Codified Hindu Law

Hindu Succession Act, 1956

Devolution of interest in coparcenary property.-- When a male Hindu dies after the commencement of this act , having at the
time of his death an interest in a Mithakshara coparcenary property, his interest in the property shall devolve by survivorship upon
the surviving members of the coparcenary and not in accordance with this act.

Provided that, if the deceased had left surviving him a female relative specified in Class I of the Schedule or a male relative,
specified in that class who claims, through such female relative, the interest of the deceased in Mithakshara Coparcenary
property shall devolve by testamentary or intestate succession, as the case may be, under this act and not by survivorship.

Explanation 1.--For the purposes of this section, the interest of a Hindu Mithakshara coparcener shall be deemed to be the share
in the property that would have been allotted to him if a partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.

Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who has separated
himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest
referred to therein."
Section 6(1) lays down that when a male, co-parcener dies intestate,
his share will go back to the co-parcenery.
This is the case unless the co-parcener has left behind class 1 female
heirs or a male that is related to the dead co-parcener through a Class 1
female heir.
If such an heir exists, then the share does not go to the co-parcenery.
Instead it will go as per a will (if any) and in the absence of the will
through the Hindu Succession Act.
How will it go as per the Hindu Succession Act?

This is done as per Sections 8, 9 and 10.

The first step, as per Section 8, is to look for Class 1 heirs. All members
of Class 1 take simultaneously and to the exclusion of all other heirs.
In the absence of all Class 1 heirs, we look for Class 2 heirs. Here, one
entry of heirs has preference over the other. Members within an entry
take the property together.
In the absence of Class II heirs, it goes to agnates. And then to
cognates.
The above mentioned rules are laid out in Section 9.
As per Section 10, all widows together take one share. If there is a pre-
deceased heir, his branch will take his share. This is per stripes. It is
them divided amongst members of his branch per capita.
Hindu Succession (Amendment)Act 2005
―(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a
Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,―

(a) by birth become a coparcener in her own right the same manner as the son;

(b) have the same rights in the coparcenery property as she would have had if she had been a son;

(c)be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any
reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a
coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation
including any partition or testamentary disposition of property which had taken place before the 20th day
of December, 2004.
Section 6(1) at the outset, elevates women to the same level as men.
Gives them equal rights and liabilities over property.
It, however, has a cut-off date of 20th December, 2004. No partition,
alienation or transaction before this cut-off date can be challenged by
the woman.
2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with
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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, 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 (39 of 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 coparcenery 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.
Section 6(2) then proceeds to state that women will hold property with
all incidents of co-parcenery. It has also given them the right to
execute a will for their share.
Section 6(3) abolished the Doctrine of Survivorship and said shares
will now on only devolve as per testamentary or intestate succession,
with daughters inheriting at par with sons.
4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court
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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: Provided
that in the case of any debt contracted before the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect―

(a)the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be;
or

(b)any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and to the same
extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of
2005) had not been enacted.
As per Section 6(4), Doctrine of Pious Obligation has been abolished.
Doctrine of Pious Obligation made sons liable for any debt incurred by
father, grandfather or great grandfather.
However, this is not applicable to a debt incurred before the
commencement of the Act.
How are women co-parcener’s share divided?

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
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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.
Section 14, for the first time, gives absolute ownership of property to
women. All kinds of property are applicable here.
Sub clause 2 of Section 14 makes it clear that if the property came to
the woman with restricted rights, then sub clause 1 will not be
applicable.
The rules to be complied with for division of shares are made clear under
Sections 15 and 16.
Section 15 lays down the sequence of heirs who are entitled to a share
when a woman dies.
Section 15(2) lays down that if the share of the father came to the
woman, post her death that share will directly go back to the heirs of the
father in absence of children.
Similarly, if the share of the husband came to the woman, Section 15(3)
lays down that it will only go to the husband’s heirs in the absence of
children.
 Important Provisions:

Section 18 lays down that full blood is preferred over half blood.
Section 21 lays down that in case of simultaneous deaths, the older one
is presumed to have died first.
Sections 25 and 26 are disqualifications for co-parceners.
 Prakash v Phulavati SC/ 1241/20 15

The question that arose here was whether a woman, after 2005, can
stake a claim to co parcenery under Section 6 if the Father/Karta was
not alive.
The appellants had argued that after the death of the father, she loses
her right to property as the she ceases to be daughter of the house.
They also argued that 6(1) that makes a woman co parcenery should be
read harmoniously with Section 6(5). 6(5) places a cut off date of 20th
December, 2004 for its application.
The respondent woman argued that the legislative intent behind the
amendment was social welfare. If the amendment did not encompass
women like her who were born earlier but was bestowed with co
parcenery right after 2005, then it defeats the purpose of social welfare.
The court rejected her arguments. It held that the whole of section 6 had
to be read harmoniously. The cut off date had to be interpreted strictly.
Thus it made the provision prospective in nature.
It also said father/karta had to be alive.
Gurupad Khandappa v Hirabhai Khandappa
AIR 1978 SC 1239

After the death of the father, the HJF did notional partition. It was a family
of 3 sons and 2 daughters and the widow. They initially divided the
property, giving 1/4 to the karta (presumed to be alive), mother and the
sons, co parcenery shares and protected female.
Then they distributed the deceased person’s 1/4th giving each person 1/24.

The sons allege that since the partition itself was notional or fictional, they
need distribute only deceased person’s share and not the co- parcenery or
protected female shares. Since the partition itself was only fictions done to
satisfy the law.
The court held that though the partition itself is done owing to a
member of the HJF passing away, the partition has to be completed and
brought to its logical end. Which means each person has to get the share
that is owed to them. It cannot be confined to merely distributing the
deceased person’s share.
Vineeta Sharma v Rakesh Sharma ( 11.8.20 20 ) SC

The question is of the interpretation of Section 6 and its nature.

The judgment overrules two important case laws: Prakash v Phulwati
and Danamma and Anr v Amar and Ors which laid down that
father/karta has to be alive for the daughter to exercise her right under
the amended Section 6. Otherwise, she can’t. The cases also stated that
the effect of the provision is prospective only.
The argument made in Prakash v Phulvati makes it clear that the
provision can only then be made applicable prospectively to women
born after the amendment.
 Judgment
The court declared that a HJF is an “unobstructed heritage.”
This means that the rights that relate to property in an HJF is continuous and at birth.
Therefore, from the time of thier births, women have to be given the right to property.

The effect of the provision of is “retroactive.”Which means it operates over an incident of

the past: the woman’s birth. And in effect gives her a present or future right.
The court in that also declared that the presence of father/karta is not a necessity for the
woman to exercise this right. She should be able to exercise it so long as no partition
(excluding notional partition) or alienation has taken place.
Pratibha Rani v Suraj Kumar AIR 1985 SC 628

Pratibha Rani proceeded against her husband on the ground of

criminal breach of trust for not returning her Stridhan.
The question that came up was the nature of ownership of the Stridhan.
Whether it belonged exclusively to the woman or whether it was of
Joint Ownership between husband and wife.
The court held that the property brought to the husband’s house as Stridhan by the
woman is kept in his house in a fiduciary relationship. The husband keeps in the way
a bank holds valuable assets for safekeeping.
If the husband uses any of the Stridden for his purposes, he has to add back the value
of what he used.
The court overruled the decision in Vinod Kumar Sethi v State of Punjab and
Haryana where it held that Stridhan was owned jointly by the husband and the wife.
Any gift, dowry or maintenance that the woman receives is the absolute property of
the woman and it cannot be said that she loses this right just because it has brought
to her husband’s house.
Thus the refusal to return Stridhan property can amount to criminal breach of trust.
Vaddeboyina Tulsamma v V Sesha Reddy AIR
1977 SC 194 4

The widow entered into an agreement with her husband’s property and
received property from him with limited estate.
Since the law has changed from then, she wanted to be brought within
the ambit of Section 14(1).
Supreme Court, in this case, it was held that she did become absolute
owner of the property under Section 14(1). The court interpreted that
the property she received was maintenance.
Section 14 requires a liberal interpretation.
Bhagat Ram v Teja Singh AIR 2002 SC 1

After the family moves from Pakistan to India after partition, the
mother gains some land in her name. She has two daughters.
After her death, the property devolved equally upon the daughters.

After one of the daughters passed away, it came to the surviving

daughter. She tried to sell it to Bhagat Ram. During this time, the
deceased daughter’s husband’s brother claimed that he precedence
over the sister as he was husband’s heir as per Section 15.
However, the court held that since the property came to her through
her mother, as per 15(2)(b) it will go to her father’s heirs in the
absence of children and not to heirs of the husband.
Jagannathan Pillai v Kujithapadam Pillai AIR 1987
SC1493

The question here was of the nature of Section 14.

The widow in this case, had acquired a limited estate over property
which she then transferred to an alienee.
The 1956 Act has been passed.

The alienee reversed the transaction and gave her the property back.
The question was of whether her right over the property became
absolute now as she had only limited ownership at the outset.
The court held that the whole purpose of 14(1) is to make a widow
absolute owner of the property she has received with limited ownership.
Thus, Section 14(1) is retrospective and prospective in nature.

Thus, the women does become an absolute owner even though she
acquired the property before the commencement of the Act.
Jayalakshmi Ammal v Kaliaperumal AIR 2014
Mad 185

A man did not have any children with his first wife. With her consent,
he decides to marry a second time to beget a child.
He sought the consent of his first wife through a registered deed.
Through this deed, he gave her “gift” to support her during his
lifetime.
The first wife then decides to sell the property to Kaliaperumal.

The question is whether she had absolute or limited estate over this
property?
The question is whether she had absolute or limited estate over this
property?
Or in other words, does her property come under Section 14(1) or
14(2)?
The court held that since the provision under Section 14 had a
retrospective effect, she did get absolute ownership over the property she
acquired before the commencement of the Act. The court treated the
property she got as maintenance, recieved from the husband who was
taking another wife.

The main object of Section 14 is to empower women by giving them full

ownership.
O mprakash v Radhacharan 2009(7) SCALE 51

Narayani, a woman, was educated by her parents that led her to get a
job. She was later married off to Dindayal.
However, after her husband’s death, Narayani had was driven out of the
matrimonial house.
She was able to acquire property for herself owing to the income she
had from the job. Soon she passed away as well.
Her mother and mother in law are staking claim to this property.

The question was, under Section 15, which rule will be applicable for
the succession of a woman’s self acquired property.
This judgment is a classic example of how the court preferred the letter
of the law as opposed to emotions.
The court said under Section 15 if the property did not come to her
through her father or husband’s family, a woman’s property will go as
per Section 15.
In this case, since heirs of the husband precede heirs of the father as
per Section 15, her property was ordered to be given to the husband’s
family.
Vellikannu v R Singaperumal AIR 2005 SC 2587

This case dealt with the question of Sections 25 and 27.

The son in this case, murdered his father. His wife claimed a share in
the father’s property as a Class 1 heir.
The question that arose was whether the wife is disqualified owing to
the disqualification of the man.
The court interpreted the term “dead” in Section 27 to mean non-
existent.
The husband being a murderer is presumed to be non-existent. As a
result, any person who has a claim to the property through him will
also be disqualified for the same reason.
His whole branch is disqualified from inheriting.
Mamta D inesh v Bansi Wadhwa MANU/ MH/
1869/2012

This case questioned the constitutional validity of Section 8(b) and

15(1). It was alleged that it violated Article 15(1) on the ground of sex.
By prioritising a man’s family over the woman’s family, both these
provisions are creating a gender disparity.
The state argued that the discrimination, if any, is based on family ties
and not gender.
The foundation of Hindu custom is continuity of family property
within the family. Thus, sections 8 and 15(1) have been drafted this
way.
The Bombay High Court did not accept the argument of the State.

It said that if the object of the legislation was ti attain gender equality
and facilitate the contuninty of family property, then there is no
explanation for why Class 1 heirs include women. Nor does it explain
why Section 6 has made women co parceners.
Thus, it declared both the provisions as unconstitutional.
Derha v Vishal. 2023, 10 SCC 524

Phannuram had two wives and children with both. Kesar Bai, his daughter
from his first wife along with her son Derha Ram later claimed co
parcenary share. Although Derha got a decree in his favour in the trial
court, it was later reduced a lot in subsequent appeals.

The court in the Supreme Court decided that the notional partition had to
first happen between Phannurama nd his brothers’ branches. His own share
was then divided between him and his son. And later, the property
devolved to Derha.
Mohan Singh v Rajni Kant (2010) 9 SCC 209

The live-in- relationship if continued for such a long time, cannot be termed in as “walk in and walk out”
relationship and there is a presumption of marriage between them which the appellants failed to rebut.

This case laid down that children born out of a live in relationship that is
socially acceptable will get a share from their father’s property.