DR.

SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERISTY

LUCKNOW

AN ASSIGNMENT ON

MERITS & DEMERITS OF HINDU SUCCESSION ACT

(UNDER THE SUPERVISION OF VIJETA DUA TANDON)

A PROJECT ON MERITS & DEMERITS OF HINDU SUCCESSION ACT

SUBMITTED TO: : SUBMITTED BY

VIJETA DUA TANDON SOURABH TIWARI

ASSISTANT PROFESSOR, ROLL NO: 49

FACULTY OF LAW B.COM.LLB(HONS.)

DSMNRU, LUCKNOW 6TH SEMESTER.

1 | Page
 TABLE OF CONTENT

1. INTRODUCTION
2. HISTORICAL OVERVIEW
3. HINDU WOMENS RIGHT TO PROPERTY ACT, 1937
4. SUCCESSION OF MALES
5. SUCCESSION UNDER HUF (Hindu undivided family) PROPERTY
6. STATUS OF WIFE UNDER PREVIOUS LAW AND CURRENT POSITION
7. STATUS OF WIDOWS AND THE CURRENT LAW
8. CHANGE IN THE STATUS OF DAUGHTERS WITH THE INTRODUCTION OF
THE NEW ACT
9. ADVANTAGES OF JOINT HINDU FAMILY BUSINESS
10. DISADVANTAGES OF JOINT HINDU FAMILY BUSINESS

11. CONCLUSION

Introduction
Although the Hindu Succession Act (the Act) is not a piece of commercial or corporate
legislation but its importance in todays business world is being felt because of family

2 | Page
separations and family feuds becoming the order of the day the Act. The Act governs the law
relating to intestate succession among Hindus. Indian businesses have traditionally been family
owned and run and often when the family patriarch dies intestate it leads to family disputes over
succession issues. These disputes are not just restricted to non-corporate entities but corporate
India too has also witnessed some of the most bitter succession issues.

It is quintessential to note that this Act would have no application in case of a testamentary
succession, i.e., in a case where there is a will. The Act would thus, only apply in a case where a
Hindu male or female dies without making a will and leaves behind various classes of heirs and
property.

Hindu Succession Act, 1956 was basically brought into effect to meet those situations only where
there is no will made by Hindu male or female dying before making the will and hence it has no
application in case of testamentary succession that is in case where there is a will. The need of
this act is felt in todays world because of the growing issue of family separations and family
related disputes amongst the members. This act applies to both Mitakshara and Dayabhaga
schools.

The Hindu succession Act preserve the dual mode of devolution of property under the
mitakshara school. The joint family property still devolves by survivorship with this important
exception that if mitakshara coparcener dies leaving behind the mother, widow, daughter ,
daughters daughter, sons daughter, sons sons daughter, sons widow, sons sons widow or
daughters son, his interest in the joint family property will devolve by succession.

This act applies only in the case intestate succession by Hindus including Jains, Sikhs, and
Buddhist and to any person who is not a Muslim, Christian, Parsi or a Jew and to any person who
becomes a Hindu by conversion. It is also applicable to the children of above categories whether
legitimate or illegitimate. This act lays down separate rules for succession of males and females.
This act will work in order of succession through which the heirs of the person dying gets the
property.

HISTORICAL OVERVIEW

3 | Page
In an ancient saying that elaborates the ancient take on womens rights that women are always
subject to the rule of their male counterparts. They dont have the capability to be independent.
At that time unmarried women were not entitled to any property but on marriage they used to get
some amount of either movable or immovable property which would be called Streedhan.
However she was not the sole owner since she herself and her property were subjected to the rule
of her husband.

Marriage is a sacrament in Hindu society. Sabar and Jaimini shared the view that after marriage,
both the husband and wife would share and enjoy their properties together. But, in relation
to Streedhan, it has been found that the husband had the right to use it in times of distress and
was not under any obligation to return it. Under the Bengal school, only the sonless wives were
entitled to a share in partition and not otherwise. It was held that the wife had a right in his
absence to get the share similar to that of his sons or other coparceners during his absence.

The earliest attempts to strengthen the position of women in society started from the second half
of the nineteenth century. The Indian Succession Act, 1865 mentioned that no person shall by
marriage, acquire any interest in the property of the person whom he or she marries nor become
incapable of doing any act in respect of his or her own property which he or she could have done
if not married to that person. The Married Women Property Bill 1874 was a sequel to this act.
The bill gave women a right to file suit for her own property. Till 1923 it included only Christian
women but it was later on amended to include women from all other religions.

HINDU WOMENS RIGHT TO PROPERTY ACT, 1937

This act was brought in the light of hue and cry from the people for the unjust position of women
with regard to property rights. The act took a step forward in covering gender gap by providing a
widow with the right to inherit the same share as to the son. This right was extended to the
widow of a predeceased son of a predeceased son. It also had a provision that when a widow is
governed by any law except Dayabhaga, she would have the same interest in the property as the
owner had. But the act could not bridge the gender gap entirely because it mentioned that on
acquiring the property on such situations, Hindu womens interest would be limited known as
Hindu womens estate, however she would have the same right of claiming partition as a male
owner.

Succession of Males
The procedure for a Hindu male succession is given under section 813 of
Hindu Succession Act, 1956 and it devolves in the following manner: Firstly,
upon the class first heirs. Secondly, if there are no class first heirs then upon
class second heirs. Thirdly, if there are no class second heirs then upon
agnates. Fourthly, if there are no agnates then upon cognates. Please note
that if first heirs are present then they will inherit first and all other classes

4 | Page
will be excluded for entitlement of the property. However, after the first class
heirs the others would get the property accordingly.

Class first heirs:

The following are the recipients of this category:

Son

Daughter

Widow

Mother

Sonof a predeceased son

daughter of a predeceased son

son of a predeceased daughter

daughter of a predeceased daughter

widow of a predeceased son

son of a predeceased

son of a predeceased son

daughter of a predeceased son of a predeceased son

Widow of apredeceased son of a predeceased son.

Among the class first heirs the property is distributed in the following
manner:

Theintestates children, mother and widow gets equal share. The

daughter will get an equal share to that of Sons whether she is
married or unmarried.

The heirs of each predeceased child will get an equal share between
them in class first heirs.

5 | Page
Class second heirs: The following are the recipients of this category:
Father

Sons daughters son

sons daughters daughter

brother

sister

Daughters sons son

daughters sons daughter

daughters daughters son

daughters daughters daughter

Brothers son

sisters son

brothers daughter

sisters daughter

Fathers father

fathers mother

Fathers widow

brothers widow

Fathers brother

fathers sister

Mothers father

mothers mother

Mothers brother

6 | Page
 mothers sister

Agnates: Agnate is a person who descends from the same male ancestor
i.e. through the male line basically related by blood or through an adoption
and can be both male and a female. For e.g. a fathers brothers daughter is
an Agnate.

Cognates: Cognate is a person who descends from the female side and
not wholly through males. They are also related by blood or adoption and can
be both male and a female. For e.g. a fathers sisters son is a cognate.

Succession under HUF (Hindu undivided family) property

Succession under HUF depends upon the death of a male Hindu as his
interest in HUF devolves upon the survivorship of other members in the
family as to who would be the next heir after the death of that person.
Suppose if a father dies in the family and he is the whole and sole karta of
the family then his interest in his property will depend upon the survivorship
of other family members such as if he has a daughter and a son then both of
them will get equal share in the property as Maharashtra state govt. has
done an amendment by inserting section 29A to 29C after which both
daughter and a son has equal rights in HUF property. There the daughter also
has the right to dispose of the property by will and if she dies intestate then
her property will devolve upon her family members by way of survivorship
and not in accordance with the provision of this act as stated under section
1516 of Hindu succession act,1956. Please note that this provision will apply
only if the Hindu male before dying has not already disposed of his interest in
HUF by way of will.

7 | Page
STATUS OF WIFE UNDER PREVIOUS LAW AND
CURRENT POSITION
In earlier times, a woman could assert her rights only upon her Streedhan. This included both
movable and immovable property which a woman used to get during her marriage. According
to Narada, wife had the right to enjoy the property which was gifted to her by her husband but
she had no right to alienate any such immovable property after his death. Such property was also
included in Streedhan.

With the passage of time, the concept of Streedhan got two wings. The first being Sauadayika
which was acquired by her as gifts from both the sides as well as by self skills during
maidenhood or widowhood. She had the right to alienate these properties. The second being Non
Saudayika, which was acquired by her as gifts from strangers and property acquired by her own
skill as a married woman. She did not have the right to alienate them without her husbands
consent. The Privy Council coined the word Womens estate in place of Streedhan. The
difference was that it could not be alienated and on death it has to be devolved on the heirs of the
last full owner.

The present act of succession for Hindus does not give many rights to the wife on coparcenery
property. She can only get right of inheritance along with her sons and daughters in case of
demise of her husband. This right extinguishes in case she is a divorcee. But in Rudr Narain
Singh v Rup Kuar, it was held that Immovable property given to a wife by a husband would
appear to be held on terms similar to those on which property inherited from her husband is held,
and her acts in respect of it are liable to question in a similar manner by the next heirs. Under
the current law, the wife cannot be a coparcener since she holds her coparcenery rights in her
maternal home.

STATUS OF WIDOWS AND THE CURRENT LAW

Under classical law, on husbands death, the widow was supposed to become Sati on the funeral
pyre of her husband. This was prevalent mostly in parts of eastern India where the Dayabhaga
law was in force which addressed the rights of women. In these parts Sati indeed was practised
profusely so that the property could be saved from the hands of the woman. Not only this, but
Manu said that If the future husband of a maiden dies after troth verbally plighted, her brother
in law shall wed her according to the following rule. The child begotten from such marriage
would be regarded as the son of the deceased person. The Hindu womens right to property act,
1937 tried to put the widow in place of the husband after her death in Mitakshara law. Widow
would succeed in preference to daughters but to limited estate. Similarly, on the death of the
widow, the daughters could succeed as limited owners. Even after acquiring such a vested
interest in the property the widow would continue to be a part of the joint family. In State of
Maharashtra v Narayan Rao, it was held that the widow would get the share in the property at

8 | Page
the time when her husband dies but she cannot be exempted from the family without her assent
as it would lead to unintended consequences by the legislature. Although, she did not become the
coparcener which would mean that she would get the same interest but not the same right as that
of her husband.

Under the old Hindu Law only the Streedhan was the widows absolute property and she was
entitled to the other inherited properties only as a life-estate with very limited powers of
alienation, if at all. Even under the 1937 Act, the concept of limited estate continued. Section
14 of the Hindu Succession Act removed the disability of a female to acquire and hold property
as an absolute owner, and converted the right of a woman in any estate already held by her on the
date of the commencement of the Act as a limited owner, into an absolute owner.

The provision is retrospective in that it enlarged the limited estate into an absolute one even if the
property was inherited or held by the woman as a limited owner before the Act came into force.
The only exception, in the form of a proviso, is for the acquisitions under the terms of a gift, will
or other instrument or a decree, or order or award which prescribe a restricted estate. This would
be so only if the woman has title as well as de jure possession of the property at the time of
commencement of the act. The case of Amar Kaur v Raman Kumari best explains the right of
women in ancestral property.

Under sec 3(1), of the Act, the widow under Mitakhshara law would inherit along with the male
issue. In Dayabhaga, she inherits equally with the male issue. Moreover, it covered intestates
widow, widow of intestates son and widow of predeceased son of predeceased son. This act
however deprived the widow of any agricultural land leaving her at a losing end. But an
important step that was taken was the right to claim partition. Although the nature of the property
held by her would be limited estate which she can alienate on legal necessity and only enjoy
the property during lifetime.

After the introduction of the Hindu Succession Act, 1956, this limited estate of the widow was
converted into absolute estate. But in Commissioner of Income Tax v. Seth Govindam Sugar
Mills, it was held that a widow of a Karta cannot be the Karta after his death. In order to extend
the rights of the widows, the concept of notional partition was elaborated in Gurapad
Khandappa Magdum v. Hirabai Khandappa Magdum that gave the widows a right to claim
partition.

9 | Page
CHANGE IN THE STATUS OF DAUGHTERS WITH THE
INTRODUCTION OF THE NEW ACT
A consistent concern has been that under Mitakshara law, a son would inherit his deceased
fathers property and would also have a share in the joint family property whereas the daughter
would only get a share out of the notional partition of the deceased person. No right would be
accrued to her by the virtue of birth.

Since the passing of the Act of 1956, right of a daughter and a married daughter was consistently
agitated upon. Some states like Kerala, Karnataka and Andhra took steps to amend the acts to
liberalize the law. As a result, the Hindu Succession Act, 2005 came in to introduce substitution
in Section 6 of the Act to bring in equality in law for both the sexes. In B. Chandrasekhar Reddy
v State of Andhra Pradesh, it was held that denying women right to coparcenary from birth
would be denying them their right to equality with other coparceners. Under the 1956 Act, under
the proviso of Section 6, the representation for heirs go up to two degrees in the male line of
descent but in female line of descent it went only upto one degree. Apart from that, Section 23 of
the 1956 Act mentioned that women were not dispensed with the right to residence in paternal
home unless she was divorced or widowed. Moreover, she was not entitled to seek partition of
the property unless the male members took a stand.

The 2005 Amendment brought in a change that made the daughters capable of getting a birth
right in the ancestral property. If she dies intestate, then her property would devolve in
accordance with section 15 of the Act. But this provision would not apply retrospectively. It also
addressed the other glitches mentioned in the previous act. The amending act also added new
heirs.

Section 29 A of the Andhra Act gives the daughter the right to be the coparcener by birth. But the
contention that raised here was that whether daughters who are adopted would also be given the
same rights as the daughter who gets it by virtue of birth. But it was argued that the provision
was introduced so as to bring in daughters at par with the sons and the discrimination between an
adopted daughter and a daughter who is born in the family wont serve the purpose of the
change. Moreover marital status of a woman cannot define her coparcener rights in the fathers
property. Savita Samvedi v Union of India espouses this. In this case the Railways deprived a

10 | P a g e
 married daughter of the benefits of the employees since the rules mentioned that she was not
eligible if she didnt have a son. This was challenged on the basis of constitutionality. Hence, no
discrimination is made when it comes to the marital status of a woman. In another judgement the
court disqualified the daughter in law from her father in laws property on grounds that her
husband had murdered his own father. Extending the benefit to the daughters, Supreme Court
also dealt with cases where it ruled that a father can gift ancestral property within reasonable
limits to his daughter. In order to secure a daughters position more, Balwant Kaur v Chanan
Singh held that a destitute widowed daughter had a right to claim maintenance from her father
during his lifetime and also in his estate after his death. Moreover, as per section 15, an
illegitimate daughter cannot claim heir ship. Hence the rights of women considerable improved
with the introduction of new laws in the Indian scenario.

Advantages of Joint Hindu Family Business are:

1. Easy formation
2. Quick decisions and prompt action
3. Flexibility in operation
4. Business Secrecy
5. Continuity of business
6. Minimum Government regulations
7. Limited liability of co-parceners

1. Easy formation: -Formation of Joint Hindu family is very easy. Because it does not require
any legal formalities to form. It comes into existence under the Hindu succession Act 1956.

2. Quick decisions and prompt action: -The Karta is the sole manager of the business and head
of the family. He need not consult any one before taking any decisions. Therefore he can take
quick decisions and prompt actions

3. Flexibility in operation: -The management is in the hands of the Karta. He takes the decisions
according to the changing circumstances. He can expand or contracts his business at his
convenience. He enjoys maximum flexibility in operation.

4. Business Secrecy: -A joint Hindu family business can maintain business secrecy. Because they
need not have to publish theres any account to any outsider of the family.

5. Continuity of business: -Joint Hindu family business does not dissolve due to death of Karta.
Because a minor members that is a co-parceners can become a karta after the death of the Head
of the family

11 | P a g e
6. Minimum Government regulations: - Though the Hindu undivided Family is the result of
Hindu Law, there is least Government control over Hindu undivided Family because the business
are conducted by the family members itself so they no need to publish any accounts and reports
to any outsiders.

7. Limited liability of co-parceners: - The Co-parceners enjoy limited liability. The liability of
the co-parceners is limited to the extent of the shares in the family business. However, the
liability of the Karta is unlimited.

Disadvantages of Joint Hindu Family Business are as follows:

1. Limited Capital
2. Unlimited liability of Karta
3. Lack of stability
4. Less motivation
5. Limited Growth and Expansion
6. No entry for non family members
7. No Legal Status

1. Limited Capital: -This type of business does suffer from the limitation of capital. This is
because the business has to depend upon the savings of the family. Again, limited amount of
borrowings is possible from friends, banks and others.

2. Unlimited liability of Karta: -The liability of the karta is unlimited but the liability of co-
parceners is limited. The karta is liable to pay the dues even from his personnel property.
Unlimited liability makes him more cautions and he may not take any risk.

3. Lack of stability: -The continuity and stability of the firm depends upon good relations among
the family members but in practice it is not possible. Therefore there may be results in the
discontinuation of the firm. However in many case there is continuity of business.

4. Less motivation: -All the members of the family are entitled to equal share whether they put in
work or not. There is no relation between efforts and rewards. Hence, there is less motivation to
put in more effort.

12 | P a g e
5. Limited Growth and Expansion: -The investment of the joint Hindu family business is
limited. Growth and expands is possible only when there is large investment. But the liability of
the Karta is unlimited. Hence, there is less scope for Growth and expansion.

6. No entry for non family members: -Only family members can get entry into the business.
Outsiders are not allowed to interfere in the family business. So there is less scope for increasing
the capital of family members.

7. No Legal Status: -Like Sole trading concern, the Joint Hindu family business lacks legal
status. The registration of this type of business is not compulsory. The members and the firm do
not have separate entity.

13 | P a g e
 CONCLUSION
This paper entails a sojourn covering the earlier position of women in the sphere of succession
and proceeds to establish the odyssey of different laws that were introduced by the legislature of
India to provide justice to women. The glitches of previous Acts were covered by the subsequent
acts that came into force. The 1956 Act was majorly successful in bringing turbulent change in
the Indian society. Although it was also affected with some drawbacks which was not accepted
by the society and then another outcry gave birth to the act of 2005 which is currently in force.

This project analyses the difference in the legal status of wives, daughters and widows with
regard to succession rights. It traces each ones journey in the Indian context of equal rights and
ends with a satisfactory note of changes introduced to bring both the gender at par with each
other.

14 | P a g e