Succession under Hindu Law

Passing of a dead person's property: by will or without a will, and how the Hindu Succession Act, 1956 deals with both

Scope: The idea of succession and the basic scheme of the Act. Rules for intestate succession, heirs and wills are in their own notes.

In one minute

Succession is the passing of a dead person's property to other persons. It happens in two ways. The owner may leave a will, which is testamentary succession. If there is no valid will, the property passes by intestate succession.

The Hindu Succession Act, 1956 is a code for intestate succession among Hindus. It also keeps the right of every Hindu to make a will (section 30). The Act extends to the whole of India.

Exam focus

Frequency: No data
Usually asked as: No data

Legal provision

Section 1: short title, and extent to the whole of India.
Section 2: application to Hindus by religion in any form, Buddhists, Jains, Sikhs, and the residuary group. Section 2(2) excludes Scheduled Tribes unless notified.
Section 3: definitions, including "heir", "intestate" and "related". Section 3(2) says that words in the masculine gender do not include females.
Section 4: overriding effect over old texts, custom and inconsistent laws.
Section 5: properties to which the Act does not apply.
Section 30: any Hindu may dispose of property by will.

Meaning and definition

Section 3 defines the key words. An "heir" is any person, male or female, entitled to succeed to the property of an intestate under the Act. A person is "intestate" in respect of property if the person has not made a testamentary disposition capable of taking effect. "Related" means related by legitimate kinship. Illegitimate children are related to their mother and to one another.

Two ways property passesHow to read this: the top box is succession. The boxes below are the two ways it happens.

Succession to a dead Hindu's property
- Testamentary successionBy a valid will (section 30).
- Intestate successionBy the rules of the Act, where there is no valid will.
- Outside the ActProperties listed in section 5.

Detailed explanation

Step 1: extent and application (sections 1 and 2)

The Act extends to the whole of India. It applies to the persons listed in section 2. Under section 2(3), "Hindu" includes a person who is not a Hindu by religion but to whom the Act applies.

Step 2: overriding effect (section 4)

Any text, rule, interpretation, custom or usage of Hindu law in force before the Act ceases to have effect on a matter for which the Act provides. Any other law ceases to apply to Hindus so far as it is inconsistent with the Act. Save as the Act expressly provides.

Example. Under old Mitakshara law, a son who inherited his father's property held it as joint family property with his own sons. Section 8 now gives it to him in his individual capacity (see Chander Sen below).

Step 3: what the Act does not cover (section 5)

The Act does not apply to three kinds of property.

Property whose succession is regulated by the Indian Succession Act, 1925 because of section 21 of the Special Marriage Act, 1954.
An estate that descends to a single heir under a covenant or agreement of an Indian Ruler with the Government of India, or under an enactment passed before the Act.
The Valiamma Thampuran Kovilagam Estate and the Palace Fund, under the Proclamation of the Maharaja of Cochin dated 29 June 1949.

Step 4: the will comes first (section 30)

Any Hindu may dispose of by will any property that can be disposed of that way. The will must follow the Indian Succession Act, 1925 or other law applicable to Hindus. The Explanation treats a male Hindu's interest in Mitakshara coparcenary property as property he can dispose of by will.

The rules of intestate succession therefore apply only to property the owner has not validly disposed of by will.

Exceptions and special rules

Scheduled Tribes: excluded unless the Central Government notifies otherwise (section 2(2)).
Section 5 properties: the Act does not apply to them.
Gender words: masculine words do not include females unless the context requires (section 3(2)).
Illegitimate children: they are related to their mother and to one another (section 3(1)(j)).

Don't confuse: intestate and testamentary succession

Point	Intestate succession	Testamentary succession
Basis	The rules of the Act	The owner's will
When it applies	No valid will for that property	A valid will exists
Who decides	The Act fixes the heirs	The owner chooses the persons

Inside the concept. A Hindu man in Guntur dies leaving no will. His widow, sons and daughters take under the Act. That is intestate succession.

Just outside it. A Hindu woman in Tirupati leaves a valid will giving her house to a niece. The niece takes under the will, and the Act's heir list does not apply to the house.

Common mistakes

Saying that the Act applies even when the owner left a valid will. Section 30 gives the will priority.
Saying that "heir" means only a male. Section 3(1)(f) covers any person, male or female.
Saying that old texts and custom still decide inheritance. Section 4 ends them on matters the Act covers.
Forgetting that section 5 leaves some properties outside the Act.

Apply it

Problem

A Hindu widow in Warangal dies with no will, leaving a house. Her only relatives are a nephew and a niece. Her sister's son claims under an old local custom. Which rule decides?

Issue

Does the custom or the Act decide who inherits?

Rule

Section 4 ends any custom on a matter for which the Act provides. Section 30 lets her make a will, but she made none.

Application

She died intestate, so the Act's rules apply. The old custom has no effect.

Conclusion

The Act, not the custom, decides who inherits the house.

Leading case laws

Commissioner of Wealth Tax, Kanpur v. Chander Sen
Facts. Rangi Lal died intestate in 1965. His only son, Chander Sen, inherited Rs.1,85,043 from the firm account. The Revenue taxed it as joint family property.

Principle. Under section 8, a son takes his father's property in his individual capacity. His own sons get no right by birth in it.

Why it matters. It shows section 4 and section 8 replacing the old Mitakshara rule that made the inherited property joint family property.

How to write this answer in the exam

5-mark answer

Meaning of succession.
Testamentary and intestate succession.
Application and overriding effect: sections 2 and 4.
Priority of the will: section 30.

10-mark answer

Meaning and two kinds of succession.
Extent and application of the Act.
Definitions: heir, intestate, related.
Overriding effect: section 4.
Properties outside the Act: section 5.
Section 30 and the case of Chander Sen.

Key points to remember

Succession is the passing of a dead person's property: by will or without a will.
The Act extends to the whole of India (section 1) and applies to Hindus in the wide sense of section 2.
Section 4: the Act overrides old texts, custom and inconsistent laws.
Section 5: three kinds of property are outside the Act.
Section 30: a Hindu may dispose of property by will.

Quick self-test

1. What are the two ways property passes on death?

By a will (testamentary) or without a will (intestate).

2. Which section protects the right to make a will?

Section 30.

3. Does the Act apply to every property?

No. Section 5 excludes three kinds of property.