ABSTRACT

The concept of succession has been provided in the various ancient Hindu texts like Manu smriti and Yajnavalkya Smriti, which provided importance on the male. Succession means transmission of the ancestral properties and control from one generation to another generation. The rules and the principle’s governing succession evolved over the period of time because of the changes in societal practices, colonisation, religious beliefs, legislative reforms like Hindu Succession Act, 1956. Historically male heirs were given importance in inheritance. Even when there is an elder women heir, the succession rights are given to the younger male heirs. Male heirs have right over the successions in the family wealth and linage continuity. Women and children were denied succession rights.  This paper will examine the historical legal evolution of the male succession in Hindu law, contemporary issues around the male succession, steps that are required to be taken to solve these challenges and need for ensuring general neutral laws for succession.

KEYWORDS – Male succession, Hindu Succession Act,1956, Hindu Succession Amendment Act, 2005, Manu smriti, Yajnavalkya Smriti. 

INTRODUCTION

The Hindu Succession Acts have historically favoured patriarchal norms and principles of lineage continuity. Ancient texts like Manu smriti and Yajnavalkya Smriti provided the rules for succession among the Hindus. The concept of succession and inheritance are used interchangeably. The succession rules favoured male succession over female succession. However, these laws are done through several changes because of the colonisation, societal changes, legislations like Hindu Succession Act, 1956[1]. The enactment of the Hindu Succession Act, 1956 is one of the important moves to introduce inclusivity in the succession in Hindu laws. Hindu Succession Act, 1956 and subsequent amendments have provided succession rights to women’s which challenged the exclusive succession to male’s heirs. Even after the several amendments the general disparities prevail over the succession of properties.  The changing socio – economic conditions, family structures necessitated the need for the inclusive laws to include women in succession and ensure that existing laws are properly enforced.

LITERATURE REVIEW

Succession Laws in India has gone through several changes. From being preferable to male to trying to be general equal laws. Various scholars have contributed their insights through their works. Some of the important work which assist in conducting this research has been discussed below.

Hindu laws historically favoured the patriarchal norms over succession of the ancestral property. Manu smriti and Yajnavalkya Smriti are the basic Hindu texts that laid down the foundation for the basis of succession. The concept of common shared property prevailed. Seniormost male member of the family will inherit ancestral property and ensure that economic stability is protected and continued lineage through male descendants.

Steps were taken in British colonial period aimed at codifying Hindu laws are all the sections of the society. The Bengal Regulation of 1793[2] was the law introduced in India to regulate succession in India. However, the law is not followed because of the reluctant to adopt the change in the existing laws. However, the laws remained in favour of the male descendant not in the favour of the female descendant. They try to change in the favour of the British legal system.

Post independence era several laws are enacted. Hindu Succession Act, 1956 was the primary law that govern succession law in India. Male descendants have the right of continuity of lineage over the coparcenary property. Women’s and widows have no right over the succession of the ancestral property. However, the Hindu Succession Amendment Act, 2005 provided equal rights to women in ancestral property. This is the important step in ensuring general equality.

Scholars like Patrick Olivella has done research on successions laws in Hindu law. The concept of Joint Family system, collectively ownership of the ancestral property, continuity of the lineage through male descendants.  The interaction of the succession laws with socio economic factors, change in family structures, general equality issues, damage to women empowerment[3].

The landmark decisions in this matter are Tulasamma vs Seshu Reddi, 1977 and Danamma vs Amar, 2018. These cases were essential in determining the general equality in the succession laws and ensuring that women have equal right over the ancestral property.

Contemporary issues in the succession laws in India is mainly due to the non-implementation of the existing laws governing succession laws. Reforms like awareness programs and campaigns, socio economic changes, women empowerment, effective enforcement of the existing laws, legislative reforms, etc are required to be implemented to avoid the existing problems.

RESEARCH METHODOLOGY

This research paper is based on doctrinal research. Only secondary source of information is used. Research papers, articles, educational reports, government circulars and notifications are used for analysing the male Succession in Hindu Law and the evolution and contemporary issues faced. Legislations like Hindu Succession Act, 1956, Hindu Succession Amendment Act, 2005, The Bengal Regulation of 1793, Hindu Widow’s Remarriage Act of 1856[4] are used to understand the previous and current status of succession rules, challenges faced in Hindu Law. Judgements of the Supreme Court and High Court are used to understand the judicial view of the matter in issue and various landmark decisions are cited to support the ideology of the Research paper.

BASIC PRINCIPLES OF THE HINDU SCHOOLS

Mitakshara school

Mitakshara school is prevalent all over India except West Bengal and Assam. It is written by Vijnanavada. The concept of coparcenary is present is here. Male descendants are getting right over the ancestral right from birth. The joint family system is prevalent on that time. Collective ownership of the property is encouraged in this system and people live together as a one family. The ancestral property passes over from one male descendent to next elder most male descendent. So, the joint family property is placed within the joint family system. Economic stability of the joint family is protected. It supports continuity of lineage through male descendants. Karta, the senior most male member of the family has general control and supervision over all the coparcenary’s. His decision is final in the joint family. He has the power to alienate the property of the joint family for the welfare of the family.

Dayabhaga school

Dayabhaga school is prevalent in West Bengal and Assam only and it is not applicable to whole of India as compared with Mitakshara school. This school does not follow coparcenary principle. It followed the principle of individual ownership of the property and no shared ownership of the property.  It is important to note that the succession is based on kinship. The closest kin of the person can inherit the property. It is more individualistic in nature with regard to property succession and ownership. There is no preference to a particular gender. Both male and female have equal rights over succession rights. It follows general neutral principle for succession of property[5].

HISTORIAL EVOLUTION OF MALE SUCCESSION IN HINDU LAW

Ancient and Medieval Periods

Ancient Hindu texts, such as the Manu smriti and Yajnavalkya Smriti are completely different from the laws governing the inheritance in the modern time. It lays down the fundamental principles which govern the inheritance. Male dominance was prevalent in ancient times. The concept of the primogeniture was relevant over there. The eldest male son takes over the ancestral property and family responsibilities. These texts codified the importance of the patriarchal norms. Lineage continuity through the male heirs is prevalent. Throughout the ancient and medieval period, the laws governing the succession was differing with the region to region and kingdom to kingdom. Dynasty rules provided for male succession.

Colonial Influence

The introduction of British colonial rule in India has brought several changes to succession Laws in India. Efforts were taken by the British India Company to codify the laws for providing uniform laws for different regions. The Bengal Regulation of 1793 was one of the first laws are regulating the succession in India. It is not effective in India as people were not ready to adopt the new changes into their existing norms. Then the Hindu Widow’s Remarriage Act of 1856 was enacted. It addressed certain societal issues but it still remained as male centric law. British tried to make the succession laws to be in line with the laws of the United Kingdom. Introduction of the individual rights and property ownership remains as an important introduction in the Succession laws in India. It challenged the traditional male lineal succession in the Indian Joint family system.

Post-Independence Reforms

Post independence, the succession rules remained in the favour of the male succession. Even though there are certain rules provide for succession among women’s, it is not enforced properly. Hindu Succession Act, 1956 was enacted. It was an important moment in reforming the succession laws in India. The aim of the Hindu Succession Act, 1956 is to provide uniform law are governing all the Hindus in the India. Initially, the Hindu Succession Act, 1956 favoured the male dominance by allowing them to have supremacy in coparcenary and Joint family matters. It is subjected to lot of opposition. The Hindu Succession Amendment Act, 2005 provided for succession rights to daughters by granting them equal coparcenary rights to women’s. This amendment played an important role in ensuring general equality in the succession laws in India[6].

LEGAL FRAMEWORK ON MALE SUCCESSION IN CONTEMPORARY HINDU LAW

Male succession in Current legal framework in Hindu laws is mainly by the Hindu Succession Act, 1956. It favoured male succession by allowing the son and grandsons to have preferential rights over the succession in the joint family properties called as coparcenary rights. Communal holding of the ancestral property is present. Coparcenary rights allow the male descendants to inherit ancestral properties by birth, ensuring continuity in the family linage and ensuring the security of the joint family properties and promote economic stability among the Joint family system. However, The Hindu Succession Amendment Act, 2005 provided inheritance power to daughters with equal coparcenary rights and diluting the male succession and providing for the general equal laws in the India for succession laws. It challenges the traditional system of holding of ancestral property by the senior most male member of the family.

CONTEMPORARY CHALLENGES TO MALE SUCCESSION

Prioritization of male descendants over the female descendants has possess the following challenges.

Gender Equality Issues

Despite the legislative reforms, the general disparities are still prevailing in succession rules in Hindu law. The continued preference to males in succession is the deep-rooted practice in joint Hindu family system and societal norms that prioritize male lineage continuity. Women’s particularly daughters and widows were facing difficulties in unequal treatment in distribution of the properties, even though the laws available for succession by women’s. The right to equality which is provided in Article 14 of the Indian Constitution is need to be protected and enforced.

Changing Family Structures

The transition of the family structures from joint family to nuclear family leads to changes in the succession dynamics and family responsibilities. In Nuclear family, the disputes over the property are increasing over the period of time. Legal loopholes and different form of interpretation of laws by the people lead to the family tensions and challenges the traditional system of coparcenary rights and communal property ownership. There is a need to make proper guidelines for the partition of property and succession management.

Social and Cultural Changes

Socio economic factors such as education, urbanization, women empowerment contributed to the evolving succession laws in India. The cultural norms which upheld the male succession have slowly changing to the general neutral laws of succession. However, different practices are followed by the people in different places, which causes the uniform laws regarding inheritance are not able to be followed. It also affects the enforcement and interpretation of the laws in India regarding succession.

More importance to male lineage

Male heirs are given importance than the female heirs. The male descendants are considered as the direct successor of the ancestral property by their right. Female descendants are not given importance as they are considered to go out to another family and if the property is provided to them, the chance of the property going out of the joint family is more. In order to provide economic stability to joint family, more importance given to male lineage.

Women empowerment is affected

Daughter has less access to ancestral property compared to son which in turn affects the women empowerment. If the women have equal access to the ancestral property, they may have autonomy to take decisions on their control. Now they have to depend on the male to take any decision. They are simply binding to the decision of the male descendants.

These are the challenges which posses’ danger to the effective implementation of succession laws in India, it is important to rectify these challenges and steps should be taken for the promotion of fair, inclusive and general neutral laws to protect the right to equality the fundamental right provided under Article 14 of the Constitution of India[7].

LANDMARK CASES

Tulasamma vs Sesha Reddi[8]

A, died in 1931 leaving his widow Tulasamma. The widow was entitled to maintenance. Under a compromise during execution proceedings in pursuance of a decree for maintenance obtained by her she was allotted certain properties which she was required to enjoy only as a limited estate. Tulasamma continued in possession of the property after the Hindu Succession Act,1956. Then she alienated the property as absolute owner. The suit was brought for a declaration that the alienation was not binding on the plaintiff, a presumptive reversioner.

The question is whether Section 14 of Hindu Succession Act, 1956 applies so that Tulasamma will continue to be only a limited owner. The Supreme Court held that Section 14 of the Hindu Succession Act, 1956 will not apply, if the property is obtained by way of the preexisting claims like will, maintenance, gift, etc. When the property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, etc Section 14 [2] will apply.

It is important to note in this case, the court interpreted the succession rules in a way that promote gender equality. It acts as a precedent for promoting gender equality in succession rights.

Danamma v. Amar[9]

The dispute is with regard to inheritance of agricultural land. Danamma, daughter claimed share in the property stating that she is a co parcener in the family. Other members of the family opposed it. This case is filled after the Hindu Succession Amendment Act, 2005 was passed. The Hindu Succession Amendment Act, 2005 provide equal inheritance rights to women and children with equal coparcenary right.

The Supreme Court of India held that the daughters can also inherit the property. Daughters have the same right to inherit the ancestral property in par with the male coparcener. The court held that the main intent of the legislature is to promote general equality among the succession. The right to equality which is provided in Article 14 of the Constitution of India should not be restricted by having male centric law in succession.

This case act as a precedent in directing the courts to decide the case based on general neutral basis and promote inclusivity in succession of property.

RECOMMENDATIONS

To solve the problem arising out of the male centric laws on succession, following steps need to be taken.

Legal reforms

There is a need to modernize the existing laws which are out dated and not relevant to the present situation. Laws which are male dominant in nature need to be amended and include gender neutral laws for succession. Woman and children should be given succession rights with equal coparcenary rights to both ancestral property and self-acquired property. The laws should be made inclusive.

Awareness Campaigns

People in remote rural areas are not knowing their rights. Awareness campaigns among schools, colleges, village areas, remote areas should be done. People should be educated about the various succession rules in the India and its applicability and people who are eligible to get the succession and not eligible to get succession.

Judicial Activism

Many laws that are present in our country is because of judicial activism. If the court think that there is no specific law with regard to a specific matter it makes guidelines and advises the legislatures to make law in that matter quickly. Public interest litigation is introduced in India through Judicial activism. Courts and advocates should interpret the law in the way, it promotes general equality in succession rights and promote inclusivity.

Changing societal norms

There is a need to change the societal norms that are prevailing in the society. It is difficult to change it immediately as some people will be not accepting the changes to the existing system. Constant meetings, dialogues should be presented with the religious leaders, family heads, community leaders to promote gender equal laws. It is necessary to change as it plays an important role in affecting the succession rights to women and children. The need for uniform law governing all the cultural beliefs should be encouraged among them.

Strict enforcement of laws

The major drawback of the succession law is there is no strict enforcement of laws by the different stakeholders. Advocates interpret in a manner which is useful for their clients. Before enacting new laws, the existing laws are need to be properly enforced. Courts should supervise the proper enforcement of the laws.

CONCLUSION

From this paper we can understand that male succession in Hindu law in India as gone through several changes. From male heirs having priority over the ancestral property and wealth and continuing the linage through male heirs to equal coparcenary right and right to succession in ancestral property. These has been because of several factors such women enforcement, socio economic factors, change in family structure, legislative reforms, etc. The Hindu Succession Amendment Act, 2005 provided for general equality in succession. Even after these changes we can see that the general disparities still prevail in the succession of property. The above-mentioned recommendations will be useful in reducing this problem to an extent. Future reforms should focus on fairness, inclusivity, social justice in ensuring the laws of succession able to incorporate complex and diversified cultures prevailing in the Hindu law.

[1] Hindu Succession Act, 1956

[2] Bengal Regulation of 1793

[3] Patrick Olivelle, Manu’s Code of Law: A Critical Edition and Translation of the Manava-Dharmasastra (Oxford University Press 2005).

[4] Hindu Widow’s Remarriage Act, 1856

[5] J.D.M. Derrett, An Introduction to Legal Systems of Asia (Sweet & Maxwell 1968).

[6] S. Chander, Understanding Inheritance in India: Historical and Modern Perspectives (Routledge 2006).

[7] Constitution of India, 1949

[8] Tulasamma v Sesha Reddi, 1 SCC 939 (1977).

[9] Danamma v. Amar, 3 SCC 343 (2018) .