Review of Laws and Legislative Measures Affecting Women
by National Commission for Women (NCW)

No.19. The Hindu Succession Act, 1956 (30 of 1956)


Existing Provision

Section 3 ( 1 ) ( j ) - 'related' means related by legitimate kinship - Provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another, and any word expressing relationship or denoting a relative shall be construed accordingly.

Section 3 ( 2 ) : In this Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females.

Section 4 ( 2 ) : For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceiling or for the devolution of tenancy rights in respect of such holdings.

Section 6 : Devolution of interest of Coparcenary property: When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara 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 has left surviving 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 the Mitakshara, coparcenary property shall devolve by testamentary or intstate succession, as the case may be, under this Act and not by survivorship.

Section 8 : General Rules of Succession in the case of Males - The property of a male Hindu dying intestate shall desolve according to the provisions of this Chapter - a) First, upon the heirs, being the relatives specified in class I of the schedule; b)Secondly, if there is no heir of class I, then upon the heirs, being relatives specified in Class II of the schedule. C) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and d) Lastly, if there is no agnate, then upon the cognates of the deceased.

Section 15 : General Rules of succession in the case of female Hindus: 1) The property of a female Hindu dying intestate shall devolve - a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband, b) secondly, upon the heirs of the husband, c)thirdly, upon the mother and father, d) fourthly, upon the heirs of the father; and e) lastly, upon the heirs of the mother. 2)Notwithstanding anything contained in sub-section 1) - a) any property inherited by a female Hindu from her 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) not upon other heirs referred to in sub-section 1) in the order specified therein but upon the heirs of the father.

Section 23 : Special Provision respecting dwelling houses: Where a Hindu intestate has left surviving his or her both male and female heirs specified in class I of the schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right to residence therein. Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separate from her husband or is a widow.

Section 30 : Testamentary Succession - Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being to disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus. Explanation - The interest of a male in a Mitkshara caparcenary property or the interest of a member of a tarwad, tavazhi, illom, Kutumba or kavaru in the property of the tarwad, tavazhi, illom, Kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this (section).

Suggested Amendments by NCW

1. Proviso under Section 3 (1)(j) - 'related' means related by legitimate kinship with the following - 'Provided that illegitimate children whose paternity is know or has been established shall be deemed to e related to their mother and father, and their legitimate descendants shall be deemed to be related to them, and any word expressing relationship or denoting a relative shall be construed accordingly'.

2. Section 3 ( 2 ) which gives primacy to a male and expressly excludes the female, should be deleted.

3. tarwad, tavazhi, illom, Kutumba or kavaru: Over-riding effect of Act - Section 4 ( 2 ) of the Act should be deleted.

4.Section 6: Devolution of interest of coparcenary property should be amended as follows:

  1. In a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall be by birth become coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right subjected to the same liabilities and disabilities in respect thereto as the son;

  2. At a partition in such a Joint Hindu family the co-parcenary property shall be so divided as to allot to each child the same share. Provided that the Share which a predeceased child would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased child; Provided further tht the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;

  3. any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with 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 will or other testamentary disposition.

To ensure that the degrees of descent in representation in the case of males and females remain equal, the NCW recommended that Section 8 of the Act be amended as follows:

'Section 8: General rules of succession - The property of a Hindu dying intestate shall desolve according to the provision of this chapter - a) Firstly, upon the heirs, being the relatives specified in Class I of the schedule; b) Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in Class II of the schedule; c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and d) Lastly, if there is no agnate, then upon the cognates of the deceased'.

Section 15 : General Rules of Succession in the case of Female Hindus - Section 15 of the act should be deleted.

Section 23 : Special provision respecting dwelling houses - ' where a Hindu intestate has left surviving his or her heirs specififed in Class I of the schedule and his, or her property includes a dwelling house wholly occupied by Members of his or her family, then, notwithstanding anything contained in this Act, the rights of any such heir to claim partition of the dwelling house shall not arise unitl widowed mother's rights (in case the deceased is a male intestate) have been settled.

Section 30 : Testamentary succession - 'Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Atc, 1925 or any other law for the time being in force and applicable to Hindus proved that bequests beyond one half of the property shall be void.

Explanation : The interest of a male in a Mitakshara caparcenary property or the interest of a Member of a tarwad, tavazhi, illom, Kutumba or Karvaru in the porpoerty of the tarwad, tavashi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section.

 

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