The Traditional Hindu Law of Succession, before 1956

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.