Daughters Have Coparcenary Rights Even If Their Father Was Not Alive When Hindu Succession (Amendment) Act 2005 Came Into Force: SC

                                 In a most significant judgment with far reaching implications that will immensely benefit Hindu daughters, the Apex Court in Vineeta Sharma vs Rakesh Sharma & Ors. in Civil Appeal No. Diary No. 32601 of 2018 along with some other Special Leave Petition (SLP) just recently on August 11, 2020 has held in no uncertain terms that a daughter will have a share after the Hindu Succession (Amendment) Act, 2005, irrespective of whether her father was alive or not at the time of amendment. This is certainly a significant step towards the attainment of gender equality in our country for which the Apex Court Bench which decided this extremely landmark and laudable judgment deserves full credit! Till this laudable judgment was delivered we saw how despite several amendments to the Hindu Succession Act, 1956 there was none such provision that gave unconditional rights to women pertaining to her father’s property!

                               To start with, Justice Arun Mishra who authored this notable judgment for himself and Justice Abdul Nazeer and Justice MR Shah first and foremost set the ball rolling by observing in para 1 that, “The question concerning the interpretation of section 6 of the Hindu Succession Act, 1956 (in short, ‘the Act of 1956’) as amended by Hindu Succession (Amendment) Act, 2005 (in short, ‘the Act of 2005’) has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343. In other connected matters, the question involved is similar; as such, they have also been referred for hearing along.”

                       Be it noted, it is then enunciated in para 116 that, “The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5).”

                                        What’s more, it is then observed in para 126 that, “The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved.”

                                    More significantly, the Bench then minces no words to state in suave, simple and straight language in para 127 while highlighting the dire need to protect daughter’s interests in property that, “A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardize the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the objects of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.”

                           Most significantly, the Bench then cogently, convincingly and clearly holds in para 129 that, “Resultantly, we answer the reference as under:

(i)                         The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and abilities.

(ii)                      The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii)                   Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv)                   The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v)                      In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been effected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

                               No less significant is what is then stated finally in the last para 130 that, “We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision.”

                                          No doubt, this latest, landmark and laudable judgment by a three Judge Bench of the Apex Court must be applauded, admired and appreciated in no uncertain terms as it places daughter on an equal footing with son in property matters which is a revolutionary move that will ensure that a daughter’s rights are not smothered under any circumstances by anyone as they like as per their own whims and fancies! But what is even more crucial is that society’s patriarchal mindset favouring only son must also change at the earliest and simultaneously the litigation processes in courts must be simplified, made inexpensive so that the poor women too can get their due and time-bound so that women does not suffer the ordeal of running from pillar to post first in lower courts, then in higher courts and then ultimately in the highest court! More awareness programme must be launched by Centre and State Governments to ensure that women are made aware of their legal rights as have been marked by the Apex Court in this landmark judgment! Only then can daughters gain immensely by this extremely laudable and landmark judgment which they must as no society can progress where women remains backwards and stands deprived of her basic legal rights!

Sanjeev Sirohi

Female intestate succession under The Hindu Succession Act, 1956

Hindu Succession ActThe patriarchal domination is firmly rooted in the Indian society, including laws such as the succession laws under various personal laws including the Hindu Succession Act, 1956 (HSA). The socio-economic changes have placed women in a much better position and at par with men. But it seems that these changes have no impact on the old age laws.

This paper talks about sec 15(1) of the HSA, which by its very own nature is discriminatory and biased. Section 15(1) of the HSL specifies the manner in which the property of a female should be inherited if she dies intestate. The property of the woman who has died intestate is aimed at returning it back to the source. But the inheritance law for the self acquired property of the woman which says that such property is to be inherited by the husband of the deceased and her in-laws is in question for its illogical biasness.

Although, the reasoning of the legislatures at the time of forming it was adequate and acceptable that time, but in the present scenario, this particular succession law has been under criticism for its discriminatory nature which clearly violates article 15 of the Indian Constitution which states that no one can be discriminated against based on gender.

This paper talks about the irrelevancy of this law at present and aims at presenting the available alternatives for the distribution of a female’s property if she dies intestate.

But the question of equality remains to be answered by bringing in an amendment to solidify the concept of “equality” which is the backbone of any society and is one of the basic elements of the Preamble of the Indian Constitution.

 

INTRODUCTION
“Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself.  This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. It  seems  that  this  discrimination  is  so  deep  and systematic  that  it  has  placed women at the receiving end.”[1]

India is a country where women are taking a lead and are at par with men in all spheres- social, economic and political. With the socio-economic changes taking place, the Indian society is witnessing a greater participation of women and hence, equality is no more a distant dream. But when laws of the 20th century govern the 21st century society, the Fundamental Right of Equality that Section 15 of the Indian Constitution guarantees, possess a threat of being violated.

The Hindu Succession Act (HSA) came to picture in 1956 and is applicable even today, after 60 years! When the gap is so wide, it’s not at all surprising that laws of that time are not in conformity with the present day social conditions.

 

THE QUESTIONS
·         Is section 15(1) of Hindu Succession Act, 1956 Constitutionally Valid?

·         Is there a need to change the present law?

·         What are the alternatives in picture?

RESEARCH METHODOLOGY

The researcher has followed the doctrinal method of research. The primary source of the information is the Hindu Succession Act, 1956. Apart from that, scholarly articles, and books have been referred to. The researcher has also referred to the existing legislation and case laws to find out the present position of law.
CHAPETERISATION
1.      The Existing Law: The first chapter deals with the present day law applicable to  female intestate succession under the Hindu Personal Law i.e. section 15 (1) of the Hindu Succession Act, 1956.

2.      Checking the Constitutional Validity: This chapter deals with the question of constitutional validity of the law in question, supported by case laws that present the reasoning of the Courts to upheld or deny the constitutional validity of section 15(1).

3.      The Present Scene: In this chapter, the researcher shall talk about the need to change the present day law based on the socio-economic changes taking place as well as the “hard case” of Omprakash and Others v. Radhacharan and Others[2].

4.       Suggestions and Conclusions: This part contains the proposals and suggestions to replace and modify the law into a fair and equal law. Apart from this, this section will also contain the answer of the research questions followed by the conclusion.

 

CHAPTER 1: THE EXISTING LAW
Intestate Succession is the method by which property is distributed when a person dies without a valid will.

The Hindu Succession Act, 1956 slots property of a Hindu female under three categories:

i.            property inherited by a female from her father or mother

ii.            property inherited from her husband or father-in-law

iii.            properties that are not governed by the first two categories.

Under sec 15 r/w sec 16 of the HSA, the general rule for succession of all kinds of the properties is that it will pass on to the children (or if children predeceased the female, to the predeceased children’s children) and the husband. However, in case there is no one in existence from the above at the time when succession opens, the first kind of property will be inherited by the heirs of her father and the second by the heirs of her husband. Perhaps, the intention of the legislature was that the property should go back to the source from which it was received.

It is the succession procedure of the third kind of property, which includes the self acquired properties or properties received in any other manner or from any other source, provided the female has absolute rights in that property, which is under question in this research paper. Sec 15(1) of the act provides for a specific order, in which this property divests;

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.[3]

The HSA relegates blood relations of a Hindu woman to an inferior position vis-à-vis her husband’s heirs. This leads to a situation where a woman’s relatives from her parent’s side will never be able to inherit her property when the husband has an heir, however remotely related.
CHAPTER 2: CHECKING THE CONSTITUTIONAL VALIDITY
Under Article 15(1) of the Constitution, there cannot be discrimination “against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” This being the case, discrimination based only on the above grounds is unconstitutional, but not the one which is based on the above factors coupled with some other criteria like social and educational backwardness.

It was argued in the Mamta Dinesh Vakil case that the inequality which exists in Section 15(1) of the act is not based on gender alone, but also on family ties.

The woman, upon marriage, goes into the family of her husband; the converse is not true. A woman gives up her maternal/paternal ties upon her marriage and assumes marital ties. Hence, intestate succession for Hindus takes into account this ground reality.

It was argued that it is considering this reality that the legislature has provided for the heirs of the husband in the woman’s property.

The constitutional validity of the section in question was brought to the judiciary in an earlier case of Sonubai Yeshwant Jadhav v Bala Govinda Yadav[4]. It was held there that

“The object of the legislation was to retain property with the joint family upon marriage which brought males and females together forming one institution. It, therefore, accepted that in recognition of that position when the wife’s succession opened, the class known as heirs of the husband were permitted to succeed as a result of initial unity in marriage upon which the female merged in the family of her husband.”

The court, in the Mamta Dinesh Vakil[5] case, rejected this argument and added that the discrimination in the section is only based on gender and not on family ties. The court analysed the succession scheme of the male intestates under the HSA to check the viability of the argument. It noticed that keeping the property within the family was not being envisaged. Otherwise, the property of a male Hindu would not be inherited by daughters, sister’s sons and sister’s daughters. It was thus observed that the only basis of this classification was gender. It was further concluded that the section is extremely discriminatory inasmuch as the female’s property, even if self-acquired, is not inherited by her core heirs. Further, a Hindu female, “who would otherwise hope to succeed to an estate of another Hindu female as an heir would receive setback from the distant relatives of the husband of the deceased not even known to her or contemplated by her to be her competitors.” Therefore, the section is ultra vires of the scheme of the Constitution and hence invalid.

The succession laws are not only about the ones who are entitled to the property, but also about the ones who should be disentitled. The 21st edition of Principles of Hindu Law (Mulla) also observes that section 15(2) is based on the grounds that property should not pass to the individual “whom justice would require it should not pass.” Example of the same is the Section 25 of the HSA which disqualifies a murderer from inheriting the property of the person he/she has murdered. It is based on the belief that the deceased person will never want the person who murdered him/her to inherit property.

INTERFERRENCE IN PERSONAL LAWS

It will be a blemish that even when the Hindu society is thriving towards gender equality, the succession laws discriminate. A legislation which discriminates only on the basis of gender, can be questioned, as was done when section 10 and 34 of the Indian Divorce Act were amended (in the cases of Ammini E. J. v. Union of India[6] and N. Sarda Mani v. G. Alexander[7]). Moreover, there have been progressive changes in the Hindu law itself, e.g. the amendment in sec 6 giving women the right to coparcenary and deletion of section 23 which deprived women of sharing the dwelling house by the 2005 amendment. Although there can be different laws for different religions, there cannot be different laws for different sexes and thus the judiciary has a right to interfere in the latter case.

 

CHAPTER 3: THE PRESENT SCENE
The 174th Report of the Law Commission also examined the subject of “Property Rights of Women; Proposed Reforms under the Hindu Law” and had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions.

At the time of enactment of the HSA, the socio-economic conditions of women were different. At present, women hold some really good share of personal property and the family ties with her in-laws are the same as her own family due to the emerging concept of nuclear families.

The adoption of century old law, hence, does not make any sense and presents the possibility of being discriminatory and vague, which is true in the present case at least.

EXAMPLES OF CHANGE

To set an example, some other States have amended the law. The Hindu Succession [Andhra Pradesh] Amendment Act, 1985 is one such example.

The Supreme Court has ruled that a Hindu woman or girl will have equal property rights along with other male relatives for any partition made in intestate succession after September 2005. A bench of justices R. M. Lodha and Jagdish Singh Khehar in a judgment said that under the Hindu Succession (Amendment) Act, 2005, the daughters are entitled to equal inheritance rights along with other male siblings, which was not available to them prior to the amendment. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The legislature has now conferred substantive right in favour of the daughters.

THE HARD CASE

Omprakash and Ors Vs. Radhacharan and Ors[8]

In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband’s family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.

The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman’s self-acquired property, and such property cannot be considered as property inherited from her parents.

The court said:

“This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”

In Narayani Devi’s case, the mother’s claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.

Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”

Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.

Here, the court granted the property to the very people who behaved cruelly with the deceased and did not maintain the relationship when she needed it the most.[9]
CHAPTER 4: SUGGESTIONS AND CONCLUSION
SUGGESTIONS

Although a magnum opus, the judgment of the Mamta Dinesh Vakil case has been passed by a single bench of the high court and needs to be affirmed by the division bench. Once it is so done, it will be a watershed judgment to bring in equality in the Hindu law. Once declared unconstitutional, the government can use the recommendations of the 207th Law Commission Report, 2008 to bring reforms in the law.

The report suggests two options, one of bringing the intestate succession laws in parity with the males, and the other of dividing the property equally among the matrimonial and natal heirs, taking into note the ground reality that the woman ultimately leaves her natal place and works under the constant support of her in-laws. Either of these options will be progressive changes in the Hindu law and would prove the supremacy of the Constitution.

CONCLUSION:

Section 15(1) of the Hindu Succession Act, is a violation of the Fundamental Right of Equality and hence, it needs to be amended. “What women can expect from Courts… is a qualified degree of equal treatment. Women’s equality as delivered by Courts can only be integration into a pre-existing, predominantly male world.”[10]

In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband’s sister’s children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents’ support. These are the ground realities. Keeping that in mind, it’s not wrong to assume that the laws having such discriminatory orientation will be repealed and new changes will be introduced and accepted as the society grows and develops.

BIBLIOGRAPHY

LEGISLATIONS

·         Hindu Succession Act, 1956

·         Hindu Succession (Amendment) Act, 2005

BOOKS

·         Jain, M.P., “Indian Constitutional Law”, ed. 7th, LexisNexis, (Pg 935-937), ISBN 978-93-5143-064-3

·         Shukla, V.N., “Constitution of India”, edited by Mahendra Pal Singh, ed. 12th, Eastern Book Company, (Pg 89-91), ISBN 93-5028-957-1

NEWSPAPER REPORTS

·         Prabha Sridevan, “A law that thwarts justice”, The Hindu, June 26, 2011 retrieved at 04:43 pm on 20 April 2016

·         Dr. Justice Ar. Lakshmanan, “Let us amend the law, it is only fair to women”, The Hindu, July 24, 2011 retrieved at 06:45 pm on 20 April 2016

EDITORIALS

·         Editorial, “Hindu Woman Entitled To Equal Property Rights: Supreme Court”, The Hindu, NEW DELHI, October 13, 2011 retrieved at 02:34 am on 30 March 2016

ARTICLES

·         Javed Razack, “Inheritance and Succession, Rights of Women and Daughters under Personal Laws”, available at http://www.lexorates.com/articles/inheritance-and-succession-rights-of-women-and-daughters-under-personal-laws/ retrieved at 12:43 pm on 16 April 2016

·         Professor Wendy Williams, “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women’s Rts. L. Rep. 175 (1982), retrieved at 01:28 am on 20 April 2016

·         Ms. Arpita Saha, “Intestate Succession: Devolution Of Property After The Death Of A Hindu Without A Will”, available at http://www.legalserviceindia.com/article/l258-Intestate-Succession.html, retrieved at 12:56 am on 22 April 2016

·         Ayushi Singhal, “Female Intestate Succession under Hindu Law: Analyzing its Constitutionality”, September 06, 2015, available at

http://www.legallyindia.com/Blogs/female-intestate-succession-under-hindu-law-analyzing-its-constitutionality, retrieved at 04:56 pm on 25 April 2016

WEBSITES

·         The Hindu Succession Act, 1956 available at

http://admis.hp.nic.in/himpol/Citizen/LawLib/C129.HTM, retrieved at 10:56 am on 12 April 2016

·         http://www.vakilno1.com/bareacts/hindusuccessionact/hindusuccessionact.html retrieved at 06:43 pm on 15 March 2016

·         https://indconlawphil.wordpress.com/2015/09/06/female-intestate-succession-under-hindu-law-analyzing-its-constitutionality/ retrieved at 04:50 pm on 18 April 2016

·         http://ncw.nic.in/frmReportLaws21.aspx retrieved at 10:56 pm on 20 April 2016

 

SUBMITTED BY:

PUJA JAKHAR

SEMESTER 3

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

(NUSRL), RANCHI

·         [1] 174th Law Commission Report: Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000 retrieved at 11:43 pm on 26 March 2016
[2] (2009)15 SCC Page 66
[3] The Hindu Succession Act, 1956 available at

http://admis.hp.nic.in/himpol/Citizen/LawLib/C129.HTM, retrieved at 10:56 pm on 12 April 2016
[4] AIR 1983 Bom 156
[5] 2012(6) Bom.C.R. 767
[6] AIR 1995 Ker 252
[7] AIR 1998 AP 157
[8] (2009)15 SCC Page 66
[9] Prabha Sridevan, “A law that thwarts justice”, The Hindu, June 26, 2011, retrieved at 04:43 pm on 20 April 2016
[10]Professor Wendy Williams, “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women’s Rts. L. Rep. 175 (1982), retrieved at 01:28 am on 20 April 2016

Succession to the property of a Hindu Male

Succession to the propertyThe Hindu Succession Act, 1956, is a law that was passed by the ‘Parliament of India’. The preamble of the Act signifies that an Act to amend and codify the law relating to intestate succession among Hindus. The Act lays down a uniform and comprehensive system of succession whereas attempt has been made to ensure equality inheritance rights between sons and daughters. It applies to all Hindus including Buddhists Jains and Sikhs. The Hindu Succession Act, 1956 preserves the dual mode of devolution of property under the Mitakshara School. The joint family still devolves by Survivorship with this important exception that if a Mitakshara Coparcener dies leaving behind mother, widow, daughter, daughter’s daughter, son’s daughter, son’s son’s daughter, son’s widow, son’s son’s widow, or daughter’s son his interest in the joint family property will devolve by succession.

Succession to the property of a Hindu Male

The Hindu Succession Act, 1956 deals with the inheritance to

a) The separate properties of a Mitakshara male,

b) The separate and coparceners properties of a Dayabhaga male, and

c) The undivided interest in the joint family property of a Mitakshara Coparcener.

The Act does not apply to the property of a Hindu who is married under the Special Marriage Act to a non -Hindu.

Heirs of a Hindu Male

The heirs of Hindu male fall under the following categories:-

1) Class I heirs,

2) Class II heirs,

3) Agnates,

4) Cognates, and

5) Government.

Class I heirs:-

The property of a Hindu Male dying intestate would be given first to heirs within Class I. They are:

i. Mother,

ii. Widow,

iii. Daughter,

iv. Son,

v. Widow of a predeceased son,

vi. Son of a predeceased son,

vii. Daughter of a predeceased son,

viii. Widow of a predeceased son of a predeceased son,

ix. Daughter of a predeceased son of a predeceased son,

x. Son of a predeceased son of a predeceased son,

xi. Daughter of a predeceased daughter, and

xii. Son of a predeceased daughter.

Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are:

i. Son of a predeceased daughter of a predeceased daughter,

ii. Daughter of a predeceased daughter of a predeceased daughter,

iii. Daughter of a predeceased son of a predeceased daughter, and

iv. Daughter of a predeceased daughter of a predeceased son.

Shares of Class I heirs :

Section 10, Hindu Succession Act deals with the distribution of the property of the propositus, among class I heirs. The rules are:

A.] Sons, daughters and the mother of the propositus each take one share.

For example:-

If ‘P’ dies leaving behind his Mother ‘M’, two sons S1 and S2 and two

Daughters D1 and D2, each of the above heirs will take one share, i.e., 1/5th

-‘M’ will take 1/5th ;

– D1 and D2 each will also take 1/5th &

– S1 and S2 each will take one fifth.

B.] Widow takes1 share. If there are more than one widow, all of them together take one

Share and among themselves they divide it equally.

For example:-

‘P’ dies leaving behind a widow, ‘W’ and three daughters ‘D’, ‘D1’, and

‘D2’. Here each will take one share, i.e. 1/4th to each.

-‘W’ will take 1/4th,

-‘D’, ‘D1’ &‘D2’ each will take 1/4th .

C.] Among the heirs of the branches of a predeceased son, son of a predeceased son of a

Predeceased son and predeceased daughter, so here the doctrine of representation applies

i.e. heirs in each branch would take the same share which their parent would have taken.

So, we see above three rules in the following example:

If ‘P’ dies leaving behind son ‘S’, widow of a predeceased son ‘S1’, ‘SW’,

Predeceased daughter’s son and daughter ‘DS’ and ‘DD’, predeceased son’s

Predeceased son’s widow ‘SSW’, his daughter ‘SSD’ and his son ‘SSS’.

Distribution is first to be made at a place where branches come into existence.

There are four branches, each will take 1/4th share i.e.

– ‘S’ will take 1/4th .In the branch of ‘S1’ there is only one heir ‘SW’, she

representing ‘S1’ will take 1/4th .

– In the branch of predeceased daughter, there are two heirs, they representing her

will take 1/4th and between themselves divide it equally, with result that ‘DS’

will take 1/8th and ‘DD’ will take 1/8th .

– In the branch of predeceased grandson, there are three heirs, representing him

they will take 1/4th & among themselves share it equally, with the result that

‘SSW’, ‘SSD’&‘SSS’ each will take 1/12th.

Class II heirs and their shares:

If there are no heirs in Class I, the property will given to the heirs within Class II. They are divided into nine categories. The rule is that an heir in an earlier category excludes heirs in later category. Further all heirs in one category take simultaneously per capita share. They are as follows:

1] Category I –

a) Father.

2] Category II –

a) Son’s daughter’s son.

b) Son’s daughter’s daughter.

c) Brother.

d) Sister.

3] Category III –

a) Daughter’s son’s son.

b) Daughter’s son’s daughter.

c) Daughter’s daughter’s son.

d) Daughter’s daughter’s daughter.

4] Category IV –

a) Brother’s son.

b) Brother’s daughter.

c) Sister’s son.

d) Sister’s daughter.

5] Category V –

a) Father’s father.

b) Father’s mother.

6] Category VI –

a) Father’s widow. [Step mother].

b) Brother’s widow.

7] Category VII –

a) Father’s brother.

b) Father’s sister.

8] Category VIII –

a) Mother’s father.

b) Mother’s mother.

9] Category IX –

a) Mother’s brother.

b) Mother’s sister.

The rule of share in Class-II heirs is that each will take per capita including widow.

Agnates and Cognates:

Next heir of Hindu male is ‘Agnates and Cognates’. In it first preference is given to ‘Agnates’ & then ‘Cognates’. The rules for determining who are agnates & cognates are the same; so are the rules relating to distribution of property among them.

Agnates mean when a person traces his relationship with another through males, he or she is an ‘Agnates’. For instance brother, brother’s son, son’s son, son’s son father, father’s father, father’s mother, father’s father’s father & mother, son’s daughter, son’s son’s daughter………. etc are agnates.

On other hand cognates means whenever in the relationship of a person with another, a female (or more than one female) interverence anywhere in the line, one cognate to another. For instance sister’s sons & daughters; daughter’s sons & daughters; mother’s mother & father; father’s mother’s father & mother; mother’s father’s son & daughter………..etc are all cognates.

Government:

If a Hindu male leaves behind neither class I, nor class II, nor any agnates, nor any cognates upon his death, then, his entire property lapses to the government. This is called as “Escheat”. When government takes his property as heir, it takes with subject to all the obligations and liabilities of propositus.

Succession to a Mitakshara Coparcener’s Interest

The Section 6 of the Act has been extensively amended by the Hindu Succession (Amendment) Act, 2005; while recognizing the rule of devolution by Survivorship among the members of the coparcener makes an exception to the rule in the proviso.

According to proviso, if the deceased has left a surviving female relative specified in class I or a male relative specified in that class who claim through such female relation, the interest of a deceased in Mitakshara Coparceners property shall devolve by testamentary of instate succession under the Act and not as Survivorship.

Certain exceptions:-

If , and the heirs are both male and female, the female heir is not allowed to request partition until the male heir chooses to divide their respective shares. If this female heir is a daughter, she has the right to reside in the home if she is unmarried, divorced or widowed.

After the Hindu Succession (Amendment) Act, 2005; Section 6, the difference between the female and male inheritor has been abolished . Now even female inheritor [daughter] can also claim partition of the ancestral property.

Further any person who commits murder is disqualified from receiving any form of inheritance from the victim.

If a relative converts from Hinduism, he or she is still eligible for inheritance.

Amendments

The Hindu Succession (Amendment) Act, 2005, amended Section 6 of the Hindu Succession Act, 1956, allowing daughters of the deceased equal rights with sons. In the case of coparcenary property, or a case in which two people inherit property equally between them, the daughter and son are subject to the same liabilities and disabilities. The amendment essentially furthers equal rights between males and females in the legal system.

With the reference book: – ‘Family Law’ of Dr. Paras Diwan.