Section 25 to 27 of the Hindu Succession Act, 1956 discusses the disqualification of heir under certain circumstances and the effects of such disqualification.

Murderer Disqualified:

Section 25: The Hindu Succession Act, 1956:

Murderer disqualified.―

A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.

Under Section 25 of the Hindu Succession Act if any person found guilty of the murder or abetment of murder of the deceased intestate shall forfeit his or her right to succeed to the property of the deceased.

In Smt. Kasturi Devi vs D.D.C., AIR 1976 SC 2105 case, it was held by the Privy Council that upon principles of equity, justice and good conscience the murderer should be disqualified from succeeding to the estate of the person whom he has murdered and he would not be regarded as a fresh stock of descent but should be regarded as non-existent.

Convert Descendants Disqualified:

Section 26: The Hindu Succession Act, 1956:

Convert’s descendants disqualified.―

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 Hindus at the time when the succession opens.

Thus conversion of an heir is not a bar to succession. But the children of a Hindu convert to a non-Hindu religion cannot inherit. But if such children or descendants are Hindu at the time when succession opens then they can succeed. Thus offspring also become disqualified to inherit the property unless they become reconverts to Hinduism at the time of intestate’s death.

Section 27: The Hindu Succession Act, 1956:

Succession when heir disqualified.―

If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate.

Section 27 of the Hindu Succession Act lays down that if any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate. Moreover, such offspring of disqualified heirs (who are entitled to succeed) mentioned in Sections 25 and 26 shall succeed to the estate of the intestate as if their father-disqualified ancestor predeceased the intestate when the succession opened.

Section 28: The Hindu Succession Act, 1956:

Disease, defect, etc., not to disqualify.―

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.

The old law of succession had rules of disinheritance based upon disqualifications e.g. lunacy and idiocy. Similarly, the unchastity of the widow disqualified her for inheritance. Now the Hindu Succession Act, 1956 removed all these disqualifications and diseases, defect or deformity is no ground of exclusion from inheritance under the Act.

Previous Topic: General Rules of Succession (Ss. 18 to 24)

Indian Legal System > Civil Laws > Family Laws > The Hindu Succession Act, 1956 > Disqualification of Heir

The post Disqualification of Heir appeared first on The Fact Factor.

Sections 18 to 24 of the Hindu Succession Act, 1956 lays down general rules of succession in Hindus. Sections 23 and 24 dealing with Special provision respecting dwelling-houses and Certain windows re-marrying may not inherit as windows are deleted in New Act of 2005.

Full Blood Preferred:

Section 18: The Hindu Succession Act, 1956:

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.

Under Section 18 of the Act, heirs descending from the common ancestor by the same wife are to be preferred to those who are descended from the same common ancestor but by different wives. Thus the full sister’s daughter shall be preferred to half-brother’s son.

Devolution Per capita:

Section 19: The Hindu Succession Act, 1956:

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 stirpes; and
(b) as tenants-in-common and not as joint tenants.

Each heir shall take his or her share individually and not branch wise. The heirs shall not succeed the estate of the deceased jointly but take their individual shares simultaneously finishes off the joint family system, which was the backbone of Hindu society in good olden days.

Right of Child in Womb:

Section 20: The Hindu Succession Act, 1956:

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 shall 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.

The child in the womb at the time of the intestate’s death has been given the right to share the property of the deceased if it is born alive subsequently. The inheritance in such a case shall be deemed to vest in the child with effect from the date of the death of the intestate. If however a child is born he or she will divest the shares allotted to other heirs and there will have to lie a re-adjustment of the shares.

If however, the other heirs upon whom the property might have vested belong to class II of the· Schedule then they will be completely divested and excluded from their shares and thereafter born child whether a son or a daughter shall alone inherit the entire property.

The Presumption in Case of Simultaneous Death:

Section 21: The Hindu Succession Act, 1956:

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.

For example, a father F, and a son S die in air-crash. In this case S (being younger to F) is presumed to have survived F.

In another case, a testator and his wife (who was younger to him in age) died simultaneously of a gunshot wound. The court held that the wife should be presumed to have survived the husband testator.

Preferential Right to Acquire Property:

Section 22: The Hindu Succession Act, 1956:

Preferential right to acquire property in certain cases.―

(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.

(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation.―In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.

Section 22 of the Hindu Succession Act embodies the law which is more or less analogous to the law of pre-emption as it is understood under the Mohammedan Law. It confers upon the heirs of Class I of the Schedule a preferential right to acquire an interest that any other heir of the same class may be contemplating to transfer to an outsider. This will be known Right of pre-emption with regard to sales has been extended with scope to all kinds of transfers including sales, mortgages, gifts, and leases, etc. It has been further extended by including immovable property along with the business.

Sub-section.(2) of Section 22 provides that the consideration for which any interest in the property of the deceased may be transferred in the absence of any agreement between the parties be determined by the Court on application made for the purpose and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs or of incidents to the application.

Sub-section (3) of Section 22 of the Act lays down that if there are two or more heirs specified in Class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

In the case of Nagannal vs Nanjammal, 13 (1970) MLJ 358  case the Madras High Court said Section 22 embodies two-fold aspects of the right of preemption viz. (i) the primary and substantive right to have an offer made; arid (ii) the secondary or remedial right of the co-heirs if the property is sold without being first offered to him to take it from the purchaser. This right is personal and is not attached to the property.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Succession Act, 1956 > General Rules of Succession

The post General Rules of Succession (S. 18 to 24) appeared first on The Fact Factor.

Section 15 and 16 of the Hindu Succession Act, 1956, give general rules of succession in the case of female Hindus

Section 15: The Hindu Succession Act, 1956:

General rules of succession in the case of female Hindus.―

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,―
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),―
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) 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 pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

Section 16: The Hindu Succession Act, 1956:

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 included in the same entry shall take simultaneously.
Rule 2.―If any son or daughter of the intestate had pre-deceased 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.
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) of section 15 shall be in the same order and according to the
same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s
death.

Section 29: The Hindu Succession Act, 1956:

Failure of heirs. (Escheat)―

If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.

Illustrations:

1. The surviving heirs of a Hindu woman are three sons, two daughters, and the husband. Under Section 15, sons, daughters and the husband are in the first entry (a). Section 16 lays down that those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Thus there are 6 persons satisfy the criteria of the entry. Hence property will be divided into 6 equal parts and each takes one-sixth share.
2. The surviving heirs are a son, a daughter, a predeceased son’s son and a predeceased daughter’s son and another predeceased daughter’s daughter.  There are 5 persons (a son, a daughter, a predeceased son’s son and a predeceased daughter’s son and another predeceased daughter’s daughter) mentioned in the first entry (a) of Section 15. Section 16 lays down that those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.  Thus there are 5 persons satisfy the criteria of the entry. Hence property will be divided into 5 equal parts and each takes one-fifth share.
3. The surviving heirs are a son and husband’s brother. The Son is mentioned in the first entry (a) and heirs of brother are mentioned in the second entry (b). Section 16 lays down that those in one entry shall be preferred to those in any succeeding entry. The son gets the whole estate to the exclusion of the husband’s heirs (husband’s brother).
4. The surviving heirs are the husband’s brother and the mother and the father. The husband’s brother excludes the father and the mother. The husband’s heirs (husband’s brother) is mentioned in the second entry (b) and mother and father are mentioned in the third entry (c). Section 16 lays down that those in one entry shall be preferred to those in any succeeding entry. The husband’s brother excludes the father and the mother.
5. The surviving heirs are mother, father and father’s mother. The mother and father are mentioned in the third entry (c) and heirs of the father (father’s mother) is mentioned in the fourth entry (d). Section 16 lays down that those in one entry shall be preferred to those in any succeeding entry. The Mother and father two take in equal share to the exclusion of the father’s mother.
6. The property was inherited from father. The surviving relations are husband’s heir. No heir of the father survives the deceased. Subsection 2 Clause (a) of Section 15 lays down that any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father. But in this case the father is diseased and there is no heir of him. Then Under Section 29 of the Act, if an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject. Thus the property will go to the Government by escheat and not to the heirs of the husband.
7. The property was inherited from her husband. No heirs of the husband survive her. Subsection 2 Clause (b) of Section 15 lays down that 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 pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. In this case, no heirs of the husband survive her. Then Under Section 29 of the Act, if an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject. Thus the property will go to the Government by escheat and not to persons or the heirs of the parents of the deceased.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Succession Act, 1956 > General Rules of Succession In the Case of a Female Hindu

The post General Rules of Succession in the case of Female Hindus (S. 15 and 16) appeared first on The Fact Factor.

Sections 14 to 16 of the Hindu Succession Act 1956 specify the rules for the succession to the property of a Hindu female (succession of Hindu Female). Section 14 of the Act specifies general rules while Sections 15 and 16 describe and provide details for the rules laid down in section 14 of the Act.

Before the commencement of the Hindu Succession Act, 1956 a female Hindu possessed two kinds of property: 1. Stridhana and 2. Hindu Women’s Estate
Over the Stridhana, she had full ownership and on her death, it developed on her heirs. Even as regards property in which she acquired Hindu Women’s Estate, her position was that of the owner but her power of alienation was limited and on her death, the property devolved on the next heir of the last full owner and not on her heir. The Hindu women’s limited estate is abolished and any property possessed by a female Hindu howsoever acquired is now held by her as absolute property and she has full power to deal with or dispose of it by will as she likes.

Section 14 of the Act, brought about fundamental and radical changes in the position and status of the Hindu females. The reason for including this provision was to ensure to women equality of status and of opportunity with men in relation to the title to and enjoyment of the property.

The provisions laid down in Section 14 of the Act are as follows:

Section 14: The Hindu Succession Act, 1956:

Property of a female Hindu to be her absolute property.―

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.―In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under
a will or any other instrument or under a decree or order of a civil court or under an award where the
terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such
property.

As per the explanation of Section 14(1), the word ‘Property’ includes both movable and immovable property acquired by a female Hindu. The property may be of the following description as property acquired:

1. by inheritance or device; or
2. by a partition; or
3. in lieu of maintenance or arrears of inheritance; or
4. by a gift from any person whether a relative or not, before at or after her marriage; or
5. by her own skill or exertion; or
6. by purchase or by prescription; or
7. in any other manner whatsoever and
8. also, any property held by her as Stridhana immediately before the· commencement of this Act.

This section explicitly declares the law that a female holds all property in her possession whether acquired by her before or after the commencement of the Act as an absolute owner and not as a limited owner. The rule applies to all property movable and immovable howsoever and whenever acquired by her, but subject to the qualification mentioned in Subsection (2).

Section 14 of the Act confers absolute ownership on a female Hindu i.e., the widow of the last male holder in respect of all properties left by a male Hindu which was in her or their possession on the date of the commencement of this Act, even though the husband or the male Hindu had died long before the commencement of the Act. Thus Section 14 of the Act is retrospective in effect. Under Section 14 the estate taken by a Hindu female under that provision is an absolute one and is not defeasible under any circumstances. The ambit of that estate cannot be cut by any text rule or interpretation of Hindu law.

According to S 14(2), the owner of a property is competent to confer a limited estate in favour of any Hindu female voluntarily and such limited estate would not mature into an absolute one. The reason is that the owner has a liberty to make a disposition of the property in accordance with his wishes. However, where even under a will, the property was given to the Hindu female in lieu of her pre-existing maintenance rights, such property notwithstanding the fact that it was bequeathed to her as a limited estate, would mature into an absolute ownership.

According to sub-section (2) the female Hindu does not become absolute owner of the property acquired by gift, will or any other instrument, decree or order of a Civil Court or an award if such gift, will or instrument, decree, order or award gives her only restricted right.

In Punithavalli v. Ramalingam, AIR 1970 SC 1730  the Supreme Court pointed out that the estate taken by a female Hindu under Subsection (1) of Section 14 of the Act, is an absolute one and is not defeasible and its ambit cannot be cut down by any text or rule of Hindu law or by any presumption or any fiction under that law. Further Court held that the property possessed by a female Hindu on the date when the Act came into force whether acquired before or after the commencement of the Act shall be held by her as full owner thereof.

In Radha Rani Bhargava v. Hanuman Prasad Bhargava, AIR 1966 SC 216 case, the Court observed that the position is that the Hindu female will no longer hold the property as a limited owner rather she is as an absolute owner. The reversioner’s rights are entirely abrogated by the Act with regard to the properties held by a Hindu female. The reversioner cannot have any locus standi to challenge the right of the Hindu female. However, a reversioner has a right to challenge a transfer of property made by a widow before the enforcement of this Act on the ground that the transfer was made by the widow without any legal necessity or lawful authority. The Court held that such an action would be maintainable even after the enforcement of the Act.

The decision of the above case can be summarized as follows:

1. It does not apply to women’s estate over which the Hindu female has no possession when the Act came into force. In such a case old Hindu law continues to apply. For the application of the present Act possession by a woman on the date when Act came into force is essential.
2. It has qualified retrospective application and converts only that estate into full estate over which she has possession when the Act came into force, the possession may be actual or constructive.

In S.C.Shukla v. Maharaj, AIR 1985 SC 905 case, the Supreme Court recognized the principle of enlargement of limited estate right of the widow.

In Pratap Singh v Union of India AIR 1985 SC 1694 case, the Court held that Section 14 (1) is not violative of art 14 or 15(1) of the constitution. Nor is it incapable of implementation.

In Agasti Karuna v. cherukuri Krishnaiah, 2000 AIHC 84(AP) case, the Court held that where a widow was put in possession of the property by a deed executed by her husband giving her life estate in 1945, she was held to have become an absolute owner by virtue of section 14(1). Any alienation made by her, could not, therefore, be challenged by other heirs of the deceased husband.

In Gulab v. Vuhai, 2000 AIHC 913 (Bom) case, where a widow after the death of her husband was residing in one-third portion of the house with her brother-in-law, it was held that after the coming into force of the Act she became the absolute owner of the portion notwithstanding the fact that in the partition deed made in 1938 it was stated that she has only a right of residence therein. A registered gift deed executed by her in 1965 was consequently held to be valid.

In Mahesh Kumar Pate v. Mahesh Kumar vysa, 2000 AIHC 485 (MP) case, the Court held that a widow’s limited interest in the property of her deceased husband given to her in lieu of maintenance by way of compromise prior to the Act was held to have ripened into full ownership right after the Act.

In Bhikabai v. Mamtabai, AIR 2000, Bom 172 case, when the first wife died in 1923 before the death of the deceased husband, and two widows who were surviving in 1946 inherited as widow’s estate as joint tenants, they became absolute owners on the coming into force of the Act in 1956. On the death of one of them in 1974 without any heirs, the sole surviving widow would succeed to the entire property by survivorship. The daughter of the widow who died in 1923 was held not entitled to property which devolved on the surviving widow.

In A. K. Laxmanagounda v. A.K. Jayaram, AIR 2001 Kant 123 case, a sale deed was challenged by the sons on the ground that the mother had only a life interest in the property. The facts were that the deceased had bequeathed the property to the sons and life interest was created in favour of the widow in lira of maintenance. Her life interest blossomed into absolute ownership by virtue of section 14(1) of the Act. The widow sold the properties to meet the marriage expenses of her daughter and she sale deed executed by her was for valid consideration. The alienation was held to be legal and valid.

In Kuthala Kannu Ammal v. L Nadar, AIR 2001Mad 320 case,  where the widow was granted property during partition in recognition of her right of maintenance and subsequently the Act came into force, it was held that her limited right transformed into full ownership entitling her to execute a gift deed of the same to her grandson.

In Gulabrao Balwant Rao Shinde v. Chhabubai Balwant Rao Shinde, AIR 2003 SC 16 case, the dispute was between the children of two widows. The deceased had remarried after the death of the first wife. Children of the first wife filed a suit for recovery of half share of property left by their father whereas the respondents, children of the second wife, claimed ownership of entire property on the plea that their mother was the absolute owner of those properties. The high court held that the second wife possessed properties left by the husband in lieu of maintenance and after coming into force of the Hindu Succession Act, her right enlarged into full ownership. On appeal by the children of the first wife, the court held that in the absence of any pleadings and evidence to the effect that deceased had given the property to the widow in lieu of maintenance, the high court was wrong in holding that property in her possession became her absolute property. Moreover, the property in the hands of the deceased being ancestral, entire property could not have been given to the wife by way of maintenance.

In Gorachand Mukherjee v. Malabika Dutta, AIR 2002 Cat. 26 case, where a widow who had no pre-existing right of maintenance was given right of possession to the suit property till the death of her maternal uncle and aunt it was held that her life interest could not ripen into absolute title under section 14(1). The court held that the maternal uncle or aunt had no moral or legal obligation to maintain their niece and the right to possession of property given to her by them is not in lieu of maintenance and so it does not ripen into absolute right.

In P. Achyut Rao v. Union, AIR 1977 AP. 337  case, the Court held that the Sub-section (2) to Section 14 covers any kind of instruments besides the deed of gift, or will. Such other instruments may be a partition deed, a deed relating to maintenance, joint family settlement deed etc. Where any property is given to daughter-in-law for life interest through a will, she cannot validly transfer that property to another person for a period extending beyond her life time. The transferee will have interest in it till the life time of the transferor.

In Pentapali Subba Rao v. Jupudy Pradhasarthy, AIR 2007 (NOC) 220 (AP) case, where the husband settled the property in favour of his wife through the will, in lieu of her maintenance rights, such property would become her absolute estate on the commencement of the 1956 Act, in the provision of S14 (2) would not be attracted.

In 1987 the Supreme Court decided a landmark case in Jagannathan Pillai v. Kunjithapadam Pillai, AIR 1987 S.C. 1493 case, in which the scope of Section 14(1) was considerably enlarged. The court observed that “the expression “possessed” has been used in the sense of having a right to the property or control over the property. The expression “any property” possessed by a Hindu female whether acquired before or after the commencement of the Act” on an analysis yields to the following interpretation:

(1) Any property possessed by Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner.

(2) Any property possessed by a Hindu female acquired after the commencement of the Act will be held as a full owner thereof and not as the date of coming into operation of the Act is not the sine qua non for the acquisition of full ownership in the property. In fact, the intention of the legislature was to do away with the concept of limited ownership in respect of the property owned by a Hindu female altogether.

In Sulbha Gounduni v. Abhimanyer Gouda, AIR 1982 Orissa 71 case, the Court held that when the widow received only maintenance allowance and not in possession of any property in, lieu of maintenance Section 14 is not applicable.

In Karuppudayar v. Periathambi Udayar, AIR 1966 Mad 165 case, the Court held that widow divesting herself of possession by a settlement deed executed by her before the Act and dying after passing of the Act, then Section 14 of the Act, is not applicable.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Succession Act, 1956 > Succession In the Case of a Female Hindu

The post Succession in the Case of Female Hindu (S. 14) appeared first on The Fact Factor.

Sections 8 to 13 of the Hindu Succession Act 1956 specify the rules for the succession to the property of a Hindu male (succession of Hindu Male). Section 8 of the Act specifies general rules while Sections 9 to 13 describe and provide details for the rules laid down in section 8 of the Act.

Section 8 of the Act lays down the procedure of devolvement of a property of a male Hindu dying intestate (without making a will). The three recognized classes of heirs: Sapindus, samanodakas, and bandhus cease to exist after the coming into force of the Act. The heirs are divided only in four classes under the Act, viz., (i) heirs in class I of the Schedule, (ii) heirs in class II of the Schedule, (iii) agnates, and (iv) cognates.

The Act confers full heritable capacity on the female heir and this section dispenses with the traditional limitations on the powers of a female Hindu to hold and transmit property.

Section 8: The Hindu Succession Act, 1956:

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 I, 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 agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.

Class- I Heirs:

As per the schedule of the Act, the following are class 1 heirs:

i) son; ii) daughter: iii) widow; iv) mother; v) son of a pre-deceased son: vi) daughter of a pre-deceased son; vii) son of a pre-deceased daughter; viii) daughter of pre-deceased daughter; ix) widow of a predeceased son: x) son of a pre-deceased son of a pre-deceased son, xi) daughter of a pre-deceased son of a pre-deceased son; xii) widow of a pre-deceased son of a pre-deceased son.

By the Hindu Succession (Amendment) Act, 2005 the following heirs have been added to the list of heirs of class 1. xiii) son of a pre-deceased daughter of a pre-deceased daughter; xiv) daughter of a pre-deceased daughter of a predeceased daughter: xv) daughter of a pre-deceased son of a pre-deceased daughter; and xvi) daughter of a pre-deceased daughter of a pre-deceased son.

Class 1 contains a list of 16 persons. Out of these 16 relations, 5 are males and 11 are females. Of them, the son, the daughter, the widow and the mother are the only four primary heirs and they inherit by reason of their own relationship to the propositus. The others are the 2nd. 3rd and 4th-degree descendants of the propositus and get their shares because they are related to the propositus through his predeceased son or predeceased daughter. Regarding ascendants of the propositus, only his mother is a class I heir; all other heirs (except the widow or the propositus) are his descendants or their widows. Widows of predeceased son and grandson are class I heirs. The husband of a deceased daughter or granddaughter is not an heir at all.

List of Class II Heirs

I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4)
daughter’s daughter’s daughter.
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.
Explanation.―In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.

Section 9: The Hindu Succession Act, 1956:

Order of succession among heirs in the Schedule.―

Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.

According to Section 9 heirs in Class I of the Schedule are to succeed simultaneously, in other words, they form one group of heirs and succeed in a body. Heirs mentioned in Class II are excluded so long as there is even a single heir in Class I. Heir mentioned in Class- I succeeds in preference to all others mentioned in Class II. For instance, if a male dies intestate, leaving only a daughter and father surviving him, the daughter shall succeed in preference to the father in the entry I of class II.

When deciding Class-II heirs, it should be noted that the heir mentioned in higher entries have preference over those mentioned in the lower entry. In the same entry, all of the mentioned heirs have the same weight.

Illustrations:

1. A, a male Hindu dies leaving surviving heir a son S, a father F, and a  mother M, and a daughter D. In this case, the son S, the daughter D and the mother M will inherit because they are Class I heir as per Schedule of the Act. The whole property will be distributed among them. Father F will be excluded because he is Class II heir as per Schedule of the Act. Thus father will not get any share of the property.
2. A, a male Hindu dies leaving surviving him a widow W, and a son of a predeceased son S, sister FD and a brother’s son BS. In this case, the widow W and S will succeed in getting the property because they are Class I heir as per Schedule of the Act. While sister FD (Father’s daughter) and BS (Brother’s son) will be excluded because they are Class II heir as per Schedule of the Act. Thus FD and BS will not get any share of the property.
3. A, a male Hindu dies leaving surviving him a brother FS and brother’s grandson FSSS. There is no Class – I heir in this case. So we have to look for Class- II heir. Brother FS is mentioned at the second level in Class – II heir. Brother’s grandson is not present in Class-II heir. Brother’s grandson is related to diseased by blood through males. Hence he is agnate. Under Section 8 of the Act, as Class – II heir is available the whole property will go to brother FS and the agnate Brother’s grandson will not get any share of the property.
4.  A, a male Hindu dies leaving surviving him brother’s grandson FSSS and brother’s daughter’s son BDS. In this case both Class – I heir and Class – II heir are not present. Brother’s grandson is related to diseased by blood through males. Hence he is agnate. While the brother’s daughter’s son BDS is related to diseased by blood through the female. Hence she is cognate. Under Section 8 of the Act, agnate has a preference over cognate. Hence the whole property will go to brother’s grandson FSSS and brother’s daughter’s son BDS will not get any share of the property.

Section 10: The Hindu Succession Act, 1956:

Distribution of property among heirs in class I of the Schedule.―

The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:―
Rule 1.―The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2.―The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3.―The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.―The distribution of the share referred to in Rule 3—
(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

Illustrations of Rule 1:

1. A dies leaving his widow Y, two daughters M, N and one son Z. There are four Class-I heirs. Hence Property should be divided into 4 equal parts and each heir will get ¼ th of the property.
2. A dies leaving his widows X and Y, two daughters M, N and one son Z. There are 4 Class-I primary heirs. Note that the two widows are considered as 1 entity. Hence Property should be divided into 4 equal parts and two daughters M, N and one son Z each will get ¼ th of the property. The two widows will collectively get ¼ th of the property, which will be divided among them equally, thus each widow will get 1/8 th of the property.

Illustration of Rule 2:

A dies leaving behind his mother M, widow W, two sons S1and S2 and three daughters D1, D2, D3. Thus there are 7 Class-I primary heirs. Hence Property should be divided into 7 equal parts and each will get 1/7^th of the property.

Illustrations of Rules 3 and 4:

1. A dies leaving a widow W, a son S, a daughter D, three sons of a predeceased son S1 and two daughters of a predeceased daughter D1. The widow W, the son S, the daughter D, the predeceased son S1 and the predeceased daughter D1 are the primary heir and are mentioned in Class – I in the Schedule. The property will be divided into 5 equal parts. The widow W, the son S and daughter D each will get 1/5 th property. The three sons of predeceased son will get collectively 1/5 th of property. Thus each son of diseased son S1 will get 1/15 th of property. The two daughters of the predeceased daughter will get collectively 1/5 th of property. Thus each daughter of diseased daughter D1 will get 1/10 th of property.
2. The surviving heirs of A are a son, S, a daughter D, great-grandson S3 by a predeceased son S1 and a granddaughter D1 by another predeceased son. The son S, the daughter D, the predeceased son S1 and the predeceased son are the primary heir and are mentioned in Class – I if the Schedule. The property will be divided into 4 equal parts and each will get 1/4 th of property.

Section 11: The Hindu Succession Act, 1956:

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.

If there is no heir in class I of the schedule property of a male Hindu dying intestate shall devolve upon the heirs in class Ii of the schedule. As regards the order of succession among the heirs of class II, section 11 of the Act lays down that the property of an intestate shall be divided between the heirs specified in any one entry in class II of schedule so that they share equally. One entry shall exclude the next entry. Thus when there is only one heir in a particular entry, he or she alone take the whole of the estate but when there are more heirs than one in the entry then all such heirs shall take equally

Illustrations:

1. A dies leaving his father F, brother FS, and sister’s daughter FDD. None of them from Class – I heir list. We have to check the Class-II heir list. Father is in Entry I, brother is in Entry II and sister’s daughter in Entry IV. Thus father is at the top of the list. Hence the father will get the whole property to the exclusion of two others.
2. A dies leaving brother, sister, father’s brother, mother’s mother.  None of them from Class – I heir list. We have to check the Class-II heir list. The brother and sister are in Entry I, father’s brother is in Entry VII and mother’s mother in Entry VIII. Thus the brother and sister are at the top of the list. Hence the brother and sister, each will get ½ of the property to the exclusion of two others.

Section 12: The Hindu Succession Act, 1956:

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 degrees of descent.
Rule 3.―Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously

Section 13: The Hindu Succession Act, 1956:
Computation of degrees.―

(1) For the purposes of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
(3) Every generation constitutes a degree either ascending or descending.

Previous Topic: Introduction to The Hindu Succession Act, 1956

Next Topic: Succession in Case of a Female Hindu

Indian Legal System > Civil Laws > Family Laws > The Hindu Succession Act, 1956 > Succession In the Case of a Male Hindu

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In this article, we shall introduce the Hindu Succession Act and the changes brought about by it in the Hindu society.

To codify Hindu laws, the Government appointed a small Hindu Law Committee known as the Rau Committee with B. N. Rau, a judge of the Calcutta High Court as its Chairman and three other lawyers as its members.  They were D. N. Mitter, ex-judge of Calcutta High Court; Gharpure, Principal, Law College of Poona; and Rajratna Vasudev Vinayak Joshi, a lawyer of Baroda. This committee toured the country from end to end and gathered evidence from representative bodies and leaders of the communities.  The committee had the able assistance of leading lawyers and jurists. The Committee advocated a Hindu code- a blend of the finest elements of various schools of Hindu law. On the basis of the various private Bills on the property, the Committee evolved a common law of Intestate succession for all Hindus in British India. The Code recognized the equality of status of men and women before the law with appropriate obligations as well as rights.

The Rau Committee reported in June 1941 that the Hindu Code Bill should be taken up by compartments:

1. Hindu Marriage,’
2. Hindu Succession,
3. Hindu Minority and Guardianship,
4. Hindu Adoption and Maintenance.

It was essential to reduce the law relating to each part to a statutory form, and then consolidate the various acts into a single code. There was great opposition to the Succession Act. The opponents of the bill argued that the women members were not representing the general women’s opinion and that the reformers were influenced by Western education and law, instead of Hinduism and were unpatriotic. Many women members of parliament, as well as the congress like Renuka Ray, Durgabai Deshmukh, and Sucheta Kriplani argued that political equality was meaningless without economic and social equality provided by female inheritance rights. The original draft of the provisions relating to intestate succession contained in the Rau committee’s bill underwent substantial changes in the hands of the select committee. In the bill stage itself, various suggestions were made from time to time for amendment of the select committee’s version. Ultimately the Hindu Succession Act came into force on 17th June 1956. It was very much in tune with the changed socio-economic scenario of Hindu society. Under this Act, the long-felt need for improving the lots of Hindu females through effective legislation was fulfilled and their right of inheritance on par with males was fully recognized. It brought about comprehensive and radical changes in the law of intestate succession amongst Hindus.

Objects of the Act:

The objects for the enactment of the Hindu Succession Act are the following:

• To amend and codify the law relating to intestate succession among Hindus.
• To regulate succession to the property of intestates governed by the marumakkattayam and nambudiri laws of inheritance.
• To meet the needs of a progressive society.
• To remove inequalities between men and women with respect to rights in the property

Fundamental Changes Brought About By the Act:

Following are some changes effected under the Hindu Succession Act, 1956

• There were two schools in old Hindu Law namely i) Mitakshara and Dayabhaga governing the Hindu succession. However, the Hindu Succession Act, 1956 brings all the schools into a uniform system.
• In old- law there was a distinction between male and female heirs, but the Hindu Succession Act. 1956 removed the distinction between male and female heirs.
• Under the old law, the rule of preference is based on the right to offer pinda or propinquity of blood, but the order of succession provided by the Act is based on the concept of love and affection.
• Under the old law, a simultaneous succession of different types of heirs was not recognized. Now class 1 heirs take simultaneously under the Hindu Succession Act.
• Under the old law, the samanodakas with the 14th degree marked the limit of agnatic kinship and similarly, five degrees on the mother’s side and seven degrees on the father’s side marked the limits of the cognate relationship. However now these limits have been removed by the Hindu Succession Act,1956.
• The old law gave the benefit of the doctrine of representation only to the sons, grandsons, and great-grandsons of predeceased sons. But the Hindu Succession Act. 1956 extends the benefit of this doctrine also to the children of predeceased daughters and also to daughters of predeceased sons and daughters of a pre-deceased son of a predeceased son as also to the widow of a pre-deceased son and the widow of a predeceased son.
• Under the old law, there were no rights to certain female heirs to succeed to the interest of a Mitakshara coparcener, but the Hindu Succession Act, 1956 has given the rights to a certain female heir to succeed to the interest of a Mitakshara coparcener. Under the old law, there was Stridhana and women’s Estate (Limited Estate), but the Hindu Succession Act abolished Stridhan and women’s estate.
• Under the old law, succession to Stridhana depended upon the nature of the Stridhana and the nature of the marriage (whether approved or unapproved) and the particular school of law to which the parties belonged. The Hindu Succession Act devised a simplified system.
• Under the old law, there was a lot of confusion and disorder in computing the order of succession among agnates or cognates. But the Hindu Succession Act, 1956 made the provisions very clearly the order of succession of agnates or cognates as the case may be.
• Under the old law, the rights of illegitimate issues depended upon the caste to which the parents belonged and they also varied from school to school. Now under the Hindu Succession Act. 1956 illegitimate kinship is recognized only with reference to the mother for purposes of inheritance.
• The old law of succession had rules of disinheritance based upon disqualifications e.g. lunacy and idiocy. Similarly, the unchastity of the widow disqualified her for inheritance. Now the Hindu Succession Act, 1956 removed all these disqualifications and diseases, defect or deformity is no ground of exclusion from inheritance under the Act.
• Under the old law, in a joint family, on the death of a coparcener, the principle of survivorship operated and the widow or daughter or mother of the deceased coparcener or his predeceased son’s daughter, or predeceased daughter’s daughter cannot inherit his share. The Hindu Succession Act, 1956 remedied this.
• Under the old law of succession, a coparcener could not make a will in respect of his interest in the joint family property. Section 30 of the Hindu Succession Act, 1956 enables him to execute a will in respect of such property.
• Under the old law of succession, there was a system of the impartible estate. But the Hindu Succession Act abolished the impartible estate not created by statutes.
• Under the old law of succession, there was no uniform order of succession. But, Section 8 of the Hindu Succession Act provides for the uniform order of succession governing the property of a male Hindu and Section 15 of the Act provides the uniform order of succession governing the property of a female Hindu.

Next Topic: Succession in case of Hindu Male (Ss. 8 to 13)

Indian Legal System > Civil Laws > Family Laws > The Hindu Succession Act, 1956 > Introduction

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In this article, we shall study the effects of adoption. In Dani Raiji V. Chandra Prava, 1971 Guj. 188 case, the Court held that the expression “effects of adoption” refers to all the Legal consequences flowing from an adoption.

Section 12: The Hindu Adoption and Maintenance Act, 1956:

Effect of adoptions-

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

Provided that-

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

Section 12 of the Hindu Adoption and Maintenance Act, 1956 deals with the effects of valid adoption. The main object of this section is to modify the old Hindu Law which considered “doctrine of relation back”. The Act does away with the theory of relation back and confers on the child adopted a status equivalent to that of a natural-born child in the adoptive family only from the date of adoption.

In Kesharbai Jagannath Gujar V. State of Maharashtra, AIR 1981 Bom. 115 case, the Bombay High Court held that the adopted son is not deprived of the status given to him of a natural-born son as sec. 12 of HAMA, 1956 provides.

In Khazan Singh V. Union of India, AIR 1980 Delhi 60 the Court held that the adoptee is to be treated from the date of his adoption as if he were born in the adoptive family for all practical purposes. From that date, he has to forget that he belonged to another family except for the purposes mentioned in the section itself.

Under Section 12 on adoption, all the ties of the adopted child of the family of his birth shall be deemed to be severed and replaced by those of the adoptive family. Under Section 12 clause (a) only tie that he retains with his natural family is that he cannot marry any person in his natural family whom he could not have married before his adoption.

Clause (b) of Section 12 interjects to protect his rights in any property which stood vested before the adoption. But it does not mean that the adoptee will continue to have some interest in the estate of the natural family which he had acquired by birth even though he is legally deemed to be a member of the new family. Note that the clause protects only the property which had vested in the adopted child before the adoption.

In Har Chand V. Ranjeet, AIR 1986 P & H 259 case, ‘X’ had two sons, ‘A’ and ‘B’. He died leaving them behind. Subsequently, ‘B’ was given in adoption. ‘A’ claimed the entire properties of his father on the averment that on B’s adoption, he left the natural family and all his ties were severed. Rejecting this, the Punjab and Haryana High Court held that soon after the death of X, a share in the properties of his father got vested in him. Subsequently, on adoption, he cannot be divested of this property.

In Ramanna Gowda V. Shankarappa, AIR 1988 Kant.248  case, the High Court held that since on adoption the adopted child becomes a member of the adoptive family and all ties in his natural family are severed and all ties in the adoptive family are created, the child adopted by coparcener’s widow becomes a coparcener and therefore, becomes entitled to share in the joint family property as and when partition is effected. The court added that even when on the death of one of the two coparceners (when the coparcenary consists of only two coparceners), the property passes to the sole surviving coparcenary, on account of the presence of the widow of the coparcener the joint family does not cease to exist. When the widow of the coparcener adopts a son, the coparcenaries is revived and the adopted son becomes a coparcener and on the partition is entitled to a share. The court said that the question of vesting and divesting did not arise as the joint family continued to exist and the properties also continued to be the joint family property. In view of this, the adopted son also has a right to seek partition, and he along with his adoptive mother could take the same share which the deceased coparcener would have taken had he been alive. In Dharma Shamrao Agalawe V. Pandurang Miragu Agalawe AIR 1988 SC 845 case, the Supreme Court confirmed this view.

In Yarlagadda Nayudamma V. Govt. of A. P., AIR 1981 A. P. 19 case, the Court held that that notwithstanding adoption, a person in Mitakshara family has got a vested right even in the undivided property of his natural family which on adoption he continues to have a right over it.

As per Clause (c) of Section 12 of the Act, an adopted child cannot have the right to divest any person of any estate which had vested in him or her before adoption. Thus, when a person, who was not a coparcener, adopts a son, his adopted son does not divest him of any property. All his properties continue to vest in him. His adopted son acquires no interest whatever in his properties. If he dies intestate, his adopted son along with other heirs will succeed to his property.

In Joti Dadu Navale V. Manukabai, AIR 1988 Bom. 348  case where a Hindu who had adopted a son, died, leaving behind a daughter and adopted son, both would inherit the property of their father in equal shares.

In Dinaji & others V. Daddi & others, AIR 1990 SC 1153  case, it was held that, Smt. Yashoda Bai who was the limited owner of the property after the death of the husband and after Hindu Succession Act came in to force, could become an absolute owner and therefore the property of her husband vested in her and therefore merely by adopting a child she could not be deprived of any of her rights in the property. The adopted child could get the rights for which he is entitled after her death as is clear from the scheme of Section 12 Clause (c) of the Act.

Previous Topic: Restrictive Conditions for Adoption (S. 11)

Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Effects of Adoption

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Section 11 of the Hindu Marriage Act, 1956, lays down the restrictive conditions for adoption.

Adoption of a Son:

Section 11: The Hindu Adoption and Maintenance Act, 1956:

Other conditions for a valid adoption-

In every adoption, the following conditions must be complied with:

(i) if any adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

Clause (i) of Section 11 of the Act, lays down if a person wants to adopt a son, he or she should not have a living Hindu son, son’s son or son’s son’s son at the time of adoption. These sons may be by legitimate blood relationship or by adoption. The word son, son’s son, son’s son’s son subsequent does not include a stepson, step son’s son or step son’s son. The subsequent birth of a son cannot invalid the adoption of a son. A Hindu is not prohibited from taking a son in adoption in the presence of the illegitimate son.

If a son, son’s son or son’s son’s son has ceased to be Hindu, then a Hindu male or a female can adopt another son. A Hindu cannot adopt a son if there exists a son of a void or violable marriage under section 11 or under Section 12 of the Hindu Marriage Act, 1955. Section 16 of the Hindu Marriage Act has conferred the status of legitimacy upon the children of void and a voidable marriage. This clause should be modified because if the court finds that the adoption of a son will be for the benefit of the child as well as the adopter, the court should allow the adoption of a son in the presence of his own son or grandson as the case may be.

In Sandhya Supriya Kulkarni v. Union of India, AIR 1998 Bombay 228  case, the provisions which prohibit a person from adopting a second son or daughter were challenged. It was held by the Bombay High Court that since personal laws are outside the ambit of Part-Ill of the Constitution, the court cannot grant any indulgence though the court observed that the Parliament may re-examine the question of relaxing the condition.

Adoption of Daughter:

Section 11: The Hindu Adoption and Maintenance Act, 1956:

(ii) if the adoption is of a daughter the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

Clause (ii) of the Section lays down if a person wants to adopt a daughter he/she should not have a Hindu daughter or son’s daughter whether by legitimate blood relationship or by adoption living at the time of adoption. If the daughter or son’s daughter has ceased to be Hindu, then the adoption of a daughter is not barred. If the daughter is living, the reason that she is suffering from any physical or mental disability cannot be a ground for enabling the parents to make a valid adoption of another daughter.

Age Difference Between Adopter and Adoptee:

Section 11: The Hindu Adoption and Maintenance Act, 1956:

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;

Clauses (iii) and (iv) mention that in the case of the adopter and the adoptee are of different sexes, there must be an age difference of at least 21 years. Thus, if a male wants to adopt a female, there must be an age difference of at least 21years. Same will be the position if a female want to adopt a male child. This condition has been laid to prevent the sexual exploitation of the Adopted child. However, there is no condition of any age difference if the child to be adopted is of the same sex.

There must be the condition of age difference even when the child of the same sex is adopted. The relationship between the adopter and the child should look like a parent and the child.

Simultaneous Adoption:

Section 11: The Hindu Adoption and Maintenance Act, 1956:

(v) the same child may not be adopted simultaneously by two or more persons;

According to clause (v) of the Section, the same child cannot be adopted simultaneously by two or more persons. The two friends cannot adopt the same child. But here two persons, if they are husband and wife can adopt.

Ceremonies of Adoption:

Section 11: The Hindu Adoption and Maintenance Act, 1956:

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.

Provided that the performance of dattaka homan, shall not be essential to the validity of an adoption.

The ceremony of giving and taking must be performed:
(a) by the giver and taker, or
(b) by any other person under the authority of the giver or taker, as the case may be.

If Delegated: It should be noted that the performance of the ceremony can be delegated but not the power to give or take in adoption. The power is to be exercised by the person who is entitled to give the child in adoption and the person who wants to take the child in adoption

Consent of the Child: Nowhere the act lays down that the consent of the child to be given in adoption is necessary. Even the protest of the child is immaterial. If the child is mature enough the views of the child need be ascertained and his/her consent must be essential for the validity of the adoption.

According to clause (vi), the child must be actually given and taken by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in case of an abandoned child from the place where the child was brought up to some another family. The objective of the corporeal giving and receiving in adoption is
obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony.

It is clearly mentioned that the performance of Duttaka Homam will not be essential ceremonies for the validity of the adoption. Thus, according to this clause, only the ceremony of giving and taking is to be performed.

In Sita Bai V. Ram Chandra, AIR 1970 SC 343 case, the Court held that mere physical act of giving and taking is not sufficient for a valid adoption unless such giving and taking is accompanied with the intention to give and take the child in adoption.

In Devi Prasad v. Triveni, AIR 1970 SC 1286 case, the Court held that for a valid adoption, law requires that the natural parents shall be asked by the adoptive parents to give his son in adoption and the boy shall be handed over and taken for that purpose.

In Ishwar Prasad v. Raj Harimal AIR 1927 Pat. 145 case, the Court held that a mere declaration by the natural parent and adopter is not enough to create a valid adoption, without an actual ceremony of giving and taking.   

In Maroti Bangi Teli v. Radhabai AIR 1945 Nag. 65 case, the Court held that the performance of the ceremony of giving and taking was essential and enough for the validity of adoption, no specific words need to be expressed.

In Illachi v. Shivaram, ILR (1957) Raj. 659  case, the Rajasthan High Court held that giving and taking may not be by actually handing over die child to the adoptive parents, where the natural father performs the ceremony of pouring water in the hands of the adoptive father, when the son was himself present, there was giving and acceptance of the gift and the requirements of Hindu law were satisfied.

In Shankar v. Savitri 50 IC 599 case, the Court held that the gift and acceptance must be effected by the corporeal delivery of the boy.

In Bhagan Das Nanu Ram’s case AIR 1954 Raj 17 case, the Court held that it has to be shown that after adoption the adoptee was treated as a son. A mere placing of a registered deed of adoption is not sufficient.

In Amar Singh V.Tejram, AIR 1982 P & H 282 case, the Court held that whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and assigned by the person giving and the person taking the child in adoption, the Court shall presume that the adoption had been made in compliance with the provisions of this Act unless and until it is disproved

In Shivada Ramaswami V. K.S. Prakasa Rao AIR 1993 AP 336 case, the Court held that production of registered document of adoption gives rise to a presumption that adoption has been made in compliance with provisions of the Act unless disproved. Proving of giving and taking of child is not necessary.

In Arjun Banchlor v. Buchi Banchlor (dead) AIR 1995 Orissa 32 case, the Court held that adoption results in changing the course of succession, very grave and serious onus rests upon such person who seeks to displace the natural succession by alleging adoption.

In Lakshman Singh Vs. Rup Karmar, AIR 1961 SC 1378  case, the Supreme Court observed that although no particular form is prescribed for the ceremony and it may vary depending upon the circumstances of each case, giving and taking is an indispensable part of the ceremony. The Supreme Court further observed that in respect of old adoptions, strict proof of ceremonies need not be demanded.

In Urmila Devi Vs. Hemanta Kumar, AIR 1993 Ori. 213  case, the Court held that since no giving and taking ceremony could be established, adoption was not proved.

The Burden of Proof:

In Srinivasan v. John Bentic AIR 1989 Mad. 334 case, the Court held that strict proof of adoption is required since it changes the natural line of succession. If adoption is challenged after a long period of time, a heavy burden is on the one who challenges it.

In P.R. Sudershan Reddy v. P.R. Shashi Rekhanna AIR 1996 AP 300;  case, the Court held that the burden of proof that the ceremony of giving and taking took place is on the person who alleges adoption. The persons who challenge adoption should prove that the necessary ceremonies of adoption did not take place.

Previous Topic: Who Can be Adopted? (S. 10)

Next Topic: Effects of Adoption (S. 12)

Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Restrictive Conditions for Adoption

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Section 10 of the Hindu Adoption and Maintenance Act, 1956 deals with the qualification of the child to be taken in adoption. Thus this Section tells us about who can be adopted? Under modem law, a lunatic child can also be adopted. Adoption of a daughter is also allowed. There is no condition that only a Sapinda may be adopted. The child need not be belonging to the same caste or community to which adopter belongs. The adoption of orphans, foundling and abandoned children are allowed. The child of any female may be adopted

Section 10: The Hindu Adoption and Maintenance Act, 1956:

Persons who may be adopted- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely-

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

The Child Must be Hindu:

The child to be adopted must be a Hindu child. Whether the child is related to the adopter by blood or marriage or is a total stranger is immaterial. It is also immaterial as to which caste the child belongs. The condition that only a Hindu child can be adopted appears to be discriminatory. This type of condition should be done away with.

No Previous Adoption:

This condition has been imposed so that an adopted child may not become a rolling stone. But for the welfare of the adopted child, the court should have the discretion to decide whether re-adoption of the adoptive child will be for the benefit of the child or not.

Only Unmarried Child Can be Adopted:

Section 10(iii) prohibits the adoption of a married child but recognizes any customs to the contrary. If the children of higher age are transferred to adoptive families they may find it difficult to adjust in new families and new environment. At the same time, they may not have an attachment to adoptive parents.  Thus, there is a need to modify such condition which permits the adoption of a married child, if custom permits

Age Bar:

Subsection 10 lays down the age limit for a child to be eligible to be adopted. The child should be below the age of 15 but if the custom or usage applicable to be parties permits the child above the age of 15 may also be adopted.

Effects of Customs and Usage:

In Maya Ram Vs. Jai Narain, AIR 1989 P&H 2003 case, Punjab and Haryana High Court held that the adoption of married Jat boy above 15 years of age is valid on the force of customs prevailing in that community.

In Priya Nath V. Indumati, AIR 1971 Orissa 211 case, the Orissa High Court took the view that the Karans in Orissa belong to the regenerate class. The effect of this position is that the prohibition in Hindu law against the adoption of a sister’s son is applicable to Karans.

In Tarabai V. Bagonda, AIR 1981 Bom. 13 case, a married person was adopted and the married man’s wife was pregnant at the time of adoption, but the child was born only after adoption. Held, that adoption of a married person is valid, and any child born to him after adoption will be the child of the adoptive family.

In Anirudh v. Babarao, AIR 1983 Bom. 391 case, the Court held that once the custom is recognized judicially, it is not required to be independently proved in subsequent cases.

In Damodarlal V. Lain Lal, AIR 1985 Rajastan 55 case, the Court held that adoption of the brother’s daughter’s son could not be said to be invalid on the ground that the adoptive father and the natural mother of the adoptee fell within the prohibited degrees of marriage.

In Krushna Kahali V. Narana Kahali , AIR 1991 Orissa 134  case, the Court held that adoption during the lifetime of a male issue was specifically prohibited even under the Hindu law prior to the enactment of the Hindu Adoption and Maintenance Act, 1956 and even if there was such a custom, the same was not considered to be valid, as custom cannot override express law and cannot overcome a prohibition. Such an adoption even if made under any custom prior to the enactment of the Hindu Adoption and Maintenance Act, 1956 would be contrary to the concept of adoption and the purpose thereof and hence would be unreasonable and invalid.

In Dhanraj V. Suraj Bai, 1975 SC 1103 case, the Court held that the scheme of the Act is not to make a child of 15 years of age or above fit to be taken in adoption. The exception however is made in favour of custom or usage to the contrary.

In Ramchandra Rao V. Bapurao, 1976 HLR 308  case the Court held that, in determining whether the custom permitting adoption of persons aged above 15 years exist in a community the Court must take into consideration the public opinion in the community. If such public opinion shows that such an adoption is permissible in the community and uniformly observed for a long time, the customary rule will get the force of law.

In Kochan Kani V. Mathevan Kani, AIR 1971 SC 1398 case, the Court held that in order to prove a custom, the party has to plead in specific terms as to what is the custom that he is relying on and he must prove the custom pleaded by him.

In Mariammal V. Gobindammal, AIR 1985 Mad. 5 at P.16  case the Court held that a daughter’s son cannot be adopted and it is invalid in law unless the custom of adopting a daughter’s son is proved satisfactorily among the community to which the parties belong.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Who can be Adopted?

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In this article, we shall study the capacity of a person to give child in adoption. Section 9 of the Hindu Adoptions and Maintenance Act, 1956 deals with it.

Section 9: The Hindu Adoption and Maintenance Act, 1956:

Persons capable of giving in adoption-

(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

By Section 9(1) of the Act, only the father or mother or the guardian of a child has the capacity to give the child in adoption. The term ‘father’ means a biological father and does not include an adoptive father or stepfather. The expression “mother” means the biological mother and does not include an adoptive mother and stepmother.

Section 9 does not expressly state that the father, mother or guardian should be a Hindu in order that they may have the capacity to give the child in adoption. While section 7 and section 8 which deal with the capacity to take in adoption expressly state that the father or the mother should be a Hindu by using the expression “Male Hindu” and “Female Hindu”. But the preamble says that the Act is one relating to adoption among Hindus and not merely of Hindus. It would, therefore, appear that all the parties connected with the transaction of adoption should be Hindus. Similarly for a guardian, it is not stated that he should be a Hindu. A guardian appointed by a court for a Hindu minor need not necessarily be a Hindu. But the preamble says that the Act is one relating to adoption among Hindus and not merely of Hindus. Hence it is expected that the guardian is Hindu.

Father’s Capacity to Give in Adoption:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

The term ‘father’ means a biological father and does not include an adoptive father or step-father.  The father of a legitimate child can give the child in adoption. But he (father) must be major and of sound mind. But if a child’s mother is alive, he must seek her consent for giving the child in adoption. The adoption without the consent of the mother will be invalid. The consent of the mother can be dispensed within the following three conditions:-

1. If she has ceased to be Hindu;
2. (b) If she has finally and completely renounced the world;
3. (c) If she has been declared of unsound mind by a court of competent jurisdiction

If the father is suffering from any disability given in Section 9 then he remains no longer capable of giving the child in adoption and in this case the mother can give the child in adoption.

If the mother of the child is living away under a decree of judicial separation or has been divorced by her husband, her consent cannot be dispensed with.

In Omprakash v. Des Ram 2000(1) HLR 102 P & H case, the Court held that when the mother was also present at the ceremony of adoption, the adoption was held to be valid.

Section 9(2) says that the consent of mother can be dispensed if the mother has ceased to be Hindu If on conversion mother loses all her rights over her child it may tantamount to negation of Fundamental Right guaranteed under Art. 25 of the Constitution.

Mother’s Capacity to Give In Adoption:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

So long as the father is alive or is not disqualified in any manner, the mother cannot validly give her child in adoption. The expression “mother” means the biological mother and does not include an adoptive mother and stepmother. The mother who wants to give the child in adoption should not suffer from any of the disabilities given under Section 9 of the Act.

The mother can give the child in adoption only when her husband is either:
(i) Dead; or
(ii) if living; he

(a) has completely and finally renounced the world, or
(b) has ceased to be a Hindu, or
(c) has been declared by a court of competent jurisdiction to be of unsound mind.

In Dhanraj v. Suraj Bai 1975 SC 1103 case, the Court held that if the child is given in adoption by a stepmother, the adoption is invalid.

In Ram Sakhi Kuer v. Daroga Prasad Singh AIR 1981 Patna 204 case, the Court held that after remarriage, the widow ceases to be the mother of the son and as such, she cannot give in adoption a child who was by her first husband. The Court further observed, when a widow remarries, she loses her status as a mother and dies a civil death (as per Sec.2 of the Hindu Widow’s Remarriage Act, 1856) so far as the rights and interests in the family of the previous husband are concerned. By giving in adoption, such a son from her previous husband, she deprives her previous husband of the spiritual benefits to which her previous husband was entitled from a son.

Capacity to Give a Child who is above the age of 15 years:

In Dhanraj v. Suraj Bai 1975 SC 1103 case, the Court opined that under Section 10(iv) of the Act, a person above the age of fifteen years cannot be taken in adoption unless there is custom or usage which permits such persons to be taken in adoption.

Under Section 9(3) the mother acquires the right to give the child in adoption if the father has ceased to be a Hindu. This would presuppose that the father loses his right to give in adoption, the moment he ceases to be a Hindu. Again the mother’s consent to the father giving the child in adoption is not necessary if she has ceased to be a Hindu. In other words, she loses her right even to give her consent the moment. As they are exercising right under the Act, they are Hindu at the time of giving adoption.

Guardian’s Capacity to Give Child in Adoption:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.

The term “Guardian” includes a testamentary guardian, guardian appointed or declared by a court. A guardian cannot give the child in adoption without the prior permission of the Court. A guardian has the capacity to give the child in adoption under the following circumstances:-

1. If both the parents of the child are dead;
2. If the parents have finally and completely renounced the world;
3. The parents have been judicially declared of unsound mind;
4. If the parents have abandoned the child;
5. If the parentage of the child is unknown, e.g. in case of a foundling or refugee child;

Court’s Satisfaction:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(5) Before granting permission to a guardian under sub-section the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.

The object of sub-section (5) is to prohibit trafficking in children and ensure the welfare and loving care of the child to be given in adoption. Section 17 prohibits any person from making or receiving or agreeing to make or receive any payment or other reward in consideration of an adoption of any person. Section 9(5) however permits the court to sanction some payments or reward in appropriate cases.

According to Section 9(5) the court must satisfy itself that:

1. the adoption will be for the welfare of the child;
2. the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction while satisfying itself that the adoption will be for the welfare of the child.

The Court will also consider the following things before granting adoption:

1. If the child is of sufficient maturity and understanding the wishes of the child should also be consulted before granting permission by the court. There is no provision in the Act regarding consultation and knowing the wishes of the child to be given in adoption.
2. The Court will consider the physical and moral being of the child and the financial position and Social status of the proposed adopter.
3. The court will also weigh the pros and cons of two places – where the child is and where the child shall be taken.

In Shankar Kumar Das v. Supt. Jawaharlal Nehru Memorial Hospital Kalyani, AIR 1996 Cal. 264 case, the Court held that Subsection (5) postulates that an application for obtaining the permission of the court for giving the child in Adoption is required to be filed by the guardian and not by the persons who are willing to take the child in adoption. It was held that under the law, the juvenile justice Board is the guardian of the abandoned children. It is the duty of the board to look after the care and comfort of the abandoned child, although the said child may remain in the custody of some other person. A statutory duty is cast upon the juvenile board to visit the child from time to time and see that the persons having custody of the child are looking after his welfare in a proper manner. Application for the adoption of such a child can be filed by the board only, the court can permit adoption to a willing spouse.

Jurisdiction of Court:

Section 9: The Hindu Adoption and Maintenance Act, 1956:
Explanation:

(ii) “court” means the city or civil court or a district court within the local limits or whose jurisdiction the child to be adopted ordinarily resides.

Explanation (ii) attached to Section 9 gives the list of Courts which has jurisdiction in Adoption matters. The explanation says that jurisdiction of a matter related with adoptions lies with the city or civil court or a district court within the local limits of whose jurisdiction the child to be adopted. The family court has no jurisdiction to grant permission for the adoption of a child in accordance with the provisions of section 9 of the Hindu Adoptions and Maintenance Act.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Who May give a Child in Adoption?

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