Theoretical Overview
Introduction
The legal term “succession” refers to the transfer of rights and obligations from a deceased member to another member who is designated as his or her successor. The Hindu Succession Act of 1956 governs the law of intestate succession among Hindus.
The Act specifies two possibilities of succession: Intestate Succession occurs when a person dies without leaving a will. The deceased’s property then devolves according to the regulations outlined in Chapter 2 of The Hindu Succession Act, 1956. Testamentary Succession occurs when a person dies with a will or a testamentary disposition. The Testamentary Succession is discussed in Chapter 3 of The Hindu Succession Act, 1956.
Heirs
Class 1 Heirs
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son.
Class 2 Heirs
Father
(a) Son daughter son, (b) son’s daughter’s daughter, (c) brother, (d) sister.
(a) Daughter’s Son’s son, (b) daughter’s sons’ daughter, (c) daughter’s daughter’s son (d) daughter’s daughter daughter
(a) Brothers son, (b) sister’s son, (c) brother’s daughter, (d) sister’s daughter.
Fathers father; fathers’ mother.
Fathers widow; brothers’ widow.
Fathers brother; fathers’ sister.
Mothers father; mothers’ mother.
Mothers brother; mothers’ sister.
Intestate Succession in Hindus
- General Rules of Succession in the Case of Male
When a Hindu man dies intestate, the requirements of Chapter 2 of the Hindu Succession Act of 1956 apply. Sections 8 to 13 deal with the succession of Hindu males who die intestate.
Section 8 of the aforementioned Act lays out broad succession criteria for males. The succession rule is as follows, according to this section:
1. Firstly, the property of the deceased male is devolved among the heirs, and relatives of the deceased that are specified in Class 1 of the Schedule.
2. In the absence of Class 1 heirs, secondly, the property of the deceased male is divided into the heirs that are the relatives specified under Class 2 of the Schedule.
3. In the absence of Class 1 and Class 2 heirs, thirdly, the property of the deceased male is divided among the agnates of the deceased. Agnate is the one who is in relation by birth or by adoption only through males.
4. If there is the absence of Class 1, Class 2 heirs and there is no agnate as well then in the fourth place comes the Cognate, who will then receive the property of the deceased. Cognate is the person who is related to the blood or adoption but not wholly through the male.
Rules for Distribution of Property among Heirs
- Distribution of property among Class 1 heirs
The property of a dead who dies intestate is distributed among heirs of Class 1 heirs according to the regulations outlined in Section 10. According to Rule 1, the widow of the deceased or, if more than one widow, all widows together should take one share, one share each shall be given to the surviving son, surviving daughter, and mother of the deceased (Rule 2), one share shall be taken by the heirs of each the pre-deceased son or daughter, and such distribution shall be such that among the heirs of the pre-deceased son that widow (or widows together) and surviving son and daughter receive an equal portion. And among the heirs of a pre-deceased daughter, the distribution is made in such a way that the surviving son and daughter receive equal portions (Rules 3 and 4).
- Distribution of property among Class 2 heirs
If no one remains among the Class 1 heirs, the property of the deceased is devolved to any one entry of the Class 2 heir, and the entry of Class 2 heir to which the property is devolved receives an equal part (Section 11). It was argued in Arunachalathammal v. Ramachandran Pillai that the various heirs mentioned in one entry are a sub-division of that entry and they do not inherit simultaneously but the one given earlier owns preference, but it was held that there is equality in the heirs of each entry and no one in the same entry is preferred. As a result, the property will be devolved concurrently. Furthermore, the court stated that there was no subdivision in any entry of Class 2 heirs.
2. General Rules of Succession in the Case of Female
Any property possessed by a female Hindu, whether acquired by inheritance, partition, maintenance, or a gift from any person before or after marriage, or by her skill, or purchased or by prescription, or any property she holds as stridhana, any such property she held as full owner and not as a limited owner. But such rule does not apply to the property acquired under a gift or will or any instrument or decree by a civil court where the condition of the gift, or will or instrument or decree by civil court prescribed a restricted estate on the such property (Section 14).
- List of entry for the succession of intestate deceased female property
- Firstly, to son and daughter including son and daughter of deceased son or daughter and the husband
- Secondly, to heirs of the husband
- Thirdly, to the mother and father
- Fourthly, to heirs of the father
- Lastly, to heirs of the mother
If a female Hindu inherits property and there is no son or daughter, including children of a deceased son or daughter, the property is devolved directly to the heirs of the father; similarly, if the property is inherited from a husband or father-in-law and there is no son or daughter, or children of a deceased son or daughter, the property is devolved directly to the heirs of the husband. The court concluded in Bajaya v. Gopikabai that when female property is reverted to husband heirs, Section 8 of the Hindu Succession Act applies.
- Order of succession and manner of distribution
Rules for distribution of property as per the list should be according to rules mentioned under section 16, such rules are as follows:
According to Rule 1, the heirs mentioned in the first entry are preferred over the heirs mentioned in the second entry, and the heirs mentioned in the second entry are preferred over the heirs mentioned in the third entry, and so on. The heirs in the same entry must take the property at the same time. In the event of a deceased Hindu’s pre-deceased son or daughter, if a female has left son or daughter of pre-deceased son or daughter living, such children shall have the part that the deceased female’s son or daughter would have taken if they were alive (Rule 2).
Important Changes brought under the Hindu Succession (Amendment) Act,2005
1.A significant change is the daughter becomes coparceners in the property of the Joint Hindu Family by birth, acquiring similar rights and liabilities to that of a son, including the right to seek partition for her share in the Joint Hindu Property. (section 6)
2.Another landmark change brought in with this amendment was the omission of section 23 of the Act, which clearly discriminated against the female heirs to seek any partition in the dwelling house that the intestate left before the male heir chose to do so.
3. Section 24 was also omitted with the amendment brought in 2005, which discriminated three categories of women related to the intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son, or the widow of a brother, by virtue of their remarriage on account of the opening of the succession.
3. Testamentary Succession
Testamentary Succession is one where any Hindu disposes off his or her property by will or testamentary disposition of any property which he or she is capable to dispose of according to the provision of Indian Succession Act, 1925 or any other law that may be in force.
Important Differences
| Testamentary Succession | Intestate Succession |
| The law of Testamentary succession is concerned how best the effect could be given to the wishes of the testators (i.e., the person who made the will); what are the rules relating to making of a will and allied and subsidiary matters. | The law of intestate succession is concerned with the matters such as who are the persons entitled to take property, i.e., who are the heirs; what are the rules of preference among the various relations; in what manner the property is to be distributed in case a person has more than one heir; What are the disqualifications of the heirs and the allied and subsidiary matters. |
| The testators enjoy full freedom of bequeathing his property. | The Law of Intestate succession is most probably the law of Inheritance. |
| The law of testamentary succession deals with the rules relating to devolution of property on relation as well as others . | The law of inheritance contains rules which determines the mode of devolution of property of the deceased on heir solely on the basis of their relation ship to the deceased |
| All matters relating to testamentary succession are laid down in Indian Succession Act, 1925. | All matters relating to intestate succession of a Hindu are laid down in Hindu Succession Act,1956. |
Relevant Sections
1.Section 9 of 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.
2.Section 12 of 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.
3.Section 20 of the Hindu Succession Act,1956 – Right of the child in the 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.
4.Section 29 of the Hindu Succession Act,1956 – Failure of heirs. 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.
5.Section 3 of the Hindu Succession Act,1956 –
Agnate: As per Section 3(a) a person is said to be an agnate of another if the two are related by blood or adoption wholly through males.
Cognate: As per Section 3(c) a person is said to be cognate of another if the two are related by blood or adoption but not wholly through males.
Full blood: As per Section 3(e)(i), two-person are related by full blood when they are descended from a common ancestor by the same wife.
Half-blood: As per Section 3(e)(i), two-person are related to each other by half blood when they are descended from a common ancestor but by different wives.
Uterine blood: As per Section 3(e)(ii), two-person are said to be related to each other by uterine blood when they are descended from a common ancestress but by a different husband.
Heir: As per Section 3(f) any person, male or female, who is entitled to succeed to the property of an intestate under this Act is Heir.
Intestate: As per Section 3(g) a person is said to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.
Important Case Laws
1.Kirpal Kaur v. Jitendra Pal Singh & Otr (2015) the court held that Section 8 also applies to the self-acquired property of the deceased Hindu male.
2.C.N. Arunacahala Mudaliar v. C.A. Murugatha Mudallar ( 1953) the court held that the succession of the absolute property of Hindu male will be according to the rules mentioned under Section 8 of the Hindu Succession Act, 1956. The property that came to a Hindu male from his uncle is considered as absolute property.
3. Atma Singh v. Gurmej Kaur (2017) the court held that even if the mother is remarried, she is entitled to succeed her son’s estate along with class 1 heirs.
4. Chintaram v. Rushibai, (2000)- where a woman inherited property from her second husband and died leaving behind a son from the first husband, a son would take the property.
5. Veera Raghavamma v. G Subbarao (1976)- if she inherits property from her father then sells it and out of sale proceeds, purchases another property, this property again would be her general property and Section Section 15(1).
Important Legal Maxims
Nemo est haeres viventis : It means “No one is heir to the living” – The persons who are entitled to take intestate property may be either the lineal descendants or lineal ascendants or the collateral kindred of the intestate. In order to define these classes of heirs more clearly, “it must first, be observed, that by law no inheritance can vest nor can any person be the actual complete heir of another, till the ancestor. Before that time the person who is next in the line of succession is called an heir apparent, or heir presumptive.
Other Important Concepts
Doctrine of Escheat
If none of the class I or class II or agnate or cognate is present the property of the intestate will devolve into the government by the virtue of the doctrine of escheat.
Following persons are disqualified from inheriting property:
- Murderer
- Abettor of murder
- Convert’s descendants
Points to Remember
1. The act includes two types of succession Intestate and testamentary succession, where if a person dies leaving a will or testament instrument behind him then his or her property is devolved accordingly and if not, then he is known to die intestate and then his or her property has to be devolved according to the rules of intestate succession.
2. The act divides heir in a different class and in the case where there is no one remaining from one class then the property goes to the next class and so on.
3. Amendment for Hindu Succession Act was passed in 2005. The amendment abolished the rule of survivorship. Like sons, daughters were also made heirs to property and the need for daughter to seek agreement from the male heirs to demand partition of the property was also removed.
4. In order to avoid the complications and consequences of intestate succession, the people in India should adopt to estate planning. Estate planning has multifold benefits such as, it avoids any dispute within the family, guarantees smooth transition of assets from the deceased to the heirs, protects the wealth of the deceased, promotes better tax planning etc.
5. Documents required in the absence of a Will in the case of movable property, the Succession Certificate is required. In the case of immovable property, a Letter of Administration is required. It is issued by the court.
6. Section 25 of the Hindu Succession Act, 1956 states that any person who commits the murder or assists the murder shall be disqualified from inheriting the property of the person, or any property in the promotion to succession to which he or she committed the murder.
