This article has been written by Ms. Janvi , a 1st year student of Symbiosis Law School , NOIDA.
ABSTRACT
This article dvelves deep into the principles of succession among Hindus when the person dies intestate or without making a will . It discusses the historical background of succession among Hindus as well. It emphasises on the process of distribution of assets class by class, entry by entry to make it simpler . It explores the intricate aspects of the intestate succession and evolution of legal framework for it. It explores the different societies or laws prevalent in southern part of the country which governs their family ties . Understanding the family ties and the steps of succession, generation to generation with many conditions and exceptions is not an easy task , this article tries to explain it more easily.
INTRODUCTION
Succession can be defined as the process by which the assets or properties of a person are passed on to his / her heirs upon his / her death . Thus , heirs are the ones who inherit the property of the deceased person. Different jurisdictions have different laws for governing and regulating the succession so as to reduce the chances of chaos . In India , there are certain personal laws governing succession. Some of them are the Hindu Succession Act , 1956 ; Muslim Personal Law( Shariat) Application Act , 1937; Indian Succession Act 1925 etc. The law concerned in this article is the Hindu Succession Act , 1956. Over the period of time , certain amendments have been made in these laws with regard to the complications and evolving needs of the people , change in family structures etc , like the Hindu Succession Act 1956 got amended in 2005 .
HISTORICAL BACKGROUND OF SUCCESSION AMONG HINDUS:
‘Dharma’ has been greatly valued among the Hindus since the ancient period. Dharma can be said to set the values moral , legal , and social duties of a man . They were included in the vedas. The vedas were the basis of shrutis, which can be considered as the formal source of Hindu law. The Hindu law in the ancient period was considered to be patriarchal but over the time , it gave rights to women as well. There were two schools of Hindu law, namely Mitakshara and Dayabhaga schools. They laid down the rules of inheritance among Hindus. Here , Mitakshara school was considered to be more biased against women and gave them the least rights . It gave the rights of inheritance to the coparceners by being just born into the family. Coparceners are the people who have inheritance rights because of being part of the hindu undivided family (HUF) . It includes all those people who derive their linear ascendance from common ancestors . The Mitakshara school was applicable all over India except Assam and west Bengal. The Dayabhaga school of hindu law was more lenient and liberal towards women as compared to mitakshara. It was applicable only in Assam and west Bengal. It gave the inheritance rights to people only after the death of the property holder.
With time , proper legislations were laid down to codify the family laws and give them legal sanctity. Some of the laws are :
- Hindu Succession Act 1956 : This Law governs Hindus , Buddhists , Jains , Sikhs by religion . It is the most widely applicable succession act of India . It also has been amended several times to reduce gender disparity.
- Muslim Personal Law(shariat) Application Act , 1937: Usually , all the family matters of muslims are governed by shariat law . This act gives a codified form to it so that all the Islamic principles are applied in a consistent manner .
- Indian Succession Act , 1925: This law is applicable to Christians as well all those who are not covered by any other family law . It lays down the rules pertaining to succession , wills etc.
The Hindu Succession Act , 1956 lays down the rules of succession in most of cases . There are majorly two types of succession – one which is through a will is known as testamentary succession and one that is without a will is known as intestate succession. A will is actually a declaration of a person who expresses his wish about who will inherit his property upon his death.
INTESTATE SUCCESSION:
A person who dies intestate has not made any will regarding his assets before death . It can be either total or partial. If the will has not been made, then the assets are to be distributed according to the various laws mentioned above. To claim succession, one must produce either the letter of administration or a succession certificate.
- Letter of administration: This letter is issued by a competent court to authorize an administrator to distribute the deceased’s assets among his heirs . This letter is issued when the person dies intestate.
- Succession certificate: It is issued to the person who have claimed legal entitlements to the securities , debts, and movable assets. It explicitly addresses financial matters. It gives the concerned person the authority to distribute the assets according to personal laws.
Property concerned with intestate succession: The first condition is that no will should be made regarding the property in question. The character of property that can be disposed of by intestate succession is discussed in section 8 of Hindu Succession Act, 1956.
Joint family property is dealt with the coparcenery rules . Separate property is dealt by succession rules namely testamentary and intestate succession.
INTESTATE SUCCESSION OF HINDU MALE :
Section 8 of Hindu succession act , 1956 states the general rules of succession in case of hndu males . The rules have been made in the form of an order which has to followed while dividing the property. The order has been mentioned in section 9 of the act.For example , the initial right over the property is with the class 1 heirs but if there are no class I heirs , then the property will be passed on to two class II heirs and so on .
CLASS I HEIRS:
It includes mother , son , daughter , widow , widow of the pre deceased son ,widow of pre deceased son of a pre deceased son , son/daughter of a pre deceased son/daughter , son/daughter of pre deceased son/ daughter of a pre deceased son/ daughter. All of them inherit the property simultaneously and to the exclusion of all other heirs.
Important points to be considered :
- The mother includes adoptive mother , if adoptive mother is considered then natural mother will be excluded . The adoptive mother can also inherit the property of her illegitimate son . This is given under section 3(1)(i) of the act.
- Jayalakshmi Ammal and others v. T.V. Ganesa Iyer(1971): It was decided that mother , whether she is adoptive or remarried or divorced does not exclude her right to inherit property of her son .
- Similarly , children whether adopted or natural, are included , children who are born out of voidable or void marriages are also counted as legitimate children as per section 16 of Hindu marriage act , 1955.
- The widow , even if she remarries , has the right to inherit the property of her deceased husband / ex husband . If there are more than one widow, they will jointly share the property.
CLASS II HEIRS:
It includes different entries . If the person/ persons in entry one are not alive , then the property will be passed on two those under entry II and so on.
ENTRY I: It includes father ( he can be either natural or adoptive , he can inherit property of children born out of void and voidable marriages but he cannot inherit the property of illegitimate children.)
ENTRY II: It includes son s’ daughter s’ son ; son s’ daughter s’ daughter ; brother , sister
ENTRY III: It includes daughter s’ son s’ son ; daughter s’ son s’ daughter ; daughter s’ daughter s’ son ; daughter s’ daughter s’ daughter
ENTRY IV: It includes brother s’ son ; sister s’ son ; brothers’ daughter ; sister s’ daughter
ENTRY V: It includes father s’ father ; father s’ mother
ENTRY VI: It includes father s’ ;father s’ mother
ENTRY VII: It includes father s’ brother ; father s’ sister
ENTRY VIII: It includes mother s’ father ; mother s’ mother
ENTRY IX: It includes mother s’ brother ; mother s’ sister
AGNATES:
As per section 3(1)(a) of Hindu succession act , 1956 , agnate is said to be the one who is connected with the person in question only through males either by blood or by adoption. There is no degree of relationship to recognize the agnate , that means the chain has no limit. The person in question can be either male or female .
COGNATES:
As per section 3(1) (c) of Hindu succession act , 1956 , cognate is said to be the one who is connected to the person either naturally or by adoption but not wholly by males. There must be at least one female in the chain to be called as a cognate.
INTESTATE SUCCESSION OF HINDU FEMALE:
As per sec 14 of Hindu succession act , 1956 , a female can be owner of her absolute property . Her ownership is no longer limited.
Property shall devolve according to certain rules . For example :
Firstly , the property will pass on to the children ( sons and daughters) .It also includes the children of pre deceased son or daughter .
Secondly , if no body is alive in the above mentioned list of heirs , then the property will pass on to the heirs of husband.
Thirdly , it will pass on to the mother and father of the woman
Fourthly , If nobody from above mentioned lists is alive , the property will dvelve upon the heirs of the father
Fifthly, Similarly , if the above-mentioned heirs are not alive , the property shall dvelve upon the heirs of mother.
DOCTRINE OF ESCHEAT :
The doctrine of escheat means that the property will dvelve to the government automatically if none of class I , class II , agnates or cognates are present.
MARUMAKKATAYAM AND ALIYASANTANA laws :
These societies have been prevalent in the southern part of India . Section 17 of Hindu succession act , 1956 , makes special provisions for these societies .
Marumakkatayam society is one where the lineage was traced through matriarchy or through the mother s’ side. This system is particularly unique to Kerala , particularly in Nair community Here , the join family ties are considerably strong . The nephews become heir to maternal property .
Aliyasantana society is one where the lineage is traced through patriarchy or through father s’ side. Here, the son inherits the property. This society emphasises the succession line on son and his descendants .
MINOR S’ RIGHT TO SHARE IN PROPERTY:
The minor s’ share is protected until he reaches the age of majority . He is entitled to the deceased’s property in the same way as majors . But it is also to be seen that which personal law or jurisdiction applies over the case because the minor s’ rights differ accordingly.
CONCLUSION:
Thus , intestate succession among hindus carries not just contemporary but historical significance . There have been amendments to include women in this sucession to ensure a fairer and equal distribution of wealth. The system of dvelving the property from one heir to another is quite complex . Over the years , with new cases presenting new difficulties before the courts pave way for the possibility of new amendments in the family laws .
REFERENCES:
- This article was originally written by Sowbhagya Lakshmi Hegde published on ipleaders website. The link for the same is herein.
All you need to know about succession under Hindu Law – iPleaders
- This article was originally written by Aksshay Sharma published on ipleaders website. The link for the same is herein.
Historical perspectives of Hindu law of inheritance – iPleaders
- This article has been originally written by Shobhit Shingal published on ipleaders website . The link for the same is herein.
Heirs of a Male Estate under Hindu Law – iPleaders
- This article has been originally written by Manita Doshi on legal service india website . The link for the same is herein.
https://www.legalserviceindia.com/articles/mds.htm
- This article has been originally written by Jagdish Kaisare published on ipleaders website . The link for the same is herein.
Everything you need to know about Intestate Succession – iPleaders
- Jayalakshmi Ammal and others Vs. T.V. Ganesa Iyer ,MANU/TN/0288/1972