Before June, 17, 1956, the date of commencement of the Hindu Succession Act 1956, the Hindu law of succession was basically the traditional Hindu law, with some marginal statutory modifications.
The traditional Hindu law of succession was different in two main schools of Hindu law, namely the Mitakshara and Dayabhaga schools. These two schools had their regional modifications as well. The Mitakshara school itself was divided into four sub- schools, viz., the Benares, the Mithila, the Bombay and the Dravida.The customary law also modified the traditional Hindu law of succession in some areas and in some communities. In certain parts of Himachal Pradesh and in some areas of South India, particularly in Kerela and Tamil Nadu, the matrimonial system was also recognised.In relation to some big estates and jagirs and traditional law of succession stood modified by the impartible estates and the doctrine of primogeniture.
Under the traditional Mitakshara law, two modes of devolution of property were recognized:
(a) Joint family property devolved by survivorship.
(b) Separate property devolved by succession.
Each joint Hindu family had a coparcenary, inclusive of the head of the family, i.e., the ‘karta’, and three generations male lineal descendants of the karta. All these persons had a vested right to property from the time of their conception. All of them had equal rights over the joint hindu family property. However, their quantum was not specific. Their share would increase with the death of existing members and would decrease with the birth of new coparceners.
The female members of the family and other members who were not coparceners, were to be allotted maintenance, but not a share in the family property.
Three specific females were given the right to claim a share in the family property at the time of partition, although they did not have the right to demand for a partition:
(a) The wife of the father – when partition took place between father and sons during the father’s lifetime.
(b)The widow of the father – when the partition took place between the sons of the deceased father.
(c)The paternal grandmother of the coparceners – when the partition took place between the grandsons.
The property devolved on the basis of the doctrine of survivorship. The coparcenary members had to survive till the date of partition to claim any right over the property. On the death of a coparcener, his interest devolved, not upon his legal heirs, but upon the remaining coparceners, equally. The karta had no right to alienate the family property except under specified circumstances.
When all the members of a coparcenary body died leaving behind a single member, all the family property devolved upon hi and he became the ‘sole surviving coparcener’. He was to treat the joint family property as separate property and had absolute ownership rights over the same, except that he had to provide for the maintenance of the remaining members of the joint family and that no new coparcener was adopted by or born to any of the female members.
The classical Hindu law recognized the concept of the pious obligation of the coparcenary members to repay the debt of the deceased karta. This was their religious or moral responsibility as the persons who may offer funeral cake to the deceased karta and guide his soul to heaven. It was believed that by repaying the deceased karta’s debt, the sons purged him of any sins.
The son had the initial responsibility of paying of the entire debt amount, with the interest. Then, the grandson had to pay the whole debt amount excluding the interest. The great- grandson had to pay only three fourths of the amount and its interest. Although all three had equal rights over the property, they had separate interests. This responsibility extended beyond the interest received by the coparceners.
Under Dayabhaga law, however, no coparcenary could be formed during the lifetime of the karta. No person had any right to the family property held by him or her, as long as the karta was alive. It was only after the death of the karta that the legal heirs had the right to succeed to his or her property.
In traditional Hindu law, a female Hindu’s property was of two kinds; stridhana and women’s estate. Stridhana was all the property she received from any one on her wedding day as gifts. This was her absolute property of which she was the undisputed owner. She could alienate it according to her own will and after her demise it devolved upon her heirs.
Her estate, however, was the property received by her after her marriage, usually from her in- laws. Over such property, she had limited ownership rights, barring the right of alienation. She had absolute rights of use and enjoyment but she could not alienate the property. After her death, the property reverted back to its first owner, or their heirs.
After the Act of 1956, the situation has undergone vast change. Women have been granted rights to the family property and the definition of ‘coparcenary’ has also been extended so as to include the daughters of the karta.
Mayne, Hindu Law and Usage, Chapters XII, XIII (11th ed., 1950).
Paras Diwan, Customary Law, Part !!!.
Mayne, Hindu Law and Usage, Appendix III; Paras Diwan, Modern Hindu Law (5th ed., 1990) 367- 371.
Mayne, Hindu Law and Usage, Chapter XIX; Paras Diwan, Hindu Law, Chapter XXI.
The author is a VI semester student at Chanakya National Law University, Patna.