INTRODUCTION
Succession means succeeding the rights of the property from one another. It includes rules for the distribution of the property of the previous ruler. These rules guide the society to devolve the property in an appropriate manner and scale back the probability of the injustice to the other heirs. The Hindu succession act, 1956 was enacted and brought radical change and big modification within the intestate succession of Hindu property. It recognized the rights of the female in the property to enhance the Hindu law according to the socio-economic society that is dynamic with time.
TYPES OF THE SUCCESSION
1. TESTAMENTARY SUCCESSION
The testamentary succession simply denotes the succession of a property through a will. Under Hindu law the owner of the property can make a testament or a will of the share to transfer it to any other person or in favor of anyone. The property or a share can be distributed according to the will and the law of inheritance should have no impact.
2. INTESTATE PROPERTY
When there is no testament or a will to describe the distribution of the property then the property shall devolve in the legal heir by the law of the inheritance.
APPLICABILITY OF THE ACT
The act extends to the whole territory of India. This act is applicable to all persons who practice the Hindu religion or in another language a person who is a Hindu in any of its form including Sikhs, Buddhists and jains.
OBJECTIVES OF THE ACT
The Hindu succession act, 1956 was enacted to meet the changing needs of this dynamic progressive society. The law despite of its innovations had many drawbacks and limitations. The legislation could not meet the needs of the Hindu society and the judicial decisions did not fulfill the desired necessity. There was a need to bring equal laws related to the Hindu succession which could treat all the sections of the Hindu equally. The men and women were put equally after the law enacted and the rights of the women in the intestate property succession in a Hindu undivided family were recognized and laid down the common lists of the heir.
NON- APPLICABILITY OF THE ACT TO CERTAIN PROPERTIES
This act does not apply to the property succession, which is regulated by the Indian succession act, 1925, or [1]any estate which descends to a single heir by the terms of any agreement entered into by the ruler of the state with the government of India or by the terms of any enactment passed before the commencement of this act.
DEFINITIONS
- HEIR- heir means any person whether a male or a female, who is entitled to succeed in the intestate property under this act.
- AGNATES- if the two persons are related to blood to each other or through adoption wholly through males then they are said to be agnates.
- COGNATES- if the two persons are related to blood to each other or through adoption but not wholly through males then they are said to be cognates.
INTESTATE SUCCESSION AMONG THE HINDU UNDIVIDED FAMILY
MALE- the Hindu succession act, 1956, provides for the order of succession. This order is mainly based on the doctrine of propinquity. The doctrine describes the order of nearness of blood. The heirs are divided into four categories under this act, namely first-class heir, second class heir, agnates and cognates. In the case of an intestate male, the act devolves the share of the separate properties of a mitakshara male and dayabhaga male and the interest of the coparceners in the joint family.[2]
1. FIRST CLASS HEIRS
The property devolves in the first class heirs first. This class describes twelve preferential heirs to be succeeded. This class I heir order includes-
- Mother,
- Widow,
- Son,
- Daughter,
- Widow of the pre deceased son,
- Son of the pre deceased son,
- Daughter of the pre deceased son,
- Widow of the pre deceased son of a pre deceased son,
- Son of the pre deceased son of a pre deceased son,
- Daughter of the pre deceased son of a pre deceased son,
- Daughter of a pre deceased daughter,
- Son of a pre deceased daughter.
According to the section 10 of the act, the property must be distributed among the class I heirs according to the four rules.
RULE 1- the widow of the interstate should succeed and if there is more than one then the widows should take one share together.
RULE 2- the sons and daughters along with the mother each shall take one share.
RULE 3- the heirs of the predeceased son or pre-deceased daughter of the intestate shall take one share together.
RULE 4- the distribution of the property among the heir of the pre deceased son should be such that the widow, sons and daughters gets the equal share and the other heirs of his predeceased sons gets the same portion. The property should be distributed among the heirs of the predeceased daughter in such manner that the sons and daughters get equal portions.
2. SECOND CLASS HEIRS
If there is no class one heir then the property shall be distributed among the class two heirs. The class II heirs include nine categories of heir. The heir in the higher entry excludes the heir in the lower entry.
- Father,
- Son’s daughter’s son, son’s daughter’s daughter, brother, sister.
- Daughter’s son’s son, daughter’s son’s Daughter, Daughter’s Daughter’s son, Daughter’s Daughter’s Daughter.
- Brother’s son, sister’s son, brother’s daughter, sister’s daughter.
- Father’s father, father’s mother.
- Father’s widow, brother’s widow.
- Father’s brother, father’s sister.
- Mother’s father, mother’s mother.
- Mother’s brother, mother’s sister.
The second class heir shall succeed in the intestate property and manage to have the equal share. Each one should share per capita including the widow.
3. AGNATES AND COGNATES
A person who is agnate of another by blood relation or adoption entirely or wholly by the males. The agnates can be male or female. The agnate doesn’t include the widow of the lineal male descendent[3].
The cognates are related to another by blood or adoption but not entirely or wholly through males. When there is neither class I and class II or agnates heir then the property shall devolve to the cognates. The cognate just like agnates only recognizes the blood relation or adoption therefore the widow of a lineal descendent cannot be cognate.
The order of the distribution of the property among the agnates and cognates is described under section 12 of the act which provides some rules, which state the preference level.
RULE 1- the one should be preferred of two heirs who have fewer or degrees of ascent.
RULE 2- the heir who has fewer or no degrees of ascent is preferred when the number of degrees is same or null.
RULE 3-when neither heir is preferred under rule one or two then they take simultaneously.
GOVERNMENT- when the deceased owner of the property has no heir whether from class I, class II, agnates and cognates then the property shall devolve to the government. The government shall then take the property subject to all obligations and liabilities to which an heir would have been subject.
FEMALE- prior to this act of Hindu succession act, 1956, the women was subjected to the liability of men and had no absolute property rights. The narrower and incorporated concept of shridhan was replaced and a wider connotation was introduced to recognize the rights of the women. Prior the two concepts’ were there, namely, shridhan and Hindu women’s estate. The shridhan conferred as the absolute property rights of the women and it devolved on her heirs. The later constitute the limited property rights of women. Her power of alienation was also limited and the property devolved not on her own heir but on the heirs of the last full owner. The act replaced the prior classification and introduced section 14 which conferred absolute rights of ownership to the women on every property acquired by her through lawful means. Section 15 states the distribution of the Hindu female’s property. The property of a Hindu female intestate shall be distributed upon-
Section 15(1)-
- Upon the son and daughters, (including the children or heirs of any pre deceased son or daughter) and the husband.
- upon the husband’s heir,
- upon the mother and father,
- Upon the mother’s heir.
EXCEPTIONS- section 15(2)-
- If the property which is inherited from her father or mother then in the absence of any son or daughter (including the children of any pre deceased son or daughter) the property shall devolve upon the heirs of the father.
- If the property inherited from her husband or father in law then in the absence of son or daughter of the deceased (including the children of any pre deceased son or daughter) the property shall devolve upon the husband’s heir.
Here the property acquired by gifts or other manner doesn’t get affected and the property under section 15(1) determines the preference of those of higher order upon the lower order.
Section 16 states the order of the succession of an intestate property of a female Hindu and gives three rules. According to the section-
RULE I- the heir in the first entry shall be preferred upon the second heir. The heirs in the second entry shall inherit in the absence of the heirs of the first entry.
RULE II- the children of pre deceased son or daughter shall get the share which the son or daughter would have taken at the time of intestate’s death, each division per stripes.[4]
RULE III- the devolution of the property on the heirs of father, heirs of the mother or on the heirs of the husband shall be the same order.
AMENDMENT ACT OF 2005
The amendment act of 2005 repealed section 6 of the Hindu succession act 1956, and allowing daughters to have equal rights as a son. The daughters are subjected to the equal liabilities and responsibilities. The amendment also expanded the list of the class I heir as it added the son of a pre-deceased daughter of a pre deceased daughter, daughter a of predeceased daughter of a pre-deceased daughter, daughter a of pre deceased son of a pre deceased daughter and daughter of a pre-deceased daughter of a pre deceased son and provided that the birth right to property of both male and female is equal.
CONCLUSION
The changes the Hindu succession act, 1956, bought was outstanding as it widened the concept of the succession in case of the death of a Hindu intestate and made laws which were in need from years for the women welfare. But still it had some limitations which were fulfilled by the amendment act of 2005 which made women equal as of men and gave exclusive rights to the daughter equal to the son to succeed in the property by birth. The equal rights provided to the men and women are a step towards the welfare of the women and giving them their right and equal status in the modern society.
[1] Hindu succession act, 1956, s. 5(2), no. 30 of 1956, acts of parliament, 1956, (India).
[2] Shahitapathan, succession to the property of a Hindu male, legalserviceindia.com, www.legalserviceindia.com/article/1002/succession-to-the-property-of -a-hindu-male.html.
[3] Intestate succession: devolution of property after death of a Hindu male, legalserviceindia.com, https://www.legalserviceindia.com/article/1258-intestate-succession.html.
[4] Dr. U.p.d. kesari, modern Hindu law, 353, eleventh edition 2018, central law publication, 2018.
