Submitted by Rohini Kamble
Uniform laws of succession are laid down by the Hindu Succession Act, 1956 which is based on the principles of propinquity i.e preference of heirs on the basis of proximity on relationship. There are two types of succession viz;
1) testamentary succession and;
2) intestate succession
1) TESTAMENTARY SUCCESSION:
Testamentary succession is one which is governed by a testament or a will. In this case a male or female is supposed to make a will and the same will take effect on their death. The person making a will is called as testator or testatrix and the one in whose favour it is made is called a legatee. The will must be valid otherwise the rules of inheritance will apply, this is the only condition that needs to be fulfilled.
2) INTESTATE SUCCESSION:
If a person dies without making a will, then it is called as intestate succession. In such cases the property devolves as per the rules of inheritance. The person who dies without making a will is called as 'intestate' and those who are entitled to get the share out of his property are called 'heirs' and this whole process is known as 'intestate succession'.
i) Property subject to the rule of intestate succession:
The very first and important condition for the application of laws of inheritance is that there should not be a proper will. The property will then be devolved as per section 8 of the Hindu Succession Act, 1956 which deals with the succession in case of a male Hindu dying intestate.
ii) Separate property or self acquisition:
This includes the property that the deceased might have earned i.e his salary or a share in profits or what he may have received through a gift or will or through inheritance from any relative or received by way of a prize or a lottery. It is irrespective of the fact whether he was a member of Mitakshara undivided family, as a coparcener is also empowered to hold separate properties.
iii) Undivided share of a Male Hindu in Dayabhaga Joint family:
An undivided share of a Male Hindu in Dayabhaga joint family would be subjected to the applicability of section 8 of the Hindu Succession Act, 1956 and the doctrine of survivorship would not come into play.
iv) Death of male Hindu after commencement of the Act:
The Act does not require the male Hindu to die after the commencement of the Act. For example. a Hindu male settles his property on his wife for her life, after her death, in favour of her daughter. The husband dies in 1933, and the wife dies in 1945, so the property would go to the daughter, who dies after the commencement of the Act. The succession would then open; since there is no one after the daughter who is appointed to succeed.
II] CLASSIFICATION OF HEIRS:
The heirs are divided into four categories viz;
class I, class II, class III (agnates), class IV (cognates).
Initially, before 2005, there were 12 entries; out of which 8 were female and 4 were male. Post 2005 there were 16 entries, out of which 11 are female and 5 are male. The intention of the legislation was to favour the women pre-dominantly. The classes are mutually exclusive, i.e even if any one member of class-I is present, the member of class-II would be excluded. Before 1956, only 14 categories of persons could succeed. Now there is no limitation on the number of persons who are entitled to succeed the property and be removed from the intestate.
i) Class-I Heirs:
As mentioned above there are 11 females and 5 males in this category. It prevents the property from going to the class-II category if any one of these class I members is present. Following are the class I heirs;
1) Mother (M)
2) Widow (W)
3) Daughter (D)
4) Daughter of a predeceased son (SD)
5) Widow of a pre-deceased son (SW)
6) Daughter of pre-deceased daughter (DD)
7) Daughter of pre-deceased son of pre-deseased son
8) Widow of a pre-deceased son of pre-deceased son
10) Son of pre-deceased son
11) Son of pre-deceased son of pre-deceased son
12) Son of pre-deceased daughter
13) Daughter of pre-deceased daughter of pre-deceased daughter
14) Son of pre-deceased daughter of pre-deceased daughter
15) Daughter of a pre-deceased daughter of a pre-deceased son
16) Daughter of a pre-deceased son or pre-deceased daughter
The word 'mother' does not include a step mother but it includes a biological as well as an adoptive mother. This was held in Padmavati Mishra v. Sumitra Devi. It is irrespective whether the mother is married or unmarried at the time of birth of the son, she is always related to her child. Therefore, the marital status of the mother as well as her conduct i.e chastity is irrelevant when it comes to the claiming of inheritance. The legitimacy of the child is also of little consequence.
The mother, under the Hindu Code Bill of 1948 was a class II heir, placed in entry (i) and this same position continued at the time of introduction of Hindu Succession Bill in the Parliament. Both the parents should be placed in the class I category if both are to be treated on an equal footing.
It was held in Margabandhu v. Kothandarama, (1983) 2 Mad LJ. 445, that the term widow does not include a divorced wife rather it includes the wife who at the time of the death of the male Hindu, was living separately under decree of judicial separation.
The widow of an intestate takes equal share to that of the son. According to section 10 Rule (1) of the Hindu Succession Act, if there are more than one widow, then they will have the share as tenants-in-common. They will have one share equal to the share of the son and divide it amongst themselves.
In Dalijit Kaur v. Amarjit Kaur; it was held that unchastity is a ground for divorce but not a disqualification for succession rights on the other hand a contradictory judgement was passed by Andhra Pradesh High Court which based on the principles of equity, justice and good conscience. In Krishnamma v. P Subramanayam Reddy, a Hindu wife deserted her husband so as to live with her paramour and gave birth to his children. She re-appeared on the scene when her husband was dead in order to claim his property. The court held that this could not be possible since the women lived under the roof of another man and had begotten his children and also that her marriage was voidable which became void after the death of her husband therefore her claim was rejected.
The daughter holds a place in class-I heirs. The expression daughter includes a natural born or an adopted daughter, it does not include a step daughter or illegitimate daughter. The Act does not make distinction between the rights of a married and an unmarried daughter. Her financial status, chastity, marital status is immaterial even if she has been discarded by her father, section 23 of the Hindu Succession Act, allows her to take part in succession.
The expression 'son' does not include a step son or an illegitimate son neither a grandson, it includes a natural born son or an adopted son. The son, under the Act takes an absolute interest in the property on the other hand his son cannot claim a right from birth in it. Under classical law the son was a primary heir whereas, under Mitakshara law the share is taken by inheritance therefore, we see that the right of a son to inherit his father's property has never been in dispute.
III] MODES AND MANNERS OF DISTRIBUTION OF SHARES
1) Class I heirs:
Section 10 provides rules for distribution of shares among class I heirs. Following are the rules for distribution of property of an intestate.
i) Share of each son and daughter and of the mother is equal.
ii) The widow takes one share and if there is more than one widow then all of them collectively, will take one share i.e a share equal to the share of the son, and will divide it equally amongst them.
iii) A predeceased son, who is survived by a son, daughter or a widow, is to be allotted a share equal to the share of a living son.
iv) Out of such share allocated to the branch of this predeceased son, his widow (or widows together) and each living son and daughter will take equal portions with respect to each other and branch of any predeceased son will also get an equal portion.
v) The rules applicable to the branch of a predeceased son of predeceased son, are the same, viz; the sons, daughters, and the widow or (widows together, will get equal portions.
vi) A predeceased daughter, who is survived by a son or a daughter, is to be allotted a share equal to that of a living daughter.
vii) Such share will be taken equally by the sons and daughters of the predeceased daughter.
2) Class II heirs:
Persons from class- II heirs are excluded even if a single heir from class-I is present. In Kumar Bhattacharu v Pratima Chakraborty, it was held that a Hindu male dies intestate without leaving any heir the property will devolve among the class-II heirs.
It was held in Hari Singh v Joginder Singh, that when a brother is present the nephew cannot inherit. The presence of one will exclude the other i.e the heir present in first class will exclude the heirs in the second class and the heirs present in second class will exclude those in the third class and so on. There are 19 heirs in this category they are divided into 9 sub categories. Following are the heirs and their sub categories;
II) (1) Son's daughter's son
2) Son's daughter's daughter (now also placed in class-I category) 3) Brother
III] (1) Daughter's son's son
2) Daughter's son's daughter (now also placed in class-I category)
3) Daughter's daughter's son (now also placed in class-I category)
4) Daughter's daughter's daughter (now also placed in class-I category)
IV] 1) Brother's son
2) Sister's son
3) Brother's daughter
4) Sister's daughter
V] Father's father; father's mother
VI] Father's widow; Brother's widow
VII] Father's brother; Father's sister
VIII] Mother's father; Mother's mother
IX] Mother's brother; Mother's sister
# The term 'brother and sister' here, does not include a reference to a brother or sister by uterine blood.
3) Class-III heirs (Agnates):
Agnates are the persons related to the intestate through male relatives only. It is not the sex of the heirs that matters, but the chain of relatives that does. Therefore, an agnate himself/herself can be male or a female. Agnates can be direct ascendants, direct descendants or collaterals.
# RULES OF PREFERENCE AMONG GENERAL AGNATES
i) Each generation is called a degree.
ii) For the computation of degrees, the starting or the first degree, is the intestate himself.
iii) Degrees of ascent means in the ancestral or upwards direction.
iv) Degrees of descent means in the descendant or downwards direction.
v) Where an heir has both ascent and descent degrees each of them has to be seen separately and not cumulatively.
vi) An agnate who has only descent degree, is preferred over the one who has only ascent degrees.
vii) Where two agnates have ascent and descent degrees, the one with fewer ascent degrees will be preferred.
4) Class-IV (Cognates):
'Cognates' are the residue of the relatives who are mixed. The chain of relatives is mixed and even if a single female intervenes, it is a cognatic chain. For example: an intestate's paternal aunt's son is his cognate but his parental uncle's daughter will be an agnate.
Submitted by Rohini Kamble