The Amendment of the Hindu Succession Act is far – off.

The Amendment of the Hindu Succession Act is far – off.

Anannya Varghese Parakkal
B.A.,LL.B Sem 4 student at Amity University
Intern at Jimson Associates
Thrissur – 680 001

The Hindu Succession Act was drafted so that women and men inherit equally through the succession of property. Yet there are unequal provisions for men and women in the Succession Act. In this article I would be focusing on the principle, where the intestate (without leaving a will) property, (whether ancestral or self – acquired) of the predeceased son (Section 8) is inherited by the class 1 heirs, which includes the mother of the predeceased son, widows, and their children. But, after the mother’s demise (Section 15), the property is inherited by the rest of the children of the deceased mother which is unjust enrichment for the siblings of the predeceased son and unfair means to the rest of the class 1 heirs i.e., the widow and their children.

The Hindu Succession Act

The Hindu Succession Act, 1956 aims to modernise and codify intestate succession law. Special measures have been inserted for regulating succession to the property of intestates governed by marumakkattavam, alivasantana or Nambudiri laws of inheritance. When a Hindu person dies without a Will, his or her property will be distributed as per the laws mentioned in Hindu Succession Act, 1956. The Act covers succession to a male Hindu’s property (section 8), rights of a female Hindu over property (section 14), succession to a female Hindu’s property (section 15), and, most importantly, succession to coparcenary property (section 6). The Act establishes a standard and comprehensive inheritance system.

In 2005, the Hindu Succession Act 1956 was amended, to eliminate gender discriminating provisions. According to the amendment, a coparcener's daughter, like his son, becomes a coparcener in her own right upon birth. In the coparcenary property (ancestral property of the Hindu undivided family), the daughter will now have the same rights as a son. This amendment also repeals Section 23 of the Hindu Succession Act, which prevented a female heir from seeking partition of a dwelling house that was entirely occupied by a joint family unless the male heirs agreed to divide their shares. The Act’s Section 24, which prevented a widow from inheriting her husband's property if she remarried, has been repealed. This Act has resulted in a central amendment that applies to all state governments.

Again in 2015, the President gave assent on May 13, 2015, to repeal 35 old Acts and amendment Acts, including the Hindu Succession (Amendment) Act, 2005, which rewrote Section 6 of the original Hindu Succession Act of 1956, removing the discrimination that existed in the 1956 Act and giving equal rights to a daughter in ancestral properties. The reason behind the repealing is that the existence of the Hindu Succession (Amendment) Act, 2005, since became superfluous and did not serve any purpose and might lead to confusion.

Even though, the Hindu Succession Act, has gone through many amendments, there is still justice to be done, specially on the current context where gender equality is not considered as a taboo.

Types of Property

Generally, there are two types of properties:

1. Joint-family property or coparcenary property: The term “joint-family property” or “coparcenary property” refers to property in which all the coparceners share a common interest and possess the same property.
Coparcenary property is again divisible into three types:
(a) Ancestral property: By the term “ancestral property” is meant that property which descends from father, father’s father, and great grandfather. In this property a person’s descendant’s up to three generations, i.e., sons, son’s son, son’s son’s son acquire an interest by birth.
(b) Property jointly acquired by the members of the joint family: Joint family or coparcenary property is property acquired by members of a joint Hindu family via joint labour, whether in business, profession, or vocation, with the help of joint family property.
(c) Property treated as a property of the whole family: When a coparcener voluntarily contributes his self-acquired property to the joint fund with the intent of abandoning all separate claims to it, it becomes joint property and is divided among all members.

2. Self – acquired property or separate property: property is the one which is acquired by a person through his own money or by way of gift. During his lifetime, a person can donate, transfer, or alienate this property.
This property gets devolved onto heirs through two forms:
(a) Testamentary form: In this form, the property is passed on to the heirs via will, according to the preferences of the property owner after his death.
(b) Intestate form: In this form, after a person's death, his property is passed to his wife, children, or other relatives.

The Position of Women in the Hindu Succession Act

Prior to the Act of 1956, all property laws have been framed solely for the benefit of man since the dawn of time, and women have been regarded as second – class people who rely on male support. However, during the pre – independence era, the social reform movement addressed the question of gender inequality, and several corrective measures were taken. The main reform demanded, and one that became an urgent necessity considering changing social and economic circumstances, was an equal arrangement of male and female heirs in succession, as well as the expansion of the Hindu women’s limited estate into complete possession however that never happened. The Stridhan, which means “women's property,” was the only property over which she had absolute ownership.

The 1956 Hindu Succession Act (HSA) was a compromise bill that took a middle ground between complete abolition and entire retention. It weakened the principle of survivorship (under which surviving coparceners split the property) and made some progress in protecting the property rights of female heirs who were close to the deceased man (such as widow, daughter, and mother). While this was a considerable step forward, HSA 1956 also had additional gender discriminating provisions. However, this benefit was only available to daughters who were unmarried at the time the amendment took effect; a daughter's future marriage did not deprive her of the property rights that had previously been granted to her.

Due to the inherent uneven nature of the succession, Kerala banned the Hindu joint family system through state legislation in 1975. Andhra Pradesh (1985), Tamil Nadu (1989), Karnataka (1994), and Maharashtra (1994) all adopted reformist policies. They passed state amendments to the Hindu Succession Act to provide daughters coparcenary rights equivalent to sons’ and to abolish the dowry system through positive empowerment measures.

The 2005 amendment, which applied to the entire country, went a step farther than state amendments in promoting gender equality by expanding daughters’ rights. It guaranteed all daughters, regardless of their marital status, equal coparcenary rights.

The Amendments needed.

Section 8 of the Hindu Succession Act states the rules for ownership in the case of males. When a male intestate dies, the property will go to class I heirs first, and if there is class I heir, the property will not go to heirs in the class II category. In the absence of a class II heir category, the property will pass to heirs in class III or agnates, who are generally blood relatives of the intestate who are related to him through a whole male chain of relatives. If no heirs are present in class III, the intestate's interest in the property passes to any other blood relative of the intestate.

People who will inherit the property in the first instance after the intestate’s death are classified as Class I heirs. There are eleven female members and five male members in this category.

Unlike the ancient joint family system, all class I heirs take the property as their exclusive and exclusive property, and no one can claim a right to the inherited property by birth. While section 15 states the rules for ownership in the case of females. The property in case of a female Hindu intestate dying will devolve through:

If a female Hindu inherits property from her father or mother and there is no son or daughter of the deceased (including a child of a predeceased son or daughter), the property will pass to the father’s heirs.

Similarly, if a female Hindu inherits property from her husband or father – in – law and there is no son or daughter of the deceased (including the child of a predeceased son or daughter), the property will pass to the husband’s heirs.

After Hindu Succession (Amendment) Act, 2015 was enacted, there were changes brought into Section 15 of the Act:

If a female Hindu inherits property from her father or mother and there is no son or daughter of the deceased (including a child of a predeceased son or daughter), the property will pass to the father’s heirs, if inherited from him and upon the mother’s heirs, if inherited from her.

Similarly, if a female Hindu inherits property from her husband or father – in – law and there is no son or daughter of the deceased begotten from the husband from whom or from whose father (including the child of a predeceased son or daughter), the property will pass to the husband's heirs.

And if a female Hindu inherits self – acquired property and there is no son or daughter of the deceased (including a child of a predeceased son or daughter), the property will pass to the father's and mother’s heirs.

From the above sections, one can see that the Hindu Succession Act features two unique succession plans for men and women, which no other religious community’s succession legislation has. There are distinct inheritance schemes for women intestates depending on the source of the woman's property (whether inherited from parents or husband/father – in – law or self – acquired) and the presence of children, which do not exist for male intestates.

Women are occupying major positions in all aspects of society after years of oppression. Now women are less involved in household administration and childcare and are becoming more involved in other aspects of society due to the support of their partners. At the same time, the world is pushing towards gender equality, and women assume roles and responsibilities previously only filled by men. Now women earn as likely as men or even more. These changing roles were mainly recognised due to the enactment of various laws for women.

But these laws should maintain justice, morality and equality for the citizens and enact and amend laws according to the society’s norms. In this way, the Hindu Succession Act, should bring Amendments on the inheritance of property of male heirs because it is infringement for the rest of the class 1 heirs i.e., the widow and the children. Especially on the self – acquired property which is a hard – earned asset. There are chances that these properties were bought through the widow’s earnings and since there is mutual agreement the property is registered in the name of the husband. With this the Joint Family system should also be abolished because now the families have begun to disintegrate as times pass, becoming more nuclear in nature.

The nuclear family explosion is resulting in a greater number of individuals becoming owners of huge assets, both liquid and illiquid, at a very early stage.

Yet they must follow by the succession laws which were drafted during the joint Hindu family system especially in ancestral property when the property is divided among the class 1 heir of the deceased mother, then it might create a problem to the widow to sell the property as one needs the entire family’s agreement to it to which some may not agree. There are cases where the family members never speak with each other due to disputes or disagreements but during partition they are the first ones to arrive, which is wrong especially for the loved ones who were always there for the person and these are the ones who fall prey to the distant family who take advantage of, whether they are a beneficiary or no into managing the estate like in the case of self – acquired property which is an hard earned property and would be unfair if it is divided to the deceased mother’s children.

In Kerala, the government came up with the abolishment of Joint Hindu Family system in 1975 which abolished the Joint Hindu Family system in this era where nuclear family is ruling. In the Joint Hindu Family/ Hindu undivided Family, the members of the family could claim right over the property of the deceased even when they are distant or estranged. This Act should also be applied to the rest of India.

Dr. Ambedkar’s version of the Hindu Code conflicted with traditional Hindu personal law. The draft that Ambedkar submitted to the Constituent Assembly was opposed by several sections of lawmakers. They felt that abolishing the Hindu joint family would lead to disintegration of the family and give rise to hostility and endless litigation. He was forced to reinstate the Mitakṣara joint family system, an amendment to allow for brothers to buy out daughters’ share of the inheritance by the then Nehru government due to which led into his resignation. In a letter that he released to the press, he held that his decision was largely based on the treatment that had been accorded to the Hindu Code Bill as well as the administration’s inability to get it passed. If the bill were passed back in 1948 in support of Ambedkar’s draft, it would have benefitted a huge part of the society.

There are also other aspects in Section 8 of the Succession Act to be amended. Just like for the female heirs, the male heirs should also be having the concept of inheritance system intestates depending on the source of the man’s property (whether inherited from parents or husband/father – in – law or self – acquired) and the presence of children.

Conclusion

The Hindu Succession Act urgently need changes according to the changing society. A bill should be introduced in the house on amending the principles which exists in the Hindu Law and let the rightful get what they deserve. Though Indians still have the patriarchal idea that only men can own and control property, giving women a share of the family property will inevitably lower the property shares of the male members, which only creates hate, fight, and revolt against in them and women are not seen as self-sufficient individuals capable of acquiring, possessing, and managing property until 2015 Amendment.

The following provisions should be amended and enacted under section 8 of the amendment Act which would have a positive impact on the society and create a more peaceful community:

(a) any property inherited by a male Hindu from his father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) upon the heirs of the father, if inherited from his father and upon the heirs of the mother, if inherited from his mother.

(b) any property inherited by a male Hindu from his wife shall devolve, in the absence of son or daughter begotten from the wife from whom he inherited the property (including the children of any pre-deceased son or daughter) upon the heirs of the wife.

(c) any property self-acquired which is acquired by the mother of the predeceased and after her death if during the time of desertion shall devolve, upon the remainder of the class 1 heirs.

References

Krishnaprasad, Equal rights of daughters to ancestral property remains: HC, 2015 https://www.thehindu.com/news/cities/bangalore/equal-rights-of-daughters-toancestral-property-remains-hc/article7709577.ece [accessed 29 June 2021].

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