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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Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the fourth condition prescribed in the section i.e. No marriage within the degrees of prohibited relationship.

Section 5: the Hindu Marriage Act, 1955:

Condition for a Hindu Marriage:

A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)

Section 5 (iv) of the Hindu Marriage Act, 1955:

The parties to the marriage should not be within the degrees of prohibited relationship unless a custom or usage governing each of them permits such a marriage:

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. The Hindu texts went to the extent of prohibiting a man marrying a girl even of the same “gotra” or “pravara” on the theory that his father and the girl’s father were both descendants of a common ancestor in the male line and all such marriages were held invalid until the Hindu Marriage Disabilities Removal Act, 1946 was passed.  

This requirement of a valid Hindu marriage specified in Section 3(iv) is mandatory, and its contravention will render a marriage void unless such a marriage is sanctioned by custom or usage of both the parties.

Reason of Prohibition:

Marriage between parties related to each other within the degrees of prohibited relationship is forbidden to prevent:
a) physical degeneracy of the race which the marriage between near relations would lead to;
b) moral degeneracy and consequent evil results which are apt to affect a society built on the edifice of the joint family system

Understanding the Provisions:

For understanding this section we have to study Section 3(c), 3(d), 3(g) and 5 simultaneously.

Section 3 Subclauses (c) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (c) Meaning of terms Full blood” and “half-blood” relationship:

two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;

Section 3 Subclauses (d) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (d) Meaning of the term “uterine blood” relationship:

two persons are said to be related to each other by uterine blood when they are descended from a common ancestor but by different husbands.

Explanation:

In Clauses (c) and (d) “ancestor” includes the father and “ancestress” the mother;

Section 3 Subclause (g) of the Act defines the term “”degrees of prohibited relationship” as under.

Section 3 (g) Meaning of “degrees of prohibited relationship”

two persons are said to be within the “degrees of prohibited relationship”-

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother or the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.

Explanation:

for the purposes of clauses (f) and (g) relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

But if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship, then such marriage will be valid and binding.

Section 5 (iv) of the Hindu Marriage Act, 1955 deals prohibits marriage between persons who are within the prohibited degrees of relationship with each other. The list of degrees of prohibited relationship for a male is given below. A man cannot marry a woman having a relationship with him as under:

1. A female ascendant in the line.
2. Wife of a descendant in the line.
3. Wife of the brother.
4. Wife of the father’s brother.
5. Wife of the mother’s brother.
6. Wife of the grand father’s brother.
7. Wife of the grand mother’s brother
8. Sister.
9. Brother’s daughter.
10. Sister’s daughter.
11. Father’s sister.
12. Mother’s sister.
13. Father’s sister’s daughter.
14. Father’s brother’s daughter.
15. Mother’s sister’s daughter.
16. Mother’s brother’s daughter.

The list of degrees of prohibited relationship for a female is given below. A woman cannot marry a man having a relationship with him as under:

1. Her lineal ascendant likes Father, Father’s Father.
2. The husband of a lineal ascendant.
3. The husband of a lineal descendant.
4. Brother.
5. Father’s brother.
6. Mother’s brother.
7. Brother’s son.
8. Sister’s son.
9. Father’s brother’s son.
10. Father’s sister’s son.
11. Mother’s brother’s son.
12. Mother’s sister’s son.

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. This requirement of a valid Hindu marriage is mandatory, and its contravention will render a marriage void.

Section 5 (iv) allows such marriage if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship. Section 5 (iv) makes such marriage valid and binding.

The custom must not be unreasonable or opposed to public policy. A custom would not be recognized, if it is abhorrent to decency or morality or if it is inconsistent with the practices of good men. A custom prevailing amongst the Jats of Punjab allows marriage with a brother’s widow. In some parts of South India, a marriage of a man with his sister’s daughter is also recognized by custom. In some part of Maharashtra, the girl’s marriage with the father’s sister’s son is valid. In Andhra Pradesh, custom permits marriage with sister’s daughter

A marriage which is performed in breach of this condition is void ab initio under Section 11 of the Hindu Marriage Act, 1955 and a competent Court can declare it to be void, on a petition presented by either party to such a marriage. Further, the persons contravening the provisions of this clause are also liable to be imprisoned or fined (or both) under Section 18(b) of the Act.

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