Bharat's Commentary on HINDU SUCCESSION ACT, 1956 by Neelam Kumar Jain
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Neelam Kumar Jain |
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1st Edition 2025, Paperback Book |
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x| About Commentary on HINDU SUCCESSION ACT, 1956 |
|
CHAPTER I
Preliminary
1 Short title and extent
1. Preamble — Object of the Act
2. Rules of interpretation of Title and Preamble
3. Codification of a particular branch of the law
4. Aid of the General Clauses Act, 1897 in interpreting the Statute
5. Date of commencement and coming into operation of the Act
6. Hindu Law being a personal law is not lex loci — Personal Law: Rule of presumption
(i) Migration and school of law
(ii) Migrating Families
2 Application of Act
1. Interpretation and scope of section 2
2. Provisions of section 2 is in reference to intestate but not heirs
3. Christians, Muslims, Parsis or Jews are not governed by the Hindu Succession Act
(3-i) Illustration of Jujjavarapu Yesurao v Nadakuduru Kamala Kumar case
4. Word ‘Hindu’— Connotation of
(1) Illustration of R. Sridharan case
(2) Illustration of Balasubramanian v Vidya case
5. Jains included in the term ‘Hindu’ even if their religion is different
6. Term ‘Hindu law’
7. Act does not apply to the members of a Scheduled Tribe
(1) Scheduled Tribes — meaning
(2) Act not applicable to custom governed tribals
(3) Illustration of Kamla Neti case
(4) Members of Scheduled Tribes who are Hinduised and follow Hindu traditions
(5) Bathudis sub caste
(6) Scheduled Tribe may be governed by the old Hindu Law
(7) Whether provisions of the Act can protanto apply
(8) Pleadings and proof for applicability of custom
8. Law of succession applicable to Christians in Pondicherry
(1) Act not applicable to the Renoncants [s. 2(2A) of the Hindu Succession Act (Pondicherry)]
(2) Extract of report of Mr. Gandhiraj, Government Pleader (Pondicherry)
(3) Illustration of Theiry Santhanamal v Viswanathan case
9. Succession in case of a person entered into a religious order
(9-i) Illustration of Sumer Chand case
10. Succession in case of a ‘Transgender’ dying intestate
11. The Hindu Succession Act is not retrospective in operation
12. Succession is governed by the law in force at the time succession opens
13. No divesting on account of widow’s remarriage or unchastity
3 Definitions and interpretations
1. Definitions — interpretation
(1) Unless the context otherwise requires — Connotation
(2) Meaning of the word ‘Context’
2. Expression ‘related by blood’
3. Custom or usage
(1) Illustration of Munnalal v Rajkumar case
(2) Illustration of Babulal v Resmabai case
4. Expression ‘heir’
5. Devolution of property based on concept of kinship
6. Expression ‘related’ in Section 3(1)(j)
7. Relation by adoption
8. Words child, son or daughter— rule of construction
9. Illegitimate children
10. Word ‘wife’
11. Words importing the masculine gender shall not be taken to include females
4 Overriding effect of Act
1. Extent, Scope and object of overriding application
2. Fiction of relation back in the case of adoption
3. Custom of Joridari system stood abrogated
4. Provision for succession to ‘agricultural land’ not ultra vires
5. Overriding effect over customary law of the Punjab
6. Right of son's son in his grandfather's property
7. Overriding effect over the Hindu Widows’ Re-Marriage Act, 1856
(7-i) Illustration of Harabati v Jasodhara Debi case
8. Overriding effect over Mysore Hindu Law Women's Right to Property Act
9. No overriding effect on matters not provided for in the Act
(1) Wife’s or mother's right to a share on partition has not been abrogated
(2) Female member’s right to sue for partition
10. Omitted sub-section (2) of Section 4
11. Succession in respect of agricultural land
12. General observation of the Parliamentary standing committee regarding s. 4(2)
13. Bhumidhari and Bhumiswami rights under Madhya Pradesh Land Revenue Code
14. The Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960
15. The U. P. Zamindari Abolition and Land Reforms Act
16. Succession to bhumidhari rights under Delhi Land Reforms Act, 1954
17. Scope and effect of a ‘Declaratory decree’—
18. Consequence of ‘compromise decree’
CHAPTER II
Intestate Succession
General
5 Act not to apply to certain properties
1. The Act does not apply to certain properties
2. Succession in case of a Hindu whose marriage is solemnized under Special Marriage Act
(2-i) Illustration of Archana Arun Palav v Jennifer Michael
(2-ii) Illustration of Menaka Gandhi v Indira Gandhi case
3. Object and scope of section 5(ii)
4. History of integration of princely states
5. Definitions of “Indian State” and “Ruler”
6. Impartible estates — origin, nature and scope
7. Rule of Primogeniture
8. Succession in case of impartible estate and the effect of the Hindu Succession Act thereon
(8-i) Illustration Tikka Shatrujit Singh v Brig Sukhjit Singh
(8-ii) Illustration of Revathinnal Balagopala v Padmanabha Dasa (Travancore case)
(8-iii) Illustration of Deepinder Kaur v Amrit Kaur case
9. Non applicability of the Act to the Valiamma Thampuran Kovilagam Estate and the Palace Fund
(9-i) Illustration of Krishnakumari Thampuran v The Palace Administration Board
6 Devolution of interest in coparcenary property
1. Joint Hindu family concept, history and old Hindu law
2. Composition of joint Hindu family under Mitakshara School
3. Coparcenary and Coparcener under Mitakshara School of Hindu Law
(1) Coparcenary under Mitakshara School
(2) Coparcener under Mitakshara School
4. Joint Hindu family and coparcenary under Dayabhaga School
5. Distinction between Mitakshara joint Hindu family and Hindu coparcenary
6. Incidents of coparcenership under the Mitakshara law
7. Coparcenary property under Mitakshara law
(1) Categories of coparcenary properties
(2) The word ‘ancestor’
(3) Doctrine of blending
(4) Death of a coparcener does not affect the status of Huf and coparcenary
(5) The Act has not abrogated the Mitakshara law completely
8. Creation or existence of Hindu Undivided Family and its property
9. Property acquired jointly by some members
10. Presumption and burden of proof regarding nature of property
11. Insurance policy amount — separate or joint family property
12. Rights of adopted son in Joint Family Property
(1) No Rights in the Joint Property held by the family of his birth
(2) Rights in the Joint Property held by the adoptive family
13. Son born out of null and void marriage -Right in coparcenary property
14. Power related to gift of Mitakshara Joint family or coparcenary property
15. Doctrine of devolution by survivorship
16. Devolution u/s 6 — applicability
17. Karta and manager of Joint Hindu Family
18. Alienation of Joint family/coparcenary property
(1) Alienation for legal necessity and adequate consideration
(2) Alienation of undivided interest in Joint family/coparcenary property
(3) Devise of undivided interest in coparcenary property by ‘will’
(4) Gift of undivided interest in the coparcenary property
(5) Renunciation of undivided interest in favour of all other coparceners is valid
(6) Mortgage of undivided share in a joint family property
19. Distinction between rights of a manager and a sole surviving coparcener regarding alienation
20. Father's full power of disposition over his self-acquired property
21. Rendition of accounts
22. Partition
(1) Partition meaning
(2) Severance of status by definite and unequivocal expression of intention to partition
(3) Separation of share
23. Hindu father’s power to partition the joint family property
(1) father’s power to make partition as patria potestas
(2) No right to make a partition by will
(3) Grandfather have no power to divide the properties
24. Divisible property on partition
(1) Property liable to be divided
(2) Properties indivisible by its nature
(3) Passage or common road
(4) Illustration of Raghunath v Biswanath case
25. How partition is made
26. Partial partition
27. Impact of partition
28. Date of severance of the joint status
29. Presumption regarding partition and burden of proof
30. Prepositions related to reopening of partition
31. Hindu joint family- reunion
(1) Concept of reunion
(2) Who can be reunited
(3) Intention to re-unite
(4) Consequence of reunion
(5) Presumption regarding reunion
(6) Illustration of R. Janakiammal v S.K. Kumarasamy case
32. Doctrine of Pious obligation under Hindu law
(1) Pious obligation under Hindu law, of sons, grandsons and great-grandsons
33. Wife not obliged to discharge the debts under the theory of pious obligation
34. Sale or mortgage of joint property for father’s debts
35. Onus to prove the character of the debt
36. Effect of the Hindu Succession Act on the doctrine of pious obligation
37. Amendment in section 6 by Amendment Act 39 of 2005
38. Constitutional validity of the Hindu Succession (Amendment) Act 2005
39. Effect of repeal by Repealing and Amending Act, 2015
40. Rising needs for coparcenary rights to daughter [Sub-s. (1) of Section 6]
41. Amended Section 6 — an interpretive controversy
42. Coparcenary rights of daughters not ceased merely on passing of preliminary decree
(1) Preliminary decree in a partition suit
(2) Illustration of Danamma v Amar case
43. Proviso to sub-s. (1) of section 6 as amended by 2005 Amendment
(1) Expressions disposition, alienation and testamentary disposition — connotation of
(2) Constitutional validity of the proviso to Section 6(1)!
(3) Daughter's right to be a necessary party in a suit for partition
(4) Daughter's right where partition is not proved
(5) Central Amendment Act of 2005 prevails over the Karnataka Amendment Act, 1990
44. Female Hindu shall hold the property with the incidents of coparcenary ownership [Sub-s. (2) of amended Section 6]
45. Devolution of interest in Mitakshara joint family property [Sub s. (3) of amended Section 6]
46. Expression “interest in joint family property”
47. Deeming provision for determining the interest of a Hindu Mitakshara coparcener [Explanation to sub s. (3) of amended s. 6]
48. Abrogation of the doctrine of pious obligation [Sub-s. (4) of amended section 6]
(1) Amendment Act, 2005 abolished the doctrine of pious obligation
(2) If specified heirs explicitly consented to bind themself to discharge the obligation or parties to the suit, Section 6(4) will not apply
(3) Illustration of Upender Kumar Gupta case
49. Provisions of amended Section 6 not apply to a partition effected before 20.12.2004 [Sub s. (5) of amended Section 6]
(1) Deliberation by the Parliamentary Standing Committee
(2) Scope of sub s. (5) of amended Section 6
(3) Impact of the 2005 Amendment on the concept and modes of partition
(4) Expression ‘partition effected by a decree of a court’ — meaning of
(5) Share on ‘partition’
(5-i) Illustration of Basamma v Prabhu case
50. Suit for partition
(1) Illustration of Neelam v Sada Ram case
(2) Illustration of Ved Parkash v Naresh Kumar
51. Preliminary and final decree in a partition suit — scope of
(1) Preliminary decree can be amended in a partition suit
(2) No impediment for even passing more than one preliminary decree
(3) Preliminary decree can be changed even if not challenged by the party
52. Determination of the character of the property
(1) Ancestral property
(2) Unobstructed heritage and obstructed heritage
(3) Illustration of Om Parkash v Sarvjit Singh case
(4) Accretions and accumulations
(5) Separate property
(6) Property acquired merely by adverse possession
(7) Property received through gift or will from father
(8) Joint character does not change merely by severance of status of joint family
(9) Severance of joint family property is a question of fact
53. Nature of the property allotted on partition
54. Presumption regarding joint family property
55. Character of property governed by the law in force at the time succession opens
(1) Old doctrine of ancestral property under Mitakshara Hindu law changed post 1956
(2) Illustration of Arshnoor Singh v Harpal Kaur case
56. Character of ancestral property after partition and governing law to its succession
57. Commentary on old Section 6 (as existed before 2005 Amendment)
(1) Devolution of interest in Mitakshara coparcenary property by survivorship [old Section 6]
(2) Provisions of s. 6 do not apply without existence of a coparcenary
(2-a) Illustration of Ganta Appalanaidu case
58. Joint family property is synonymous with coparcenary property
59. Proviso to old s. 6 (as existed before 2005 Amendment)
(1) Proviso creates an exception to principles of survivorship
(2) Member having separate property does not mean not a member of the family
(3) Class I heirs inherit the interest simultaneously and as tenants-in-common
(4) Expressions “female relative” and “claims through”— connotation
(5) Illustration
(i) Case of Radhika Devi v Rajesh Kumar Niranjan
(ii) Case of Vishal v Derha
(6) Female heir inheriting property under proviso to old s. 6 not automatically ceased to be a member of the joint family
(7) No automatic partition on death of a coparcener
60. Necessary parties to a suit for recovery of debts
(1) Effect of non-inclusion of the parties in a suit
(2) Illustration 1- Case of P. Govinda Reddy v Golla Obulamma
(3) Illustration 2- Case of Narayan Prasad Ruia v Mutuni Kohain
(4) Illustration 3- Case of Govindram Mihamal v Chetumal Villardas
61. Non-coparcener female member can’t sue for partition
62. Explanation 1 to old s. 6 (as existed before 2005 Amendment)
(1) Determination of the interest of a Hindu Mitakshara coparcener on his death
(2) All heirs of a deceased coparcener entitled to get a share
(2-i) Case of Raj Rani v Chief Settlement Commissioner
63. Interpretation of legal fiction of partition
(1) Controversy and divergent views on interpretation of legal fiction of partition
(2) Fiction of deemed partition does not result into actual partition
64. Computation of the share due to the widow and other heirs of the deceased coparcener under Explanation 1 to s. 6
65. Separated coparcener not entitled to a share in the undivided interest [Explanation 2 to old s. 6]
7 Devolution of interest in the property of a Tarwad, Tavazhi, Kutumba, Kavaru or Illom
1. Marumakkattayam law of inheritance
2. Management, partition, distribution, character etc. of property under Marumakkattayam Law
(2-i) Illustration of Kalliyani Amma Bhavani Amma v Narayani Amma Madhavi Amma case
(2-ii) Illustration of C.T. Radhakrishnan v C.T. Viswanathan Nair case
3. Undivided interest in Tavazhi properties can be attached
4. Nambudri law
(4-i) Illustration of Sankaran Potti v Kochehi Krishnan case
(4-ii) Illustration of Sreedevi Antherjanam v Bhavadasan Namboodiri case
(4-iii) Illustration of Govind Potti Govindan Namboodiri v Kesavan case
5. Devolution of interest in the property of a tarwad, tavazhi or illom
6. Aliyasantana Law of inheritance
7. Partition of Aliyasantana family
(7-i) Illustration of Jalaja Shedthi v Lakshmi Shedthi case
8. Devolution of undivided interest in the property of aliyasantana kutumba or kavaru
(8-i) Illustration of Sundari v Laxmi case
9. Devolution of sthanam property held by sthanamdar
(1) Sthanam property and sthanamdar
(2) Devolution of sthanam property
(3) Illustration of Inspecting Assistant Commissioner v V.K. Ramunni Panikkar
(4) Incidents of sthanam
8 General rules of succession in the case of males
1. Scope and nature
2. Applicability of section 8
3. Provisions of s. 8 are not retrospective in operation
4. The expression ‘property’
(1) Expression ‘property’— Interpretation
(2) Agreement of sale can’t be enforced without absolute title to the property
(3) Illustration of Pemmada Prabhakar v Youngmen's Vysya Association case
(4) Illustration of Kirpal Kaur v Jitender Pal Singh case
(5) Right to get pension
5. Words ‘dying intestate’
6. Estoppel by Representation
7. Character of the property devolved u/s 8
(1) Misconception and controversy regarding the status of property inherited from father
(2) Property inherited by son u/s 8 is his individual Property
(3) Property allotted to a sole coparcener on partition
(4) Illustration
(i) Illustration of CWT v Chander Sen case
(ii) Illustration of Bhanwar Singh v Puran Case
(iii) Illustration of M. Yogendra v Leelamma case
(5) Nature of the property inherited by son from his divided father
(6) Nature of the interest in Mitakshara coparcenary property devolved under proviso to old s. 6
8. Heirs can’t demand partition of the self acquired property of a Hindu during his life time
(8-i) Illustration of Sadhineni Rajani v Sadhineni Hymavathi case
9. Succession on death of female limited owner
10. Overriding effect over the Hindu Widows' Re-Marriage Act, 1856
11. Legal status of the Nominee
(1) Nomination in case of Life insurance agent
(2) Nomination in case of Life insurance policy
(3) Nominee in case of national savings certificates
(4) Effect of the Insurance Laws (Amendment) Act, 2015
(5) Nominee’s status under life insurance policy post Amendment Act, 2015
(6) Nomination in case of deposit of amount
(7) Nominee in case of Bank Account
(8) Nomination in case of security holder
(9) Nomination in case of a provident fund
(10) Succession certificate
(11) Word ‘Legal Representative’
12. Class I heirs' right to be a necessary party in a suit
13. Failure in payment of consideration in lieu of relinquishment of right
9 Order of succession among heirs in the Schedule
1. Rule of preference for succession among heirs in Class I and Class II
(1-i) Illustration of Leelabai v Rajaram
2. Property of an intestate devolve simultaneously among heirs in Class I
3. All heirs in Class II cannot succeed together
4. Word "entry" — connotation of
(4-i) Illustration of Kumara Pillai v Kunjulekshmi Amma case
10 Distribution of property among heirs in class I of the Schedule
1. Manner of distribution of property among heirs in Class I
2. Rules for distribution of property among heirs in Class I
(1) Rule 1 of Section 10
(1-i) Illustration of Paru Bala v Bijubala case
(2) Rule 2 of Section 10
(2-i) Illustration of Bulu Das v Moni Das
(2-ii) Illustration of Muktabai Bhaktadas v Keshav Kisan
(2-iii) Illustration of Ramanlata v Saurabh case
(3) Rule 3 of Section 10
(3-i) Phrase ‘heirs in the branch of the predeceased son or predeceased daughter’
(3-ii) Illustration
(4) Rule 4 of Section 10
(4-i) Per capita and per stirpes distribution
(4-ii) Illustration
3. Class I Heirs
4. Son as Class I Heirs
(1) Adopted son
(2) Son born before father's adoption
(2-i) Illustration of Kalindi Damodar case
(3) Step-son
(4) Illegitimate son not falling u/s 16 of Hindu Marriage Act
(5) Impact of Hindu Marriage Act, 1955 on inheritance rights of illegitimate children
(6) Son legitimate by virtue of the provisions of Hindu Marriage Act
(7) Controversy related to rights of illegitimate sons in joint family/ coparcenary property
(7-i) Illustration of Balkrishna Pandurang v Yeshodabai Balkrishna case
(8) Illegitimate children not entitled to succeed property of their grandparents
(9) Solemnization of marriage essential
(9-i) Illustration of Rameshwar Prasad v Tara Bai case
(10) Presumption of marriage
(11) Posthumous son
5. Daughter as Class I Heirs
(1) Illustration of Ramabai Padamakar Patil v Rukminibai Vishnu Vekhande case
(2) Adopted daughter
(3) Step-daughter
(4) Daughter born before her father’s adoption
(4-i) Illustration of Neelawwa v Shivawwa case
(5) Illegitimate daughter not falling u/s 16 of Hindu Marriage Act
(5-i) Illustration of Savitri Jaiswal v Saroj case
(6) Daughter legitimate by virtue of the provisions of Hindu Marriage Act
(7) Posthumous daughter
6. Widow as Class I Heirs
(1) Expression "widow"
(2) Illustration of Laxmibai v Anasuya case
(3) Widow inherits simultaneously with other heirs in Class I
(4) All the widows together takes one share
(5) Remarriage, unchastity etc. of Widow are no longer disqualifications to inheritance
(6) Rights of female as widow-wife does not cease without decree of divorce
(7) Widows right to be impleaded as a party in a partition suit
7. Mother as Class I Heirs
8. Other Heirs in Class I
(1) Children of a pre-deceased son
(1-i) Illustration of M. Suseelamma v Chief Controlling Revenue Authority case
(2) Children of a predeceased daughter
(3) Widow of a pre-deceased son
(4) Illustration of Lehja Bai v Sewanti Bai case
(5) Son of a pre-deceased son of a pre-deceased son
(6) Illustration of Ameenambal Beevi v Gopalasamy case
9. Construction of expression 'heirs' used in a ‘Will’
(9-i) Illustration of N. Krishnammal v R. Ekambaram case
10. Succession of the family pension
(10-i) Illustration of Nitu v Sheela Rani case
11 Distribution of property among heirs in class II of the Schedule
1. Distribution of property among heirs in Class II
2. Heirs mentioned in any one entry in Class II take an equal share
3. No order of preference inter se the heirs in same entry of Class II
3(1) Illustration of Satya Charan v Urmilla case
3(2) Illustration of Thanthoni Naicker v Kuppammal case
3(3) Illustration of Deep Narayan Singh v Sarjan Singh case
4. Heirs specified in Class II of the Schedule
5. Heir in Entry I of Class II: Father
6. Heir in Entry II of Class II
(1) Son’s daughter’s son
(2) Son’s daughter’s daughter
(3) Brother
(3-i) Illustration of Patiram v Mula case
(4) Sister
(5) Full blood brother or sister preferred to half blood brother or sister in Entry II
7. Heir in Entry III of Class II
(1) Daughter’s son’s son
(2) Daughter’s son’s daughter, daughter’s daughter’s son and daughter’s daughter’s daughter.
8. Heirs in Entry IV of Class II
(1) Brother’s son
(2) Sister’s son
(3) Brother’s daughter
(4) Sister’s daughter
(5) Illustration of Sunderlal v Tejila case
9. Heir in Entry V of Class II
(1) Father’s father
(2) Father’s mother
10. Heir in Entry VI of Class II
(1) Father’s widow
(2) Brother’s widow
11. Heir in Entry VII of Class II
(1) Father’s brother
(2) Father’s sister
12. Heir in Entry VIII of Class II
(1) Mother’s father
(2) Mother’s mother
13. Heir in Entry IX of Class II
(1) Mother’s brother
(2) Mother’s sister
14. Issue of discrimination on the ground of gender
12 Order of succession among agnates and cognates
1. Succession among agnates and cognates
2. Agnates — Connotation
3. Cognates — Connotation
4. Illustration
(1) Thirunavukkarasu v Rajavel case
(2) Krushna Chandra v Nisamani Bewa case
5. Expression ‘related by blood or adoption’
6. Wife’ Brother is not a cognate
7. No limit of number of degrees in recognizing an agnate or cognate
8. No preference in the order of succession on the ground of gender or sex
9. Categories of agnates
(1) Agnate related solely by degree of descent
(2) Agnate related solely by degree of ascent
(3) Agnate related by both the degrees
10. Categories of cognates
(1) Cognate related solely by degree of descent
(2) Cognate related solely by degree of ascent
(3) Cognate related by both the degrees
11. General meaning of degrees of ascent, degrees of descent etc.
12. Rules to determine order of succession among agnates and cognates
(1) Rule 1 — Heir having fewer or no degrees of ascent is preferred
(2) Rule 2 — Heir having fewer or no degrees of descent is preferred
(2-i) Illustration of Milkhi Ram v Milkhi Ram case
(2-ii) Illustration of V.C. Desa Bathudu v P. Dilli Achari case
(3) Rule 3 — Heirs take simultaneously
(3-i) Illustration of Umrao Devi v Hulas Mal case
(3-ii) Illustration of Naresh v Deepak Singh case
(3-iii) Illustration of Gurcharan Kaur v Pritam Singh case
13. The rule of degree of relationship u/s 12 applies before the rule of full blood preference over half blood u/s 18
(13-i) Illustration of Ram Singari Devi v Govind Thakur case
13 Computation of degrees
1. Computation of degrees
2. Illustration on computation of degrees
(1) Paternal grandfather’s mother
(2) Daughter’s son’s daughter’s son
(3) Mother’s mother’s brother’s son
14 Property of a female Hindu to be her absolute property
1. Nature, scope and object of Section 14
(1-i) Illustration of Marabasappa v Ningappa case
(1-ii) Illustration of Chinnammal v Kannagi case
(1-iii) Illustration of Chinnappa Gounder v Valliammal case
2. Section 14 is retrospective in some sense
3. Constitutional validity of Section 14
4. Intent behind the provision of Section 14(1)
5. Phrase ‘female Hindu’ u/s 14 — connotation
(5-i) Illustration of Vidya v Nand Ram case
6. Expression 'full owner'
7. Adoption does not effect the property of which a female Hindu is a full owner
(7-i) Illustration of Yamunabai v Ram Maharaj case
(7-ii) Illustration of Kesh
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