January 23, 2022

General Rules of Succession amongst Hindus

Family Law

Introduction

A person makes a Will which ensures that the property will devolve as per his wish and the heirs will have fair right to receive their shares. A Will is legal declaration of the intention of testator (person making it), that expresses the wish of the testator as to how his property will devolve after his death. There are two ways in which the property will devolve after the death of a person – according to the Will i.e. the testament, which was made before his death or according to the laws of succession, this happens in case where no Will (intestate) was made.

Succession and inheritance amongst Hindus is governed by the Hindu Succession Act, 1956. The law of succession deals with the rules of devolution of property in case where a person dies without making a Will. The Act is applicable to all Hindus, incorporates intestate succession and testamentary succession.

Historical aspect of Inheritance and Succession

The ancient Hindu law was based on Smritis which enunciated law of Dharma. The traditional Hindu law of inheritance was patriarchal and inclined towards male aspect, unlike the Hindu Succession Act, 1956. Two schools of Hindu law, the Dayabhaga (prevalent in Bengal and Assam) and the Mitakshara (prevalent all over India except Bengal and Assam), emerged out of various commentaries and digests. These schools were different from each other on the basis of principles followed on which right to inheritance is determined. These schools were operational and recognised in different parts of India during British rule.

In Dayabhaga, the property goes to the successor (coparcener) on the death of the father or the holder of property whereas in Mitakshara school, the property is inherited by the successors (coparceners) on the mere basis that they were born in that family. Also, the Mitakshara school gave women less rights to inherit property and was biased against them unlike Dayabhaga which was considered to be more liberal.

In order to bring about a change the Hindu Succession Act was enacted and came into force on June 17, 1956 despite stiff resistance from various Hindu sections. Women were ensured various rights, but coparcenary rights were still denied. In 2000, 15th Law Commission suggested amendments in order to correct the discrimination against women. Finally, in 2005 women were given coparcenary rights as well.

Applicability of the Hindu Succession Act, 1956

The applicability is laid down in Section 2[1] of the Hindu Succession Act. The Act is applicable to:

  • The Act shall extend to whole of India.
  • Any person, who is Hindu by religion or any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj
  • Any person who is a Buddhist, Jaina or Sikh by religion
  • Any other person who is not a Muslim, Christian, Parsi, Jew, unless it is proved that such person would not be governed by Hindu law or custom.

The Act shall not apply to members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution, unless otherwise directed by the Central Government by a notification in the Official Gazette. 

Following person qualifies to be a Hindus, Buddhists, Jainas or Sikhs:

  • Any legitimate or illegitimate child, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion.
  • Any legitimate or illegitimate child, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged.
  • Any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.

Important terms relating to Hindu Succession

  1. Agnate: Section 3 (1) (a) says a person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males.
  2. Cognate: Section 3 (1) (c) defines a person to be to be a “cognate” of another if the two are related by blood or adoption but not wholly through males.
  3. Heir: ‘heir’ is any male or female person, who is entitled to receive the property of the intestate according to Section 3 (1) (f).
  4. Intestate: According to Section 3 (1) (g), a person who dies without leaving behind a will is referred to as intestate. 
  5. Related: According to Section 3 (1) (i)[2] ‘related’ means the relationship between kin( kinship), which should be legitimate. Illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another.

Types of succession

Testamentary succession

When the succession of property takes place and governed by the testament or the will then it is called as testamentary succession. This testament or will can be made by a Hindu male or female for the property but it should be valid and legally enforceable. Once a will is made, the distribution of property will be according to the will and not through the laws of inheritance. But the distribution will take place according to the law of inheritance if the will is not valid or not legally enforceable.

Intestate succession

When a person dies intestate, meaning without making a will or testament, then the property will be distributed according to the laws of inheritance.

General rules of succession in Hindus

  • Full blood preferred to half blood (S-18)[3]: this section says that heirs who are related to an intestate by full blood shall be preferred to heirs related by half blood, only if the relationship is same in every other aspect.

The terms “full blood” and “half blood” have been explained under section 3 of Hindu Marriage Act. Section 3 (c)[4] defines full blood and half blood as 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. This means that the section will be applicable only when the nature of relationship is same.

  • Mode of succession of two or more heirs (S-19)[5]: this section provides that if two or more heirs succeed together to the property of an intestate, they shall take the property –

(a) Per capita and not per stirpes (unless otherwise expressly provided in the Act); and

(b) As tenants-in-common, and not as joint tenants.

This can be understood by an example: suppose X dies leaving behind his son A, and B and C who are sons of Z. Z was the other son of A, who died before A. if the distribution of X’s property is to take place per capita, then the property will have to be divided into three shares and each heir will get one share of the property. This means that A, B and C will get one third share in the property.

But if the distribution takes place per stirpes, then a claimant only gets the share as representing some other person. In the example, the property would be divided in only two parts and A would get one share. The other share will be given to B and C who are representing Z, the deceased son of X. hence, this is not equal distribution of property and A would get one half and B and C would get one fourth share in property.

When property is jointly held, it may be held by the owners, either as tenants-in-common or as joint tenants. In case of tenants-in-common, on the death of one of them, his share would go to his heirs, but in case on joint tenants, if one dies then his heirs won’t get anything and his share devolves upon the remaining joint owner (s).

  • Right of a child in womb (S-20)[6]: it lays down that a child who was in the womb (at the time of the death of the intestate) and who is subsequently born alive, has the same right to inherit the property of the intestate, as if he (or she) had been born before the death of the intestate.

This is only possible through legal fiction which s adopted by legal systems. This means that the rights of the child who is unborn and is in the womb, if he is born later, then it will be treated as if it had been born at the time of the death of intestate.

  • Presumptions in cases of simultaneous deaths (S-21)[7]: 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.

This means that section 21 is intended to apply in the circumstances of catastrophe and presumes that the younger person survived the elder one but this can be rebutted on the basis of evidences. The presumption is necessary for the purpose of succession.

  • Preferential right to acquire property in certain cases (S-22)[8]: this section confers a preferential right to acquire property. This means if an intestate’s property has devolved upon two or more heirs of Class I of the Schedule, so if one of them wishes to dispose of his interest, then other heirs have preferential right to purchase. Meaning thereby, he cannot sell his interest or share to any other person, without first offering it to other heirs of Class I.

Further provided that if the parties are unable to agree upon a particular price for the preferential sale, then the price will be determined by the court, on application made by them. And the intended buyer is bound to pay the price decided by the Court. If he chooses not to pay the decided price then he will be liable to pay the cost of making the application to the court.

It is also provided that if two or more heirs of Class I wish to purchase the property or interest then, he who offers the highest price is to be preferred.

Landmark cases relating to Succession in Hindus

K Laxmanan vs Thekkayil Padmini & Ors[9]: held that burden of proof is on propounder. He has to prove legality & genuineness of Will by proving absence of suspicious circumstances, testamentary capacity and signature of testator.

In a 2015 judgment in the Prakash v. Phulavati[10], a two-judge bench had held that if the coparcener (father) had passed away prior to 9 September 2005 (date on which the amendment came into effect), his daughter would have no right to the coparcenary property.

However, in the Danamma v. Amar[11] in 2018, another two-judge bench had held that the two daughters in this matter would get a share in the property, even if their father had passed away in 2001.

Vineeta Sharma v. Rakesh Sharma[12] held that daughters would hold equal coparcenary rights in Hindu Undivided Family (HUF) properties even if they were born before the 2005 amendment to the Hindu Succession Act, 1956 (Act) and regardless of whether their father coparcener had died before the amendment. 

Jayanti v. Mehta[13], it was held that in reference to section 21 of Hindu Succession Act, that wife should be presumed to have survived the testator.

Haren Sarma v. Renu Borthakur[14], it was held that in order to exercise the preferential right under section 22 of Hindu Succession Act, existence of elements of jointness is a pre condition.

In Ganesh v. Rukmani[15], it was held that although section 22 is not happily worded, it leaves no doubt that a preferential right “to acquire the property or business has been conferred on the non-transferee heirs.”

In P. Srinivasamurthy v. P. Lellavathy[16], it was held that where co-heir was not taken into consideration to exercise his option, his suit for setting aside alienation is maintainable.

Conclusion

This article explored some history of succession and inheritance in Hindus, some basic terms and their definitions. The applicability and types of succession is discussed in the article. Lastly the article also explored the general rules of succession among Hindus along with some landmark cases. The Amendment of 2005 in this Act is also included in the article.


[1] Hindu Succession Act, 1956, §2, No. 30, Acts of Parliament, 1956 (India).

[2] Hindu Succession Act, 1956, §3, No. 30, Acts of Parliament, 1956 (India).

[3] Hindu Succession Act, 1956, §18, No. 30, Acts of Parliament, 1956 (India).

[4] Hindu Marriage Act, 1955, §3, No. 25, Acts of Parliament, 1955 (India).

[5] Hindu Succession Act, 1956, §19, No. 30, Acts of Parliament, 1956 (India).

[6] Hindu Succession Act, 1956, §20, No. 30, Acts of Parliament, 1956 (India).

[7] Hindu Succession Act, 1956, §21, No. 30, Acts of Parliament, 1956 (India).

[8] Hindu Succession Act, 1956, §22, No. 30, Acts of Parliament, 1956 (India).

[9] 2009 AIR SCW 10

[10] Civil Appeal No.7217 of 2013

[11] (2018) 3SCC 343.

[12] Civil Appeal 32601/2018

[13] 1968  Guj. 212

[14] 2007 Gau. 70.

[15] 1971 Ori. 65.

[16] 2000 Mad. 516.


Author Details: Harshita Yadav [Student at University of Petroleum & Energy Studies, Dehradun]

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