Succession and Inheritance

Application (Section 2): Hindus in the extended sense (as in HMA); not Scheduled Tribes unless notified; not Muslims, Christians, Parsis or Jews. Overriding effect (Section 4): HSA overrides any text or custom on matters it deals with.

Mitakshara coparcenary and Section 6 (as amended in 2005)

• Before 2005, only male members were coparceners. The Hindu Succession (Amendment) Act 2005 (in force from 9 September 2005) made the daughter a coparcener by birth ‘in the same manner as the son’, with the same rights and liabilities (Section 6(1)).

• Section 6(3): on the death of a Hindu after the amendment, his interest in coparcenary property devolves by testamentary or intestate succession (not by survivorship), on the basis of notional partition; daughter gets the same share as a son; the share of a pre-deceased child goes to his or her surviving child or grandchild.

• Section 6(1) proviso and 6(5): not applicable to a partition effected before 20 December 2004 (a registered deed or a court decree).

• Cases: Prakash v Phulavati (2015): amendment prospective: only living daughters of living coparceners on 9 September 2005. Danamma @ Suman Surpur v Amar (2018): daughters entitled even if father died before 2005 (partly contrary). Vineeta Sharma v Rakesh Sharma (11 August 2020, three-judge bench of Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah): the right of a daughter is by birth; it is not necessary that the father was alive on 9 September 2005; the provision is ‘retroactive’ in the sense that it applies to rights arising from birth; oral partition and unregistered family settlements cannot defeat the right unless proved by public documents or a court decree; overruled Prakash and part of Danamma. Ganduri Koteshwaramma v Chakiri Yanadi (2011): benefit of the amendment extended to pending partition suits before final decree. Arunachala Gounder v Ponnusamy (2022): a Hindu male’s self-acquired property devolves by succession; if he dies intestate without a male heir the daughter inherits, even for deaths before 1956, and the daughter’s right is superior to collaterals.

• Dayabhaga: sons do not acquire an interest by birth; coparcenary in the Mitakshara sense does not exist, so Section 6 mostly concerns Mitakshara.

• Notional partition and Gurupad Khandappa Magdum v Hirabai (1978): the interest of a deceased coparcener is determined by assuming a partition immediately before death; widow’s share added.

• Repealed by 2005: Section 4(2) (agricultural holdings), Section 23 (daughter’s limited right in dwelling house), Section 24 (certain widows’ disqualification on remarriage).

Heirs of a Hindu male (Sections 8–13)

• Distribution among Class I (Section 10): Rule 1: widow (or widows together) takes one share; Rule 2: surviving sons, daughters and the mother one share each; Rule 3: the heirs of a predeceased son or daughter take together one share; Rule 4: within each branch, the division is per stirpes.

• Other sections: Section 14 (female’s absolute ownership), 15–16 (female’s property), 18 (full blood preferred over half blood), 19 (per capita; tenants in common), 20 (child in womb is treated as born), 21 (simultaneous deaths: the younger is presumed to survive), 22 (preferential right to acquire the property of the intestate), 25 (murderer disqualified), 26 (descendants of a convert disqualified unless Hindus at the time of opening succession), 27 (disqualified person treated as predeceased), 28 (disease or defect is not a disqualification), 29 (escheat), 30 (testamentary succession: a Hindu may dispose of his coparcenary interest by will).

Property of a Hindu female (Sections 15–16)

• 15(1): order: (a) sons, daughters (including children of predeceased children) and husband together; (b) heirs of the husband; (c) mother and father; (d) heirs of the father; (e) heirs of the mother.

• 15(2): exceptions (the ‘source’ rule): (a) property inherited from her father or mother: if no son, daughter or their children, goes to the father’s heirs; (b) property inherited from her husband or father-in-law: if no son, daughter or their children, goes to the husband’s heirs.

• Section 16: rules for distribution among heirs.

• Pending challenge: the Supreme Court is hearing petitions challenging Sections 15 and 16 as discriminatory against women; the Court indicated it would proceed cautiously (reported; verify status).

Principles: inheritance arises only on death; no birth-right; no primogeniture; no distinction between self-acquired and ancestral property; no right of representation in Sunni law (nearer in degree excludes the remoter; a grandchild whose father predeceased is excluded by the deceased’s son; the Shia school allows a form of representation); the estate first pays funeral expenses, then debts, then bequests up to one-third, and the balance is divided among heirs; the female heir gets half of the male heir’s share in the same degree.

Sunni (Hanafi) heirs: (1) Sharers (Quranic heirs, ashab al-furud): husband, wife, daughter, son’s daughter, father, true grandfather, mother, true grandmother, full sister, consanguine sister, uterine sister, uterine brother; (2) Residuaries (asaba): those who take the residue (son, father, brother etc., and females made residuaries by males: daughter with son); (3) Distant kindred (dhawul arham): everyone else related by blood, in four classes.

• Doctrine of Aul (increase): if the total of the sharers’ fractions exceeds unity, each share is proportionately reduced. Doctrine of Radd (return): if there is a surplus and no residuary, the surplus returns to the sharers (except husband and wife in Hanafi law). Shia law rejects Aul and the concept of taasib; it classifies heirs in three classes (parents and children; grandparents, brothers and sisters; paternal and maternal uncles and aunts), allows representation and gives a childless widow no share in land (restricted share in immovable property).

• Disqualifications: homicide, difference of religion (but Caste Disabilities Removal Act 1850 and Section 28 HSA principles limit this in India: convert not excluded), illegitimacy limitations, slavery (obsolete).

• Posthumous child: counted as an heir if born within the maximum period of gestation (Hanafi 2 years; Shia 10 months).

• Muslim Personal Law (Shariat) Application Act 1937: applies Muslim law to intestate succession notwithstanding custom (agricultural land included since 1943).

• Christians (Part V, Chapter II, Sections 31–49): where the intestate leaves a widow and lineal descendants, the widow takes one-third and the descendants two-thirds (Section 33); where there are no descendants but kindred, the widow takes one-half and the kindred the rest; if there are no kindred, the widow takes the whole (Section 33 and 34 pattern). A widower takes his wife’s intestate estate on a footing similar to a widow’s (Section 35: verify the exact share). Order of kindred: father, then mother and siblings, etc. (Sections 36–48). Sons and daughters take equally.

• Parsis (Part V, Chapter III, Sections 50–56): a widow and each child take equal shares and each parent of the intestate takes half the share of a child (Section 51), with parallel rules for a female Parsi intestate (Section 52).

• John Vallamattom v Union of India (2003): Section 118 ISA (restriction on a Christian’s bequest for religious or charitable purposes) struck down as violating Article 14 (the Court also urged a UCC).

• Special Marriage Act: Section 21 (ISA applies) and Section 21A (HSA applies when the spouses are Hindu, Buddhist, Sikh or Jain).

• Hindu Law of Inheritance (Amendment) Act 1929: son’s daughter, daughter’s daughter, sister and sister’s son added as heirs.

• Hindu Women’s Rights to Property Act 1937: widow got a limited estate; replaced by HSA 1956.

• Hindu Gains of Learning Act 1930: gains of learning are separate property.

• Marumakkattayam, Aliyasantana and Nambudri law: matrilineal systems in Kerala and Karnataka; Section 17 HSA contains special rules.

• State amendments to Section 6: Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994), Maharashtra (1994).