Title
Evolution of Hindu Joint Family system and intestate succession with the persistence of patriarchal norms in Hindu Succession Act and Mitakshara law
Abstract
This paper examines the evolution of Hindu property inheritance laws and how patriarchal norms continue to persist despite statutory reforms. With a special focus on the Hindu Succession Act, 1956 and its 2005 Amendment, the research analyses legislative changes, judicial developments, and socio- cultural interpretations that continue to marginalise women’s inheritance and Hindu Joint Family rights. The study highlights doctrinal inequalities in joint family structures, succession rules, and judicial biases, proposing legal and societal reforms. The choice of this topic stems from the need to evaluate whether reforms have genuinely translated into gender justice in inheritance practices and, if so, to what extent.
Key Words
Hindu Succession Act, Patriarchal norms, Hindu Joint Family, Coparcener, Inheritance law
Introduction
Succession refers to “the distribution of property under the laws which determine who inherits the property of a person when they die without a will.” [1] Hindu succession laws have had a complex evolution throughout centuries with a mix of uncodified and codified laws that continue to persist together.
Transfer of property in Hindu’s can be in the form of:
- Gifts: It is a form of inter vivos transfer of property i.e., transfer of property between living people. There is a doner and a donee. It is usually given out of love and affection. It is an absolute transfer of property where the donee gets all the rights of ownership.
- Wills: A will “means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” [2] They are a form of testamentary succession and the Indian Succession Act, 1925 (ISA) applies to transfer of such property. The will is called a “Testament”, the person who makes the will is called the “Testator” and the beneficiary of the will is called the “Legatee”.
- Hindu Joint Family Property: Hindu Joint Family (HJF) refers to Hindu families that generally live together and are connected by:
- Birth
- Adoption
- Marriage – only valid marriages under the Hindu Marriage Act, 1955 (HMA) or Special Marriage Act, 1954 (only if a Hindu marries another Hindu under Section 21(A) of the Act). It does not include void or voidable marriages or presumption of marriage such as live-in relationships (as per Section 114 of the Indian Evidence Act). Hence, it cannot be formed by an agreement.
There is a presumption of jointness by law that a family is an HJF until the contrary is proved. It does not mean that joint business or ancestral property is also presumed to exist. Eg) Poor families may not own property but it does not mean that they are not an HJF. However, the members maintain each other in the family.
It is generally governed by the Mitakshara and Dayabhaga schools of law or Hindu Classical Law as well as Hindu Succession Act, 1956 (HSA 1956).
Coparceners are individuals who acquire the right of interest in the HJF family by birth (or adoption) into the HJF. It is a narrower body of individuals within the HJF. These people are related to each other by blood, consanguinity (descendants from the same ancestor) or adoption (it is considered that an adopted child is reborn into the adopted family effective from the date of adoption)[3], presuming the marriage is valid. A coparcener is not made by marriage into the family hence, wives and mothers are not coparceners.
Only coparceners can ask for partition and claim their share whenever they want. Hence, even if nobody dies, the coparcener can ask for his share and leave the HJF.
- Intestate succession: It means that a person died without making a will. It is governed by the HSA. There is a presumption of Hinduism unless otherwise proved. Certain states have their own Code which is followed such as the Goa Civil Code which governs property in Goa.
Despite all these laws, the deeply entrenched patriarchal norms of Indian society continue to shape the interpretation and implementation of these laws. Women’s roles in family structures, property rights, and inheritance are still constrained to a certain extent.
Research Methodology
This research adopts a qualitative methodology, relying on doctrinal legal analysis. Primary and secondary sources such as statutes, case laws, etc. are used to evaluate the gendered impact of Hindu succession laws and assess evolving jurisprudence.
Review of literature
Evolution of Hindu intestate succession laws:
- Caste Disabilities Removal Act, 1850:
History: It was a secular law that allowed for the converted people to take their share on the date of conversion from their family wealth. It eliminated the disqualification from inheritance on the grounds of caste and religious conversion.
However, even if the family accepts them and they have good relations with each other, they will still not be considered as a part of the HJF legally.
Before this act, conversion was considered as a betrayal to the community and the convert got nothing.[4]
Repealed: The main purpose of the act was to protect the rights of the converts and of people from different castes to ensure their inheritance rights but in 2018, the Act was repealed because Article 15 of the Constitution prevented discrimination on the basis of caste and HSA 1956 removed the exclusion of converts that initially prevented them from getting their shares in HJF property because they were ousted from the family.
- Hindu Widow’s Remarriage Act 1856:
History: The act aimed at legalising the remarriage of women after the death of their husbands. It was also made to ensure that the child born out of such remarriage would be considered as a legitimate child born out of a valid marriage. It did not affect her settled rights of maintenance however, she was deemed to be dead in the HJF of her previous husband and her rights in property ended from that date. Her unsettled property interests in her former husband’s property also ended. [5]
Repealed: The law became obsolete because the HMA allowed for widows to remarry. Hindu Succession (Amendment) Act, 2005 (HSA 2005) also ensured that Hindu widows had the right to property and would not be disqualified due to remarriage.[6]
- Hindu Inheritance (Removal of Disabilities) Act, 1928:
Insane coparceners were neither entitled to a share during partition nor could not ask for a partition. Only if they were cured, they could ask for partition. Although, his sons were not excluded if they were of sound mind. This act amended disqualifications and stated that only congenital lunacy or idiocy was a grounds for disqualification and other people could not be devoid of their rights in the name of “disease and deformity”. Sons with physical disabilities such as handicapped, deaf, visually impaired, etc. could now inherit their rightfully owned property in the HJF. [7]
- Hindu Women’s Right to property Act, 1937
Widows had no right to demand partition in the HJF and only had maintenance rights before this act, with the exception that they received a share as per Mitakshara law, if her sons took partition between themselves, and she would get a share equal to that of her sons. This however, would not be possible if she only had 1 son because he cannot take partition from his mother as she is not a coparcener, and only coparceners have a right in the HJF property. And daughters were not coparceners before 2005 so they would not be entitled to take partition amongst themselves.
However, this act was brought in, because after the son’s death, the daughter-in-law was at times treated as a burden to the family. So, to ensure that she gets some rights, it was said that once the son dies, his widow can step into the shoes of her husband and ask for partition for her husbands’ share in the HJF property as on the date of such demand.
- Hindu Succession Act, 1956
It gave absolute property rights to women for the first time, i.e., women could sell property if they wanted to as it was their own, if they held it at the time of the act coming into effect, even if it was initially for life interest but in lieu or arrears in maintenance, as gifted property, willed property, etc. [8]
Daughters became Class I heirs of their fathers which meant that after his death and notional partition of his HJF property, his separate property would devolve by succession and daughters got a share equivalent to that of sons in separate property (Not coparcenary property). [9]
The concept of notional partition was created if the deceased male had female dependants in the HJF and a conceptual partition was created as a legal fiction to figure out the quantum of the deceased coparcener’s share in the HJF property which then devolved by succession. It gave daughters a chance to get something in succession if the father only had ancestral property.
It created succession rules separately for males and females for the devolution of their separate property for intestate succession.
It also allowed the HJF coparcener to make a will for his undivided coparcenary property. Hence, after his death, his HJF undivided HJF share would devolve as per the ISA and he could continue to be a part of the HJF without asking for partition during his lifetime while ensuring that his property goes to whomever he wants.
Anything that is in the act overrides the classical laws and provided the first set of codified laws that brought a revolution of other changes as well in not only separate property but also for HJF property.
Hindu Succession (Amendment) Act, 2005
The biggest wave of change came with this act that finally brought daughters to the same position as sons in rights and liabilities as an HJF member and recognised daughters as coparceners in all aspects.
Her rights are vested from her date of birth and not the date of partition.
She had the right to demand partition and her marital status was irrelevant.
She could be the Karta of the family if she was the eldest coparcener.
It abolished the doctrine of survivorship and established the doctrine of notional partition as the rule for intestate succession,[10] and otherwise testamentary succession applied.
Widow remarriage did not disqualify her from inheritance under the Act anymore.
It disqualified descendants of the converts (unless they are Hindu), but protected the convert himself allowing him to be entitled to inheritance under the Act.
It recognised married women as HJF members of their natal families and gave them coparcenary rights.
Recognition of women’s rights and equality over the years:
- Hindu Women’s Right to Property Act, 1937 ensured that women get some rights in property apart from the 3 categories of women that can get shares in partition as per Mitakshara law. This act allowed for widows to ask for partition of their husbands shares after his death so that she could protect her rights and separate from the HJF with her children.
- Doctrine of survivorship: It is a Classical Hindu Law concept that when a coparcener dies, the HJF doesn’t dissolve, the property merely passes onto the surviving coparceners. This property doesn’t become the separate property of the coparceners and continues to be HJF property.
The doctrine of notional partition came into effect with the HSA in 1956 which creates a fictional partition and it is treated as if the person took a partition immediately before his death.
In 1956, it allowed for daughters, wives and mothers to get some shares in succession upon death of the person as his partitioned share would go in intestate succession as per the Act and not as per survivorship, until and unless he has made a will. However, this only happened if the person dies with a female HJF member, otherwise survivorship persisted.
In 2005, it was amended to abolish survivorship and all HJF property devolved by notional partition on the death of a coparcener if he died intestate.
- The HSA 1956 also gave absolute ownership rights to women. Hence, any property in her possession, became absolute property of the woman and she got the rights to sell, mortgage, rent, etc. the property.
- Daughters were recognised as coparceners and were capable of making wills after HSA 2005. Sons are equal to daughters and have a vested right in HJF property. They can also ask for partition and are entitled to a share in the HJF property. [11]
- Married daughters were only a part of their husbands HJF and could only regain membership in their natal family if they were deserted by their husbands or after the husband’s death, their marital family threw them out. However, after HSA 2005, she is an HJF member in both families and has a vested right in HJF property of her natal family and maintenance rights.
- Two widows are an HJF but, after their death, the HJF will end, unless they continue the HJF by adopting a child. Earlier only adopted sons could continue the HJF but after HSA 2005, daughters will suffice because they are also coparceners. The Hindu Adoptions and Maintenance Act, 1956 allows single women to adopt a son or daughter.[12]
Existing patriarchal norms:
We have come a long way, however, we still need to recognise the inequalities that persist within the system:
- Children of the couple are considered only as HJF members and coparceners in their father’s families unless the child is illegitimate or a single mother adopts a child.
Even though, the children of a woman are entitled to property in succession and are the first heirs to such property, if the woman dies intestate they are not members of her family. It reflects the outdated notion of patrilineal family structures.
- Husbands are not a part of their wives HJF, but wives are a part of both her natal family and her husband’s family. This asymmetry shows that women are merely appended to their husband’s lineage.
- Succession laws differ widely between men and women as per the HSA even after the 2005 amendment.
A males mother, widow, sons, daughters, and children of pre-deceased children of the deceased are mainly entitled to inheritance as Class I heirs of the males and get his separate property equally. [13]
Whereas, for females, heirs of her husband are preferred over her own parents and only if the property comes from them it can go back, in the absence of her children (including children of pre-deceased children’s) to her father’s heirs.[14]
- Women cannot start an HJF. While the law states that sons and daughters are equal, the notion of a common male ancestor that started the HJF still seems to persist because there are no case laws or statutes that override the same because Mitakshara law states that only men can start an HJF. It also stems from the idea that if a woman starts an HJF and gets married, her children would not be a part of her family and she would be the sole member and have no way to start the family because a family requires at least 2 people. Divorced women also face the same issues as they are ousted from their husbands family and if they have partitioned from their natal family, her children will not be a part of her HJF and this affected partitioned single women who chose to adopt because her child, will be a part of her father’s HJF not hers.
- Agnates refers to the relationship between the deceased and the agnate by blood or adoption wholly through males whereas cognates are related to the deceased by blood or by adoption but not wholly through males. [15] As per the act, agnates are preferred over cognates which means that male relations are preferred over female relations even if the degrees of connectivity are further in agnates than cognates. Eg) The deceased’s father’s father’s brother is preferred over the mother’s brother.
Recent developments in Hindu Succession laws:
While there haven’t been any major change in the Hindu Succession Law after the 2005 Amendment Act, there have been some landmark judgements recently that shape Hindu succession laws in India and set a precedence for future cases.
Manu Gupta vs Sujata Sharma (2023):
Manu Gupta was a cousin of Sujata Sharma. Sujata was married so, Manu claimed that she could not be the Karta of the family due to her marital status. He claimed that HSA 2005 only gave her a share in the property, not the right to be a Karta. Hence, Manu declared himself as the Karta of the family being the eldest son and disregarded Sujata, even though she was elder than him. Sujata Sharma challenged it, stating that she is the senior-most member of the family hence, she is the Karta.
The Delhi High Court stated that a daughter is a coparcener after the amendment and she is entitled to be the Karta if she is the eldest coparcener of the family. Her marital status is irrelevant because daughters have equal rights as sons. So, she has the right to be the Karta just like sons do. Married women cannot be denied this right to Kartaship (head of the HJF). Articles 14, 15 and 16 of the Constitution grant females the same rights as males in all aspects of life and they cannot be discriminated solely on the basis of their gender and her rights are a component of her dignity. [16]
Vineeta Sharma vs Rakesh Sharma (2020):
The landmark judgement clarified that daughters are coparceners by birth and are entitled to coparcenary property even if the father died before the 2005 Amendment. Thus, it doesn’t matter if the father was alive or dead during the Amendment Act because the right to property is vested by birth in the daughter as a coparcener.
The only condition is that a preliminary decree is not conclusive proof of partition and only a final decree of partition by court or with a heavy burden of proof by public announcements such as those in newspapers, etc. will be required as notional partition is not actual partition. It overruled the case of Prakash vs Phulavati. It states that Section 6 of the HSA is retroactive.[17]
Suggestions and Conclusion
- The notion of children of the couple only being HJF members of their father’s family’s needs to absolve because it will create room for women to start their own HJF’s. Their intestate property already goes to their children first but at least in this way they can enjoy the rights and powers that come with such a family structure. Daughters are coparceners and have the same rights as sons so they are entitled to all the rights equally and since sons can start an HJF, daughters should also be entitled to the same and it must be clarified by law.
- Agnates and cognates should be considered be at the same level and the degree of ascent or descent should determine who inherits the property, and not favour purely male relations over connectivity by female relations.
- Husbands family is preferred over her parents if she dies intestate even with property that she acquired from her own skills, gifts, etc. except for property she got from her natal family.
Even the property inherited by a female from her parents both, in the absence of her sons or daughters even if pre-deceased and have children of their own, go back to the father. So, the property which she may have acquired from her mother does not go back to her mother and instead goes to her father in the absence of her children.
Property inherited by a female from her brother devolves as per Section 15(1) of the HSA and not Section 15(2). Hence, even that property can be inherited by the heirs of the husband as opposed to her own brother.[18]
The laws require parity between both male and female intestate succession inheritance laws and in the meanwhile it is highly recommended that females make an extensive will so that the property goes by the ISA in testamentary succession.
- The Hindu law presupposed that we came from a binary existence. There is no space for a third gender because the laws explicitly only referrer to males, females, sons, daughters, etc.
Transgender people can be identified if after their gender reassignment surgery they become a male or female.
Meanwhile, the ISA, uses the phrase “child” which is more gender neutral and this practice can be adopted by HSA as well to promote gender fluid acceptance by courts which would affect the ground reality and acceptance in the society as well.
Despite progressive amendments, patriarchal biases remain deeply rooted in Hindu inheritance laws. True reform requires not only statutory clarity but also cultural change and judicial sensitivity to enforce gender equality in both law and practice.
Name: Mallika Gupta
University: OP Jindal Global University
[1] Cornell Law School, Legal Information Institute, https://www.law.cornell.edu/wex/succession. (last visited September, 2021)
[2] The Indian Succession Act, 1925, § 2, No. 39, Acts of Parliament, 1925 (India).
[3] The Hindu Adoptions and Maintenance Act 1956, § 12, No. 78, Acts of Parliament 1956 (India).
[4] Caste Disabilities Removal Act, 1850, No. 21, Acts of Parliament, 1850 (India).
[5] Hindu Widow’s Remarriage Act 1856, No. 15, Acts of Parliament 1856 (India).
[6] The Hindu Succession (Amendment) Act 2005 § 5, No. 39, Acts of Parliament, 2005 (India).
[7] Dr. Poonam Pradhan Saxena, Family Law Lectures Family Law II 46 (Lexis Nexis 2023).
[8] The Hindu Succession Act 1956 § 14, No. 30, Acts of Parliament, 1956 (India).
[9] The Hindu Succession Act 1956 § 8, No. 30, Acts of Parliament, 1956 (India).
[10] The Hindu Succession (Amendment) Act 2005 § 8, No. 39, Acts of Parliament, 2005 (India).
[11] The Hindu Succession (Amendment) Act 2005 § 6, No. 39, Acts of Parliament, 2005 (India).
[12] The Hindu Adoptions and Maintenance Act 1956 § 8, No. 78, Acts of Parliament, 1956 (India).
[13] The Hindu Succession Act 1956 § 8, No. 30, Acts of Parliament, 1956 (India).
[14] The Hindu Succession Act 1956 § 3, No. 15, Acts of Parliament, 1956 (India).
[15] The Hindu Succession Act 1956 § 3, No. 30, Acts of Parliament, 1956 (India).
[16] Manu Gupta vs Sujata Sharma & Ors, RFA (OS) 13/2016 & CM APPL. 6041/2016, on 4 December, 2023.
[17] Vineeta Sharma vs Rakesh Sharma (2020) 9 SCC 1.
[18] Balasaheb vs Jaimala, AIR 1978 Bom 44.