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IN T R ODUC T I O N

1. 1 S e c t i o n 8 o f t h e H in du S uc c e ss i o n A c t , 1 95 6

This project deals with a very important yet controversial section of the Hindu Succession Act,

1956 i.e. Section 8 and the amendment which took place in the year 2005., Section 8 deals with

the General Rules of Succession in case of a male Hindu. Understandably, in what many call as a

male dominated society and one where women are almost always overshadowed by men, this act

is a far sighted and far reaching act as it gives some measure of hope to women and puts them on

the same footing as the men.

Before the Hindu Succession Act, 1956, the property rights were completely based on

survivorship. The doctrine of survivorship would apply only to the coparceners, which included

the first three degrees from the common ancestor. The coparcenary consisted of only males.

Hence, at the time of the death of a coparcener, his interest in the coparcenary property would

devolve according to doctrine of survivorship. The self acquired property would devolve not

according to this doctrine but according to the inheritance to the Sapindas. These included son,

grandson and great-grandson, and after 1937, widow, predeceased son's widow, and predeceased

son's predeceased son's widow.

The main question in front of the judiciary was whether the property which the son inherits from

his father be it self-acquired or coparcenary, be regarded as his separate property or his own joint

family property. There have been various judicial opinions, but the decision in the case of

Commissioner of Wealth Tax v. Chander Sen1 gives an able answer to the question.

Before this decision came, various High Courts, had already given their judgement regarding this

question. In 1977, the Gujarat High Court held that such property would automatically become the

joint family property2. But in 1979, the Madras High Court, held the complete opposite that the

property would become one individually owned by the son3. The Allahabad High Court had

already passed judgement saying that such a property will not be joint family property.4

1 AIR 1986 SC 1753.2 Commissioner of Income Tax v. Babubhai, 1977 (108) ITR 417 (Guj).3 Additional Commissioner of Income Tax v. PL Karuppan, AIR 1979 Mad. 1 (FB).

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4 Commissioner of Income Tax v. Ram Rakshpal, Ashok Kumar (1968) 67 ITR 164 (All).

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H i n du S u c c e ss i o n A c t

Act of 1956

The Hindu Succession Act, 1956 is one in the series of the enactments purporting to codify and

amend the personal law of Hindus that had been originally promulgated by the seers more than

5000 years ago. The enactments as regards the Hindus are the culmination of a movement for

changing the ancient law of Hindus for a more equitable, consistent and coherent system of

jurisprudence. Numerous problems have risen in the interpretation and application of the rules and

prescriptions enacted and embodied in this act and there have often been times when customs have

come into conflict with the established law, and have more often not won.

A m e n d m e n t o f 2 00 5

Hindu succession laws have long been viewed as a set of gender discriminatory laws. However,

not much effort has been put in going into the genesis of such laws. These laws were formed at a

earlier time and according to the prevailing conditions of the society. Thus, to improve the

conditions on the contemporary society the government introduced The Hindu Succession

(Amendment) Act, on 9th September 2005. The Act today is viewed as a progressive legislation

in personal laws. The aim of the Act was to end the Gender discrimination in personal laws and

give equal rights to women in succession.

The prevalent Mitakashara law which governs the succession in Hindu joint family has

undergone a substantial change now. The first change brought about is that sub section

(2) of Section 4 which deals with the nonapplicability of the Act. The statute which was

responsible for the prevention of fragmentation of agricultural holdings or fixation of

ceilings or devolution of tenancy rights has been deleted. Now this Act has more

applicability. 1

Another most important change is that Section 6 has been substituted by a new section.

Now a daughter would be a coparcener from her birth, and would have the same rights

and liabilities as a son. She will hold the property to which she is entitled as a coparcener.1 Supra n.7, pp. 300-301.

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And she is capable to dispose off the property by either a will or by testamentary

disposition. In Anar Devi v. Parmeshwari Devi,2 the Supreme Court held that after the

death of the original owner, the ancestral property should be divided between the heirs of

the owners. The property was divided among two daughters and an adopted son.

The further change is that on the death of a Hindu having interest in coparcenary property,

such property would devolve by either testamentary or intestate succession as the case

may be, and not by survivorship.

The amendment removed the pious obligation of Mitakshara law. According to which

there is a pious obligation of a son, grandson or great grandson, to fulfill the debt

contracted by his father, grandfather or great grandfather.3

Section 23 of Hindu Succession Act has been omitted by the amendment. This section

dealt with special provisions such as dwelling houses and right of female heir to seek

partition of dwelling house. This section is omitted because daughters are now

coparceners and necessary changes have been made.

Section 24 of the Act has been deleted. This Act dealt with the disability of a widow of a

predeceased son, the widow of a predeceased son of a predeceased son or the widow of a

brother, to succeed to the property in case of widow’s remarriage. The deletion of this

Section has removed the disability and permitting succession to the property to which

she is entitled.

Section 30 has been amended by inclusion of a female Hindu, thus recognizing her right

over disposal of property that she is capable of disposing off.

The schedule in class heirs I has been amended by inclusion of son of a predeceased

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 and daughter of a pre-deceased daughter of a pre-deceased son. These all be

considered as a class I heirs.4

2 AIR 2006 SC 3332.3 Supra n.6.4 S.A. Desai, (rev), Mulla, PRINCIPLES OF HINDU LAW, Vol.I, 20th ed. 2008

1 Harmans Singh v. Tekamani Devi AIR 1990 Pat 262 Lakshmi Devi v. Surendra kumar AIR 1957 Ori. 1 1

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Su c c es s i o n t o p r o per t y o f a M a l e d y ing i n t e s t a t e

This section propounds a new and definite scheme of succession and lays down certain rules of

succession to the property of a male Hindu who dies intestate after the commencement of the act.

The rules are pivotal and have to be read along with schedule. Certain other sections particularly

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13 contain supplementary provisions which are not merely explanatory but also lay down

substantive rules involving legal principles.

Pr o p e r ty

The word property under this section means all the property of the intestate inheritable under this

act.1 it includes not only his separate self acquired property but also his interest in a Mitakshara

coparcenary property in case he is survived by any of the female heirs or a daughter’s son

mentioned in class I of the schedule. It also includes property which he might have inherited from

his father or grandfather after this act came into force. It also includes agricultural land 2 subject to

this, that the legislation relating to fragmentation of agricultural holdings or fixation ceilings or

the devolution of tenancy rights in respect to such holdings is not affected by anything contained

in

this act. However the rules of succession do not apply to the property expressly excluded from

the act by section 5.

T h e f o u r c a t e g o ri es o f h e ir s

Section 8 groups the heirs of a male intestate in to four categories and lays down that heritable

property first upon the heirs specified in the class I of the schedule. Under the old law in force

before 1937, simultaneous heirs of a male intestate consisted only of son, son of a predeceased son,

and the son of predeceased son of predeceased son. Thos was enlarged by Hindu Women’s right to

property act 1937, by adding three more heirs namely the widows of each named earlier. All six

heirs succeeded simultaneously and the doctrine of representation applied to their case.

In class I of the schedule the act enumerated 12 heirs so as to include in the new scheme of

heirs the mother and the daughter of the intestate and some more descendents, latter by reference

1 Harmans Singh v. Tekamani Devi AIR 1990 Pat 262 Lakshmi Devi v. Surendra kumar AIR 1957 Ori. 1 1

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to the principle of representation. All these heirs inherit simultaneously. On failure of any

such heirs

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specified in class I the property devolves upon the enumerated heirs specified in Class II, an

heir in the first entry of the class II being preferred to the second entry and so on in succession. If

there is no heir belonging to class I or even class II the property devolves upon the agnates (a

person related to another by a relation of blood or adoption wholly through males) of the

deceased. Lastly, if there is no agnate of the deceased in existence at the time of his death the

property devolves upon his co-agnates (related by blood or adoption but not wholly through

males).

Pr o s p e c t i v e i n o p e r a t i o n

The language of the section and particularly the words “s h a l l d ev o l ve ” plainly indicate that the

section is prospective in its operation. In Erramma’s3 case the Supreme court held that this section

applies where on death of male intestate devolution of his property takes place after the

commencement of the act and does not apply to the property of a male Hindu whose death took

place before the commencement of the act. In the latter case all questions of inheritance would be

determined according to the previous law.

This does not however mean that the section does not have any relevance or any application in the

case where a male Hindu had died before the commencement of the act. For instance a Hindu who

died in 1933 and his widow who succeeded his estate died in 1963 after the coming into force of

the present act but was not in the possession of the estate, the estate would devolve not upon her

heirs, but the heirs of her husband. The succession would be decided upon the date of death of the

husband and not the widow (limited owner) and the heirs would be those who would have

succeeded had he died in 1963( the date of death of the widow. The heirs will have to be

ascertained by the present section 8 and not the old law. This does not mean retrospective

application.

It is well established that

(1) Succession opens on death of limited

owner. (2) The law in force governs the

succession.

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The words “d y i n g i n t e st a t e ” would mean a male Hindu dying without making a will or making an

invalid will. When the status of coparcenary is abolished under the Kerala joint Hindu

family

3 Erramma v. Veruappanna AIR 1966 SC 1879

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system abolition act, the property of a male Hindu dying intestate would devolve on his class I

heirs in accordance with the provisions of the first schedule.4

R e l a t i ve b y a d o p t i on

The words “…upon heirs being relatives specified in class I …of the schedule” which appear in clauses (a) and (b) of the section 8 and class I of the schedule mentioned in those clauses do not expressly refer to relationship by adoption nor does any relevant definition expressly refer to such relationship.

The question whether the person who is related by adoption is or is not a heir, under class I of the schedule must be determined by the reference to the rules if Hindu law relating to adoption, and where the Hindu adoptions and maintenance act 1956 applies. Adoption has the effect of transferring the adopted boy from his natural family into the adopted family. It also had the effect of conferring upon the adoptee the same rights and privileges in the family of the adopter as the legitimate son except in a few cases which related to the share on a partition between an adopted and after born son.

Example: The father was taken into adoption subsequent to a daughter begotten from a subsisting marriage. The wife died and the father remained. On the death of the adoptee (father) a question arose as to whether the daughter was entitled to lay a claim on the property of the father which vested in the father as a result of the adoption. It was held that the adoption of the father the birth of the child was no bar to the child’s claim over the property. This was because the blood ties between the father and the daughter were not severed on his adoption, and the daughter was entitled to succeed to the property of the father owned by virtue of such adoption, she being the class I heir of the father. The daughter and the second wife were thus entitled to succeed equally to the estate of the adoptee.5

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4 Putiyadath v. Naga kumara AIR 2001 Ker 38

5 Neelavva v. Shivavva AIR 1989 Kant 45

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C L AS S I H E I R S

Clause (A): Class I of the schedule

(1) Son

(i) Adopted son

The expression son has not been defined in the act. It includes natural son and adopted son in accordance with the Hindu law of adoption in force at that time. The adopted son loses all rights of a son in his natural family.

Where a son is born after he adoption to the adoptive father the adopted son is entitled to inherit just as if he were a natural born son and now is entitled to the share as a natural born son.

(ii) Posthumous son

A son of the intestate, who was in the womb at the time of the death of the intestate though subsequently born, is to be deemed for the purpose of succession as if born before the death of the intestate.1

(iii) Son born after partition

When there has been a partition of the joint family property between a father and his sons and thereafter a son is born to the father, the son will take an interest by birth in the property obtained on partition by the father and the property will be their coparcenary property. In case of death of the father after the commencement of the act, devolution of the father’s interest in such coparcenary property will be governed by section 6 of the act and the succession to the fathers separate and self acquired property will be in accoedance with rules layed down in section 8.

(iv) Divided son

In matters of succession the act does not differentiate between a divided son and as on who had remained joint with the father or his father and other coparceners, except in cases falling under section 6 which relates to the undivided interest of a father in a MITAKSHARA coparcenary.

The separate or self acquired of the property will therefore devolve by secession upon his heirs specified in class I of the schedule including a son who had separated from the father as well as one who had continued to remain joint with the father. Under the old law the divided son was no entitled to claim any share in separate or self acquired property of the father whether father after partition had continued to remain joint with his sons or where he had a son born to him after partition and who was joint with him

1 Sec. 20 of Hindu succession act

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(v)Illegitimate son

The illegitimate son of male Hindu who died intestate is not entitled to any share of the inheritance not even in case of “Shudra” dying intestate after the commencement of the act. It will be noticed that the law in respect to the illegitimate son of a ‘shudra’ to succeed his father is now wholly changed.2

(vi) Son born of a void or voidable marriage

Section 16 of the Hindu Marriage Act, 1955 relates to the legitimacy of children in void and voidable marriages.

Example: A and B are the father and mother of S. After the birth of S, B obtains a decree of nullity of marriage from the court on the grounds mentioned in 5(i), 5(iv), or 5(v). Notwithstanding the nullity of his parents’ marriage, S is entitled to succeed as a heir to the property of his father A and mother B as if he was a child born in a lawful wedlock.The same will be the status and right in the above case if a daughter to succeed.

(vii) Step-son

A step-son, that is a son of a previous marriage of the wife of the intestate, is not entitled to succeed to the property of the step father. In this case there is no blood relationship , full half or uterine. Where a widow or an unmarried woman adopts a child, any man whom she marries subsequently is deemed to be the step-father of the child.3 Such a child is entitled to succeed to the property of his mother but not his step father.

(viii) Son having physical or mental defects

Section 28 of this act qualifies every son to succeed to property he is entitled irrespective of his physical or mental disabilities. Under the old Hindu law there were certain defects deformities and diseases which excluded a son from being a heir. It was initially reduced to sons who were by birth idiots or lunatics by the Hindu inheritance (removal of disabilities) act 1928 which declared so.

(2) Son of pre-deceased son

He inherits simultaneously with son and the other heirs specified in class I of the schedule. The rules relating to the rights of son to succeed apply mutatis mutandis to the son of a predeceased son.

2 Daddo v. Raghunath AIR 1979 Bom 176

3 Section 14(4) of Hindu adoptions and Maintenance Act.

(3) Widow

The widow of a male Hindu inherits simultaneously with a son, daughter and other heirs specified in class I. She takes her share absolutely and not as a widow’s estate (s.14). if there are more than one widow, all widows together take one share.

(4) Widow of a predeceased son

She inherits simultaneously with a son, widow and other heirs specified in class I of the schedule. The rules relating to the right of the widow to succeed apply “mutatis mutandis” to the widow of a predeceased son. She is however not entitled to succeed if, on the date the succession opens she is remarried.

(5) Widow of a predeceased son of a predeceased son.

She inherits simultaneously with a son, widow and other heirs specified in class I of the schedule. The rules relating to the right of the widow to succeed apply “mutatis mutandis” to the widow of a predeceased son. She is however not entitled to succeed if, on the date the succession opens she is remarried.

(6) Daughter

(i) Daughter

The daughter, whether married or unmarried, inherits simultaneously with a son, widow and the other heirs specified in class I of the schedule. Each daughter takes one share4 that is equal to that of the son. She takes it absolutely and not as women’s estate.5 There is no priority among married and unmarried daughters.6 Un-chastity of the daughter is no ground for exclusion7

(ii) Adopted daughter

She is one of the heirs under class I as a male Hindu now under the Hindu Adoption andMaintenance Act, section 7 can adopt a

daughter. (iii) Adopted son and adopted

daughter

They can be both heir under class I simultaneously as the Hindu Adoptions andMaintenance act, allows a male Hindu to adopted a male and a female child at the same time.4 Section 10 r 2.

5 Section 14

6 Narani bai v. State of Harayna AIR 2004 P&H 2067 Section 28

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8 Section 14, Hindu Adoptions and Maintenance Act 19568888

(iv) Posthumous daughter

A daughter of the intestate, who was in the womb at the time of the death of the intestate though subsequently born, is to be deemed for the purpose of succession as if born before the death of the intestate.

(v) Illegitimate daughter

The illegitimate daughter of male Hindu who died intestate is not entitled to any share of the inheritance not even in case of “Shudra” dying intestate after the commencement of the act. It will be noticed that the law in respect to the illegitimate daughter of a ‘shudra’ to succeed his father is now wholly changed. She is not entitled to any share of the inheritance.

(vi) Daughter born of a void of voidable marriage

Section 16 of the Hindu Marriage Act, 1955 relates to the legitimacy of children in void and voidable marriages.

Example: A and B are the father and mother of D. After the birth of D, B obtains a decree of nullity of marriage from the court on the grounds mentioned in 5(i), 5(iv), or 5(v). Notwithstanding the nullity of her parents’ marriage, D is entitled to succeed as a heir to the property of his father A and mother B as if he was a child born in a lawful wedlock.

(vii) Daughter having physical or mental defects

Section 28 of this act qualifies every daughter to succeed to property he is entitled irrespective of his physical or mental disabilities.

(7) Mother

She takes her share absolutely, un-chastity no bar nor I divorce or remarriage, and inherits simultaneously with all other class I heirs. She is also entitled to inherit the property of an illegitimate son. Step-mother is not entitled as mother to inherit as one of Class I heirs.

(8) Son of a predeceased daughter

Son of a predeceased daughter inherits simultaneously with the other heirs specified in Class I of the Schedule. Daughter’s son would include adopted son of a predeceased daughter i.e., if the latter was in the position of the adoptive mother.8 A female Hindu who is not married or whose marriage has been dissolved or is a widow or whose husband has renounced the world or

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ceased to be a Hindu or is of unsound mind, now has the capacity to take a son in adoption to herself, therefore a son adopted would be in a position of a daughters son and be entitled to succeed as such under the present section.

(9) Daughter of a predeceased son

The daughter of the predeceased son inherits simultaneously with a son, daughter, widow, son of a predeceased son and other heirs specified in Class I of the Schedule. Son’s daughter would include the adopted daughter of a predeceased son.

(10) Daughter of a predeceased daughter

She inherits simultaneously with son, widow and the other heirs specified in class I of the schedule. The rules relating to the rights of son to succeed apply mutatis mutandis to the son of a predeceased son of a predeceased son

(11) Daughter of a predeceased son of a predeceased son.

She inherits simultaneously with son, widow and the other heirs specified in class I of the schedule. The rules relating to the rights of son to succeed apply mutatis mutandis to the son of a predeceased son of a predeceased son.

(12) The son of a predeceased son of a predeceased son.

He inherits simultaneously with son and the other heirs specified in class I of the schedule. The rules relating to the rights of son to succeed apply mutatis mutandis to the son of a predeceased son of a predeceased son.

Or der o f s uc c essi o n a n d d i s t r i bu t i o n o f p r o p e r t y a mo ng h e ir s i n c l a ss I

Section 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

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second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.”

The heirs specified in the class I of the schedule may for convenience be described as

the preferential heirs of the intestate. They constitute a distinct and exclusive category and

succeed in preference to all other heirs. Failing all others of the intestate in the category of the

preferential heirs enumerated in class 1 of schedule but not until then his property the devolves

upon the heirs specified in other categories

For example:- A dies leaving surviving him a brother , a step brother and son of pre-deceased

brother. Full blood is preferred to half blood and therefore the brother who is heir specified in of

hi class I will have preference over the step brother and will take the whole of his property to the

exclusion of the step brother and of the brother’s son who is a heir in entry IV of class 2. If A

dies leaving only his step brother and the son of a predeceased full brother the step brother will

take the property to the exclusion of the brother’s son.1

S ec ti o n 10 - D is t ri b u ti on of p r op e rt y a m ong h ei r s i n c l a s s I o f t he S c h e d u l e

“ 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.”

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1 Satyacharan v. Urmila AIR 1970 SC 1714

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The explicit declaration of the law that preferential heirs enumerated there take simultaneously and to the exclusion of all other heirs, there is no precedence or priority among them. But it does not follow that every individual who is listed as an heir in Class I is entitled to an equal share along with every other individual heir in that class.

Where a partition of a joint family property takes place and a separate share is given to the mother, then in the case of death of one of the sons the mother would be entitled to have a share in the separate property of her son. Fact that earlier when the partition took place she was given a share would not place any bar.2

In the case of a Hindu male governed by Mitakshara under s.8 of the Act, the property that devolves on him will be his separate property. Such a property would never amount to join family property in his hands as against his son.3

In case the widow remarries, she would not be divested of the property inherited by her simply on account of her remarrying.4

C ONC L U S I O N

When a Hindu inherits the property from his father under section 8 he takes it as his separate

property and not as joint family property vis-a-vis his sons.1 The property in section 8 includes

agricultural land also.2

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.”3

The growth of the Hindu Law of Succession can be traced from the Vedic Period, In early Hindu

society, women had no right to property, except Stridhan, and were thus economically

dependant

1 Commissioner of Wealth-tax v. Chander Sen, AIR 1986 SC 1752.

2 Tukaram Genba Jadhav v. Laxman Genba Jadhav, AIR 1994 Bom 247.

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on their father, brothers, or husband, and the earliest attempts to reform Hindu society began in

the late nineteenth century.

The courts should attempt not to abrogate the rights of illegitimate children, but must instead

work toward uplifting their status by giving them a right in the coparcenary property. It is only a

matter of time before the courts realize that they cannot discriminate between people for the

simple reason of their sex or whether or not they were legitimate. One must keep in mind at all

times that the law is meant for to safeguard the interests of people and to work for their up-

liftment, economically and socially. To a great extent that goal has been achieved by Sections 6

and 8 of the Hindu Succession Act. Law is dynamic and evolution of law with changes in society

is inevitable and this amendment is a classic example of that.