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.

Previous Topic: General Rules of Succession of a Female Hindu

Next Topic: Disqualification of Heir (S. 25 to 28)

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.

Previous Topic: Succession in the Case of a Female Hindu (S. 14)

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

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.

Previous Topic: Succession in the Case of Female Hindu (Ss. 8 to 13)

Next Topic: General Rules of Succession in Case of Female Hindu

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

The post Succession In the Case of a Male Hindu (Ss. 8 to 13) appeared first on The Fact Factor.