A Brief on Hindu Succession Act

 I. Introduction

Although the Hindu Succession Act (“the Act”) is not a piece of commercial or corporate legislation but its importance in today’s business world is being felt because of family 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.

II. Application

2.1 As stated above the Act applies only in case of intestate succession by Hindus. The Act applies to Hindus, Jains, Sikhs, Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew. Any person who becomes a Hindu by conversion is also covered by the Act. The Act overrides all Hindu customs, traditions and usages and specifies the heirs entitled to such property and the order or preference among them.    

2.2 The Act lays down separate rules for succession for males and females. It is important to note that succession can never be in abeyance, i.e., it can never lie in a vacuum. The moment a Hindu dies intestate, his heirs (in order of succession) become entitled to succeed to his property.  

III. Male intestate succession

3.1 The rules governing intestate succession of a Hindu male are specified in ss. 8 to 13 of the Act.

3.2 The property of an intestate Hindu male devolves on the following heirs in the order specified below :

(a) Firstly, upon his Class I heirs

(b) Secondly, if there is no Class I heir, then upon his Class II heirs 

(c) Thirdly, if there is no Class II heir, then upon his Agnates

(d) Fourthly, if there is no Agnate, then upon his Cognates

The order of succession is in the order specified above. Thus, Class I heirs take the property in exclusion to all others and so on and so forth.

3.3 Class I heirs : The following 12 heirs are Class I heirs -

Son, daughter, widow, mother, son / daughter of a predeceased son/daughter, widow of a predeceased son, son/daughter/widow of a predeceased son of a predeceased son   

The above Class I heirs take the property in priority succession to all other heirs. Amongst themselves the distribution is as follows :

(i) The intestate’s children, mother and widow each take one equal share. It does not matter whether the daughter is unmarried or married. She gets an absolute share equal to that which the son gets.   

(ii) The heirs in the branch of each predeceased child take one share between them. 

It may be noted that the terms ‘son’ and ‘daughter’ include both those which are natural and those which are adopted. 

3.4 Class II heirs  : The following heirs are Class II heirs -

I. Father

II. Son’s daughter’s children and Siblings

III. Daughter’s grandchildren

IV. Children of Siblings

V. Father’s parents

VI. Father’s widow (step-mother), Brother’s widow

VII. Father’s siblings

VIII. Mother’s parents

IX. Mother’s siblings

Among the heirs specified in Class II, those in the first entry take the property simultaneously and in exclusion to those in the subsequent entries and so on and so forth. Thus, if the father is surviving, he takes the property in exclusion to all other Class II heirs, Agantes and Cognates. As regards the heirs specified in one entry all of them get an equal share in the property.

3.5 Agnates and Cognates

Two people are called Agnates of each other if they are related (by blood or by adoption) wholly through males. Agnates could be males or females. Thus, a father’s brother’s daughter is an Agnate but a father’s sister’s son is not an Agnate because the relation is not entirely through males. Cognates On the other hand, two people are called Cognates of each other if they are related (by blood or by adoption) but not wholly through males. Cognates could be males or females. A mother’s brother’s daughter or a father’s sister’s son is a Cognate because the relationship is not wholly through males. The relationship of Agnates and Cognates does not extend to those relationships which arise because of marriage. Among two or more Agnates/ Cognates, the order of succession is that the heir who has fewer or no degrees of ascent is preferred. If the degrees are same then those who have fewer or no degrees of descent are preferred.

IV. Female Hindu’s property     

By virtue of the provisions of s.14 of the Act, all property, whether movable or immovable,  belonging to a female Hindu is held by her as full owner and not as a limited owner.   The property may be acquired by her by way of inheritance, partition, will, gift, on marriage, own efforts, purchase, etc. However, in case she has acquired the property by way of a gift or under a will and the terms of such gift/will prescribe a limited estate, then such restriction shall prevail. Thus, a female Hindu has absolute power to deal with her property and she can dispose off her property by way of a will, gift, etc. Prior to s.14 coming into effect a female Hindu did not have any power to dispose of her property by will. But now that embargo has been removed by virtue of the statutory provision.

V. Female intestate succession

5.1 The rules governing intestate succession of a Hindu female are specified in ss. 15 and 16 of the Act.

5.2 Under s.15(1), the property of an intestate Hindu female devolves on the following heirs in the order specified below :

(a) Firstly, upon her sons and daughters (including the children of any pre-deceased children) and husband;

(b) Secondly, upon the heirs of her husband;

(c) Thirdly, upon her parents

(d) Fourthly, upon the heirs of her father

(e) Fifthly, upon the heirs of her mother

The order of succession is in the order specified above. Thus, the heirs in the first entry take the property simultaneously and in exclusion to all others and so on and so forth. Thus, the children and husband of a female Hindu take the property in preference to all other heirs specified.  The order of devolution as regards her husband’s heirs would be as if it was her husband’s property and he had died intestate.  The same principle would apply as regards devolution on her father’s heirs. 

5.3 S.15(2) carves out an exception to the order of succession specified above. In case of an Hindu female dying intestate and without any issue or any children or any predeceased children, any property inherited by her from her parents shall devolve upon the heirs of her father. Such property shall not devolve upon the other heirs specified u/s. 15(1).  Thus, property inherited from her parents would not devolve upon her husband or his heirs. Recently, the Supreme Court, in an unreported decision, has reiterated the proposition that according to s.15(2) the result would be that if a property is inherited by a woman from her father or her mother neither her husband nor his heirs would get such property but it would revert back to the heirs of her father. 

Similarly, in case a Hindu female dies intestate and without any issue or any children or any predeceased children, then any property inherited by her from her husband or her father-in-law shall devolve upon the heirs of her husband. Such property shall not devolve upon the other heirs specified u/s. 15(1).  Thus, property inherited from her husband would not devolve upon her father or his heirs.

It is important to note that both the above provisions of s.15(2) would only apply if the female dies without leaving behind any children or children of any predeceased children.  If she has left behind any children, then they would take the property in preference to all other heirs. Further, the provisions only apply to “inherited” property and not property acquired by way of a will or under a gift. 

VI. Interest in HUF Property

6.1 On the death of a male Hindu his interest in a Hindu Undivided Family (HUF) devolves by survivorship upon the other surviving members and is not governed by the succession rules laid down under the Act. Thus, if a father dies, then his interest in the HUF will devolve by survivorship upon the other HUF members. However, it is important to remember that this provision can only apply if the Hindu has not already disposed off his interest in the HUF by way of a will. S.30 now expressly permits a Hindu to make a testamentary disposition of his HUF interest.

6.2 An exception to the above provision is that in case the deceased has left behind a female relative specified in Class I or a son of a predeceased daughter, then the interest of the deceased devolves by intestate succession under the Act and not by succession.            

6.3 An important amendment has been made in the State of Maharashtra by the insertion of ss.29A to 29C. By virtue of s.29A, in an HUF, a member’s daughter would have the same rights in the HUF as that of a son and she would become a member of the HUF just as a son would become. She would be subject to the same rights and liabilities as a son would in the HUF property. Thus, a Hindu daughter would become a co-parcener in the HUF property. She is also capable of disposing of such property by will. It is important to note that the above provisions only apply to female Hindus who are married after 22nd June, 1994. Further, if she dies intestate, her interest in such HUF property shall devolve by survivorship upon the surviving members and not in accordance with the provisions of the Act, i.e., ss. 15 to 16.    

VII. Dwelling Houses

S.23 makes a special provision in respect of partition of dwelling houses. Where a Hindu (male or female) intestate dies leaving behind both male and female heirs specified in Class I, and his / her property includes a dwelling-house wholly occupied by member of his / her family, then, any such female heir cannot claim partition of the dwelling-house until the male heirs choose to do so. However, the female heir shall be entitled to a have right of residence in such house. If such female heir is a daughter, then she will be entitled to a right to residence in the dwelling-house only if she is unmarried or has been deserted / separated from her husband, or is a widow. Thus, this section prevents the female members from claiming partition of a dwelling-house till such time as the male members decide to do so.

IX. Escheat

In case there are no heirs of an intestate who are qualified to succeed to the property in accordance with the provisions of the Act, then such property would devolve upon the Government and the Government would take such property.