SUCCESSION

Legislative interventions in the Concept of

HJF and the Coparcenary:

The Caste Disabilities Removal Act, 1850:

 The law before the enactment of the Act: the moment a Hindu converted to another
faith he ceased to be a member of the joint family.
 The law, now: with the disability removed, a convert could no longer be expelled from
the joint family and would continue to be a member, though his descendants could not
enjoy the same protection.
 The conversion would mean an automatic partition of the convert from the joint family
and he would be entitled to take his share as it stood on the day of his conversion.
 Legislative interventions in the Concept of
HJF and the Coparcenary:
The Hindu Women’s Rights to Property Act, 1937:

 Prior to 1937: upon the death of an undivided coparcener, his widow was only entitled to only a right of
maintenance from the joint family property.

As the doctrine of survivorship applied, the share of the deceased coparcener was taken by the surviving
coparceners and nothing was given to the widow of such undivided coparcener.

 Under the 1937 Act: where a coparcener died and was survived by his widow, his widow stood in his shoes and
prevented his undivided interest to go to the surviving coparcener by application of doctrine of survivorship.

However, what she took in the property was not an absolute ownership but a limited ownership or a
woman’s estate terminable on her death or remarriage.

She was incapable of alienating the received property by Will, Gift or even a Sale. On her death or remarriage,
the interest would go to the heirs of her deceased husband.
Legislative interventions in the Concept of
HJF and the Coparcenary:

Effect of the Hindu Succession Act, 1956 on Joint Family and Coparcenary:

The law passed in 1956 to lay down a comprehensive and uniform law of
succession for Hindus governed by this Act.

It amended and codified primarily the laws of intestate succession and touched
briefly the law of testamentary succession as well as the classical law of joint family and
the coparcenary.

It defeated the application of the doctrine of survivorship.

Effect of the Hindu Succession Act, 1956 on
Joint Family and Coparcenary

Permissibility of Disposal of the Undivided Interest in Coparcenary Property by

Will:
 s.30 – a coparcener is empowered to make a Will (Testament) of his undivided
interest in the Mitakshara coparcenary.
 However, under the Classical Hindu Law, a coparcener could not dispose of his such
undivided interest by Will.
 A permission to the coparcener to bequeath his share also defeated the application of
doctrine of survivorship.
 Effect of the Hindu Succession Act, 1956 on
Joint Family and Coparcenary
Notional Partition (fictional partition):

 s.6 of the Act provided that if an undivided member dies and has left behind him a class I female surviving him or
the son of a predeceased daughter, it will be presumed that immediately before his death he had asked for a
partition and his share in the coparcenary property will devolve by intestate or testamentary succession under the
Hindu Succession Act, 1956 and not in accordance with the doctrine of survivorship.

- In 1955-56, during the Parliamentary debates on the Hindu Succession Bill, 2 options were available with the
legislature to bring in complete parity between the son and daughter:
i. Abolish the Joint family and Separate property distinction by abolishing the very concept of Joint family system.
ii. Make daughter a coparcener in the same manner as a son with a right by birth in the coparcenary property.

- The central legislation didn’t adopt any one of the alternative suggested, but brought in the concept of notional
partition.
 Effect of the Hindu Succession Act, 1956 on
Joint Family and Coparcenary
The Kerala Joint Hindu Family System (Abolition) Act, 1975 adopted the 1 st alternative

The Hindu Succession (Andhra Pradesh Amendment) Act, 1985 adopted 2 nd alternative

 Hindu Succession (Andhra Pradesh Amendment) Act, 1985:

The daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and
have the same rights in the coparcenary property as she would have had if she had been a son.

She is capable of disposing of this share by Will or other testamentary disposition.

It confers on her a right to ask for partition of the property and applies the concept of notional partition on her death if
she dies leaving behind children.

 Two pre-conditions before her right to coparcenary property:

i. That she should have been unmarried on the date of the passing of the Act;
ii. No partition in the family should have been effected before the commencement of the Act.
 Effect of the Hindu Succession Act, 1956 on
Joint Family and Coparcenary

Changes made in other States:

 The Andhra Model inspired other states like Tamil Nadu, Karnataka and Maharashtra.

 The state of Tamil Nadu followed it with Tamil Nadu Hindu Succession (Amendment) Act in 1989.

 The states of Karnataka and Maharashtra passed similar Acts in 1990 and1994:

The Karnataka Hindu Succession (Amendment) Act, 1990;

The Maharashtra Hindu Succession (Amendment) Act, 1994

 15th Law Commission in its 174th Report, dated 4th May 2000, suggested conferring equal rights to daughters in
the coparcenary property, offering a combination of Andhra and Kerala Models.
 The Hindu Succession (Amendment) Act,
2005:
1. The act deletes the provision relating to inapplicability of the HSA to agricultural property, but at the
same time does not clarify whether agricultural property would be or would not be subject to the
application of this Act.
2. It abolishes the doctrine of survivorship.
3. It introduces daughters as coparceners in a Mitakshara coparcenary irrespective of her marital status.
4. It retains the concept of notional partition but modifies the conditions of its applications.
5. It abolishes the pious obligation of the son to pay the debts of his father.
6. It abolishes the special rule relating to dwelling house that prevented class-I female heirs from
partitioning their shares, and imposed restrictions on the right of a married daughter to live in it.
7. It empowers a female coparcener to make a testamentary disposition of her share in coparcenary
property.
 The Hindu Succession (Amendment) Act,
2005:

 Unmarried Daughter’s Claim of Maintenance and Marriage Expenses:

As an unmarried daughter has been made a coparcener, she is now no longer entitled to claim her marriage
expenses out of the joint family property. The right of maintenance including marriage expenses was earlier
available to her only because she was denied a share in the property.

 Right of the daughter to demand a Partition of the Coparcenary Property post 2005:
The right of the married daughter to demand a partition of the coparcenary property after the Amendment of 2005
is absolute.
Even if she converts to Muslim faith after her marriage to a Muslim man, the right to ask for partition of
coparcenary property cannot be defeated.
Only her descendants born to her after conversion are disqualified from inheriting the property of the intestate
while the convert enjoys statutory protection under the Caste Disabilities Removal Act, 1850.
 s.6: Devolution of interest in Coparcenary
property:
 s.6(1):

The exclusive prerogative of males to be coparceners has been changed altogether and the right by birth in the coparcenary property has been conferred in
favour of a daughter as well.

The discrimination against daughter has been brought to an end, as her rights and liabilities are the same as that of a son. A daughter is now capable of
acquiring an interest in the coparcenary property, demand a partition of the same, and dispose it of through a testamentary disposition.

 s.6(3):

The traditional concept of coparcenary, where coparcenary property was held with incidents of survivorship, stands abolished expressly by the legislature.
Under the classical law, the share of each coparcener fluctuated with births and deaths in the family.

Now, if any male Hindu dies, having at the time of his death, an undivided interest in the Mitakshara coparcenary, the rule of survivorship would not
apply at all.

In all the cases, where a Hindu male dies, his interest in the Mitakshara coparcenary would be ascertained with the help of a deemed or notional partition.
 s.6: Devolution of interest in Coparcenary
property:
 s.6(5):

The amending act is prospective in application and its provisions would not apply to any partition that
was affected before 20th December 2004.

20th December 2004 – the date on which bill was introduced in Parliament.

Likewise, a daughter would be incapable to either demand a share by re-opening of such partition or
even question the same on the ground that no share was given to her.
 De-recognition of Oral Partition:
The term ‘partition’ used in s.6, means a partition that is in writing and duly registered or the one that is
affected by a decree of court, in essence, proving which would be easy.
 Succession

1. Testamentary succession

2. Intestate succession
Testamentary Succession

 Where succession is governed by a testament or a will

 Under Hindu law, a male or female has the capability to make a will of his/her property,
including of a share in the undivided Mitakshara coparcenary, in favour of anyone.
 In such cases, the property will devolve on their death, in accordance with the distribution that
they effect under this Will, and not according to the laws of inheritance.
 The only requirement is that the Will should be valid and capable of taking effect in law.
 The person who makes a Will is called a testator or a testatrix, the one in whose favour it is
made is called a legatee, and the whole process is called testamentary succession.
Intestate Succession

 If a person dies, leaving behind some property, but no will or testament capable
of taking effect in law, his property will be distributed among his legal heirs in
accordance with the laws of inheritance or of intestate succession.

 The person who dies without making a Will is called an ‘intestate’; those who,
in accordance with the scheme of inheritance, are entitled to get a share out of
his property are called his ‘heirs’ and the whole process is called intestate
succession.
 Property subject to the Rule of
Intestate Succession

For the application of the laws of inheritance/ intestate succession, the first and foremost condition is that the
property of the deceased should not have been disposed of by him under a valid Will.

 Separate Property or Self-acquisitions:

This would include the property that the deceased might have earned, i.e., his salary or a share in profits, or
what he may have received through a gift or Will, or through inheritance from any relative, or received by way
of a prize or a lottery.

 Property held by a Sole Surviving Coparcener:

Where only one coparcener is left, he would be called a sole surviving coparcener and on his death, the property
will go by intestate succession, as if it was the separate property of the coparcener.
Property subject to the Rule of
Intestate Succession
 Share obtained on Partition:

Where a partition of a coparcenary property takes place, each divided coparcener holds his share
allocated to him on partition, as his exclusive property.

If he has male or female issues, the character of the property is again coparcenary property with
respect to the male or female issues.

 Undivided share in Mitakshara Coparcenary:

Where a male Hindu dies as an undivided member of a Mitakshara coparcenary his undivided
share will be demarcated with the help of a notional partition and will go by intestate succession
and not by the doctrine of survivorship.
Classification of heirs

i. Class I
ii. Class II
[Link] III (Agnates)
iv. Class IV (Cognates)
 Rules for Devolution of Property

 On the death of the intestate, the property devolves in the first instance, on the class-I heirs.
 As long as even a single class-I heir is present, the property will not go to the heirs under the class-
II category.
 When none of the class-I heirs is present, the property would pass to the class-II heirs.
 The class-II heirs comprise of 9 separate entries, the prior excluding the later.
 Under, Class-II heirs, in each entry, all the heirs take the property in equal shares.
 In the absence of heirs in the class-II category, the property descends to the class-III category.
Rules for Devolution of Property
 The third category comprises of all blood relatives of the intestate, related to him through a whole
male chain of relatives. These heirs are covered under the expression ‘agnates’

 Where none of the agnates is present, the property goes to the rest of the blood relatives of the
intestate, called the ‘cognates’

 Agnates defines under s.3(a), HSA 1956

 Cognates defined under s.3(c), HSA 1956

 If none of the heirs in class-I, class-II, agnates and cognates is present, the property of the intestate
will pass to the government, under the doctrine of Escheat.

 s.29, HSA: Failure of heirs.

 Class–I heirs

 Includes 11 females and 5 males

 All of them inherit simultaneously
 All
class – I heirs take the property absolutely and
exclusively as their separate property.
 Class–I heirs
i. Son (S)
ii. Daughter (D)
iii. Widow (W)
iv. Mother (M)
v. Son of a predeceased son (SS)
vi. Daughter of a predeceased son (SD)
vii. Son of a predeceased daughter (DS)
viii. Daughter of a predeceased daughter (DD)
ix. Widow of a predeceased son (SW)
x. Son of a predeceased son of a predeceased son (SSS)
xi. Daughter of a predeceased son of a predeceased son (SSD)
xii. Widow of a predeceased son of a predeceased son (SSW)
xiii. Son of a predeceased daughter of a predeceased daughter (DDS)
xiv. Daughter of a predeceased daughter of a predeceased daughter (DDD)
xv. Daughter of a predeceased son of a predeceased daughter (DSD)
Mother:
- Biological as well as adoptive mother included
- Step-mother not included
- If a biological mother gives her son in adoption, she ceases to be his mother, and would not be entitled to
inherit from him on his death.
- Where a man having a plurality of wives (all married prior to 1955), adopts a child, the senior-most of his
wives would be the adoptive mother and others step-mothers.
- Marital status of mother irrelevant
- The legitimacy or illegitimacy of the child does not affect the inheritance rights of the mother.
- Conduct of mother irrelevant – she may be involved in a live-in relationship, or might have remarried, or
renounced Hindu religion or converted to another religion.
Widow:
- The term ‘widow’ refers to the spouse of a valid marriage
- It does not include a ‘divorced wife’ but includes a ‘wife’ who at the time
of the death of the male Hindu, was living separately under a decree of
judicial separation.
- The widow of an intestate takes a share that is equal to the share of a son.
- If more than one widow (provided they were party to a valid marriage),
all of them collectively take one share and divide it equally among them
Daughter:
- Includes a natural born or an adopted daughter
- Does not include a step-daughter or an illegitimate daughter
- The daughter born of a void or voidable marriage is a legitimate child
- A daughter is a daughter, and her marital status, her chastity or even her financial position, is of
no consequence

Son:
- Includes a natural born or an adopted son
- Does not include a step-son or an illegitimate son
Children born of a Live-in Relationship:
- Children of valid marriages or void/voidable annulled marriages treated as
legitimate for inheriting the property of father
- Progeny of a defective marriage/ casual or occasional relationship or even
a prolonged consistent live-in relationship is treated as illegitimate and
ineligible to inherit the property of the father.
Sons and Daughters of predeceased son:
- Where a son of an intestate dies during the lifetime of the intestate, his children,
natural born, but legitimate or adopted, would be entitled to represent him
- Their turn to inherit would come only when their father, through whom they were
related to the deceased, is dead.
- Therefore, the expressions, ‘grandson’ or ‘grand-daughter’ not used.
- The quantum of the share of a son and a daughter of a predeceased son is
absolutely equal. They take the property absolutely or exclusively, with full
powers of disposal over it.
Succession rights of Son and Daughter of a pre-deceased son where the
parents or the grandparents had a void or voidable marriage:
- Not only the son and daughter of a predeceased son must be perfectly
legitimate, but their father should also have been a legitimate offspring of the
grandfather.
- If the father was born out of a void or voidable marriage, that was annulled
subsequently, he would be entitled to inherit the property of his parents, but on
his death, his children would not be deemed to be related to the grandfather,
and therefore, they would not inherit his property.
Son and Daughter of a Predeceased daughter:
- On the death of a legitimate natural born or adopted daughter of the intestate, during
his lifetime, the son and daughter (again legitimate or adopted), would represent their
mother, take a share that would have been allotted to her if she had been alive and
divide it equally between them.

Son and Daughter of a Predeceased Son of a predeceased son:

- Except in the case of a valid adoption, they and their descendants should be the
progeny and parties to a valid marriage, and not of void or a voidable marriage that has
been annulled.
Widow of a predeceased son:
- Not a blood relation and is introduced in the family by marriage to the son.
- The term used here is ‘widow’ and not the ‘spouse’ of the son.
- The widow of a predeceased son, in order to inherit the property of her deceased father-in-law, must be
a widow on the death the succession opens, i.e., the date of the death of the intestate.
- If she remarries before the succession opens, she would no longer be the widow of his son, nor will she
be a member of his family, and will be disqualified from inheriting his property.
- A widow of an illegitimate son or a son born of a void or voidable marriage that has been annulled is
not entitled to inherit the property of the intestate.
Widow of a Predeceased son of a predeceased son:
- Her relation with the intestate should be through adoption or natural birth of
her husband, but it must be through a legitimate connection.

Sons and Daughters of a Predeceased Daughter of a Predeceased Daughter:

- The relation of the intestate with the daughter and her children as well as her
grandchildren should be through legitimate kinship or through adoption.
Daughter of a Predeceased Son of a Predeceased daughter:
- Till September 2005 such daughter was a class-II heir placed in entry IV.
- Ironically, while this great grand daughter has been made a class-I heir, her brother is still
a class-II heir.

Daughter of a predeceased daughter of a predeceased son:

- Till September 2005 such daughter was a class-II heir placed in entry IV.
- Ironically, while this great granddaughter has been made a class-I heir, her brother is still a
class-II heir.
 Rules for the Distribution of the Property

Among the class-I heirs, the property of an estate is divided in accordance with the following rules:
i. The share of each son and daughter and of the mother is equal.
ii. The widow of the intestate takes one share, and if there is more than one widow, all of them collectively, will take one
share, i.e., a share equal to the share of the son, and will divide it equally amongst them.
iii. A predeceased son, who is survived by a son, daughter or a widow, is to be allotted a share equal to the share of a living
son.
iv. Out of such share allotted to the branch of this predeceased son, his widow (or widows together) and each living son and
daughter will take equal portions with respect to each other and the branch of any predeceased son will also get an equal
portion.
v. The rules applicable to the branch of a predeceased son of a predeceased son, are the same, viz., the sons, daughters and
the widow or (widows together), will get equal portions.
vi. A predeceased daughter, who is survived by a son or a daughter, is to be allotted a share equal to that of a living daughter.
vii. Such share will be taken equally by the sons and daughters of the predeceased daughter.
 Class-II Heirs

 As long as a single heir from the class-I category is present, the property
does not pass to the class-II category.
 This category has 19 heirs. 10 heirs are males and 9 heirs are females.
 These are together grouped into 9 sub-categories, the prior excluding the
latter.
 All the heirs of one category take the property in equal shares, according
to the per capita rule of distribution of property.
 Class-II Heirs

I. Father
II. (1) Son’s Daughter’s Son, (2) Son’s Daughter’s Daughter (Class-I), (3) Brother, (4) Sister
III. (1) Daughter’s Son’s Son, (2) Daughter’s Son’s Daughter (Class-I), (3) Daughter’s
Daughter’s Son (Class-I), (4) Daughter’s Daughter’s Daughter (Class-I)
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
Father:
- Includes a biological as well as an adoptive father
- Does not include the step father or a putative father of an
illegitimate son
- The position of father is such, either he gets nothing or he gets the
total property
Brother and Sister:
- Brothers and Sisters can be related to each other by blood or adoption.
- When the relationship is by blood, it can be a full-blood, half-blood or uterine blood relationship.
- The term ‘brother and Sister’ here does not include a reference to a brother or sister by uterine
blood.
- Full-blood relationship: brothers and sisters descendants of same mother and father.
- Half-blood relationship: brothers and sisters from a common father, but from different mothers.
- Full-blood relations excludes the half blood relations.
- Uterine blood relationship: brothers and sisters from a common mother, but from different fathers.
Rights of Brothers and Sisters when the Parents had a void or voidable
marriage annulled by the Court:
- An offspring of a void or voidable marriage annulled by the Court, is a
legitimate child, but is deemed to be related only to his parents.
- Such a child does not inherit from the other natural born, legitimate child of
a valid marriage of the father.
Paternal Grandparents:
- Do not include the step-grandparents or grandparents where either
the intestate or his father was an illegitimate child or the offspring
of a void or a voidable marriage that was subsequently annulled.
Children of Brothers and Sisters:
- All children of brothers and sisters in absence of their respective parents inherit
together under entry IV of the class-II category and share equally, irrespective of
their sex, or the sex of their parent.
- Children of uterine brothers and sisters are excluded.
- If the children of both full-blood and half-blood brothers and sisters are present,
the former would exclude the latter.
Father’s widow and brother’s widow:
- The expression ‘father’s widow’ includes such widow of the intestate’s
deceased father, who was not the mother of the intestate.
- A mother is a class-I heir.
- Such widow must have been a party to a valid marriage between her and
the father.
- The term ‘widow’ also denotes that his marriage has ended by the death of
the father and not by a divorce.
- ‘Brother’s widow’ includes only the widow of a full-blood, or a half-blood
brother, the former excluding the latter, but not of uterine brother.
Maternal Grandparents:
- They must be related to the intestate by legitimate blood, and neither their marriage nor
the marriage of their daughter should be void or voidable that was subsequently annulled.
- Maternal grandparents do not include the step-grandparents.

Maternal Uncles and Aunts:

- The mother’s brother and sister may be related to her by full-blood or half-blood, the
former would exclude the latter, but if they are related by uterine blood, they will be
excluded from this category.
 Class-III (Agnates)

 s.3(a), 1956 Act.

 An agnate is a person who was related to the intestate through male relatives
only.
 An agnate himself/herself can be a male or a female, as it is the sex of the line of
relatives, and not the sex of the heir, that is material.
 Agnates can be direct ascendants, direct descendants, or collaterals.
 Nearer agnates and cognates have already been included as class-I and class-II
heirs, and therefore, this category refers to remoter agnates.
 Class-IV (Cognates)

 s.3(c), 1956 Act.

 A cognate is a relative who was related to the intestate
through a chain of mixed relatives, in terms of sex.
 Itis not a whole male chain, as even if a single female
intervenes, it will become a cognatic chain.
 Rules and Order

 s.8: General rules of succession in the case of males.

 s.9: Order of succession among heirs in the schedule.
 s.10: Distribution of Property among heirs in Class I of the Schedule
 s.11: Distribution of Property among heirs in Class II of the Schedule
 s.12: Order of succession among agnates and cognates
 s.13: Computation of degrees
Rules of preference

i. Each generation is a degree.

ii. The starting or the first degree is the intestate himself.
iii. Degrees of ascent means in the ancestral or upward direction.
iv. Degrees of descent means in the descendant or downward direction.
v. Where an heir has both ascent and descent degrees, each of them has
to be seen separately and not cumulatively.
Rules of preference

1. Descendants > Ascendants > Collaterals

2. Only descendants - descendant of lesser degree preferred
3. Only ascendants - ascendant of lesser degree preferred
4. With same degree of ascent or descent – simultaneously and in equal proportion
5. When collaterals:
i. One with fewer ascent degree will be preferred (irrespective of degrees of descent)
ii. When ascent degree same – one with fewer descent degree will be preferred
iii. When degrees of ascent and descent are the same, all take simultaneously and among
themselves they share per capita.
Doctrine of escheat

 Ifnone of the heirs in class-I, class-II, agnates and

cognates is present, the property of the intestate
will pass to the government.
 s.29, 1956 Act: Failure of heirs.