Hindu Succession Act, 1956 and Customary Law
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In traditional Hindu Law, the order of succession is based on spiritual benefit, but the Act has changed the order of succession based on affinity. In the old Hindu Law, women were entitled to a limited estate ( property inheritance), the Hindu Succession Act, 1956 abolished the limited estate, and now they are entitled to the absolute estate. In the past, the coparcenary could not make a will regarding his interest in Joint family property, whereas after passing the Act, he can execute a will in respect of his interest in the property. In old Hindu Law, Mithakshara and Dayabhaga schools recognized separate rules of succession; there were no uniform rules. But the Act has now adopted a uniform set of rules for all Hindus. The rule of spiritual benefit used to be the previous rule, whereas now it’s the rule of equality. Finally, in old Hindu Law, unchastity was a ground for excluding from inheritance on the part of women, but now it is not a ground.
Before the enactment of the Hindu succession act, 1956, the succession in Hindu families was governed by the customary law followed locally and it was also influenced by the school they belong to(i.e. Mithakshara and Dayabhaga). After the enactment of the act there was a unified law for both of the Hindu schools. More over in addition to that the right of women to inherit property from Father or as widow was recognised. A fixed definite class of heir was established. In before time certain local law the heir may be disqualified to inherit the property but after the enactment of the Hindu succession act, this was abolished.
The Hindu Succession Act, 1956, brought about many important changes in the Hindu intestate succession of properties apart from introducing a uniform law of succession among Hindus, in the entire territory of India. Under the pre-existent law in the Hindu joint family, a coparcener could not write in respect of his interest or property in the family. But Section 30 of the Hindu Succession Act enables a coparcener to write a will in respect of his property. Secondly, on the death of coparcener, the principle of survivorship was recognised. The past sapindas relationship was totally abolished. In that place love and affection theory has come into the existence and as such both males and females could inherit the property of the deceased. The Act entitles a male Hindu to dispose of heir’s interest in Mitakshara coparcenary property by will. The Act does not apply to Mitakshara coparcenary property. But when coparcener dies leaving female heirs mentioned in class I of the Act or male relative of the claim claiming through such female relative, the property of the ancestor is subjected to rules of inheritance under the Act and the coparcenership is abolished.
Since the earliest times almost every law including property law has been exclusively for the benefit of men and woman has been considered as an asset of men. Property right is very important for the development of humans and the laws before the introduction of Hindu succession act 1956 were governed on the basis of customary rules and regulation which can differ region to region or on the caste basis. Things changed considerably after Hindu succession came in 1956.
First major change that happened was the uniformity of application. Previously there were many systems of inheritance governed by different law but after this act all part of India came under one umbrella. Second change was that there’s a section provided in this act where when a male Hindu dies his interest would devolve by survivorship upon the surviving members of the coparcenary, and not according to the rules of succession laid down in the Act. However, this rule has now been abrogated by the 2005 Amendment of the Act. Third change was that the Act abolishes the Hindu women’s restricted estate, and all property obtained by a female Hindu, regardless of how gained, is to be retained as her absolute property, and she is given complete right to deal with and dispose of it as she wishes. Finally, the Act clarifies the manner of succession, removing significant ambiguities that had been created by contradictory judgements of the Privy Council and several High Courts.The Act lays down a uniform and comprehensive system of inheritance, and applies to persons governed by both the Mitakshara and the Dayabhaga schools. It also applies to those previously governed by the Marumakkatayam, Aliyasantana and Nambudri systems of Hindu Law. When a male Hindu dies, having an interest in a coparcenary property, his interest would devolve by survivorship upon the surviving members of the Coparcenary. This rule has now been abrogated by the 2005 Amendment of the Mitakshara (Consolidation) Act. The Act provides for the abolition of two systems of inheritance to separate or self-acquired property of a male dying intestate and replaces them with one uniform system in respect of each class of property held by a male who dies intestate (see Sec. 8 of the Act). Before the passing of the Act, the Mitakshara School recognized three classes of heirs. Under the Act, the classification of heirs is abolished and the Act divides heirs into four classes or categories.
The Hindu women’s limited estate is abolished by the Act, and any property possessed by a female Hindu, howsoever acquired, is to be held by her as her absolute property. She is given full power to deal with it and dispose it off by will as she likes. The Act lays down a uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of the act. Succession to stridhan (woman’s property) previously varied according as a woman was married or unmarried, and if married, according to the form of marriage. Sec. 28 of the Act lays down that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity.
Under the texts of the Dharma shastras as interpreted by the Courts, certain defects, deformities and diseases excluded an heir from inheritance. Prior to the passing of the Act, according to the Mitakashara Law, no coparcener could dispose of by will, his undivided coparcenary interest, even if the other coparceners consented to the disposition. This rule is now abrogated by the Explanation to Sec. 30, which expressly lays down that such interest is to be deemed to be property capable of being disposed of by a Hindu under a will. The Act has made the mode of succession plain and simple, and several doubts cast by conflicting decisions of the Privy Council and the various High Courts are now removed. The Act is indeed characteristic of an age which is one of great ideals and fast-changing theories.
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