GENERAL PRINCIPLES OF INTESTATE SUCCESSION UNDER HINDU

LAW

I. INTRODUCTION

Succession1 implies the act of succeeding or following, as of events, objects, places in a

series. In the eyes of law however, it holds a different and particular meaning. It implies
the transmission or passing of rights from one to another. In every system of law
provision has to be made for a readjustment of things or goods on the death of the
human beings who owned and enjoyed them.
Succession, in the sense of the partition or redistribution of the property of a former
owner is, in modern systems of law, subject to many rules. Such rules may be based on
the will of a deceased person. However, there are cases in which a will cannot be
expressed and eventuality, there need to be some broadly accepted rules upon which
the property shall devolve upon those succeeding him. There can be no doubt,
however, that these rules primarily are the characteristics of the social conditions in
which that individual lived. They represent the view of society at large as to what ought
to be the normal course of succession in the readjustment of property after the death of
a citizen.
Thus in such cases, there must be rules whereunder the aggregate of things and claims
relinquished by a deceased person may pass to relatives or other persons who stood
near him in a way determined by law. There must also be, simultaneously, rules which
determine such devolution, should several persons of the kind stand equally near in the
eye of the law and the consequence would be a division of the inheritance.
It is upon this basis that noted author Mulla states, “the law of inheritance comprises of
rules which govern devolution of property, on the death of the person, upon other
persons solely on account of their relationship with the former.”2 Speaking purely in
legal terms, Black’s Law Dictionary defines inheritance as “receipt of a property from an

1
Latin: successio, from succedere, to follow after
2
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277.

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ancestor under the laws of intestacy” i.e. “by bequest or device.”3 However over quest in
not limited to such devolution.
In the present paper I discuss and analyze the rules of inheritance that the Hindu
Succession Act, 1956 prescribes for matters of succession when an individual (a Hindu
male or female) dies without prescribing for how his/her property shall devolve upon
his/her death i.e. rules of intestate succession. To begin with, however it is important to
note, that rules of succession cannot be studied in isolation. They have to be
understood and studies in the context of the prevailing social conditions, the existing
social structure, the hierarchal structure existing, the comparative status of females as
compared to males, the reliance to religious customs and traditions that that particular
society places and most importantly the reforms which the prevailing government
intends to introduce in the wake of reforming or modifying the existing rules and
principles.
The topic of the presents study is a general one i.e. a study of the general principles of
intestate succession in Hindu Law. Though the rules prior to the Hindu Succession Act,
1956 were varied and manifold, the law has been settled by the Act with modifications
and amendments to suit the needs to the society and also reforming, to a limited extent
though, the position of women in the Hindu society as to her rights to property. The
same has been elaborately discussed in the chapter titled the Hindu law of inheritance
and the Hindu Succession Act, 1956.
As to the specific principles, rules and procedure to be followed for the ascertainment
and determination of the rights and shares of the heirs in case of succession of Hindu
males and females dying intestate, the relevant provisions of the Act have been studies
in detail and distinctly in the two chapters titled succession of Hindu male dying intestate
and succession of Hindu female dying intestate respectively. Thus change in the law
prevailing prior to the coming into force of the Act has also been discussed as relevant
and appropriate places.
However, as it is commonly said and believed, perfection can only be strived and
sought for. It cannot be achieved. Similarly the principles of intestate succession, as laid
under the Act cannot be said to be quintessential provisions as far as intestate
succession is concerned. There are many lacunas and the Act which was once said to

3 th
Bryan A. Garner (ed.), Black Law Dictionary, (West Group. St. Minn, 7 edition), 787.

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have improved the position of women in the existing Hindu society is, with the
advancement of the society by full fifty years, criticized for being biased towards males
and for discriminating between males and female heirs purely on gender grounds. The
same has been analyzed in the chapter titled critical feature upon the Act. Suitable
amendments that need to be introduced have also been discussed.
With these contents being summerised in the chapter titled conclusion, the paper seeks
to study the general principles of intestate succession in post modern Hindu law4.
Relevant quotations and abstracts have been cited with references mentioned upon.

II. HINDU LAW OF INHERITANCE AND THE HINDU SUCCESSION ACT, 1956

The presence of ancient Hindu law of can be traced back for long in history. The joint
family system comes first in this familial historical order. This joint family system traces
its origin to the ancient patriarchal system and even in its transition to the joint family
system some of the features can still be traced. The earlier concept of joint family was
somewhat analogous to that of a corporate body and the role of an individual was not
considerable important, except that of the Karta. Social conditions, however, underwent
considerable transformation and there grew up a body of rules of inheritance under the
title Dayavibhaga which was explained by Vijnaneshwara as division of property, which
becomes the property of another solely by reason of his relation to the owner.5
Under this ancient system, rights of sons (as junior members of family) were
recongnised and they acquired equal interest with their father in the coparcenary
property. The law of inheritance, as it was then, had close connection with the doctrine
‘he who inherits property, also offers the panda’ i.e. it was based upon the principle of
consanguinity. The later development in this branch was of the theory of spiritual
benefit. Under this theory, inheritance was based on spiritual efficacy, propinquity and
natural love and affection. However the difficulties arose when inheritance based upon
these principles ran on diverse lines and the schemes of inheritance in some with
radical different came to be followed in different parts of the country.

4
As Dr. Warner Menski puts it, referring to the Hindu law after the enactment of the Hindu Code Bill in the
series of legislation.
5
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277.
Further difficulties arose on account of; the difference in the law of inheritance of the two
schools, Mitakshara and Dayabhaga; the existence of a number of schools of Hindu
Law; the matriarchal system prevailing in some southern parts of the country; and the
dissimilar local and family customs observed across the country. The complicated
problem of the inheritance and other matters related with Stridhana (woman’s property)
added further differences to the law of inheritance as present under the Hindu Law in
the country. To address this problem, the Hindu Woman’s Right to Property Act, 1937
was enacted which introduced changes in the law of succession by conferring new
rights of succession upon certain categories of females. Nevertheless, fragmented
legislation in the form of uncoordinated rules gave rise to number of anomalies and did
not prove to be a satisfactory remedy to settle the general law as to inheritance.
It was among the general opinion of the jurists and authors that a codification of the law
was required. It was agreed that a uniform and comprehensive system of inheritance
recongnising equitable distribution between male and female heirs was the only remedy
to the existing disparities of interpretative dimensions that had been adduced to settle
the principles of inheritance in the Hindu Law. It was in response to this critical situation
that Hindu Succession Act, 1956 was enacted and came into force from June 17, 1956.
The Act, as the Statement of Reasons and Objects reads, amends and codifies the law
relating to intestate succession among the Hindus and brings forth some fundamental
and radical changes in the law of succession. The intent before the farming of the Act
was to lay down a uniform and comprehensive system of legislation, which would cover
the entire law of inheritance and be applicable to inter alia persons governed by
Mitakshara and Dayabhaga schools, and also to those parts of India which had earlier
been governed by different schools of Hindu Law.
The main feature of the Act, as common to other legislations under the Hindu Code, is
that it covers Buddhists, Jains and Sikhs and also other people who fall within the wide
ambit of the term Hindu, as defined by various decisions from time to time and as finally
settled in the landmark case of Shastri v. Mooldas6. It is also to be noted that section 4
of the Act gives overriding effect to the provisions of the Act over any text, rule, custom
or usage prevalent among the Hindus, as dealing with matters now covered under the

6
AIR 1966 SC 1119.
provisions of the Act. The Act also supersedes any central or state legislation as so far
as they are inconsistent with the Act.

Scheme of the Act

The entire Hindu Succession Act, 1956 can be divided into three parts. While the first is
general and contains definitions, scope and extent of applicability of the Act, the second
part is incumbent upon inheritance that takes place when a Hindu (male or female) dies
intestate i.e. without a will. The third part, though having only one section, is related to
Testamentary succession wherein any Hindu can dispose of his property by a will in
accordance with the provisions of Indian Succession Act, 1925. The second part i.e. the
one dealing with intestate succession is most illustrative and detailed. It even contains
separate rules that apply for succession when a Hindu male or female dies.
To be specific, the scheme of the Act in the matter of succession to the property of a
Hindu dying intestate (after coming into force of the Act) is to lay down a set of general
rules for succession to the property of a male Hindu in sections 8-13, including the rules
to ascertainment of the shares and portions of the various heirs. The separate and
general rules for the succession of the property of the female Hindu dying intestate is
laid under sections 15-16. Section 17 provides for certain modifications and changes in
the general scheme of succession to the property of male and female Hindus in relation
to persons hitherto governed by the Malabar and Aliyasantana law. Sections 18-28 of
the Act are headed ‘General provisions relating to succession’ and lay down rules which
are supplementary to the provisions in sections 5-17.
Thus the legislatures have been successful in doing away with the complex procedures
and rules that applied before the commencement of the Act as for the matter of
inheritance of Hindus.

III. SUCCESSION OF A HINDU MALE DYING INTESTATE

Sections 8 to 13 lay, generally, the order of succession when a Hindu Male dyes
intestate. Section 8 lays the general rule of succession in case of males. This section
propounds a new and definite scheme of succession and lays down certain rules of
succession of property of a male Hindu who dies intestate after the commencement of
the Act. The rules herein laid under the section are pivotal and have to be read along
with the Schedule. They also have to be read with other sections (9 to 13) in the chapter
which contain supplementary and only merely explanatory provisions, which lay down
the substantive rules involving legal principles.

8. General rules of succession in the case of males. -The property

of a male Hindu dying intestate shall devolve according to the
provisions 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 II 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
agitates of the deceased; and
(d) Lastly, if there is no agnate, then upon the cognates of the
deceased.

Section 8 groups the heirs of a male intestate into four categories and lays down that
his heritable property devolves firstly upon the heirs specified in Class I of the Schedule.
They are son, daughter, widow, mother, son of 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 and widow of a predeceased
son of a predeceased son. All these heirs inherit simultaneously. On failure of any such
heir as specified in Class I, the property devolves upon the enumerated heirs specified
in Class II, wherein an heir in the first entry is preferred over an heir in second category
in the Class II and similarly, any heir in a higher entry shall be preferred over an heir in a
lower category.
If there is no heir in either Class I or Class II, the property devolves upon the agnates of
the deceased and even in absence, the property devolves upon the cognates of the
intestate. Here, a person is said to be an agnate of another if the two are related by
blood or adoption wholly through the males and cognate if the two are related by blood
or adoption but not wholly through males i.e. there is intervention of a female ancestor
somewhere in the line of descent or ascent.
Herein it is important to note that the term property used in the section means and
includes all the property of the deceased intestate, which is heritable under the Act. It
includes his separate or self-acquired property and also his interest in the Mitakshara
coparcenary property in case he is survived by any of the female heirs or daughter’s
son mentioned in Class I of the schedule. It also includes property which he might have
inherited from his grandfather or father after the Act came into force.

Heirs in Class I

The adopted children (son or daughter) are also to be counted as heirs when
succession is done.

The children born of void or voidable marriage (by effect of section 16) are
deemed to be legitimate children and are thus entitled to participate as sharers in
the succession to the intestate.

The widow inherits simultaneously with the other heirs and in case there are
more than one widow, together they are entitled to one share which is to be
divided equally amongst them.

The widow is entitled to a share from the property of the intestate even is she
remarries after his death.

The widow of a predeceased son inherits with the other heirs. However her right
(along with the children of the predeceased son) is dependent upon the share
that the predeceased son would have been entitled to had he been alive. Also,
she is excluded from the share if she has remarried before the death of the
intestate.

The daughter inherits simultaneously with the other heirs and gets the share as
that of a son. She takes the property in her individual capacity and not in the
capacity of a woman’s estate. Also, she is entitled to the property of the intestate
even if she is married.7

7
Though in some states in India (eg. Punjab), a married daughter is excluded from the inheritance to
agricultural land belonging to the father.

The mother inherits simultaneously with other heirs. She takes her share
absolutely (because of section 14) and not with any limited interest. Also it has
been held that unchastity of mother is no bar to her succeeding as heir to her
son.8 She is entitled to inherit even if she is divorced or is remarried. Here the
term mother includes adoptive mother also.9 However, if there is an adoptive
mother, the natural mother has right to inherit the share of the intestate.10 A
mother is also entitled to inherit the property of her illegitimate son.11

Heirs in Class II

All heirs in Class II take cumulatively and not simultaneously i.e. they succeed
only in the order of the Entries I to IX.12 An heir in the higher entry excludes all
heirs in the lower entries.

The father in entry I includes an adoptive father. However, a father is not entitled
to any interest in the property of his illegitimate son as opposed to the mother.
Nevertheless, a father is entitled to inherit from his son born of a void or voidable
marriage (under section 16). Also, a step father in not entitled to inherit from his
step son.

All heirs in one entry of Class II share the property simultaneously and equally
and also to the exclusion of all heirs under subsequent entries.

All brothers and sisters inherit simultaneously with the sister and other heirs in
the Entry. Here the term brother include both full and half brother. However when
there is a full brother, he is always preferred to a half brother13 where, half
brother means son of the same father but different mother. Uterine brother14 is
not entitled to share the intestate’s property. However when the intestate and his

8
Jayalakshami v. Ganesh Iyer, AIR 1972 Mad 357.
9
This analogy is drawn from the legal position created by the Hindu Adoption and Maintenance Act, 1956
whereunder an adopted child is deemed to be the child of the adoptive parents.
10
The same analogy is drawn wherein, adoption has the effect of severing all the ties of the son with the
natural parents and their family and therefore the natural mother is not entitled to succeed to the property
of her son in adoption.
11
See section 3(i)(j).
12
Kumuraswami v. Nanjappa, AIR 1978 Mad 285 (FB).
13
Section 18.
14
A brother from the same mother but different fathers.
 brother are illegitimate sons of their mother, they are related to each other as
brothers under this Entry.15

Agnates
A person is said to be agnate of another if the two are related by blood or by adoption
entirely or wholly through males.16 It is important to note that agnates of the intestate do
not include the widows of lineal descendents of the widows of those who may be related
to the intestate as lineal male descendents because the definition of agnates does not
extend to relatives by marriage but is confined to relatives by blood or adoption.17 Here
since these widows are not relatives by blood but relatives by marriage, they are not
covered in agnates.
Also, there is no degree of relationship beyond which kinship is not recognised so that
an agnate howsoever remotely related to the intestate is entitled to succeed as an heir.
The relation by agnates also does not distinguish between male or female heirs. So
long as the two are related on lineal male lines, they are covered under the definition of
agnates. Also, there is no distinction between those related by half or full blood.
However, those related by uterine blood are excluded.

Cognates
A person is said to be a cognate of another if the two related by blood or adoption but
not wholly through males.18 In a cognate relationship, it does not matter as to whether
there is intervention of one or more females. So long as one female exists in the line, it
becomes a cognate relationship. Similar to that in agnates, persons related to the
intestate by marriage are not included in the cognate relationship and thus widow or
widowers of those related on cognate lines are not included in cognate relationship and
the relationship is formed only if the two are related by blood or adoption.

9. Orders of succession among heirs in the Schedule.- Among the

heirs specified in the Schedule, those in class I shall take simultaneously

15
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 347.
16
Section 3(1)(a).
17
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 351.
18
Section 3(1)(c).
 and to the exclusion of all other heirs; those in the first entry in class II shall
be preferred to those in the second entry; those in the second entry shall
be preferred to those in the third entry; and so on in succession.

This section makes important rules which are supplementary to the primary and pivotal
rules laid down in section 8 and the explicitly declare the order of succession among the
class I and class II heirs and also class II heirs interse.
In accordance with the terms of the section, Class I heirs may be termed as preferential
heirs of the intestate for the property first devolves upon them upon the death of the
intestate. They succeed simultaneously and there is no question of any precedence or
priority among them. They constitute a category specific and distinct and succeed in
preference to the other heirs. When, however, there are no heirs in Class I i.e. there is
no preferential heir of the intestate, his property devolves upon the heirs specified in the
second category of heirs enumerated in the nine entries in Class II of the Schedule to
the Act.
However, there is one basic distinction between Class I and Class II. While all heirs in
Class I inherit the property simultaneously, each of the entries in Class II constitute
distinct and separate groups of heirs and heirs in higher entries inherit in priority and to
the exclusion of other heirs whereas there is no such concept of priority or precedence
among the Class I heirs. For illustration, a Hindu Male (A) dies intestate leaving behind
his widow, two sons, son of a predeceased son, widow of another predeceased son,
two daughters and a son of a predeceased daughter. Now since all these heirs are heirs
within Class I of the Schedule, they will all inherit simultaneously. However in a case
where, a Hindu Male (A) dies intestate leaving behind his sister and his brother’s son,
the sister being an heir in Entry II of Class II shall get all the property as she will be
preferred over the brother’s son who is an heir under Entry IV of Class II.19

10. Distributions, of property among heirs in class I of the

Schedule.- The property of an intestate shall be divided among the heirs
in class I of the Schedule in accordance with the following rules:

19
Aparti Bewa v. Suna Stree, AIR 1963 Ori 166.
 Rule 1- The intestate’s widow, or if there are more widows than one, all
the widows together, shall take one share.
Rule 2- The surviving sons and daughters and the mother of the intestate
shall each take one share.
Rule 3- The heirs in the branch of each pre-deceased son or each pre-
deceased daughter of the intestate shall take between them one
share.
Rule 4- The distribution of the share referred to in Rule 3-
(i) among the heirs in the branch of the pre-deceased son shall be
so made that his widow (or widows together) and the surviving sons
and daughters gets equal portions; and the branch of his
predeceased sons gets the same portion;
(ii) among the heirs in the branch of pre-deceased daughter shall
be so made that the surviving sons and daughters get equal
portions.

Section 8 and 9, in so far as they relate to heirs specified in Class I of the Schedule,
contain explicit declaration of the law that the preferential heirs enumerated there take
simultaneously and to the exclusion of all other heirs in Class II or otherwise. The two
sections do not mention any precedence or priority amongst them but, it does not follow
that every individual heir who succeeds as a heir listed in Class I is entitled to an equal
share of the property along with other individuals heirs of the Class. The computation of
the share of each individual is to be in accordance with the rules laid down in section 10
which may be said to constitute the Statute of Distribution applicable to heirs in Class I.
It is also to be noted that the Act does not distinguish between male or female heirs.
The general scheme of the Act is to put sons and daughters, as far as possible, on the
same footing and allot them shares pari passu.
The object of section 10 is to deal with shares to which the heirs are entitled to where
there are more than one to take simultaneously. The widow, the son, the daughter and
the mother of the propositus take equal share. This does not mean that these four
categories will get each 1/4th share. This section lays down rules as to how much every
heir shall get to his or her share. The four rules are, thus, explanatory in nature as to
how the shares shall be divided.
The rules are, (1) the widows, if there are more than one, shall all take together only
one share and (read with section 19(b)) inherit that share equally as tenants-in-common
and not as joint tenants. (2) When there are more than one son, each son will get a
share and similarly each daughter shall get a share and mother will also get a share.
Thus we find that the general rule of inheritance under this rule is based upon the broad
principle of equalization.
(3) If there are sons and daughters of the predeceased son or a predeceased daughter
of the propositus, they shall be entitled to take together the share of their father or
mother, as the case may be, and share them equally amongst them. The rule is that the
family of the predeceased son shall be, together, entitled to one share that the
predeceased son would have been entitled, has he been alive. The same applies in
case of the family of a predeceased daughter. Thus it is clear that the heirs of the
deceased in the branches of predeceased sons and predeceased daughters take not as
per capita but as per stripes. (4) Rule 4 is in the nature of a corollary to rule 3 which
states that if there is a widow of a predeceased son of the propositus, she will take the
share of the said predeceased son, equally among with the sons and daughters.
The four rules in section 10 have to be read with the rules under section 19 of the Act
which gives tow basis rules incase two or more heirs succeed together to the property
of the intestate. They are,
(a) save as otherwise expressly provided in the Act, per capita and not per strip; and
(b) as tenants-in-common and not as joint tenants. This is subject to any express
provision to the contrary.

11. Distribution of property among heirs in class II of the Schedule.

-The property of an intestate shall be divided between the heirs specified in
any one entry in class II of the Schedule so that they share equally.

This section provides that when there are more than one heir in any one entry of Class
II heirs of the Schedule, they shall share equally. For example, entry III contains for
heirs viz, (i) the daughter’s son’s son, (ii) daughter’s son’s daughter, (iii) daughter’s
daughter’s son, (iv) daughter’s daughter’s daughter. Thus according to this section, they
all share equally. Here also it is important to note that the legislation does not lay down
any rule of discrimination between any male or female heir. If two heirs are in the same
entry, irrespective of their sex, they share equally. Thus the simple rule is enunciated
that there is no precedence or priority among the different heirs specified in any one
Entry. They all stand in aequali jura and take per capita subject to only one exception
that full blood is preferred over half blood.
In the case of Arunachalathammal v. Ramachandran20, it was contended that the
different heirs mentioned in one entry (in this case Entry I of Class II) are subdivisions of
that particular entry and they do not inherit simultaneously but here again there is a
question of preference i.e. first the subdivision inherits and then in its absence, the later.
The question arose because there were, in his case, one brother and five sisters of the
intestate and no other heir and the brother contended that in a brother being in
subcategory (3) of entry I, was to be preferred over sister who was in subcategory (4) of
entry I and thus he was entitled to the full property. However the same was negated and
it was held that all heirs in an entry inherit simultaneously and there is no preference to
an heir in a higher subcategory within an entry to a heir in a lower subcategory in the
same entry. Thus we find that the equality is between every individual heir of the
intestate and not between the subdivision in any particular entry. In fact, the court went
on to say that there were no subdivisions in any entry in Class II. They were just roman
numerals representing the heirs in the entry.21

12. Order of succession among agnates and cognates.- The order

of succession among agnates or cognates, as the case may be, shall be
determined in accordance with the rules of preference laid down
hereunder:
Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is
preferred.
Rule 2- Where the number of degrees of ascent is the same or none, that
heir is preferred who has fewer or no degree of descent.

20
AIR 1963 Mad 255.
21
See Kumara Pillai v. Kunjulakshami Amma, AIR 1972 Ker 66; Krishna v. State of Haryana, AIR 1994
SC 2563.
 Rule 3- Where neither heir is entitled to be preferred to the other under
Rule 1 or Rule 2 they take simultaneously.

This section deals with the order of succession among agnates and cognates. It is clear
from section 8 that agnates come within the scope of section 8(c) while cognates come
within the scope of section 8(d). Also, by now, it is clear that the question of succession
of cognates comes only when there are no agnates in the line where both the agnates
and cognates come into the line of succession only if there are no Class I or Class II
heirs.
Rule 1 lays down that out of two agnates or two cognates as the case may be, the one
who has fewer or no degrees of ascent from the propositus shall be preferred. If the
agnate is not having any degrees of ascent from the propositus, he shall be preferred.
This rule of nearness is applicable in case of cognates also. Rule 2 lays down that
where the number of degrees of ascent from the propositus is the same or none, the
heir who has fewer or no degrees of descent shall be preferred.22 Rule 3 lays down the
principle that in the case of a tie, i.e. where any of the two or more heirs cannot be said
to be nearer to the propositus even after applying the rules 1 and 2, they shall take
simultaneously. The same rules apply in case of the cognates. In accordance with the
provisions of these three rules, the agnate and cognate relationship may be categorized
as follows.

Agnates,
(i) Agnates who are descendents i.e. who are related to the intestate by no
degree of ascent but wholly by degree of descent. For example, son’s son’s
son’s son and son’s son’s daughter.
(ii) Agnates who are ascendants i.e. they are related to the intestate only by
degrees of ascent and no degrees of descent. For example, father’s father’s
father and father’s father’s mother.

22
This rule has been discussed threadbare in the case of Desa Bathudu v. Dilli Achari, 1969 (2) MLJ 635
th
cited by, Maine, Hindu Law, (Bharat Law House, New Delhi, 14 edition), p. 1093.
 (iii) Agnates who are collaterals i.e. they are related to the intestate by degrees
both of ascent and descent. For example, father’s brother’s son and father’s
brother’s daughter.

Cognates,
(i) Cognates who are descendents i.e. they are related to the intestate by no
degree of ascent. For example son’s daughter’s son’s son and daughter’s
son’s son’s son.
(ii) Cognates who are ascendants i.e. they are related to the intestate only by
degrees of ascent and not by descent. For example, father’s mother’s father
and mother’s father’s father.
(iii) Cognates who are collaterals i.e. they are related to the intestate by degrees
both of ascent and descent. For example, father’s sister’s son and mother’s
brother’s son.

The above classification has been made for having an understanding as to how there
shall be succession in case of agnates and cognates. In both the cases, relatives (both
agnate and cognate) falling in a higher subcategory shall be preferred to relative in a
lower subcategory i.e. descendents shall be preferred over ascendants who in turn shall
be preferred over collaterals in the case of both agnates and cognates.

13. Computation of degrees. -

(1) For the purpose of determining the order of succession among agnates
or cognates, relationship shall be reckoned from the intestate to the
heir in terms of degrees of ascent or degrees of descent or both, as the
case may be.
(2) Degrees of ascent and degrees of descent shall be computed inclusive
of the intestate.
(3) Every generation constitutes a degree either ascending or descending.

This section laid down the rules for the computation of degrees of relationship between
the intestate and the agnate or cognate heirs, as the case may be. This relationship is
to be reckoned from the intestate to the heir in terms of degree with the intestate
(propositus) as the starting point. There is no rule of discrimination or preference
between males or female heirs and both male and female relatives by blood or adoption
having legitimate kinship with the intestate wholly through males are included among his
agnates and all such relatives, male or female, are his cognates where the relationship
is not wholly through males but through one or more females.
The second rule states that the computation of degrees of ascent and of descent is to
be made that it is inclusive of the intestate. The relationship must be reckoned from the
propositus to the heir on terms of degrees with the propositus as the terminus a quo, i.e.
the first degree.
It is important to note that the order of succession among agnates or cognates is not
determined merely by the total of the number of degrees of ascent or descent. It is
subject to and regulated by the rules of preference as laid down in section 12 of the Act.
The following are illustrations of rules of computation of degrees.23
(i) The heir to be considered as the father’s mother’s father of the intestate. He
has no degrees of descent but has four degrees of ascent represented in
order by, (a) the intestate, (b) the intestate’s father, (c) that father’s mother
and, (d) her father.
(ii) The heir to be considered is the son’s daughter’s son’s daughter of the
intestate. She has no degrees of ascent but has five degrees of descent
represented in order by, (a) the intestate, (b) the intestate’s son, (c) that son’s
daughter, (d) her son, and (e) his daughter.
(iii) The heir to be considered is the mother’s father’s sister’s son (that is mother’s
father’s father’s daughter’s son) of the intestate. He has four degrees of
ascent represented in order by, (a) the intestate, (b) the intestate’s mother, (c)
her father, (d) that father’s father, and degrees of descent represented in
order by, (a) the daughter of the common ancestor (namely the mother’s
father’s father), and (b) her son (the heir).

23
These three illustrations are adapted from the illustrations to clause 105 of the Hindu Code Bill as
amended by the Select Committee cited by Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 365.
Thus it is seen that in every case in computing the degrees of ascent or descent the
intestate is included as constituting one degree of ascent or descent. It will also be seen
that when degrees, both of ascent and descent, are to be computed in case of
collateral, the degrees of ascent computed from the intestate are inclusive of him, but in
counting the degrees of descent from the ancestor, only generations of descent are
computed, that is, the ancestor does not constitute a degree of descent.

IV. INHERITANCE FROM A HINDU FEMALE DYING INTESTATE

A woman should not be made into an entirely embedded self, dispersed entirely among
familial relations, according to prescriptive regulations. The great ancient lawgiver Manu
had described the good woman as a profoundly non-autonomous self, ruled by father in
childhood, by husband in youth, by son in old age. In the 19th century debates, on the
contrary, she came to be re-envisaged as a person with a core of inviolate autonomy,
possessing a cluster of entitlements and immunities, even when the family, the
community or religion refused to accept them. The demand for the new laws stemmed
from an understanding about Indian a necessary, autonomous core of female
personhood that the state must underwrite.24

14. 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.- n 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 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.
24 th
Tanika Sarkar, Religious Norms and Social Questioning: Contextualising Gender Laws in 19 century
Bengal, (Jawaharlal Nehru University)
 (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
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.

Under the Hindu law in operation prior to the coming into force of the Act, a woman’s
ownership of property was hedged in by certain delimitations on her right of disposal
and also on her testamentary power in respect of that property. Doctrinal diversity
existed on that subject. Divergent authorities only added to the difficulties surrounding
the meaning of a term to which it sought to give technical significance. Women were
supposed to, it was held and believed, not have power of absolute alienation of
property. The restrictions imposed by the Hindu law on the proprietary rights of women
depended upon her status as a maiden, as a married woman and as a widow. They
also depended upon the source and nature of property. Thought there were some
fragmented legislation upon the subject (regard being made to the Hindu Woman’s
Right to Property Act, 1937), the settled law was still short of granting a status to woman
where she could acquire, retain and dispose off the property as similar to a Hindu male.
The Hindu Succession Act, 1956 and particularly section 14 brought substantial change,
thus, upon the aspect of a right of a Hindu female over her property and thereby settled
the conflict. The change being brought about by section 14 to the existing position of
Hindu Law was such diverse and manifest that it was contended as a violation of Article
14 and 15(1) of the Constitution of India and to the contrary, incapable of
implementation.25

Multifarious effects of Section 14.

1. The Act overrides the ‘the old law on the subject matter of stridhana in respect of
all property possessed by a female, whether acquired by her before or after the
commencement of the Act.

25
Pratap Singh v. Union of India, AIR 1985 SC 1694; Amar Singh v. Baldev Singh, AIR 1960 Punj 666
(FB).
 2. Section 14 declared a female as full owner of the property in her possession and
thus removes all restrictions upon her rights which existed prior to the Act. Now
she can sell, dispose and alienate the property without any restriction on her
rights.26
3. The Act confers full heritable capacity on the female heir and this section
dispenses with the traditional limitations on the powers of a female Hindu to hold
and transmit property.
4. The object of this section is to declare a Hindu widow, in cases falling under this
section, to be the absolute owner of the property; the section puts her in aequali
jura.27
5. The section gives retrospective effect to the Act and thus any property acquired
by the female whether before or after this Act but in possession of her at the time
of the commencement of the Act shall become her and she shall have full
ownership over it.28
6. For the application of the section it is necessary that the widow must be in
possession of the property on the commencement of the Act wherein the
possession can be either actual or constructive. If, however, such widow has
parted with her rights to the property by way of a gift or any devise which has the
effect of extinction of her rights to the property before the commencement of the
Act, the widow not being ‘possessed’ of the property on that date when the Act
came into force, would not have any title over the property whatsoever and she
cannot avail the beneficial effect of the provision.29
7. The expression ‘full ownership’ is used in the section in the context of property
and denotes a right indefinite in point of user, unrestricted in point of disposition,

26
In the case of Punithavalli v. Ramalingam, AIR 1970 SC 1730, the Supreme Court has held that the
estate taken by a Hindu female under subsection (1) of section 14 is an absolute one and is not
defeasible and its ambit cannot be cut down by any text or rule of Hindu law or by any presumption or any
fiction under that law.
27
Vinod Kumar v. State of Punjab, (1957) PLR 337 (FB) cited by Mulla, Hindu Law (2), (Butterworths,
New Delhi, 2001), 381.
28
Harish Chandra v. Trilok Singh, AIR 1957 SC 444. The court observed, ‘by reason of the expression
‘whether acquired before or after the commencement of the Act’ the section is retrospective in nature.’
29
Munshi Singh v. Sohan Bai, AIR 1989 SC 1179; Eramma v. Veeruppana, AIR 1966 SC 1879.
 unlimited in point of duration and heritable as such a right by the heirs of the
owner.30
In the case of Eramma v. Veerupana31, the Supreme Court, examining the ambit and
object of the section observed,
“the property possessed by a Hindu female, as contemplated in the
section, is clearly property to which she has acquired some kind of title,
whether before or after the commencement of the Act. It may be noticed
that the Explanation to section 14(1) sets out the various modes of
acquisition of the property to which the female Hindu has acquired some
kind of title, however restricted the nature of her interest may be. The
words “as full owner thereof and not as a limited owner” in the last portion
of subsection (1) of the section clearly suggest that the legislature
intended that the limited ownership of the Hindu female should be
changed into full ownership. In other words, section 14(1) contemplates
that a Hindu female, who, in the absence of the provision, would have
been limited owner of the property, will now become full owner of the
same by virtue of this section. The object of this section is to extinguish
the estate called ‘limited estate’ or ‘widow’s estate’ in Hindu law and to
make a Hindu woman, who under the old law would have been only a
limited owner, a full owner of the property with all powers of disposition
and to make the estate heritable by her own heirs and not revertible to the
heirs of the last male holder… It does not in any way confer a title on the
female Hindu where she did not in fact possess any vestige or title.”
The trend of the recent decisions of the Supreme Court and as the law has finally been
32
settled by Justice Bhagwati in V. Tulasamma v. Seshi Reddi ,is to lay stress on the
Explanation to section 14(1). In the instant case, the Court adopted the approach giving
‘a most expansive interpretation’ to the sub section with the view to advance the social
purpose of the legislation which is to bring about a change in the social and economic
position of women. Upon this section, a full bench of Punjab High Court has held that

30
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 392.
31
AIR 1966 SC 1879.
32
AIR 1977 SC 1944 at 1945-47; Vijaya v. Thakorbahi, AIR 1979 SC 993; Jagannathan Pillai v.
Kunjithapadama Pillai, AIR 1987 SC 1493.
the section provides enlarged rights over ‘land’ to Hindu females on the ground that it
enacts law on the matter of special property of females.33

Subsection (2)
The object of this subsection is to confine the language of subsection (1) to its own
subject and to stress its co-existence with sets of provisions in other enactments which
may be applicable to Hindus.34 The object of this subsection is also to make it
abundantly clear that a restricted estate can, even after the commencement of the Act,
come into existence in case of interest in property given to a Hindu female, by
testamentary disposition (i.e. by a will), by decree or order of a civil court or under an
award. It is also intended to make clear that any such restricted estate created prior to
the commencement of the Act will not be enlarged into full ownership by operation of
subsection (1) of the gift, will, other instrument, decree, order or award has prescribed a
restricted estate.
The general rule is, as the Supreme Court has laid, that subsection (2) must be read
only as a proviso or exception to subsection (1) of section 14 and its operation must be
confined to cases where property is acquired by a female Hindu as a grant without any
pre-existing right under a gift, will etc. which prescribes a restricted estate.35 As to the
application of this subsection, the Supreme Court has held that it would depend upon
the facts of each case whether the same is covered by the first or second subsection.36
If however, the property is acquired by a Hindu female in lieu of right of maintenance, it
is by virtue of a pre-existing right, such acquisition would not fall within the ambit of
subsection (2) even if the instrument or award allotting the property prescribes a

33
Joginder Singh v. Kehar Singh, AIR 1965 Punj 407 (FB).
34
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 394.
35
V. Tulasamma v. Sesha Reddi, AIR 1977 SC 1944. Justice Bhagwati giving the judgment observed,
“(B)eing in the nature of an exception to a provision which is calculated to achieve a
social purpose by bringing about change in the social and economic position of women in
the Hindu society, it must be construed strictly so as to impinge as little as possible on
the broad sweep of the ameliorative provision contained in subsection (1). It cannot be
interpreted in a manner, which would rob subsection (1) of its efficacy and deprive a
Hindu female of the protection sought to be given by her by subsection (1).”
See also Champa Devi v. Madho Sharan Singh, AIR 1981 Pat 103; A. Venkataraman v. S. Rajalakshami,
AIR 1985 Mad 248.
36
Badri Prasad v. Kanso Devi, AIR 1970 SC 1963.
restricted estate in the property.37 The position as to pre-existing right of maintenance
has been made clear by the Supreme Court in Raghuvar Singh v. Gulab Singh38 and it
has been held that by the operation of section 14, the pre-existing right of maintenance
of the widow shall transcend into an absolute right and subsection (2) would not have
any application in such cases of pre-existing right.

15. General rules of succession in the case of female Hindus.-

(1) The property of a female Hindu dying intestate shall devolve according
to the rules set out in section 16,-
(a) Firstly, upon the sons39 and daughters (including the children of
any pre-deceased son or daughter) and the husband;
(b) Secondly, upon the heirs of the husband40;
(c) Thirdly, upon the mother and father;
(d) Fourthly, upon the heirs of the father; and
(e) Lastly, upon the heirs of the mother41.
(2) Notwithstanding anything contained in subsection (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 the other heirs referred to in sub-section (1) in
the order specified therein, but upon the heirs of the father; and
(b) Any property inherited by a female Hindu from her husband or
from her father-in-law 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 the other heirs referred to in

37
V. Tulasamma v. Sesha Reddi, AIR 1977 SC 1944; State of Uttar Pradesh v. Nand Kishore, AIR 1977
SC 1267; Santhanam v. SUbramanya, AIR 1977 SC 2024; Vajia v. Thakorbhai, AIR 1979 SC 993;
Sellammal v. Nellammal, AIR 1977 SC 1265; Krishna Das v. Venkayya, AIR 1978 SC 361.
38
(1998) 6 SCC 314; following the same, Smt. Beni Bai v. Raghubir Prasad, AIR 1999 SC 1142.
39
In the case of Lachaman Singh v. Kirpa Singh, AIR 1987 SC 1616, the Supreme Court has held that
‘sons’ does not include step sons.
40
In case the intestate has remarried, she heirs of the second husband, who was the existing husband at
the time of the death of the intestate, shall be considered for the heirs of the husband.
41
A step mother is not entitled to inherit as mother; Anhia Mandalanin v. Baijnath, AIR 1974 AP 117 at
180.
 subsection (1) in the order specified therein, but upon the heirs of
the husband.

This section propounds a definite and uniform scheme of succession in the property of a
female Hindu who dies intestate after the commencement of the Act. The rules laid
down under this section are to be read with section 16. This section groups the heirs of
a female intestate into five categories as laid in subsection (1).
However subsection (2), similar to the scheme of section 14, is in the nature of an
exception to the general rule as laid in subsection (1). The two exceptions are, if a
female dies without leaving any issue then,

(i) in respect of property inherited by her from her father or mother, that property
will devolve not according to the order laid down as in subsection (1) but upon
the heirs of her father, and
(ii) in respect of the property inherited by her from her husband or father-in-law,
that property will not devolve according to the order laid down in subsection
(1) but upon the heirs of her husband.

It is important to note that the two exceptions herein referred are confined to only the
property inherited from the father, mother, husband and father-in-law of the female and
does not affect the property acquired by her by gift or other by other device. The section
has changed the entire concept of stridhana and the mode and manner of acquisition of
property by the female, which earlier determined how the property would be inherited,
has been changed and amended by the section. Considering section 17, it is important
to note that section 16 does not apply to persons governed by Marumakkattayam and
Aliyasantana laws.
As specified in the beginning of the subsection (1), in the devolution of heritable
property of a female intestate, those in a higher entry are preferred to those in a lower
entry. Therefore, only in the case of failure of heirs specified in entry (a), but not until
then, that property will devolve upon the heirs listed in the next entry and similarly so on
and so forth for other entries.
The order of succession, as by the effect of rules under section 15 can be summerised
as follows;42

(1) the general order of succession laid down in entries (a) to (e) in subsection (1)
applies to all property of a female intestate however acquired except in case of
property inherited by her from her father, mother, husband or father-in-law.
(2) In case of a female intestate leaving a son or a daughter or a child of a
predeceased son or of a predeceased daughter, that is leaving any issue, all her
property, howsoever acquired, devolves on such issue regardless of the source
of acquisition of the property and such issue takes the property simultaneously;
and if the husband of the intestate is alive they take simultaneously with him in
accordance with entry (a). In such a case, subsection (2) does not apply.
(3) In case of a female intestate dying without issue but leaving her husband, the
husband will take her property, except property inherited by her from her father
or mother which will revert to the heirs of the father in existence at the time of
her death.
(4) In case of female intestate dying without issue property inherited by her from her
husband or father-in-law (the husband being dead), will go the heirs of the
husband and not in accordance with the general order of succession laid in
subsection (1).
(5) In case of a female intestate dying without issue property inherited by her from
her father or mother will revert to the heirs of the father in existence at the time
of her death and not in accordance with the general order of succession laid
down in subsection (1).

16. Order of succession and manner of distribution among heirs

of a female Hindu- The order of succession among the heirs referred to
in Section 15 shall be and the distribution of the intestate’s property
among those heirs shall take place according, to the following rules,
namely:

42
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 406.
 Rule 1.- Among the heirs specified in subsection (1) of Section 15, those
in one entry shall be preferred to those in any succeeding entry and those
including in the same entry shall take simultaneously.
Rule 2.- If any son or daughter of the intestate had predeceased the
intestate leaving his or her own children alive at the time of the intestate’s
death, the children of such son or daughter shall take between them the
share which such son or daughter would have taken if living at the
intestate’s death.
Rule 3.- The devolution of the property of the intestate on the heirs
referred to in clauses (b), (d) and (e) of sub-section (1) and in subsection
(2) to Section 15 shall be in the same order and according to the same
rules as would have applied if the property had been the father’s or the
mother’s or the husband’s as the case may be, and such person had died
intestate in respect thereof immediately after the intestate’s death.

Rule 1 explicitly declares that among the heirs enumerated in entries (a) to (e) of
section 15, those heirs referred to in prior entry are to be preferred to those in any
subsequent entry and those included in the same entry are to succeed simultaneously.
Rule 2 states that in case of the children of a predeceased son or daughter, they shall
not take per capita with the son and daughter of the intestate but shall take per stripes
i.e. the children and the predeceased son or daughter shall succeed to the property of
the intestate as if the predeceased son or daughter was alive at the time of inheritance.
Rule 3 is applicable only when succession is in terms of entry (b), (d) or (e) of section
15(1). This rule 3 is to be invoked when under rule 1 the heirs of the husband or the
father or the mother are to be ascertained for purpose of distribution of property.

V. CRITICAL OBSERVATIONS UPON THE ACT

The Act No. XXX of 1956 indeed, to some extent, represents women's interests in
matrimonial property as clearly provided for under the Act under different places such
as Class I heirs (which has eight female heirs in the total of twelve survivors in the Class
I heirs) and though the changes in law relating to succession brought about by the Act
may be called as of radical nature considering the traditional and pre codified Hindu
Law nevertheless the enactment is still infected with various lacunas, discriminatory in
nature, supporting the perpetuation of inequality on basis of sex, much against the
mandate of constitution.

The one major factor which has contributed in continuing the inequality between
sons and daughters is the retention of the Mitakshara coparcenary (section 6), an
anachronism in present day.
The act manifests a compromise, which definitely is an improvement, though
insufficient, upon the past practices reached as a result of strong
recommendation for abolition of coparcenary and counter representations
against such a move. The compromise, which provided an inroad to female heirs
for share in ancestral property, was that if a male member of a coparcenary dies
then for the purpose of ensuing that his heirs get a share of the property, his
share will be demarcated as if there had been a partition and his heirs called
class I heirs, which include female members too will have the share divided
amongst them simultaneously. It means that, if there is a coparcenary of father
and two sons, the share a father would have got on partition would be one third.
This will be divided among the class I heirs, where both son and daughter, if any
will get an equal share. This puts sons in an advantageous position because as
in above example, the two sons in addition to their original interest as
coparceners will get equal share of father's property with the mother,
grandmother, sister etc. Thus, retention of Mitakshara coparcenary brings about
inequality in the same class of heirs on the basis of sex.
Besides, it has also meant continuation of two rights both of which affect the
rights of female heirs detrimentally. The first is right of the coparcener to
renounce his right in coparcenary. The result of this is that on his death he will
have no interest in the joint family which could be distributed among class I heirs.
This deprives female heirs of any share, while son's share as coparcener is
ensured. The second of such characteristics is the right to convert self acquired
property to coparcenary property. The effect of this is that the share of female
heir is refused because in the self acquired property she would have had the
right to inherit equally with the male members as class I heirs.

Another provision of this Act, which contributed both to the lack of uniformity as
well as continuation of discriminatory treatment of female heirs is the provision
excluding the devolution of tenancy rights under the legislation of the states, from
the scope of the Act. Section 4(2) lays down, "Nothing contained in this Act law
for the time being in force providing for the prevention of fragmentation of
agricultural holdings or for fixation of ceilings or for devolution of tenancy rights in
respect of such holding.”
This provision has led to elimination of beneficial effects of the Act under the land
legislation in many states. Therefore, in some states with an example of Punjab,
dominant conservative groups have been successful in excluding widows and
daughters.

Further Section 23 of the Act relating to right of inheritance to a dwelling house is
overtly discriminatory. It is provides that where a Hindu dies intestate and his
property includes a dwelling house wholly occupied by the members of the
family, then the female heirs are not untitled to claim partition of it unless the
male members choose to divide their shares in dwelling house. Female heirs are
entitled only to the right of residence. Even this right to residence is restricted to
unmarried and widowed daughters or those deserted by or separated from their
husbands. A married daughter enjoys no such right. Indeed this section was just
keeping in view predominantly agricultural societies where fragmentation of land
into small portions could have been detrimental for general well being.

The general exemption granted in favour of laws of the Scheduled Tribes that
they are not bound by the provisions of the Act seeks to perpetuate inequality
with respect to females in these tribes wherein the exploitation of the female
class is highest and unchecked. The most unfortunate part of this story is that
this exception has been upheld as valid by the Supreme Court in Madhu Kishwar
v. State of Bihar43.

The 15th Law Commission, headed by Justice B P Jeevan Reddy, has suggested
fundamental changes in the Hindu Succession Act 1956 to ensure that women get an
equal share in ancestral property. One of the radical changes suggested as part of the
43
AIR 1996 SC 1864
Hindu Succession (Amendment) Bill 2000 was equal rights for daughters in coparcenary
property which meant that in a Hindu joint family, the daughter shall have the same
property rights as a son and the property will be equally divided. However it is
unfortunate to note that the Bill could not be passed.
Thus we find that in certain cases women have been systematically removed from fully
participating in the development process despite their active participation in the
production processes alongside men. Even where women's legal rights have been
provided for, ignorance of such rights exacerbated by illiteracy ensures that they do not
benefit from such provision. The effectiveness of laws in according women equal
opportunities with men depends largely on the society's willingness and ability to
enforce such laws. It is at this point of enforcement that one gets caught up in the
dichotomies and conflicts of statute law, customary law and law in practice (living law)
which many a woman find themselves warped up in.
Also important to note is the fact that unfettered power exists in any individual to
determine (by way of testamentary succession) as to how his or her property shall
devolve and such as primarily been exercised to the disadvantage of the female lot who
have generally been excluded from succession by providing against them in the
different devices of testamentary succession.

VI. CONCLUSION

“Gender justice challenges the traditional rationality of law. The traditional

rationality speaks of equality in the context of an assumed secondary role
for women even concerning decision-making which affects their bodies and
lives.”44

The quote fits aptly in the context of our study. The aim of every society is to come
above any biasness for any section, composition or segment. The tradition debate over
the rights of females as respect to and in parity to the males assumes importance where
the question of rights vis-à-vis the position in the family arises in the context of property
assigned. When women have a position equal to (if not higher as Manu originally

44
Justice S. Rajendra Babu, Gender Justice — Indian Perspective, (2002) 5 SCC (Jour) 1
propounded), other male members, why the rights of acquisition, ownership, enjoyment
and disposition of property are not available as such to these female members upon the
death of the intestate or otherwise. This opens the scope for criticizing the policy of the
state which, though the enactment (in this case the Hindu Succession Act, 1956) seeks
to prescribe the law that governs the matters of succession and inheritance and thereby
perpetuate the seemingly upright but defacto back ridden status of the female in the
family.
If one were to spell the duty of a rational and ideal following state, the first role of such
state would be to establish an environment of equal basic rights i.e. the foundation of
gender equality, especially with respect to family law, gender-based discrimination,
property rights and other matters wherein the scope for discrimination purely with
respect to gender basis exists. Though one may argue that gender gaps stem also from
the family’s desire to confine women’s work due to norms and traditions, as from
employers’ prejudice against hiring women, yet, state cannot evade its responsibility of
creating a balanced paradigm for parity based existence of males and females in the
society.
Thus, in the light of the above remarks and the critical observations made in the study,
the author seeks to propose that there must be suitable reforms in the Hindu
Succession Act to modify the principles and rules of intestate succession, as they
presently stand, such that the gender based discrimination which exist in the present
day Hindu society, on account of the provisions of the Act, be done away with and an
egalitarian society, as upon the terms of the ideals envisaged in the Constitution, be
established.
To put it differently, the transition from colonialism to constitutionalism, gender justice
and governance should be the objective with which the reforms should be contemplated
and introduced into the Act. Another reason for reform is progress of the society. All
laws, even the eternal ones, are man made and reflect the level of thinking and
advancement of human knowledge and civilization at that moment of time. If we have to
accept what lawgivers like Manu evolved in the period before the Gupta Empire or in
medieval Arabia as sacrosanct, then we will forever be condemned to be governed by
archaic, unequal and unjust laws. In the age of reason, the demand that people obey
laws must be rooted in reason and not sentiment. Thus what ideals we contemplate in
the present era must form the basis of the law which governs us notwithstanding the
area with which it deals namely succession or otherwise.
Particularly in view of India’s obligation under the United Nation’s Convention on the
Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) wherein
Article 15 of the Convention necessitate the state parties to ensure equality of men and
women before the law and in civil matters and Article 16(1)(h) which obliges the state
parties to take appropriate measures to ensure that spouses have the same rights of
‘ownership, acquisition, management, administration, enjoyment and disposition of
property,’ the state should review the Hindu Succession Act to remove the gender bias
and equalize the provisions as far as succession of females is concerned under the Act,
to bring them at par with the males in the line of succession and thus aim for a
progressive society, being unfettered by the dominating principles of the ancient
religion.
These being the suggestions and conclusion of the study, the author hopes that suitable
changes shall be introduced in due course in the Hindu Succession Act and it shall be
brought in more realistic terms of the present society and the gender bias which exists
for almost five decades shall be done away with and an egalitarian society be
established.
 BIBLIOGRAPHY

Articles: -
1. Dr. Werner Menski, Postmodern Hindu Law.
2. Justice S. Rajendra Babu, Gender Justice — Indian Perspective, (2002) 5
SCC (Jour) 1.
3. Kanchan Sinha, Citizenship degraded: Indian women in a modern state and
a pre-modern society.
4. Observations of the Judicial Committee titled Social Norms, Laws, and
Economic Institutions.
5. Paper of First South Asian Regional Judicial Colloquium on Access to
Justice organized at New Delhi from 1 - 3 November 2002.
6. Patricia Kameri Mbote, Gender Considerations In Constitution-Making.
7. RDI Reports on Foreign Aid and Development No. #116 titled Women’s
Land Rights in West Bengal: A Field Study by Jennifer Brown and Sujata
Das Chowdhury (submitted on November 2002).
8. Report of the National Conference On Women’s Rights, Law And Justice
held from 26-27 May 2003, hosted by The International Human Rights Law
Group.
9. Report of the National Seminar on Property Rights of Women held in 2003.
10. Tanika Sarkar, Religious Norms and Social Questioning: Contextualising
Gender Laws in 19th century Bengal, (Jawaharlal Nehru University).
11. V.R. Krishna Iyer, Unifying personal laws, The Hindu, Saturday, Sep 06,
2003.

Books: -

1. Bryan A. Garner (ed.), Black Law Dictionary, (West Group. St. Minn, 7th edition).
2. Maine, Hindu Law, (Bharat Law House, New Delhi, 14th edition).
3. Mulla, Hindu Law, (Butterworths, New Delhi, 2001).
Websites: -

1. <http://www.hsph.harvard.edu/Organizations/healthnet/SAsia/forums/successio
n/articles/access.html> visited on 15.07.2004
2. <http://www.womeninworldhistory.com/current.html> visited on 12.07.2004.