was enacted to remove some gender discriminatory provisions in the Hindu Succession Act, 1956. Under the amendment,

  • The daughter of a coparcener shall by birth become a coparcener in her own right just as a ‘son’ and shall assume all the rights and liabilities of a coparcener akin to a ‘son’. (Section 6 Amendment).
  • The Doctrine of pious obligation got abolished.
  • Section 23 of the earlier Act under which women could not demand a partition in a dwelling-house wholly occupied by the joint family got deleted.
  • Section 24 of the earlier Act which barred certain widows who remarried to inherit property got deleted.
  • Class I of the earlier act got amended to include the son of a predeceased daughter of a predeceased daughter; daughter of a predeceased daughter of a predeceased daughter; daughter of a predeceased son of a predeceased daughter; daughter of a predeceased daughter of a predeceased son.
  • ‘Survivorship rule’ abrogated. Instead, inheritance was divided into two; testamentary succession and intestate succession. Testamentary succession allowed the self-acquired property holder to write a Will and let anyone inherit his property. Any undistributed property and ancestral property were to be dealt with in intestate succession in which preference shall be given to the widow, son, and daughter (equal distribution).
  • Miscellaneous amendments that inserted relevant words and omitted certain words that violated the canon of gender equality (For example the amendment of Section 30).                       
  • Landmark judgments post 2005 Amendment

3.1 PRAKASH & ORS V. PHULAWATI & ORS[4]

The Apex Court in this judgment delivered that the HSA, 1956 shall only pertain to living daughters of living coparceners only. The Supreme Court distinguished between Section 6 of the Act and the Amendment Act stated that despite the absence of clarity regarding the retrospective application of the Act, it would be inappropriate to deem it social legislation and apply it retrospectively.

3.2 DANAMMA @ SUMAN SURPUR AND ANOTHER V. AMAR AND OTHERS[5]

The Supreme Court in upholding gender equality in succession and inheritance laws imposed that daughters have the same rights of inheritance as sons with respect to commonly owned property, partitioned after the 2005 Amendment to the HSA, 1956. This judgment advanced woman’s property rights and addressed the gender equality concern in the HSA, 1956. The decision while deep-rooting the position of females in the 2005 Amendment to the aforementioned Act, overruled the previous order, stating that, despite the death of the father occurring before 09/09/2005, daughters shall have the privilege to be a legal heir to the property, bearing all the rights and liabilities of a coparcener, irrespective of when they are born.

3.3 VINEETA SHARMA V. RAKESH SHARMA[6]

Supreme Court climaxed with asserting the retrospective application of the Act stating that the provisions contained in the amended Section 6 of the HSA, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as a son, with same rights and liabilities. 

The Court reinstated that the right of a coparcener is by birth and it is not necessary for the father coparcener to be alive as on 09/09/2005. The prime concern of the HSA, 1956 was to bring about an impartial and proper partition of the coparcenary property without there being any hostile feelings among the persons entitled to the property. If females are left out of it, the whole purpose of the enactment of the Act gets defeated. Thus, women after this judgment can not only claim their right in coparcener property after the father dies but also when he decides to do partition before his demise.  Hence, this judgment rightfully empowered woman’s rights and helped them achieve what they were entitled to.

  • Step Forward

4.1 CAN AN ADOPTED CHILD CLAIM RIGHT IN PROPERTY?

According to the Hindu Adoptions and Maintenance Act, 1956, after adopting a child, the child loses all their rights in their biological family[7] barring certain situations where the biological father decides to make a gift or a Will in the favour of the child adopted.

In the case of the adoptive family, the adopted child can stake a claim on their property and is just as entitled to the adoptive father’s property as their biological child might have been. The child, treated as the biological child of the father must assume all the rights and liability of a ‘real’ child in the assets of the adoptive father.

Testamentary succession can howsoever provide the adopted child with any property that is self-acquired by the adoptive father through a Will according to the Hindu Succession Amendment Act, 2005. Talking about intestate succession, the Amendment Act 2005 states that the foremost right to ancestral property or property not sorted by Will shall go to Class I descendants as explained by Hindu Succession Act, Section 10 which includes son, daughter or widow, etc. as explained by the section. The Hindu Succession Act, 1956, and the Amendment made to it does not define ‘son’ or ‘daughter’ in any particular manner and thus must not be assumed to only be biological. The HINDU ADOPTIONS AND MAINTENANCE ACT, 1956[8] states that an adopted child must retain the status of a biological offspring and shall not be discriminated against. Section 12 read along with Section 13 of the aforementioned act imposes that the adopted child can inherit the property of the adoptive family in the same authority as that of a biological child.

Section 12 – An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

Section 13 – Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.

4.2 CAN AN ILLEGITIMATE CHILD CLAIM RIGHTS IN PROPERTY?

Yes, the Hindu Succession act extends to any child who is a Hindu (as explained Section 2 (1) Explanation (a) of the Hindu Succession Act, 1956) whether legitimate or illegitimate, based on Section 2 of the Hindu Succession Act, 1956.

Section 16(3)[9] of the Hindu Marriage Act, 1955 states that an illegitimate child possesses inheritance rights restricted to the property of their parents only. There is an ongoing dispute concerning this particular provision whether the illegitimate child shall acquire the rights as to the ancestral property of the father as well. In 2011, a Bench of Justices G.S. Singhvi and A.K. Ganguly, hearing an appeal by Revanasiddappa,[10] differed with earlier judgments in interpreting Section 16(3) of the HMA, 1955, that “such children are only entitled to the property of their parents and not of any other relation” and believed that illegitimate children shall have a claim in both self-acquired as well as the ancestral property of the father. The Court took a view contrary to the ones taken by the Court in Jinia Keotin, Neelamma, and Bharatha Matha cases concerning  Section 16(3) of the Hindu Marriage Act, 1955, the Ratio being,

“In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self-acquired or ancestral.”

The matter, however, remains unheard hitherto, after it got suspended in lieu of a larger Bench to hear the case. Until then, the status quo on the possession and ownership of the properties in question shall be maintained.

4.3 IN CASE, A WIDOW ADOPTS A CHILD AFTER THE DEATH OF HER HUSBAND

It’s a bit tricky when it comes to a widow adopting a child. It is better explained with the help of the following case, originally filed in a trial court in Southern India which eventually made its way to the Apex Court.

4.4 SAHEB REDDY VS SHARANAPPA & ORS [11]

When this case was first heard in the Trial Court, the order came against the adopted son, stating that, a child adopted by a widow shall not claim any property of the woman’s deceased husband and shall have his rights limited to the property inherited by his mother. The Karnataka High Court set aside this order and imposed the contrary. The Apex Court, however, after reviewing the provisions of the Adoption Act, overruled the High Court order and restored the Trial Court verdict.

4.5 COPARCENARY RIGHTS OF THE WIFE

The wife can claim her right along with her children just like a class I heir. But this right douses on the off chance that she divorces him. Although in the 19th century, the RUDR NARAIN SING… V. Rup Kuar and Another [ILR (1875-1877) 1 All 734] it was held that,

“Immoveable property given to a wife by a husband would appear therefore to be held on terms similar to those on which property inherited from her husband is held, and her acts in respect of it liable to question in a similar manner by the next heirs.”

The changing era has seen some judgments in concern to the coparcenary rights of women, wife as well as daughters. Taking into account the AP High Court Case[12] of 1986, the Andhra Pradesh legislature passed an amendment to the Hindu Succession Act, by virtue of which, a daughter was granted equivalent coparcenary privileges, with alike disabilities and obligations as the son. Similar amendments by the Tamil Nadu and Karnataka legislatures granted the same rights to the daughter of a joint Hindu family.[13] Furthermore, in the case of S.R. Batra And Anr vs Smt. Taruna Batra[14] the Supreme Court expounded the definition of a “shared household” under the Domestic Violence Act. The Hon’ble Apex Court stated that “the wife is only eligible to claim a right to residence in a shared household, and a `shared household’ would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member.”

  • THE IRONY

Displaying utter dismay, the inheritance laws that were supposed to equitably distribute property among male and female heirs, thus empowering gender equality, have had a paradoxical impact on Indian society. According to a 2018 study conducted by King’s College, London, New York University, and the University of Essex [published in the Journal of Development Economics], the Hindu Succession Act, 1956 has done quite a lot of damage in tandem with the good it has done which is acknowledging the rights of Hindu women all over India. The reports set out the increased number of female foeticides and female infant mortality rates in the latter half of the 20th century [finding supported by the Economic Survey 2017-2018]. The study found out that, girls born after the legal reforms were 2-3% more likely to die before reaching the age of 1. Legal reforms, coupled with the increase in the use of ultrasound scan which drastically brings down the time to reveal the gender of the baby, resulted in as much as 63 Million women who reportedly went ‘missing’ in India.[15] The cause behind the despicable act was that some people consider girls to be a liability since the inherited property will ultimately land in the hands of her in-laws. The erroneous rationale of some people led them to believe that rewarding a ‘son’ with inheritance is a big inducement, as he will work on the land and generate wealth and look after his folks in their old age.

  • CONCLUSION

When the Act first came into action in 1956, the nation plunged into happiness as the daughters of India were getting representation for the first time in the Hindu law of inheritance. Little did they know that the other side of the coin was as unpleasant as it could come. The Nation, however, is in a constant state of evolution. India had become Sovereign for the 1st time and it was hard to consider the entire sub-continent as one big Republic, let alone the proper formulation of laws. As it evolved through the 20th Century, more and more awareness about women rights and women empowerment spread throughout the country, spreading as much knowledge as one can from around the world, to inculcate the idea of a society free from any kind of discrimination on the basis of caste, race, sex, color, etc. The 2005 Amendment to the Act is the representation of the perseverance that Indians showed which ultimately proved to be fruitful.


Featured Image Source: https://www.livelaw.in/columns/hindu-succession-act-1956-the-fight-to-end-gender-based-discrimination-continues-163978.

[1] http://egazette.nic.in/WriteReadData/1956/E-2173-1956-0038-99150.pdf

[2] http://egazette.nic.in/WriteReadData/1956/E-2173-1956-0038-99150.pdf, Section 6, Hindu Succession Act, 1956.

[3] http://egazette.nic.in/WriteReadData/2005/E_45_2012_114.pdf

[4] PRAKASH & ORS V. PHULAWATI & ORS (CIVIL APPEAL NO. 7217 OF 2013)

[5]DANAMMA @ SUMAN SURPUR AND ANOTHER V. AMAR AND OTHERS (CIVIL APPEAL NO.188-89 OF 2018)

[6]VINEETA SHARMA V. RAKESH SHARMA (CIVIL APPEAL NO.32601 OF 2018)

[7] SHRI SOMANATH RADHAKRISHNA MORE (SHIMPI) V/S SMT. UJJAWALA SUDHAKAR PAWAR OTHERS [SECOND APPEAL NO. 1060 OF 2005]

[8] https://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf

[9]https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf, Page no. 9.

[10] REVANASIDDAPPA AND ANOTHER V. MALLIKARJUN AND OTHERS [ CIVIL APPEAL NO. 2844 OF 2011]

[11]SAHEB REDDY VS SHARANAPPA & ORS ON 16 NOVEMBER, 2016 [CIVIL APPEAL NO. 901 OF 2014]

[12] S. Narayan Reddy v. Yai Redly. AIR 1990 AP 263.

[13] Available at http://kailash.pairserver.com/kailash/wordpress/wp-content/uploads/2016/07/Coparcenary-Rights-of-Female-Hindus_Sumit-Mallik.pdf

[14]

[15] National Family Health Survey (1991-92, 1998-9 and 2005-6) and the Rural Economic and Demographic Survey (REDS) 2006


2 Comments

erotik · November 12, 2020 at 5:05 am

If you want to use the photo it would also be good to check with the artist beforehand in case it is subject to copyright. Best wishes. Aaren Reggis Sela

    admin · November 12, 2020 at 2:11 pm

    Hi, we have already given due credit to the website form where we took the image. You can check the same at the send of our writeup. Its mentioned as featured image source.

Leave a Reply

Your email address will not be published. Required fields are marked *