The Hindu Succession Act 1956 comes under the ambit of family law. The scope of family law sweeps through a wide range of categories including the arenas of adoption, marriage, divorce, maintenance, inheritance, succession, guardianship, etc. This research paper examines the problems faced by transgenders while dealing with the provisions of the Hindu Succession Act of 1956, and rural implications inclusive of varied religious laws, spousal violence, and impact on land holdings.

This paper further delves into the rules of survivorship and how the Amendment Act of 2005 led to its abolishment. The paper digs into the repercussions of the customary laws. Conclusively, it mentions the proposed reforms by the Law Commission of India in its 174th report thereby making an amendment to the act, ensuring equitable inheritance rights of the women.

Introduction:
Every law of succession construes the distribution and inheritance of property of a person who dies without testamentary disposition of property. Each religion has its laws to facilitate succession. The Hindu Succession Act of 1956 is an act to codify and bring uniformity in laws related to interstate succession among the Hindus.

Succession means the inheritance of property from one's lineal ascendant. Preceding this act the laws of succession prevailed according to the provisions established in various smritis namely Manu, Yagnavalkya, etc in addition to the customary practices which discriminated against the rights of the women to inherit the intestate property. Preferential treatment was given to the male descendants of the deceased.

Therefore, Women were generally ostracised from the inheritance of the property. Individuals were disqualified from the succession if categorized as lunatic or unsound-minded. Later, the Hindu Women's Right to Property Act 1937 was established which conferred only limited ownership rights to women. A daughter's right to the ancestral property of the father existed solitarily in the absence of legal heirs such as Mother, widow, and Lineal male descendants. The word descendant was defined as the person born of legal or lawful marriages. Thus, its meaning was confined and narrow in scope.

Children born out of void and voidable marriages were barred from their right to succession. However, in the case of Revan Siddappa vs. Mallikarjun, the apex court delivered the judgment stating that it does not matter whether the source of property is ancestral or not, children born out of void or voidable marriage will be entitled to claim succession from their mother or father's property.

Although the Act of 1956 establishes the comprehensive arrangement for intestate succession by bringing uniformity in its application, nevertheless it endures various challenges in its execution. This research paper delves into the challenges faced in the implementation of the Hindu succession act 1956 concerning problems of transgenders, rural implications, the rule of survivorship, and repercussions of the customary laws. Conclusively, the proposed reforms and amendment to the act are addressed ensuring equitable inheritance rights of the women.

Methodology Used: This research paper uses a mixed methodology to analyze the challenges faced in the implementation of the Hindu succession act while being compared to the provision under other religious laws such as Muslim or Christian.

How does the Hindu Succession Act of 1956 address the inheritance rights of transgender individuals?
Transgender is a person whose identity differs from the sex he or she was assigned at the time of birth. India has a long history of discrimination against transgender people. Transgender persons were considered criminals under the Criminal Tribes Act of 1871. They were barred or restricted to make a will of their property. It also obligated the person to register themselves under the act.

This practice was followed for a long time and eventually came to an end.

Indian constitution prohibits discrimination on the basis of sex under Article 15. The word sex should not be limited to categorizing a person on the biological sex assigned to them at the time of birth but its scope should be interpreted very widely including the persons who are neither recognized as male nor female.

The conclusion of the survey conducted by the Kerela govt in 2015 emphasized that 81% of people wanted to change their gender identities but were unable to do so due to lack of support.

The laws made by our country are not gender-neutral. There is a dual division of gender into males and females. Thus, the person who categorizes themselves as the other gender has to face challenges and discrimination on the basis of their self-image. Our society perceives such people with a stereotypical image and thus such people are labelled as the sidekicks of the society, isolating them to the corner of the society.

Difference Between Sex And Gender:
Sex is the biological identity assigned to the person at the time of birth which also includes the study of sex chromosomes and sexual features.

Gender is a sense of psychological and emotional sense of identity a person wishes to be associated with.

Problems Faced By Transgender:
Indian society tends to socialise a person according to the assigned sex. Gender is of two types male or female. On the basis of the sex people are provided with their gender roles. female is considered to be a homemaker while a male is the provider of the family or the bread earner. It is evident that the division of roles on the basis of sex is discrimination in itself but what about the fate of transgender who don't have legal recognition, who can't proudly claim their identity, who are denied equal access to opportunities and employment?

Some Of The Problems Faced By Transgenders Are As Follows:

• Employment: A transgender person is not given equal employment opportunities. Due to a lack of identification, they are not allowed to take competitive exams, restricting their standard of living.
• Equal access to public areas: Such people are often denied access to public areas due to the stigma faced by society. Not allowing a person to use public parks, toilets, etc., violates the fundamental right provided under Article 16.
• Healthcare: Low quality of health care services to the transgender violates their fundamental right to the right to life.
• No reservation: Transgender persons are economically and socially weaker sections of society, but there is no provision for providing reservation to them under the ambit of Article 14.
• Gender-based laws: Laws made in the country are based on the binary division of gender, i.e., males or females.

Provision With Regards To The Inheritance Rights Of The Transgenders:

• In India, inheritance of property is governed by personal laws of the respective religions.
• Since the Hindu Succession Act of 1956 is gender-biased, it provides no provision with regard to transgender individuals.
• The person claiming succession or inheritance has to label themselves within the ambit of binary gender in order to avail the benefit of the Act.
• The Acts outline how the order of succession will rule in case of a male dying intestate and a female dying intestate.
• For example, if a person undergoes sex reassignment surgery (e.g., in 2005, Ajay Mefatal, formerly known as Aparna Mefatal, was the first person to get sex reassignment surgery and faced criticism for doing so to obtain inheritance rights), and was male at birth but became female after surgery, the order of succession will affect the share of heirs upon their death.
• Division of property takes place according to male and female categories.
• Section 8 of the Hindu Succession Act 1956 deals with the succession of property of a male dying intestate.
• Section 15 of the Hindu Succession Act 1956 addresses the succession of property of a female dying intestate.
• For the succession of property of females, the source of the property is a key consideration.
• There is no mention of the order of succession related to transgender individuals, which further marginalizes the transgender community by preventing them from inheriting property and potentially relegating them to a low-income status.

However, when we study the persons who will be disqualified from the succession (sec 24-28) of the Hindu succession act 1956, transgenders are not disqualified from inheriting the property.

Comparative Analysis Of Inheritance Law In Different Religions:

• Muslim Law: Muslims are governed by Shariat law for succession. Muslims are divided into different sects; consequently, different sects have their own inheritance laws. There is no difference as such in Muslim law and Hindu law as both laws are gender restricted.
• Christian Law: Christians are governed by the Hindu Succession Act of 1925 for the purpose of inheritance and succession. Although no amendment has been made in the existing law, Christians have given their consent to include the provision for transgender in Section 44 of the respective act.

Constitutional Provisions For The Transgenders:

• Article 14 of the Indian Constitution says that each and every individual should be treated equally before the law.
• It does not restrict the word "person" to the binary division of gender, i.e., males or females.
• Even transgenders fall under the ambit of the word 'person', and thus, the legal rights vested in them should be protected.
• Article 15 of the Indian Constitution says that no person should be discriminated against on the basis of class, religion, race, or sex.
• The word "sex" in this article is not restricted to biological sex; it also includes no discrimination on the basis of gender.
• Article 19 of the Indian Constitution provides freedom of speech and expression.
• The word "express" includes the right to express one's identity.
• Article 21 of the Indian Constitution protects the right to life and personal liberty.
• The right to choose one's gender should also be included in this.
• The 2011 National Census allowed persons to introduce themselves as 'others'.

Landmark Judgments:
Navtej Singh Johar Vs Union Of India.
SC gave legal recognition to the 'third gender'. Transgender are provided with equal protection of their fundamental rights. The court ordered the state to make laws in order to ensure the welfare of the third-gender community. In the matter of appointment, transgenders are also entitled to get reservations under article 16(4) of the Indian constitution.

Kantaro Kondagari vs State of Odisha
Orrisa HC, declared that the single trans child of the deceased government employee will be treated as the unmarried daughter in order to avail of the benefits of pension or any other as such.

Francis Coralie Mullin v. Administrator
Article 21 of the Indian constitution is considered as its heart and soul. it protects the right to life and liberty. The right to dignity includes the right to express oneself in diverse forms.

Illyasv Badshah Alias Kamla, 1990
In this case, munilal was a transgender guru and he made a will for the transfer of property. The court ruled that the guru being the Muslim cannot transfer more than 1/3rd of his property according to the prevailing customary laws.

Parliamentary Provisions:

• An act to empower the rights and status of the transgenders was enacted, known as The Transgender Persons (Protection of Rights) Bill, 2019.
• This act criminalizes the denial of access to public places for transgenders. It also prohibits any discrimination on the grounds of education, employment, healthcare, right to occupy any property, etc.
• It envisaged the creation of a national forum for transgenders to present their grievances, but some people opposed this, advocating for the establishment of forums at the state level to make it more accessible.
• This act was silent on certain features. Therefore, The Transgender Persons (Protection of Rights) Bill, 2020 was enacted.
• One of the main changes in this amended act was that a minor child can register themselves as transgender under the Juvenile Justice Act.
• The provisions of the act are still silent about the right to inheritance of transgenders.
• Empirical challenges are faced in the execution of the Hindu Succession Act of 1956 in rural areas.

The Hindu Succession Act of 1956 plays a significant role in executing the succession of property for a person who dies intestate. Inheritance rights are typically based on personal laws. The Hindu Succession Act specifically deals with the succession of Hindu property, encompassing Sikh, Buddhist, Jain, and other sects within Hinduism. This legislation has made a substantial contribution in empowering women's rights to acquire and inherit property.

The act theoretically resolved conflicting views regarding allowing women to hold property as absolute owners and ensuring that different sects of Hinduism could benefit from this act. However, the practical implementation of this act has faced numerous challenges, particularly in rural areas where customary practices have prevailed for extended periods.

Several challenges have emerged, including:

1. Customary practices: Historically, during the British period, succession laws were governed by customs and the prevalent Shastri law, which led to the exclusion of women from equal inheritance rights in ancestral property. Consequently, communities often prioritize customary laws over the provisions of the act.
2. Lack of self-interest awareness: When women get married, they often prioritize their relationship with their husband's family over their birth family, leading to a reduced interest in claiming inheritance from the ancestral property. This impacts a woman's right to inheritance and the family's responsibility to provide her share of the intestate property.
3. Influence of religious laws: Both Hindu and Muslim laws historically restricted women from claiming property rights, leading to women being oppressed or marginalized. In Hinduism, various Smritis such as Manu, Yagnavalkya, etc., had differing opinions on women's property rights.
4. Spousal violence: Women who acquire property from their husbands or fathers often experience domestic violence, adversely affecting their mental, physical, and emotional well-being.
5. Gender-based discrimination: While Article 16 of the constitution prohibits gender discrimination, the act provides preferential treatment to the husband's family for succeeding to the property of a Hindu female who dies intestate.
6. Impact on land holdings: The scope of the succession act includes the right to inherit agricultural land, leading to excessive fragmentation of land into small holdings, resulting in decreased land productivity.
7. Lack of education and awareness: Rural populations generally have limited knowledge of their legal rights and the provisions of this act, hindering its effective implementation.

Rule Of Survivorship Not Completely Abrogated As Per Hindu Succession Act Of 1956:
The property under Mitakshara Law School was bifurcated into Coparcenary property and Self-acquired property.

Coparcenary Property: Joint family property or coparcenary property connotes the property under which all the coparcener has community of interest and unity of possession.
'coparcener'- a person with rights in the joint family property since birth. It is measured at 4 degrees from the last holder of the property.

Ancestral Property:

• Blended Property:
  
  1. Property, Property Jointly, Acquired By The Members Of The Joint Family
  2. Acquired By Using Coparcenary Property
• Self-Acquired Property: : Property that is not joint is called separated or self-acquired property. The word "separated" suggests that the property was formerly joint.

When a member separates from the joint family, the property obtained by him will be treated as self-acquired property.

Before The Sanctioning Of The Hindu Succession Act Of 1956, The Rule Of Survivorship Remained In Existence.

Therefore, If One Of The Coparecenars Died Intestate, The Property Was Acquired Or Obtained By One Of The Coparcenors. Thus, The Property Did Not Devolve The Legal Heirs Of The Deceased Coparcenor But Instead To The Other Surviving Coparcenor. Women Were Not Considered As The Coparcenors Until The Amendment Of 2005. Subsequently, Daughters After Their Marriage Ceased To Be Member Of The Hindu Undivided Family, And She Was Not Considered The Karta Of The Family. Accordingly, The Rule Discriminated Against The Rights Of The Female Coparcenors As They Were Barred From The Inheritance Of The Joint Family Property.

After The Enactment Of The Hindu Succession Act 1956 Property Of The Person Dying Intestate Devolves According To The Rules Of Succession Or Inheritance.

However, The Rule Of Survivorship Was Not Completely Abrogated Until The 2005 Amendment.

Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum
Apex court held that the distribution of the property of the person dying intestate, the interest of the coparceners should be distributed as per the notional partition assumed immediately before death. Thus, the Mitakshara coparcenary property of the deceased devolves as per the rule of succession or inheritance and not by survivorship.

This case played a significant role in protecting the rights of the widows.

Proposed Reforms And Hindu Succession Act (2005 Amendment):

Gender Equality is a fundamental principle enshrined under Article 14 and Article 15 of the Indian constitution. Hence, The Constitution prohibits discrimination based on caste, religion, sex, or place of birth. The meaning of the word 'sex' under the ambit of Article 15 is not restrained to the biological sex only. The Law Commission of India in its 174th report recommended to amend the act. Considering this, the Hindu Succession Act of 1956 which precluded a daughter from being a coparcener was amended in 2005. Consequently, daughters are placed on an equal footing and bear the same liabilities as sons. Even after her marriage, she can uphold the position of being the "Karta" of the family.

As a result, section 6 of the Hindu Succession Act was commutated Along with sec 23 and 24 which discriminated on the grounds of sex.

• Sec 6 deals with the devolution of interest in the coparcenary property
• Preliminary daughters were barred or restrained from being a coparcener. After the amendment, the daughter is considered a coparcener as a son and shares the same liabilities in the common ancestral property.

Vineeta Sharma vs Rakesh Sharma and ors.
Justice Arun Mishra opined that daughters will possess an equal share as that of a son after the Hindu Succession Amendment act, irrespective of the fact that whether at the time of the amendment has father was alive or not.

Question: Can a daughter inherit the self-acquired property of her father before the enactment of the Hindu Succession Act 1956?

Answer: Yes, daughters can inherit their fathers self-acquired before the enactment of the Hindu Succession Act 1956. Daughters have the legal right to claim their share in their father's self-acquired property regardless of the time period

Arunachala Gounder (Dead) By Lrs vs Ponnusamy
SC, held that it is both custom and right of a daughter or widow to inherit the self-acquired property of the Hindu male dying intestate.

Question: Can daughters born before the Hindu Succession Act of 1956 acquire an equal share of ancestral property?

Answer: Yes, daughters have the right to acquire ancestral property even before the passage of the Hindu Succession Act of 1956.

- Any property to which she becomes entitled as a result of coparcenary property shall be disposed of by her by a way of testamentary disposition.

APEX court in a case held that if a female dies intestate without leaving behind any issues, then such inherited property devolves back to its source: whether obtained from father or mother or from husband or father-in-law respectively.

• The daughter can challenge any alienation of property made by Karta which is not for legal necessity.
• Rule of survivorship abolished: earlier the property of the deceased devolved as per the rule of survivorship. After the amendment, the property of the deceased person devolves according to the testamentary disposition and intestate succession.
• The pious obligation of the son, grandson, or great-grandson to pay the debts of his father, grandfather, or great-grandfather was abolished. Now no court or person can file a suit against a person except if the debt was taken prior to the amendment, to recover the debt taken by his ascendants.
• Any partition registered under the Registration Act of 1908 or executed based on court orders before 20.12.2004 will not be impacted by the amendment's provisions.
• SEC 23 makes the provision for the partition of the dwelling house inherited by class 1 heirs. It states that the right of the female heir to claim partition does not arise until the male coparceners decide to divide their shares. This section also prejudiced against married women by restraining them from their right to reside in the dwelling house.
• Section 24 specifies that widows, such as the widow of a predeceased son, the widow of a predeceased son of a predeceased son, and the widow of a brother, forfeit their inheritance rights if found to be remarried on the day succession commences.

Conclusion:
The Hindu Succession Act of 1956 helped to bring consistency and uniformity in the inheritance laws among different sects of Hinduism. This act retrained a daughter from being a coparcener and denied equal share as that of a son. It placed a pious obligation on the son to discharge the debts of his father. As a result, the Law Commission of India in its 174th report suggested bringing reforms. Thus, the Hindu Succession Act 2005 was amended to bring the daughter on equal footing with the son concerning shares and liabilities regarding the ancestral property, along with the abrogation of the rule of survivorship. However, some snags are still needed to be addressed by the Indian government.

Acknowledgment:
I am profoundly grateful to my mentor, Mr. Parth Singh, for his unwavering guidance and support throughout my research internship at the office of Advocate Partap Singh. His extensive expertise in constitutional theory and his dedication to legal scholarship have been an invaluable source of inspiration for this research paper.

Throughout this internship, Mr. Singh has been a constant source of encouragement, offering constructive feedback and sharing his vast knowledge and experience. His mentorship has not only enhanced my understanding of the jurisprudential process of the country but also the law and has also instilled in me a strong sense of professional ethics and dedication to legal advocacy. I deeply appreciate all the opportunities he has provided, and I am honored to have had the chance to learn from him. This paper would not have been possible without his invaluable advice and supervision.

Also Read:

• Hindu Succession Act,1956: A Manoeuvre to Gender Equality in India