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Succession under Hindu Law
General Rules of Succession - Male Hindu
Intestate succession is defined by Legal Dictionary as the distribution when a person dies without leaving a valid will or testament and the heirs will take (receive the possessions) by the laws of descent and distribution in the estate. Collectively these are called the laws of intestate succession. In case person dies without making a will there needs to be some broadly accepted rules upon which the property shall devolve upon those succeeding him. Hindu Succession Act, 1956 (Position after 9- 9 - 2005 ) Amending Act 2005 was one of the steps to remove discrimination contained in S. 6 of Hindu Succession Act, 1956. It gave equal rights to daughters in the Hindu Mitakshara Coparcenary Property as to sons have. It makes all daughters, including married ones, coparceners in joint family property. Simultaneously section 23 of the Act as disentitles the female heir to ask for partition in respect of dwelling house wholly occupied by a Joint Family until male heirs choose to divide their respective shares therein, was omitted by this Amending Act. It also made women right in agricultural land equal to men. According to the amending Act of 2005, in a Joint Hindu Family governed by the Mitakshara Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in the same manner as the son heir. She shall have the same rights in the coparcenary property as she would have had if she had been a son. She shall be subject to the same liabilities and disabilities in respect of the said coparcenary property as that of a son and any reference to a Hindu Mitakshara Coparencer shall be deemed to include a reference to a daughter. But this provision shall not apply to a daughter married before the commencement of the Hindu Succession (Amendment) Act of 2005. This provision shall not affect or invalidate any disposition or alienation including partition or testamentary disposition of property which had taken place before 20th^ December, 2004. In the matter of succession of property of a Hindu male dying intestate, the Act lay down a set of general rules in sections 8 to 13. Mitakshara coparcenary property shall devolve by testamentary or intestate succession under the Act and not as survivorship.
General rules of succession in the case of males – The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter- (a) Firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) Secondly, if there is no heir of class II then upon the heirs, being the relatives specified in class II of the Schedule; (c) Thirdly, if there is no heir of any of the two classes, then upon the agitates of the deceased; and (d) Lastly, if there is no agnate, then upon the cognates of the deceased. Class I heirs:- The property of a Hindu Male dying intestate would be given first to heirs within Class I. They are: i. Mother, ii. Widow, iii. Daughter, iv. Son, v. Widow of a predeceased son, vi. Son of a predeceased son, vii. Daughter of a predeceased son, viii. Widow of a predeceased son of a predeceased son, ix. Daughter of a predeceased son of a predeceased son, x. Son of a predeceased son of a predeceased son, xi. Daughter of a predeceased daughter, and xii. Son of a predeceased daughter. Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are: xiii. Son of a predeceased daughter of a predeceased daughter, xiv. Daughter of a predeceased daughter of a predeceased daughter, xv. Daughter of a predeceased son of a predeceased daughter, and xvi. Daughter of a predeceased daughter of a predeceased son The adopted children (son or daughter) are also to be counted as heirs when succession is done. The children born of void or voidable marriage (by effect of section 16 of HMA, 1955) are deemed to be legitimate children and are thus entitled to participate as sharers in the succession to the intestate. The widow inherits simultaneously with the other heirs and in case there are more than one widow, together they are entitled to one share which is to be divided equally amongst them.
Entry VIII – a) Mother’s father. b) Mother’s mother. Entry IX – a) Mother’s brother. b) Mother’s sister. Section 11- Distribution of property among heirs in Class II of the Schedule. - The property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally. This Section provides that when there is more than one heir in one entry of Class II, they shall inherit equally. For example, Entry III contains four heirs: (a) Daughter’s son’s son (b) Daughter’s son’s daughter (Now Class I, After Amendment Act of 2005) (c) Daughter’s daughter’s son (Now Class I, After Amendment Act of 2005) (d) Daughter’s daughter’s daughter (Now Class I, After Amendment Act of 2005) Thus according to this Section, they all share equally. It should be noted that the legislation does not lay down any rule of discrimination between any male or female. If two heirs are enlisted in the same entry, then irrespective of their sex, they share equally. All the heirs in each one of the entries stand aequali jura and take per capita subject to the only exception that full blood is preferred over half-blood. The father in entry I includes an adoptive father. However, a father is not entitled to any interest in the property of his illegitimate son as opposed to the mother. Nevertheless, a father is entitled to inherit from his son born of a void or voidable marriage (under section 16). Also, a step father in not entitled to inherit from his step son. All brothers and sisters inherit simultaneously with the sister and other heirs in the Entry. Here the term brother includes both full and half brother. However when there is a full brother, he is always preferred to a half brother where, half brother means son of the same father but different mother. Uterine brother is not entitled to share the intestate’s property. However when the intestate and his brother are illegitimate sons of their mother, they are related to each other as brother in this entry.
However, there is one basic distinction between the Class I and the Class II heirs. While all the heirs in Class I inherit the property simultaneously, each of the entries in Class II constitute distinct and separate groups of heirs. Heirs in higher entries inherit in priority, but there I no such concept of priority among the heirs in Class I. For example, if a Hindu male dies intestate leaving behind his widow, two sons, son of a predeceased son, widow of another predeceased son, two daughters and son of a predeceased daughter, all of them will inherit simultaneously because all of them are heirs in the Class I of the Schedule. However, if another Hindu male dies intestate leaving behind his sister and his brother’s son, the sister being an heir in Entry II of Class II will get preference over his brother’s son who is an heir in Entry IV of Class. Classification of agnates- When a person traces his relationship to the propositus wholly through males, he is an agnate. His sex or the sex of the propositus is immaterial. Agnates fall in three classes: (a) descendant agnates, (b) ascendant agnates, and (c) collateral agnates. Descendant Agnates- S, SS, SSS, SSSD, SSSS of a person are all descendant agnates. S, SS and SSS are in class I. We are not concerned with them here. But SSSD and SSSS are the agnates who are not included in class I or class II and with them we are concerned here. For descendent agnates there is no limit as to degrees, howsoever remote they may be. Thus, all descendants of SSSS through males will also be agnates. Descendants have only degrees of descent. Ascendant Agnates- Intestate’s F, FF, FFM, and FFF are all ascendant agnates. But F and FF are already in Class II (in categories I and V respectively) and therefore we are not concerned with them here. FFM and FFF are the nearest agnate descendants after F and FF. All ascendants through males will also be ascendant agnates there being no limit of degrees. Collateral Agnates - Collaterals are descendants in the parallel lines. They may be on the maternal side or they may be paternal side. Cognates A person is said to be a cognate of another if the two related by blood or adoption but not wholly through males. In a cognate relationship, it does not matter as to whether there is intervention of one or more females. So long as one female exists in the line, it becomes a cognate relationship. Cognates: (a) cognates who are descendants, for example, son’s daughter’s son’s son and daughter’s son’s son’s son.
Section 13 lays down the rules for computation of relationship between the intestate and his agnate and cognate heirs. This relationship is traced from the intestate to the heir in terms of degrees of relationship with the intestate as the starting point. There is no discrimination or preference between male and female heirs. The second rule states that the computation of the degrees of ascent and descent are to be made inclusive of the intestate. The relationship is to be traced from the propositus on terms of degrees with a propositus as terminus a quo, i.e. the first degree. Section 12-Order of succession among Agnates and Cognates- The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder: Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred. Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degree of descent. Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take simultaneously. This Section deals with the order of succession among agnates and cognates. Agnates come within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). The question of succession of cognates come only when there are no cognates and the question of succession of agnates and cognates come only when there are no heirs in Class I and Class II. In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be preferred to a lower subcategory i.e. descendants shall be preferred over ascendants who in turn shall be preferred over collaterals. However, the order of succession among agnates and cognates is not determined merely by the total number of degrees of ascent and descent. It is subject to and regulated by Section 12 of the Act. Example: father’s mother’s father of the intestate- Hence there is no degree of descent but there are four degrees of ascent represented by (i) the intestate, (ii) the intestate’s father, (iii) that father’s mother and (iv) that mother’s father. General rule with regard to preference and distribution of property among agnates and cognates: Rule (i) - When the claimants are descendants, ascendants and collaterals, the descendants are preferred over the latter two. When there are no descendants, ascendants are preferred over collaterals. The collaterals take only in the absence of both descendants and ascendants.
Rule (ii) - When all the claimants are descendants, the one having fewer degrees of descent will be preferred if they have the same degrees of descent, they will take simultaneously and as between themselves will take per capita. Rule (iii) - When all the claimants are ascendants, the one having fewer degrees of ascent will be preferred. If they have the same degrees of ascent, they will inherit simultaneously and as between themselves will take per capita. Rule (iv) - When all the claimants are collaterals, the rules of preference will be (if should be kept in mind that collaterals have both degrees of ascent and degrees of descent) as under: Sub-Rule (a) - Among the claimant collaterals those who have fewer degrees of ascent (irrespective of degrees of descent) will be preferred. Sub-Rule (b) - Among the claimant collateral when degrees of ascent are the same, the one who has fewer degrees of descent will be preferred. Sub-Rule (c) - Among the claimant collaterals when degrees of ascent and descent are the same, all of them take simultaneously, and among themselves share per capita. Position after Amendment Act Amendment Act 2005 is an important step towards gender equality. But in many aspects the act remained same.
- After the amendment, daughters has an share equal to that of sons at the time of the notional partition, just before the death of the father, and an equal share of the father's separate share. However, the position of the mother stays the same. She, not being a member of the coparcenary, is not getting a share at the time of the notional partition. Making daughters coparceners decreased the shares of other Class I female heirs, such as the deceased's widow and mother, since the coparcenary share of the deceased male from whom they inherit declined.
- The amendment made the position of the female members of the joint family worst. With a daughter along with the sons acquired a birthright, which she can presumably partition at any time, the rights of other members of the joint family got diminished. The only protection women had in the marital home was the status of being married, which carried with it the right to be maintained, not only by the husband, but by the joint family and its assets as a whole. This protection now eroded, to the extent that the total divisible amount got reduced.
- Since Hindu law does not grant any rights to wives in marital property, their only chance of getting anything was on an inheritance, as equal share with the sons and daughters, if the marriage was subsisting on the death of the husband. On divorce, of course, even that right to inheritance disappears and Amendment 2005 reduced the share of wives.
However sub-Section (2), similar to the scheme of Section 14, is in the nature of an exception to the general rule as laid in sub-Section (1). The two exceptions are, if a female dies without leaving any issue then, If any property is inherited by a female Hindu from her father or Mother it shall devolve in the absence of any son of daughter of the deceased (including the children of any predeceased son or daughter) not upon the heirs referred to above but upon the heirs of the father; and any property inherited by a female Hindu from her Husband or from her father in law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon their referred to above, but upon the heirs of the husband. Section 16 talks about order of succession and manner of distribution among heirs of a female Hindu.- The order of succession among the heirs referred to in Section 15 shall be and the distribution of the intestate’s property among those heirs shall take place according , to the following rules, namely: Rule 1 - Among the heirs specified in sub-Section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously. It declares that among the heirs enumerated in entries (a) to (e) of Section 15, those heirs referred to in prior entry are to be preferred to those in any subsequent entry and those included in the same entry are to succeed simultaneously. Rule 2 - If any son or daughter of the intestate had predeceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death. It states that in case of the children of a predeceased son or daughter, they shall not take per capita with the son and daughter of the intestate but shall take per stripes i.e. the children and the predeceased son or daughter shall succeed to the property of the intestate as if the predeceased son or daughter was alive at the time of inheritance. Rule 3 - The devolution of the property of the intestate on the heirs referred to in clauses (b), (d)
and (e) of sub-Section (1) and in sub-Section (2) to Section 15 shall be in the same order and according to the same rules as would have applied if the property would have been the father’s, the mother’s or the husband’s as the case maybe, and such person had died intestate in respect thereof immediately after the intestate’s death. It is applicable only when succession is in terms of entry (b), (d) or (e) of Section 15(1). This rule 3 is to be invoked when under rule 1 the heirs of the husband or the father or the mother are to be ascertained for purpose of distribution of property. The joint family system in our country has slowly been eroded and an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more economically independent. With the growth of the nuclear family a married woman dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Recently Law Commission Report 207 recommended amendment in S 15 of Hindu Succession Act, 1956. The amendment will basically change the position of heirs in case female dies intestate leaving her, self acquired property. General Rules:
18. Full blood preferred to half blood- Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect. Section 19. Mode of succession of two or more heirs- If two or more heirs succeed together to the property of an intestate, they shall take the property, - a) Save as otherwise expressly provided in this Act, per capita and not per stripes; and b) As tenants-in-common and not as joint tenants. Section 20. Right of child in womb- A child who was in the womb at the time of the death of an intestate and who is subsequently born alive have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. Section 21. Presumption in cases 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.
- Preferential right to acquire property in certain cases. –
Where a person who had participated in a murderous attack on his father along with others, who were convicted of murder in that case, was given a benefit of doubt and was convicted under Section 324 I.P.C. instead of Section 302 IPC, even then the disqualifications mentioned in Sections 25 and 27 will come into play and operate against that person inheriting or deriving any beneficial interest in the property possessed or held by his father.” In Vallikanna v. R. Singaperumal & others, it has been held that a person who has murdered his father or a person from whom he wants to inherit, stands totally disqualified. Section 27 of the Hindu Succession Act makes it further clear that if any person is disqualified from inheriting any property under this Act, it shall be deemed as if such person had died before the intestate. That shows that a person who has murdered a person through whom he wants to inherit the property stands disqualified on that account. That means he will be deemed to have pre-deceased him. The effect of Section 25 read with Section 27 of the Hindu Succession Act, 1956, is that a murderer is totally disqualified to succeed to the estate of deceased. That means that a person who is guilty of committing the murder cannot be treated to have any relationship whatsoever with deceased’s estate. Conversion: Section 26 disqualifies the convert’s descendants and the children born to such descendants to inherit the property of any of their Hindu relatives. But the children or descendants of such children born after his conversion are not affected by the rule if they are Hindus at the time when the succession opens. Section 26 runs as under: “Where before or after the commencement of this Act a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindu at the time when the succession opens.” It is interesting to note that the converts have not been disqualified to inherit; only his descendants or children of descendants have been disqualified to inherit, in case they don’t remain Hindu at the time when the succession opens. The section is retrospective in operation and applies to those persons also who had become convert before the commencement of this Act. Thus where ‘A’ has got three sons namely ‘B’ ‘C and ‘D’ and ‘D’ converts to Christianity during the life time of A. On the death of A, ‘D’ will be entitled to claim a share along with ‘B’ and ‘C. He would not be disqualified to inherit as per Section 26 of the Act and would get 1/3 share in the property of ‘A’. In the above illustration if D dies after conversion during the lifetime of ‘A’ leaving behind him his two sons ‘M’ and ‘N’, who are born to him after conversion, ‘M’ and ‘N’ would be excluded from inheritance.
Disease, Defect or Deformity not to Disqualify: Under the old Hindu law physical disability or want of organ viz, deafness, dumbness, congenital and incurable blindness, leprosy etc, mental disability like lunacy, idiocey etc. were the grounds of exclusion from inheritance. The Hindu Inheritance (Removal of Disabilities) Act, 1928 removed all the disqualifications except lunacy or idiocey. Section 28 of the Act has declared that defect, disease, deformity etc. shall not be the grounds of exclusion from inheritance. The only disqualifications under the Act are those which have been mentioned in Sections 24 to 26. Section 28 runs as follows: “No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity or save as provided in this Act, on any other ground whatsoever.” Escheat in Hindu Law Section 29 of the Hindu Succession Act, 1956 deals with the provisions of Escheat and according to Giridhari Lal vs. Government of Bengal (12 MIA 448), the Privy Council held that the Crown cannot take an estate unless it affirmatively would establish that there were no other heirs. The Privy Council held that when the Crown would take the property as the ultimate heir, it would take it as if it were an ordinary heir ... and have duties to perform ceremonies of the deceased, whose lands were escheated, and also to pay the debts if any to the debtors. The Supreme Court of India has upheld the escheat in Maharaja of Jaipur vs. Ramachandra (AIR 1968 SC 954). Testamentary Succession: Section 30 of the Hindu Succession Act, 1956 says that any Hindu may dispose of by will or other testamentary disposition any property, which is capable of beings so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. It is suggested to go through class notes also.
