Rules of Intestate and Testamentary Succession among Hindus

Introduction

The word “succession” in general means, the process of following another. As a legal term “Succession” means the transfer of rights and obligation from the deceased member to another member as his or her successor. The Hindu Succession Act, 1956 deals with the law relating to intestate succession among Hindus. It came into force on 17^th June 1956 and it extends to the whole of India. The act applies to any person who is Hindu by religion of any form and also to the person who is Buddhist, Jain or Sikh by Religion and to any person who is not a Muslim, Christian, Parsi or Jew by religion as per Section 2 of Hindu Succession Act, 1956. The Act is divided into four Chapter thirty-one sections and one schedule.

Basic terms and definition

Section 3 of The Hindu Succession Act defines various terms as:

• 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.  

Types of Succession in Hindus

The Act provides for two types of succession:

• Intestate Succession: Intestate means when a person dies without making a will. Then the property of the deceased devolves as per the rules mentioned under Chapter two of The Hindu Succession Act, 1956.
• Testamentary Succession: Testamentary Succession is when a person dies with a will or a testamentary disposition. Chapter three of The Hindu Succession Act,1956 states about the Testamentary Succession.

Intestate Succession in Hindus

Rules of Succession in Case of Male 

As earlier mentioned in case a Hindu male dies intestate then the provisions of Chapter two of the Hindu Succession Act, 1956 applies. Section 8 to Section 13 deals with the succession of Hindu Male who dies without a will.

Section 8 of the said Act gives general rules of succession in the case of males. According to this section, the rule of succession is as follows:

1. Firstly, the property of  the deceased male is devolved among the heirs, 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 the 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.

In Kirpal Kaur v. Jitendra Pal Singh & Otr. [1]  the court held that Section 8 also applies to self-acquired property of the deceased Hindu male.

In C.N. Arunacahala Mudaliar v. C.A. Murugatha Mudallar[2] the court held that the succession of the absolute property of Hindu male will be according to the rules mentioned under Section 8 of Hindu Succession Act, 1956. The property that came to a Hindu male from his uncle is considered as absolute property[3]

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:

1. Father
2. (a) Son daughter son, (b) son’s daughter’s daughter, (c) brother, (d) sister.
3. (a) Daughter’s Son’s son, (b) daughter’s sons’ daughter, (c) daughter’s daughter’s son (d) daughter’s daughter daughter
4. (a) Brothers son, (b) sister’s son, (c) brother’s daughter, (d) sister’s daughter.
5. Fathers father; fathers’ mother.
6. Fathers widow; brothers’ widow.
7. Fathers brother; fathers’ sister.
8. Mothers father; mothers’ mother.
9. Mothers brother; mothers’ sister.

Order of succession among the class of heirs of class 1 and class 2 the property is firstly divided into class 1 heirs first and then among class 2 heirs. Among Class 1 heirs the property of deceased is divided simultaneously and among Class 2 heirs the property is devolved as per the preference, for instance, entry one is preferred over entry 2 and entry 2 is preferred over entry 3 and so on. This rule of succession is mentioned under Section 9 of The Hindu Succession Act, 1956.

In Atma Singh v. Gurmej Kaur[4] the court held that even if the mother is remarried, she is entitled to succeed her son’s estate along with class1 heirs.

Order of Succession among the agnate or cognate is determined as per rules mentioned under Section 12. According to Rules mentioned thereunder Firstly, out of two heirs the one who has fewer or no degree of ascent is preferred (Rule 1). Secondly, where the number of degrees of ascent is the same then the one who has less or no degree of descent is preferred (Rule 2). In a case where no preference can be given to anyone under Rule 1 and Rule 2 then the property can be taken simultaneously by agnate and cognate (Rule 3). And to determine the order of succession among agnate and cognate the relationship is computed from the intestate to the heir according to the degree of ascent or degree of descent or both, where the degree of ascent and descent is computed including intestate and every generation constitutes a degree (Section 13).

Rules for Distribution of Property among Heirs

Distribution of property among Class 1 heirs

The property of deceased who dies intestate shall be divided among heirs of Class 1 heirs as per the rules mentioned under Section 10. According to Rule 1 the widow of deceased or in case of more than one widow, all widows together should take one share, one share each shall be given to surviving son, surviving daughter and mother of 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, 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 pre-deceased daughter, the distribution is made in such way that the surviving son and daughter receives equal portion (Rule 3 and 4).

Distribution of property among Class 2 heirs

The property of deceased is devolved in any one entry of the Class 2 heir if there is no one remaining among Class 1 heirs so that the entry of Class 2 heir to which the property is devolved receives equal share (Section 11). In Arunachalathammal v. Ramachandran Pillai[5] it was contended that the different 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 there is equality in the heirs of each entry and not one in the same entry is preferred. Thus, the property is to be devolved simultaneously. The court further added that there was no subdivision in any entry of Class 2 heirs.

Rules of Succession in Case of Female

 Any property possessed by female Hindu whether such property is acquired by inheritance, or by the partition, or as maintenance, or by a gift from any person before or after marriage, or by her skill, or purchased it or by prescription, or any property she holds as stridhana, any such property she held, she held it as full owner and not as the limited owner (absolute owner is one who has all the rights concerning the property he owns and limited owner is one who has certain limitation imposed upon him regarding the property). 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 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

In case of inherited property of female Hindu where there is no son or daughter including children of pre-deceased son and daughter, the property is not devolved as per the list but directly to the heirs of father and in case the property is inherited from husband or father-in-law then, in absence of son or daughter or children of pre-deceased son or daughter then the property will not be devolved s per list but it will directly be devolved upon the heir of husband. In Bajaya v. Gopikabai[6] the court held that when the succession of female property is reverted to husband heirs then Section 8 of the Hindu Succession Act is applicable.

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 mention in first entry is preferred over second entry heirs and second entry heirs are preferred over third entry heirs and so on. The heirs in the same entry shall take the property simultaneously. In case of pre-deceased son or daughter of deceased Hindu, a female has left son or daughter of pre-deceased son or daughter alive then, such children shall take such share as son or daughter of deceased female would have taken if they were alive (Rule 2).

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.

Conclusion

This article has explored the provision of Hindu Succession Act,1956 that are related to the rules of succession in case of property of both male and female and also includes the definition of the terms used in the act. 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.  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.

[1] (2015) AIR (SC) 2967

[2] SCR1954-0-243

[3] Madanlan Phulchand Jain v. State of Maharashtra

[4] (2017) AIR (SC) 4604

[5] AIR 1963 Mad 255

[6] 1978 AIR (SC) 0793

Author Details: Anshita Surana [Student, K.R. Mangalam University]