The Traditional Hindu Law of Succession, before 1956
Chapter Fifty-One
Syllabus topic 3.1, "Historical perspective of traditional Hindu law as a background to the study of Hindu Succession Act 1956"
Pages 302 to 306 of 477
In one line
Before 1956 a Hindu woman could inherit only a limited estate she could not dispose of, the two schools ranked heirs on different principles, and property left the family on her death rather than passing to her own heirs.
The two principles
The schools did not merely differ on details. They ranked heirs by different tests, and everything else follows.
Mitakshara: consanguinity. An heir's place depends on nearness of blood to the deceased. The nearer in blood, the better the claim.
Dayabhaga: spiritual benefit. An heir's place depends on his capacity to confer religious benefit on the deceased, chiefly by offering the funeral oblations. A person who can offer more pindas to the deceased is a better heir than one who can offer fewer, whatever the blood relationship.
That difference produced very different lists. Under Dayabhaga, for instance, a daughter's son ranked high because he could offer oblations; under Mitakshara he did not.
The Mitakshara scheme
Under Mitakshara there were two distinct routes by which property passed, and confusing them is the commonest error.
Survivorship, for coparcenary property
An undivided interest in coparcenary property did not pass by inheritance at all. On a coparcener's death it passed by survivorship to the surviving coparceners. His widow and daughters took nothing from it.
That is the rule the Hindu Succession Act attacked, first by the proviso to the original section 6 in 1956 and then by the substituted section in 2005. It is set out in [Section 6: Devolution of Interest in Coparcenary Property].
Inheritance, for separate property
Separate property passed by inheritance, and the heirs were ranked in classes:
Sapindas, those connected by the funeral offering, taken in a fixed order beginning with the son, grandson and great-grandson.
Samanodakas, more remote relations sharing a common ancestor beyond the sapinda limit.
Bandhus, cognates, related through a female.
Within the sapindas the male issue came first, then the widow, then the daughter, then the daughter's son, then the mother, the father, and so on.
The order was governed by the Mitakshara's own sub-schools, and this is where the Benares, Mithila, Maharashtra and Dravida sub-schools differed from each other, principally on the position of certain female heirs and of the bandhus.
The position of women
This is the heart of the chapter, because it is what the Act was passed to change.
The limited estate
A woman who inherited property took it as a limited owner, in what was called the Hindu woman's estate. The limits were severe:
She could not alienate it, except for legal necessity or for religious purposes, and even then only with the consent of the next reversioners.
She held it for her life only. On her death the property did not pass to her own heirs. It reverted to the heirs of the last full owner, the man from whom she had inherited. Those persons were called the reversioners, and they had a right to sue during her lifetime to restrain her from wasting the property.
The Traditional Hindu Law of Succession, before 1956
So a widow who inherited her husband's land held it, took its income, and could pass none of it to her own children if they were not also his.
Stridhana
Against that stood stridhana, a woman's own property, over which she had full ownership and full power of disposal. What counted as stridhana was itself contested, and the schools differed. It included gifts made to her before, at and after the marriage, gifts from relations, and in some views property acquired by her own skill or exertion.
The classical law therefore gave a woman two kinds of property with completely different incidents, and a great deal of litigation was about which was which.
The rules of succession to stridhana
Succession to stridhana followed its own rules, which differed by school and, worse, by the kind of stridhana and by the manner in which she had acquired it. Property received at her marriage went one way, property from her father another.
That complexity is the direct explanation of section 15(2) of the Act, which preserves a simplified version of the same idea by sending property inherited from her parents to her father's heirs and property inherited from her husband or father-in-law to his.
The disabilities
The classical law excluded certain persons from inheriting altogether:
- persons with certain physical or mental defects, including congenital blindness, deafness, dumbness, lunacy and idiocy;
- a person who had ceased to be a Hindu by conversion;
- a murderer of the person whose property was in question; and
- an unchaste widow, and a widow who remarried, in certain circumstances.
Each of those has an answer in the Act. Section 28 abolishes disqualification for disease, defect or deformity. Section 26 confines the effect of conversion to the convert's children. Section 25 keeps the murderer's disqualification. Section 24, which disqualified certain remarrying widows, was itself omitted in 2005. All are in [Disqualifications Relating to Succession].
The reforms before 1956
The Act of 1956 did not come out of nothing, and naming its predecessors earns marks.
The Hindu Law of Inheritance (Amendment) Act 1929, which improved the position of certain female heirs by placing the son's daughter, the daughter's daughter and the sister in the line of heirs.
The Hindu Women's Right to Property Act 1937, which is the most important of them. It gave a widow, on her husband's death, the same interest in the joint family property as her husband himself had, taken as the Hindu woman's limited estate, with a right to claim partition. For the first time a widow could stand in her husband's place in a coparcenary, though only as a limited owner.
The Traditional Hindu Law of Succession, before 1956
The Hindu Married Women's Right to Separate Residence and Maintenance Act 1946.
The Hindu Gains of Learning Act 1930, taken in [The Joint Family as a Social Security Institution].
What the Act of 1956 did to all this
This is the paragraph that turns background into an answer, and it can be written as a table.
| Classical position | What the Act did |
|---|---|
| Two schools with different lists of heirs | One uniform scheme of heirs for all Hindus, sections 8 to 13 |
| Inheritance by consanguinity or by spiritual benefit | A statutory list, the Schedule, without either test |
| Coparcenary interest passed by survivorship | Modified by the proviso to section 6 in 1956, abolished by the substituted section 6 in 2005 |
| A woman took a limited estate that reverted | Section 14(1): she holds as full owner, not as a limited owner |
| Reversioners | Abolished, along with the estate they were waiting for |
| Stridhana with its own rules | Absorbed into sections 15 and 16, with a source rule in 15(2) |
| A daughter was not a coparcener | Section 6(1), from 2005, makes her one by birth |
| Disqualification for disease and defect | Section 28 abolishes it |
| Widow disqualified on remarriage | Section 24, itself omitted in 2005 |
| No power to will away a coparcenary interest | Section 30, Explanation, makes it disposable by will |
How to write the answer
MU asks for the historical perspective as a background, so the answer should move forward rather than dwell.
Open with the two principles, consanguinity and spiritual benefit, and say that they produced two different lists.
Then the two routes under Mitakshara, survivorship for coparcenary property and inheritance for separate property.
Then the position of women, the limited estate, the reversioners and stridhana, and say plainly that this is what the Act was passed to end.
Then the disabilities, and note that section 28 abolished most of them.
Then the reform statutes, and in particular the Act of 1937.
Close with the table above, or with as much of it as the time allows.
A worked example
A question asks why the Act of 1956 was needed at all. Take a Mitakshara family before 1956, of a father, two sons and a daughter, holding ancestral land and a separate house.
The land. It is coparcenary property, and it passes by survivorship. On the father's death the two sons take it by survivorship; the daughter takes nothing, because she is not a coparcener.
The Traditional Hindu Law of Succession, before 1956
The house. It is separate property and passes by inheritance, to the sapindas first, then the samanodakas, then the bandhus, ranked by nearness of blood, which is the Mitakshara principle.
If the family were Dayabhaga. There would be no survivorship at all, and the ranking would be by the capacity to confer spiritual benefit on the deceased.
Suppose the father's widow takes the house. She takes a woman's estate: she may enjoy it and take the income, but she may not alienate it except for legal necessity, and on her death it goes not to her heirs but to the reversioners, the next heirs of the last full owner.
Suppose a son had been blind from birth, and another had converted. Under the classical law both could be disqualified, along with a widow who remarried and a person who had murdered the propositus.
What changed before 1956? The Hindu Law of Inheritance (Amendment) Act 1929 improved certain female heirs' position; the Hindu Gains of Learning Act 1930 made earnings from education separate property; the Hindu Women's Rights to Property Act 1937 gave the widow her husband's interest, though still as a limited estate; and the Hindu Married Women's Right to Separate Residence and Maintenance Act 1946 dealt with maintenance.
What the 1956 Act then did. One uniform list of heirs; section 14 turned the woman's estate into full ownership and destroyed the reversioners; section 28 abolished disqualification for disease or defect; and in 2005 the daughter became a coparcener by birth.
What it does NOT mean
Survivorship was not inheritance. Coparcenary property passed outside the law of inheritance altogether, which is why a daughter took nothing of it.
The woman's estate was not a life interest in the English sense. She was the full owner for the time being, with limited powers of alienation, and the estate reverted to the last full owner's heirs.
Stridhana was not the woman's estate. Stridhana was hers absolutely and descended by its own rules.
The reforms before 1956 were not a code. They were four separate Acts, each mending one defect.
Mitakshara and Dayabhaga did not differ only about survivorship. They differed about the principle of selection: nearness of blood against capacity to confer spiritual benefit.
The classical disqualifications were not abolished by the 1956 Act alone. Section 28 abolished disease, defect and deformity, but murder and conversion survive in sections 25 and 26.
Quick revision
- Two principles: Mitakshara ranks heirs by nearness of blood, Dayabhaga by the capacity to confer spiritual benefit.
- Mitakshara scheme: coparcenary property by survivorship; separate property by inheritance, among sapindas, then samanodakas, then bandhus.
- Women: a limited estate with no power of alienation except for legal necessity, reverting to the reversioners on death; stridhana hers absolutely.
- Disqualifications: disease, defect, conversion, murder, and a widow's remarriage.
- Reform before 1956: the Acts of 1929, 1930, 1937 and 1946.
- The Act of 1956: one uniform list of heirs; s.14 full ownership; s.28 abolishing disqualification for disease or defect; and in 2005 the daughter as a coparcener by birth.
The Traditional Hindu Law of Succession, before 1956
Test yourself
1. On what principle did each school rank heirs? Mitakshara on nearness of blood, or propinquity. Dayabhaga on the capacity of the heir to confer spiritual benefit on the deceased.
2. What was a Hindu woman's estate? Property she held as full owner for the time being but could not alienate except for legal necessity, and which on her death passed not to her own heirs but to the reversioners, the next heirs of the last full owner.
3. Name the statutes that reformed the law before 1956. The Hindu Law of Inheritance (Amendment) Act 1929, the Hindu Gains of Learning Act 1930, the Hindu Women's Rights to Property Act 1937 and the Hindu Married Women's Right to Separate Residence and Maintenance Act 1946.
4. What did the Act of 1956 change? It gave one uniform list of heirs for Hindus, converted the woman's limited estate into full ownership by section 14 and thereby destroyed the reversioners, abolished disqualification for disease, defect or deformity by section 28, and, by the amendment of 2005, made the daughter a coparcener by birth.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.