The Hindu Succession Act: Scope, Application and Overriding Effect
Chapter Fifty-Two
Syllabus topic 3.2, "Succession to property of a Hindu male dying intestate under the provisions of Hindu Succession Act 1956"
Pages 307 to 312 of 477
In one line
The Act codifies intestate succession for every Hindu, Buddhist, Jain and Sikh, and for anyone in India who is not a Muslim, Christian, Parsi or Jew, and displaces the whole of the classical law on the matters it covers.
Section 1: title and extent
The Act is Act 30 of 1956, of 17 June 1956. Section 1(1) gives the short title; section 1(2) extends it to the whole of India.
The long title states its purpose: an Act to amend and codify the law relating to intestate succession among Hindus.
Three words in that title are worth a sentence each in an answer.
"Amend." It changed the law, and profoundly: the limited estate went, the disabilities went, the two schools' lists were replaced.
"Codify." It put the law in one place, so that the classical texts and the sub-schools no longer have to be consulted for the matters it covers.
"Intestate." The Act is about succession where there is no will. Testamentary succession is left to the Indian Succession Act 1925, and section 30 says so.
Section 2: application
Section 2(1) provides that the Act applies:
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion; and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that such a person would not have been governed by Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with in the Act, had the Act not been passed.
The Explanation treats as a Hindu, Buddhist, Jaina or Sikh: a child, legitimate or illegitimate, both of whose parents are; a child, legitimate or illegitimate, one of whose parents is, and who is brought up as a member of the tribe, community, group or family to which that parent belongs or belonged; and any convert or reconvert.
Section 2(2) takes members of a Scheduled Tribe, within the meaning of Article 366(25) of the Constitution, out of the Act unless the Central Government directs otherwise by notification.
Section 2(3) provides that "Hindu" anywhere in the Act includes a person who, though not a Hindu by religion, is a person to whom the Act applies by virtue of the section.
One difference from the Hindu Marriage Act is worth noticing. Section 2(1)(c) of that Act requires the person to be domiciled in the territories to which it extends; this Act's clause (c) does not use the word domiciled. Otherwise the two sections are in the same words, and everything said in [The Hindu Marriage Act: Application, and Who is a Hindu] about definition by exclusion, about the child brought up in a community, and about the Scheduled Tribe exception applies here.
The Hindu Succession Act: Scope, Application and Overriding Effect
Section 3: definitions
Section 3(1) defines the expressions the Act runs on. The ones that matter for this module are:
"Agnate." One person is an agnate of another if the two are related by blood or adoption wholly through males.
"Cognate." One person is a cognate of another if the two are related by blood or adoption but not wholly through males.
That pair is asked as a one-sentence question in paper after paper: December 2019 Q1.1, February 2023 Q1.5 and June 2023 Q1.5 all set the difference between an agnate and a cognate. Learn the two definitions word for word, and note that the test is not male or female: it is whether the chain of relationship passes only through males.
A worked pair makes it stick. A father's father's son is an agnate, because every link is male. A mother's brother is a cognate, because the chain passes through the mother. A son's daughter is an agnate, because the link to her is through a son, even though she is female.
"Full blood", "half blood" and "uterine blood" are defined as in the Hindu Marriage Act: full blood is descent from a common ancestor by the same wife, half blood from a common ancestor by different wives, uterine blood from a common ancestress by different husbands.
"Heir" means any person, male or female, entitled to succeed to the property of an intestate under the Act.
"Intestate." A person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.
That definition repays care. A person may die partly testate and partly intestate: the Act governs whatever the will does not dispose of, and a will that fails for any reason leaves the property intestate.
"Related" means related by legitimate kinship, with a proviso that illegitimate children are deemed related to their mother and to one another, and their legitimate descendants are deemed related to them and to one another.
Section 4: overriding effect
Section 4(1) provides that, save as otherwise expressly provided, any text, rule or interpretation of Hindu law, or any custom or usage as part of that law, in force immediately before the commencement of the Act, ceases to have effect with respect to any matter for which provision is made in the Act; and any other law in force immediately before the commencement shall cease to apply to Hindus in so far as it is inconsistent with the Act. Note the wording of clause (b): the other law does not cease to have effect generally, it ceases to apply to Hindus.
The Hindu Succession Act: Scope, Application and Overriding Effect
Two consequences.
The classical law of succession is gone, so far as this Act legislates. There is no longer any question of sapindas, samanodakas and bandhus for a Hindu male's separate property, or of the sub-schools' differing lists.
Custom is displaced too, and here the contrast with the Hindu Marriage Act is sharp. That Act invites custom back in for ceremonies and for prohibited relationships. This Act does not: it displaces custom on the matters it covers and does not restore it anywhere.
But the joint family survives, because "any matter for which provision is made in this Act" does not include the existence of the joint family, the karta, alienation, partition or reunion. That is the point made in [The Mitakshara Joint Family] and it is why Module II is still classical law.
Section 4(2), which had saved laws providing for the prevention of fragmentation of agricultural holdings and for ceilings and the devolution of tenancy rights, was omitted by the Hindu Succession (Amendment) Act 2005. That omission is worth a line: it removed a large carve-out for agricultural land, and so extended the Act's reforms to the property that most Indian families actually hold.
Section 5: property to which the Act does not apply
Section 5 provides that the Act shall not apply to:
(i) any property succession to which is regulated by the Indian Succession Act 1925 by reason of section 21 of the Special Marriage Act 1954;
(ii) any estate which descends to a single heir by the terms of a covenant or agreement entered into by the Ruler of an Indian State with the Government of India, or by the terms of any enactment passed before the commencement of the Act; and
(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board.
Clause (i) is the one to know. It is the link back to [The Effect on the Joint Family and on Succession]: a person married under the Special Marriage Act, where section 21A does not apply, has his succession governed by the Indian Succession Act 1925 and not by this Act. Section 5(i) is this Act standing aside for that.
Clause (ii) preserved impartible estates descending to a single heir under the covenants of accession, and clause (iii) is a single named estate in Kerala.
The scheme of the Act
Worth setting out once, because the rest of the module follows it.
The Hindu Succession Act: Scope, Application and Overriding Effect
| Chapter | Sections | What it does |
|---|---|---|
| I, Preliminary | 1 to 5 | Application, definitions, overriding effect, exclusions |
| II, Intestate succession | 6 to 29 | The whole of the law of intestate succession |
| ,, General | 6 and 7 | Coparcenary and matrilineal interests |
| ,, Males | 8 to 13 | Succession to a male, the Schedule, agnates and cognates |
| ,, Females | 14 to 16 | Full ownership, and succession to a female |
| ,, General provisions | 17 to 28 | Special provisions, and the general rules and disqualifications |
| ,, Escheat | 29 | Failure of heirs |
| III, Testamentary succession | 30 | The power to will |
| IV, Repeals | 31 | Repealed |
| The Schedule | Class I and Class II heirs |
A worked example
Rahim, born a Hindu, converted to Islam in 1990 and died intestate in 2024 leaving land in Maharashtra and a bank balance. He is survived by a son born in 1985 who is still a Hindu, and a daughter born in 1995 who was brought up a Muslim. His brother, a Hindu, also survives.
Does the Act apply to Rahim's estate? No. Section 2 applies the Act to Hindus, Buddhists, Jains and Sikhs by religion, and residually to a person domiciled in India who is not a Muslim, Christian, Parsi or Jew. Rahim was a Muslim at his death, so his succession is not governed by this Act.
What if he had not converted? Then it would apply, and the land would be included: section 4(2), which had excepted agricultural holdings, was omitted in 2005.
Would his conversion have disqualified him from inheriting from somebody else? Not by itself. Section 26 disqualifies the children born to him after his conversion, and their descendants, unless they are Hindus when the succession opens, and that is in [Disqualifications Relating to Succession].
Is the son an agnate or a cognate of Rahim's brother? Section 3(1)(a) and (c): an agnate is related wholly through males, a cognate where the chain is not wholly through males. The test is the chain, not the sex of the person at either end.
Suppose Rahim's marriage had been under the Special Marriage Act. Section 5(iii) stands the Act aside for property whose succession is regulated by the Indian Succession Act 1925 through section 21 of that Act.
And if he had been a member of a Scheduled Tribe? Section 2(2): the Act does not apply unless the Central Government by notification otherwise directs.
What it does NOT mean
The Act does not codify testamentary succession. It codifies intestate succession; section 30 merely confirms the power to make a will, and the formalities come from the Indian Succession Act 1925.
Section 2 does not turn on birth. It turns on the religion the person professes, so a convert is outside it.
The Hindu Succession Act: Scope, Application and Overriding Effect
"Agnate" does not mean male. A woman may be an agnate if the chain of relationship is wholly through males.
Section 4 does not abolish the joint family. It displaces text, rule, interpretation and custom only on matters for which the Act makes provision, and the Act makes none for the joint family as an institution.
Agricultural land is no longer outside the Act. Section 4(2) was omitted with effect from 9 September 2005.
Section 5 is not a general saving. It excepts three specific classes, including property regulated by the Indian Succession Act through section 21 of the Special Marriage Act.
Quick revision
- s.1: the Act extends to the whole of India. s.2: applies to Hindus, Buddhists, Jains and Sikhs, and residually to any person domiciled in India who is not a Muslim, Christian, Parsi or Jew; not to a Scheduled Tribe unless notified.
- s.3: agnate, related wholly through males; cognate, where the chain is not; full blood, half blood and uterine blood; heir; intestate; related meaning legitimate kinship, with an illegitimate child related to its mother.
- s.4(1): the Act overrides any text, rule or interpretation of Hindu law and any custom on every matter for which the Act makes provision, and any inconsistent other law. s.4(2), which excepted agricultural holdings, was omitted in 2005.
- s.5: the Act does not apply to property whose succession is regulated by the Indian Succession Act 1925 through s.21 of the Special Marriage Act, to certain Travancore and Cochin estates, or to the Valiamma Thampuran Kovilagam Estate.
- The scheme: ss.6 and 7 the coparcenary and the matrilineal families; ss.8 to 13 a male's succession; s.14 a female's property; ss.15 and 16 her succession; ss.18 to 22 general rules; ss.24 to 28 disqualifications; ss.29 to 31 escheat, wills and the rest.
Test yourself
1. To whom does the Hindu Succession Act apply? To any person who is a Hindu, Buddhist, Jain or Sikh by religion, in any of its forms or developments; and to any other person domiciled in the territories to which the Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that such a person would not have been governed by Hindu law had the Act not been passed. It does not apply to members of a Scheduled Tribe unless the Central Government otherwise directs.
2. State the difference between an agnate and a cognate. A person is an agnate of another if the two are related by blood or adoption wholly through males. A person is a cognate if they are so related but not wholly through males. The test is the chain of relationship, not the sex of the person at either end.
The Hindu Succession Act: Scope, Application and Overriding Effect
3. What did the omission of section 4(2) in 2005 do? It brought agricultural holdings within the Act. Before the omission, the Act did not override any law providing for the devolution of tenancy rights in agricultural holdings.
4. Does the Act abolish the Mitakshara joint family? No. Section 4 displaces the classical texts and custom only on matters for which the Act makes provision, and it makes no provision for the joint family as an institution, so the joint family survives.
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.