SUCCESSION UNDER HINDU LAW

INTRODUCTION

Under Hindu law, the property that an individual might claim, or can have an interest in, can be arranged into two—separate property and joint family property. The Hindu joint family system governs joint family property law, which is unique to Hindus and has no counterpart anywhere else in the world. When it comes to separate property, the Hindu Succession Act of 1956 governs the scheme of succession for the vast majority of Hindus.

Hindu Joint Family:

The Hindu joint family is a common occurrence in Hindu society. Its origins can be traced back to the ancient patriarchal system, in which the patriarch, or head of the family, was the unquestioned ruler, putting down rules for his family members to follow, being obeyed by all members of his family, and having complete control over their lives and property.

Composition: All male members descended lineally from a common male ancestor, as well as their mothers, wives or widows, and unmarried daughters, make up a ‘Hindu Joint Family.’ When an unmarried daughter marries, she leaves her father’s joint family and becomes a member of her husband’s joint family as his wife. If a daughter becomes a widow or is abandoned by her husband and permanently returns to her father’s home, she rejoins her father’s joint family. Her children, on the other hand, do not join her father’s joint family and remain members of their father’s joint family. A male descendant’s illegitimate son would be a member of his father’s joint family. 

The presence of the senior most male member is a necessary prerequisite for the formation of a joint family for the first time. However, once the joint family is formed, it will continue to exist even if this male member dies, as long as there is room for the inclusion of a new male member, whether through birth or adoption.

Coparcenary: A coparcenary’s original purpose was religious. It was formed by a group of people who can provide spiritual ministrations to the father. A coparcenary’s legal function is to determine the rights and obligations of family members in property possessed by the joint family, often known as joint family property or coparcenary property. The senior most among the coparceners is called the last holder of the property and from him, a continuous chain of three generations of male members form the coparcenary.

All the coparceners have an interest in the coparcenary property by birth and have a right to ask for partition of the same. An illegitimate son of a lineal male descendant is a member of the joint family but is not a coparcener. 

One male member present in the HUF: The presence of a male member is a prerequisite for starting a Hindu joint family. However, at least two male members are not required to create a Hindu undivided family to ensure its continuance. In Commissioner of Income Tax v. Gomedalli Lakshminarayan, the court noted that whereas a coparcenary requires at least two male members in the joint family, a Hindu joint family can continue with just one male member.

Female Coparceners: Females are traditionally not coparceners in the Mitakshara Coparcenary. Daughters were made coparceners under the Hindu Succession (Amendment) Act of 2005. A mother and all females who marry male coparceners become members of a Hindu joint family, although they are not coparceners themselves.

The doctrine of Survivorship: When a coparcener in a joint family dies, his stake in the family property is instantly taken by those coparceners who survive him, as per the traditional law. This is the doctrine of survivorship. 

Devolution of Joint Family Property: 

Partition:

The right to request a partition is one of the incidents of the coparcenary. Partition, according to Hindu law, is the division or dividing of a united Hindu family into smaller, separate, and independent entities, with the undivided coparceners receiving separate status.

De Jure Partition: There is a unity of possession and community of interest in an undivided coparcenary; all coparceners share joint ownership of the coparcenary property, and the interest fluctuates due to the application of the doctrine of survivorship. Even though the unity of possession is preserved, when the community of interest is broken, the shares become fixed. This is called the De Jure partition.

De Facto Partition: This breaking up of or division of this unity of possession is effected by an actual physical division of the property and is also called a de facto partition or partition by metes and bounds. A partition, strictly speaking, is complete the moment the community of interest is severed or severance in status takes place.

Under the traditional Mitakshara Law property is devolved based on survivorship and after his death, he leaves nothing behind out of his interest for his female dependants. However, after the Hindu Succession (Amendment) Act of 2005, on the death of a coparcener, his interest in the Joint Family property is governed by testamentary or intestate succession and not by survivorship. The coparcenary property shall be deemed to have been divided as if a partition had taken place.   

Hindu Succession Act, 1956:

Succession is of two types under the Act- Testamentary Succession and Intestate Succession. 

Testamentary Succession: Where succession is governed by a testament or a Will, it is called testamentary succession. A Hindu male or female can make a Will of his or her property, including a portion in the undivided Mitakshara coparcenary, in the name of anyone, as per Hindu law. In such situations, the property will devolve upon their death according to the distribution they make under this Will, rather than according to inheritance laws. The sole condition is that the Will should be valid and enforceable in a court of law. If the Will is invalid or unable to take effect for whatever reason, the property will be distributed according to the laws of inheritance.

Intestate Succession: If a person dies with some property but no Will or bequest that can be enforced in court, his estate will be divided among his lawful heirs according to the laws of inheritance or intestate succession. The person who dies without leaving a Will is known as an ‘intestate;’ those who are entitled to a share of his property under the plan of inheritance are known as his ‘heirs;’ and the entire process is known as intestate succession.

Male Intestate Succession:

Classification of Heirs:

• Class-I;
• Class-II;
• Class-III (Agnates); and
• Class-IV (Cognates).

Rules for Devolution of Property: On the death of the intestate, the property devolves in the first instance, to the class-I heirs. So 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. This category comprises nine separate entries, the prior excluding the latter, and besides the first, which has a lone heir, i.e., the father, the rest contain multiple heirs. In each entry, all these heirs take the property in equal shares. In the absence of the heirs in the class-II category, the property descends to the class-III category, which comprises all blood relatives of the intestate, related to him through a whole male chain of relatives (agnates). Where none of the agnates is present, the property goes to the rest of the blood relatives of the intestate, called the cognates.

Class I Heirs: These heirs are as follows:

1. Mother;

Widow;

1. Daughter;
2. Daughter of a predeceased son;
3. Widow of a predeceased son;
4. Daughter of predeceased daughter;
5. Daughter of a predeceased son of a predeceased son;
6. Widow of a predeceased son of a predeceased son;

Son;

1. Son of predeceased son;
2. Son of a predeceased son of a predeceased son; and
3. Son of a predeceased daughter.
4. daughter of a predeceased daughter of a predeceased daughter.
5. son of a predeceased daughter of a predeceased daughter.
6. (xiv)daughter of a predeceased daughter of a predeceased son.
7. daughter of a predeceased son of a predeceased daughter.

All class-I heirs take the property absolutely and exclusively, as their separate property, and no person can claim a right by birth in this inherited property.

Rules for Distribution of the Property: Among the class-I heirs, the property of an intestate is divided in accordance with the following rules:

1. The share of each son and daughter and of the mother is equal.
2. 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.
3. A predeceased son, who is survived by a son, daughter, or widow, is to be allotted a share equal to the share of a living son.
4. Out of such share allocated 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.
5. 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.
6. 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.
7. The such share will be taken equally by the sons and daughters of the predeceased daughter.

Class II Heirs

Father

1. 1. Son’s daughter’s son

2. Son’s daughter’s daughter (now also placed in class–I category)

3. Brother

4. Sister

1. 1. Daughter’s son’s son

2. Daughter’s son’s daughter (now also placed in class–I category)

3. Daughter’s daughter’s son (now also placed in class–I category)

4. Daughter’s daughter’s daughter (now also placed in class–I category)

1. 1. Brother’s son

2. Sister’s son

3. Brother’s daughter

4. Sister’s daughter

1. Father’s father; Father’s mother

1. Father’s widow; Brother’s widow

1. Father’s brother; Father’s sister

1. Mother’s father; Mother’s mother

1. Mother’s brother; Mother’s sister

Rules for Distribution of Property: When a Hindu male dies unmarried and is not survived by any class-I heir, the property would devolve among class-II heirs. The heirs in the first sub-category exclude those in the second, the heirs in the second exclude those in the third, and so on. All the heirs of one category, take the property in equal shares, according to the per capita rule of distribution of property.

Class III Heirs (Agnates)

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. Agnatesinherit only when none of the class-I and class-II heirs is present. Agnates can be direct ascendants, direct descendants, or collaterals. There is no limitation on the number of degrees an agnate may be removed from the intestate.

Class IV Heirs (Cognates)

The unspecified broad category of cognates includes the rest of the heirs of the intestate. A cognate is a relative who was related to the intestate through a chain of mixed relatives, in terms of sex. It is not a whole male chain, as even if a single female intervenes, it will become a cognatic chain. For example, an intestate’s paternal aunt’s son is his cognate, but his paternal uncle’s daughter will be an agnate.

Female Intestate Succession:

The Hindu Succession Act of 1956 establishes separate succession schemes for male and female intestates. For female intestates, there is a further divergence relating to the source of the property that is the subject of inheritance under the Hindu Succession Act. The property of a female intestate is classified into three categories:

1. property inherited from either of her parents in the capacity of their daughter;
2. property inherited from her husband or father-in-law in the capacity of a widow or a widowed daughter-in-law; and
3. any other property.

The heirs and the order of succession for each of the three categories differ.

Scheme of Succession:

The Act provides for three different sets of heirs depending upon the source of acquisition of the property of a female that is available for succession. Her property is divided into:

1. property that a female Hindu had inherited from her parents;
2. property that a female Hindu had inherited from her husband or her father-in-law; or
3. any other property or general property.

Succession to General Property: The term ‘general property’ refers to the property of a woman other than that which was inherited by her from herparents, husband, or her father-in-law. Property in this category devolves as follows:

• Firstly, through the sons and daughters, which would also include the children of a predeceased son or a predeceased daughter) and the husband. 
• Secondly, on the heirs of the husband.
• Third, upon the mother or the father.
• Fourth, on the father’s heirs.
• Fifth, on the heirs of the mother.

Property inherited from parents: In the case of any property being inherited by a female Hindu by her father or mother and there is no son or daughter of the deceased (including a child of predeceased son or daughter), then it shall devolve in favour of the heirs of the father. 

Property that a female Hindu had inherited from her husband or her father-in-law: In the case of any property being inherited by a female Hindu by her husband or her father in law, and there is no son or daughter of the deceased (including the child of a predeceased son or daughter), it shall devolve in favour of the heirs of the husband.