Tushar Krishnani debates the constitutional validity of Section 21 of Hindu Succession Act, 1956 in this essay.
Section 21 of the Hindu Succession Act provides that where two persons have died, in circumstances rendering it uncertain whether either of them, and if so which survived the other then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.[i] There has never been any research on this topic before. So the primary method to test its constitutional validity is to view the section in a logical manner. There seems to be absolutely no logic as to why there has even been a classification based on age. A better way to interpret and assume who would survive whom, even if it is by a split second, would be to classify on the basis of fitness. In fact, English law also presumes that the younger issue is deemed to be the fitter one.
Comparing the Presumption in Indian and English Law
England does not have a succession law especially for Hindus probably because they interpret secularism in such a way that the state should be equidistant from all religions. On the other hand, India’s view on secularism is that equal respect is accorded to all religions. The most relevant English statutory presumption is Section 184 of The Law of Property Act, 1925.[ii] This provision is very similar to Section 21 of The Hindu Succession Act, 1956. Here two fallacies are observed – firstly, that making a devolution of property through succession by understanding that age is absolutely arbitrary. Other aspects needs to be considered like strength, presence of mind and skill to deal with a particular situation. and secondly, that case laws in India state that the younger one survives, irrespective of the absolute age of the deceased. In Jayanti Mansukhlal v. Mehta Channalal[iii] the mother and eight-year-old daughter died in a fire accident together. The daughter was presumed to have survive the other. This seems completely arbitrary and hence, violates Article 14 of the Indian Constitution.
Section 21 with respect to Article 14 of The Indian Constitution
It can be observed that the said provision (Section 21 of HSA) is arbitrary. It is known that no authority on Hindu Law, property law or evidence law has elaborated upon the unreasonable nature of the section or the broader jurisprudence behind this doctrine. The courts have, lately, increased the ambit of Article 14 from having unreasonable classifications to arbitrariness and tackling violations of principle of natural justice.[iv] Even though there is strictu sensu no fundamental right involved, the authorities who exercise their statutory power should do so in conformity with Article 14.[v] Article 14 of the Constitution of India is the tool for avoiding arbitrariness in law. In words of Bhagwati J. –
“Rule of Law which permeates the entire fabric of the Indian Constitution includes arbitrariness. Wherever we find arbitrariness or unreasonableness, there is denial of rule of law.”[vi]
Hence, I would like to humbly opine that the assumption that the younger one would survive the elder one is violative of Article 14 of the Indian Constitution. Therefore, it could be said that the better classification would be to allow the fitter one surviving the one who is not as fit. It is also asserted that the younger issue need not be the fitter one.
[i] Presumption in case of simultaneous deaths– Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which survived the other then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder
[ii] Presumption to survivorship in regard to claims to property– In all cases where after the commencement of the Act, two or more persons have died in circumstances rendering uncertain which of them survived the other or others, such deaths shall for all purpose affecting the title of the property be presumed to have occurred in order of seniority and accordingly the younger shall have deemed to survived the younger.
[iii] AIR 1968 Guj 212
[iv] Equality before Law– The State shall not deny to any person equality before law or the equal protection of the laws within the territory of Indian Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
[v] SM Rao v Deputy Commissioner and Deputy Magistrate, Bangalore, AIR 2004 NOC 235
[vi] Bachan Singh v. State of Punjab AIR 1982 SC 1336