Unit –IV

 Inheritance and succession

 Historical perspective of traditional hindu law relating to inheritance.
 A detailed study of Hindu succession Act, 1956.
 Stidhana-women’s property.
 Recent state and central Amendments to Hindu succession Act.
 Gift and testamentary succession
 Wills.

INTRODUCTION :-

The Hindu succession Act 1956 marks a new era in the history of
social legislation in India. It has attempted to bring some reforms in the system of
inheritance and succession.

RAU’S COMMITTEE was set up to codify Hindu law

Under this committee Hindu marriage act 1955, Hindu Minority and
Guardian ship Act 1956, Hindu adoption and Maintenance Act 1956 and Hindu
Succession Act 1956 was passed

Objects of the Hindu Succession Act 1956

1. It is was passed to meet the needs of a progressive society.

2. Removes inequality between male and women with respect of rights and
property and it evolves a list entitled to succeed
3. It is passed to codify and amend the Hindu law succession.

MAIN FEATURES OF THE ACT

1. Section 2:- it applies to all Hindus, Buddhists, Jains, and Sikhs but not to
Muslim, Paris, Christian and Jews. It applies to those persons one of whose
parents is a Hindu, Buddhist, Jain and Sikh and who is brought up as a Hindu.
2. The act has abolished impartible estate and the special mode of its
succession (sec 5)
3. Act does not apply to the property of a person who has contracted
marriage under special marriage Act 1954 (sec 5)
4. The succession has abolished survivorship , female heirs are also included
under heirs.
5. The Act is base on affection and love of relationship. The right of
preference on the right to offer panda and propriority of blood
6. The act recognizes entitles even remotest agnates or cognates to be the
heir
7. The Act make no distinction between male and female
8. The act has repealed provision of different Act relation to succession
9. The act has provided uniform order of succession
10. The act has dispensed with the rules of succession under Mitakshara and
provides uniform code for determine rules of succession
11. The succession of agnates and cognates according to the degrees and rules
has laid therein
12. The act has abolished Hindu women’s limited estate and made her absolute
owner of the property. Sec 14
13. It has provided uniform order of succession with respect of man and
women
14. The full blood shall exclude the half blood where the relationship is the
same in other respects
15. Where 2 or more heirs succeed to the property of an intestate. They shall
take their share per-capita and not per-stripes and as tenants in common and not
a joint tenants
16. Sec (20) the right of the child in mother womb and subsequently born alive
has right to property
17. Where property of an intestate devolves upon 2 or more heirs any one of
such heirs proposes to transfer his or her interest the other heirs shall have a
preferential right to acquire the interest proposed to be transferred that the act
recognizes the so-called right to pre-emption
18. Section 23 is omitted
19. Murderer is not entitled to succeed to the property of person murdered.
20. A convert’s descendants have been disqualified from inheriting the
property of their Hindu relative
21. The disqualified heir is treated as one who had predeceased the intestate
22. Disease, defect or deformity is now not any ground of exclusion from
inheritance under the act (sec 28)
23. Unchasity is no longer a ground of exclusion from inheritance on the part of
women
24. The act entitles a male Hindu of dispose of his or her interest in a
Mitakshara coparcenary property by will
25. The right of illegitimate children to succeed to their mother’s property has
been preserved and recognized but not to the father’s property

Illegitimate son of a person by a continuously kept concubine is not

recognized under the present Act.

Distinction between per stripes and per capita distribution-

Succession among the heirs of the same class but belonging to different branches
may be either per-stripes or per capita.

Per-stripes :- distribution the several heirs who belong to different branches, get
their share only from that property which is available to the branch to which they
belong.

Per capita:- distribution on the other hand, the succession is according to the
number of heirs. Among them, the estate of the deceased is equally divided.
Therefore, each heir gets equal quantity of property from the heritable assets of
the deceased.

Agnate and cognate:-

Agnate:- means a person related by blood, or adoption, but wholly through males;

Cognates:- means a person related by blood, or adoption, but not wholly through
males.
HEIR:- It means any person male or female, who succeeds to the property of an
intestate under this Act.

Intestates:- a person is deemed to die intestate in respect of property of which he

or she had not made a testamentary disposition[will].

SUCCESSION TO PROPERTY OF A MALE HINDU

SECTION 8:- of the Act lays down general rules of succession in the case of male
dying intestate. Succession opens at the time of death of the person whose
property is to be succeeded, and is governed by the law in force at that time.

The section divides the heirs of a male for the purposes of inheriting the property
into four classes. These are:-

1.Relations mentioned in class I of the schedule

2. Relations mentioned in Class II of the schedule

3. Agnates of the deceased.

4. Cognates of the deceased.

On the failure of the heirs qualified to succeed under the Act, the property of the
intestate shall devolve on the government according to section 29.

 The property of a male Hindu dying intestate shall devolve according to the
provisions of this chapter-

 Firstly, upon the heirs, being the relatives specified in class I of the
schedule.

 Secondly, if there is no heir of Class I, then upon the heirs, being the
relative specified in class II of the Schedule.

 Thirdly, if there is no heir of any of the two classes, then upon the agnates
of the deceased;

 Lastly, if there are no agnates, then upon the cognates of the deceased.”
According to section 9 heirs in Class-I of the schedule are to succeed
simultaneously; in other words, they from one group of heirs and succeed as a
body

 Heirs mentioned in Class I succeed is prefered to all others mentioned in

Class II.

For instance, if male dies intestate, leaving only a daughter surviving him, the
daughter shall succeed in preference to the father in entry I of class II

Section 9:-

 Among the heirs specified in the schedule those in class I shall, take
simultaneously and to the exclusion of all other heirs; those in the first
entry in class II shall be preferred to those in the second entry; those in the
second entry shall be preferred to those in the third entry, and so on in
succession.

LIST OF HEIRS SPECIFIED IN CLASS – I:-

 Son
 Daughter
 Widow
 Mother
 Son of pre-deceased son
 Daughter of a pre-deceased son
 Son of pre-deceased Daughter
 Daughter of a pre-deceased Daughter
 Widow of pre-deceased son
 Son of pre-deceased son of pre-deceased son
 Daughter of a pre-deceased son of pre-deceased son
 Widow of pre-deceased son of a pre-deceased son
 Son of pre-deceased Daughter of 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.
Distribution of property among heirs in Class-I of the schedule :- section 10 has
given 4 rules regarding the distribution of property.

“The property of an intestate shall be divided among the heirs in class-I of the
schedule in accordance with the following rules:-

 Rule 1:- the Intestate’s widow or if there is more widows than one all the
widows together shall take one share.

Explanation:- widow is entitled to one share, if more than one widows that all
widows together are entitled to one share.

 Rule2:- the surviving sons and daughters and the mother of the intestate
shall each take one share.

 Explanation :- each surviving sons, daughters and mother get one share
each.

 Rule 3 :- the heirs in the branch of each pre-deceased son or each pre-
deceased daughter of the intestate shall take between them one share.

 Explanation:-the heirs of the deceased in the branches of predeceased sons

and pre-deceased daughters take not per-capita but per-stirpes.

Rule 4:- The distribution of the share referred to in Rule – 3

 Among the heirs in the branch of the pre-deceased son shall be so made
that his widow (or widows) and the surviving sons and daughters get equal
portion and the branch of his pre-deceased sons gets the same portion.

 Among the heirs in the branch of the pre-deceased daughter shall be so

made that the surviving sons and daughters get equal portions”.

 Explanation:- the heirs of pre-deceased son together shall get only one
share just as the branch of a pre-deceased son got only one share under
Rule -3.

HEIRS IN CLASS II:-

According to section 8(b) heirs in Class II in the Schedule, succeeded only in the
absence of any heirs in class-I.

Heirs in class II are divided into nine groups, each group is mentioned in a
separate entry in the schedule.

Section 9 lays:-

down that heir in the first entry is preferred to heirs in the second entry,
and heirs in the second entry are preferred to those in the third entry and so on in
the succession.

Section 11 which regulates the distribution of property among heirs in

class II of the schedule runs as follows:-

The property of an intestate shall be divided between the heirs specified in

any one entry in class II of the Schedule so that they share equally.’

Thus when there is only heir in the entry preferred, he or she alone shall
take the whole of the estate but when there are more heirs than one, in the entry
preferred, then all such heirs shall take equally and the heirs related to the
intestate by full-blood shall be preferred to heirs related by half-blood.

List of heirs in class II in the schedule.

I. Father
II. (1) son’s daughter’s son (2) son’s daughter’s daughter (3) brother and
(4) sister.
III. (1) Daughter’s son’s son (2) daughter’s son’s daughter (3) daughter’s
daughter’s sons, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son (2) sister’s son (3) Brother’s daughter (4) sister’s
daughter.
V. (1) father’s father (2) father’s mother
VI. (1) father’s widow (2) Brother’s widow
VII. (1) father’s Brother (2) father’s sister
VIII. (1) mother’s Brother (2) mother’s mother
IX. (1) mother’s Brother (2) mother’s sister
ORDER OF SUCCESSION AMONG AGNATES AND COGNATES

Section 12:- of the Act lays down rules of preference determining the order of
succession among agnates and cognates.

The order of succession among agnates or cognates as the case may be, shall be
determined in accordance with the rules of preference laid down hereunder-

Rule 1- Of two heirs, the one, who has fewer or no degrees of ascent, is preferred.

Rule 2- where the number of degrees of ascent is the same or none, that heir is
preferred, who has fewer or no degrees of descent.

Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or
Rule 2, they take simultaneously.

Rules in this section do not determine the order of priority between an agnate
and a cognate, for a nearest cognate relation of the intestate is excluded by his
remotest agnate relation.

COMPUTATION OF DEGREES- section 13 defines “degree’ and provides the

methods of its computation.

1. For purposes of determining the order of succession among agnates or

cognates, relationship shall be reckoned from the intestate to the heirs in terms
of degrees of ascent or degrees of descent or both, as the case may be.

2. Degree of ascent and degrees of descent shall be computed inclusive of the

intestate.

3. Every generation constitutes a degree either ascending or descending.

ABSENCE OF HEIRS:-ESCHEAT:-

In absence of all heirs of the intestate, his or her property shall devolve on the
government. The government takes the property by escheat and not that it is
forfeited to the government.
The onus is on the Government to prove that the intestate dies without any heirs
qualified to succeed in accordance with the provisions of this Act.

PROPERTY OF A FEMALE HINDU TO BE HER ABSOLUTE PROPERTY.

SECTION 14: (1) any property possessed by a female hindu whether acquired
before or after the commencement of this Act, shall be held by her as full owner
thereof and not as a limited owner.

(2) the above provision shall not apply to any property acquired by way of gift or
under a will, or any other instrument or under a decree, order of a civil court or
under an award where the gift, will or other instrument or the decree, order or
award prescribe a restricted estate in such property.

RULES OF SUCCESSION TO THE PROPERTY OF FEMALE;-

SECTION 15:- prescribes the general rules of succession of the property of a

female dying intestate, and section 16 lays down the order of succession.

Section 15(1):- 1. The property of a female Hindu dying intestate shall devolve
according to the rules set out in section 16-

a. Firstly, upon the sons and daughters (including the children of any
predeceased 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.

2. Not withstanding anything contained in sub-section (1)

a. any property inherited by a female Hindu from her father or mother shall
devolve, in the absence of any son or daughter of the deceased (including the
children of any pre-deceased son or daughter) not upon the other heirs referred
to in sub-section (1) in the order specified therein, but upon the heirs of the
father and,
b. any property inherited by a female hindu from her husband or from her father-
in-law shall devolve, in the absence of any person or daughter of the deceased
(including the children of any pre-deceased son or daughter) not upon the other
heirs referred to in sub-section (1) in the order specified therein, but upon the
heirs of the husband.

ORDERS OF SUCCESSION – SECTION 16.

The order of succession among the heirs referred to in section 15 shall be, and the
distribution of the intestate’s property among those heirs shall take place,
according to the following rules, namely-

Rule 1- among the heirs specified in sub-section (1) of section 15 those in one
entry shall be preferred to those in any succeeding entry, and those included in
the same entry shall take simultaneously.

Rule 2- if any son or daughter of the intestate had pre-deceased the intestate
leaving his or her own children alive at the time of the intestate’s death, the
children of such son or daughter shall take between them the share which such
son or daughter shall have taken if living at the intestate’s death.

Rule 3- the devolution of the property of the intestate on the heirs referred to in
clauses (b) (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall
be in the same order and according to the same rules as would have applied if the
property had been father’s or the mother’s or the husband’s as the case may be
and such person had died intestate in respect thereof immediately after the
intestate’s death”.

Who are the heirs?

Sec 15(1) divides the heirs of a hindu female into 5 categories.

1). Heirs in the first entry:

a. Sons
b. Daughters.
c. Children of predeceased son.
 d. Children of pre-deceased daughter.
e. Husband.

2). Heirs in the second entry:

The heirs of the husband of the female dying intestate come under second entry.
The heirs of the husband are:

a. Heirs of the husband specified in class I of the schedule.

b. Heirs of the husband specified in class II of the Schedule.
c. Agnates of husband.
d. Cognates of the husband.

3). Heirs in the third entry.

a. Mother- it does not include step-mother but includes natural as

well as adoptive mother.
b. father “father” does not include step-father of putative father. But
includes natural or adoptive father.

4. Heirs in the fourth entry-

Heirs of the father of the female dying intestate comes under this
entry. The heirs of the father are:
a) Heirs of the father specified in class I of the schedule.
b) Heirs of the father specified in class II of the schedule.
c) Agnates of the father.
d) Cognates of the father.

5. Heirs in the fifth entry-

Heirs of her mother come under this entry.

1) Sons, daughters of the mother including sons and daughters of a pre-

deceased son and daughter, and husband.
2) Heirs of husband of the mother.
3) Father and mother of the mother.
4) Heirs of father of the mother.
 5) Heirs of mother of the mother.

Section 15(2) is an exception to the general rule mentioned above

 Property inherited from her father or mother.

Property inherited from her father or mother shall devolve upon the heirs of
father provided the intestate died leaving no son or daughter or any children of
any pre-deceased son or daughter.

This excludes the heirs if alive, in the first entry, second entry, and the third entry.

Therefore it is excluded the husband who is in the first of entry and his heir in the
second entry.

Property inherited from her husband or her father-in-law.

Such property shall devolves upon the heirs of the husband, who came in as
father, or mother, or the heirs of the father or mother from inheriting such
property.

Order of succession :-

The order of succession and manner of distribution among heirs of a female hindu
dying intestate are given in section 16 of the Act.

Rule-1:- heirs in the first entry of section 15(1) of the Act shall be preferred to
those in the second entry. In the absence of heirs in the first entry heirs in the
second entry shall be preferred to those in the third entry and so on. Where there
are more heirs than one, in the entry preferred, such heirs shall take
simultaneously.

Rule-2:- the children of pre-deceased son or daughter between them, get the
share which son or daughter would have taken if living at the intestate’s death
i.e., the division is per stripes.

DISQUALIFICATION FOR HEIRS (GROUNDS OF EXCLUSION FROM INHERITANCE

UNDER THE HINDU SUCCESSION ACT)
Section 25:- Disqualification arising from murder

A person who commits or abets the commission of murder shall be disqualified

from inheriting the property of the person murdered, or any other property in
furtherance of the succession to which he or she committed or abetted the
commission of the murder.”

Section 26:- Disqualification arising from conversion

A Hindu has ceased or ceases to be a Hindu by conversion to another

religion ,children born to him or her after such conversion and their descendants
shall be disqualified from inheriting the property of any of their Hindu relatives,
unless such children or descendants are Hindu at the time when the succession
opens.

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STRIDHANA –W OMAN’S PROPERTY.

The term “Women’s Property” in its larger connotation means all property which
has come to a woman by means and from any source whatsoever, and includes
both property in which she has absolute interest (Stridhana) and property in
which she has only a limited interest.

Sources of property:-

There are two sources by which a Hindu female may possess the property.

1. Property inherited by females from a male.

2. Property inherited by females from a female.

Incidents of widow’s Estate-

The expression ‘stridhana’ signified an absolute estate, the expression ‘widow’s

estate implied a limited estate.

The following were the incidents of a widow’s estate;

 1. Widow was the owner of the property inherited by her from her husband
except that she could not sell, mortgage, or effect any transfer of the
corpus of the property unless it was-
i. For legal necessity, or
ii. For the benefit of the estate, or
iii. With consent of the next reversioners, or
iv. For religious or charitable purposes.
2. She fully represented the estate. She could institute suits in respect of the
property and she could be sued in respect thereof. Decrees passed against
her as representing the estates were binding not only on her, but on the
reversioners though they were not parties to the suit.
3. She could sue to recover possession from even third person. But if she
allowed the possession of third person to become adverse to her, the
reversioners were not affected by such adverse possession.
4. She was entitled to manage the estate as a prudent owner.
5. The restriction over the powers of the disposition of property did not
depend upon the existence or non-existence of the reversioners.
6. She could sell, mortgage or make gift of her life interest in such property.
7. She could spend the whole income and was not bound to save anything.
8. She could claim partition with collaterals.
9. She was not subject to the control of her kinsmen
10.It could lapse by her re-marriage or adoption by her of a son.
11.She could not, by any act or declaration, give her possession or estate a
character different from that attaching to the possession or estate of a
Hindu widow.

POWER TO ALIENATION:-

A limited owner had no power to alienate, except for ;

1. Legal necessity
2. Benefit of estate.
3. Religious or charitable purposes.
The limited owner had no right to dispose of the property, whether movable or
immovable by will.

A widow or other limited female heir could alienate the estate for certain
religious or charitable purposes.

These purposes may be divided in two classes:

a. The performance of the obsequial ceremonies of the deceased owner

and the payment of his debts.
b. The performance of religious ceremonies of persons other than the
deceased owner and religious or charitable acts which are supposed to
conduce to the spiritual welfare of the deceased.

KAMLA DEVI V. BACHULAL GUPTA [AIR 1957 SC 434]

The supreme court observed that one of the principles which clearly emerged
from the decision on the subject was that a Hindu widow in possession of the
estate of her deceased husband can make an alienation for religious acts which
are not essential or obligatory but are still pious observances which conduce to
the bliss of the deceased husband’s soul.

INCOME AND SAVINGS FROM INCOME:-

A limited heir was not a trustee for the reversioners. She had absolute power to
disposal of the income of the property inherited by her. She was not bound to
save the income and she could spend the whole income or could give as she liked
during her lifetime.

Accumulation made during husband’s lifetime-

Accumulation of income which had accrued during the lifetime of the husband are
accretions to the estate which she had inherited and possessed in them the same
qualified interest which she had in the corpus of her husband’s main estate.

She has all the powers in such property too.

Power to lease property.

In exercise of her power to manage the property, she could lease property
belonging to her as limited estate. But not a permanent lease.

Power to compromise:-

A compromise not vitiated by fraud or collusion, but made bonafide for the
benefit of the estate and not for the personal advantage of the limited owner,
was binding on the heirs.

A compromise may be outside the court or one concluded in a suit.

EFFECT OF ALIENATION MADE WITHOUT LEGAL NECESSITY AND WITHOUT

CONSENT OF NEXT REVERSIONERS.

It will not be binding upon the reversioners.

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GIFTS

Section 122 of transfer of property Act 1882, defines ‘Gift’

Gift is the transfer of certain existing movable or immovable property made

voluntarily and without consideration, by one person called the donor; to another
called the done, and accepted by or on behalf of the done.’

Under this Act, a gift of immovable property can only be effected by a registered
instrument signed by or on behalf of the donor and attested by atleast two
witnesses.

For movable property, the transfer may be effected by a registered instrument or

by a delivery of possession.

The essentials of a valid gift are that there must be a donor, a done, a proper
object of gift and a transaction involving certain formalities.
GIFT UNDER MITAKSHARA LAW-

Gift consists in the relinquishment (without consideration) of one’s own right (in
property) and creation of the right of another, and the creation of another man’s
right is completed on the other’s acceptance of the gift, but not otherwise.

Subject matter of gift-

The following property may validly be disposed of by gift even after the
commencement of the transfer of property Act 1882.

1. Separate or self-acquired property of a Hindu, whether governed by

Mitakshara or Dayabhaga law.
2. Stridhana i.e. woman’s absolute property.
3. Impartible property, unless prohibited by custom or the term of the
tenure.
4. Interest of a coparcener under the dayabhaga law.
5. The whole of the ancestral property by the father under the
Dayabhaga law.
6. A small portion of the property, inherited by hindu widow, may be
gifted by her daughter or her son-in-law at the time of marriage.
7. Movable property inherited by a widow governed by mayukha law.

GIFT WHEN COMPLETED?

Though a gift is registered, it should accompanied by delivery of possession.

GIFT TO UNBORN PERSONS.

According to transfer of property act.

No gift is invalid by reason only that any person for whose benefit it may have
been made was not born at the time of the gift.

REVOCATION OF GIFT:-

A gift once completed cannot be revoked unless it was obtained by fraud or under
influence.
Gifts to trusts –

A trust of even immovable property could be created by oral declaration and

delivery of possession.

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WILLS

DEFINITION:-

A will is the legal declaration of the intention of a testator with respect of to his
property.

Meaning of codicil:-

A codicil means instrument made in relation to a will and explaining, altering or

adding to its dispositions and shall be deemed to form part of the will.

PERSON CAPABLE OF MAKING A WILL.

Every person of sound mind, not being a minor may dispose of his property by
will.

A mitakshara coparcener can dispose of by will his or her undivided interest in

the coparcenary property- according section 30 of Hindu succession act 1956.

The same rule is applicable for dayabhaga coparcener.

THE ONUS OF PROOF.

 The onus of proving a will is on the propounder.

 In the absence of suspicious circumstances surrounding the execution of
will.
 The proof of testamentary capacity and the signature of the testator.
 Is sufficient to discharge the onus of proof.
 The propounder to explain them to the satisfaction of the court before the
will could be accepted as genuine.
 The testator must have a disposing mind.
  He must be able to dispose of his property with understanding and reasons.

WHAT PROPERTY MAY BE DISPOSED OF BY WILL?

According to mitakshara, the following property.

1. Separate or self-acquired property.

2. A sole surviving coparcener may dispose of his property by will.
3. Sandayika stridhan
4. All stridhan during widowhood, and
5. Impartible property, unless prohibited by custom or the terms of the grant.

REVOCATION AND ALTERATION IN WILL.

A will is liable to be revoked or altered by the maker of it any time when he is

competent to dispose of his property by will.

But marriage or birth of the son will revoke the will.

BEQUEST TO UNBORN PERSON.

A will can be executed in behalf of an unborn person.

WILL WHEN VOID?

A will or any part of a will, the making of which has been caused by fraud or
coercion or by such importunacy as takes away the free agency of the testator, is
void.

BEQUEST TO A CLASS.

If a bequest is made to a class of persons with regard to some of whom it is

inoperative, such bequests shall be void in regard to those persons only and not in
regard to whole class.

RULES AGAINST PERPETUITY:-

No bequest is valid whereby the vesting of the thing bequeathed may be delayed
beyond the lifetime of one or more persons at the testator’s death and the
minority of some person who shall be in existence at the expiration of that period
and to whom, if he attains full age, the thing bequeathed will belong.

Construing of Hindu will.

In construing a will the intention of the testator is to be looked to and the prime
duty of the court is to ascertain from the words of the will what the intention of
the testator was.

In ascertaining the intention of the testator, the following may be taken into
account.

1. The position of the testator;

2. His family relationship;
3. The probability that he would use words in a particular sense;
4. His race and religious opinions;
5. Ordinary notions and wishes of Hindus, with regard to the devolution of the
property.

RAM GOPAL V. NAND LAL [AIR 1951 SC 139]

The supreme court observed that,

“It may be taken to be quite settled that , when a grant of an immovable property
is made to a Hindu female, she does not get an absolute or alienable interest in
such property, unless such power is expressly conferred upon her.

ARUNACHALA V. MURUGANATHA [AIR 1963 SC 496]

Under the Mitakshara father had complete power of disposition of his self-
acquired property and if he made any deed of gift in favour of his son or some
other relation, there would be no presumption that the bequest was to confer the
nature of a joint family so that the property bequeathed became ancestral in the
hands of the legatee unless there were express words to indicate the same.