One of the most vital parts of personal laws is the law of Succession. It is important because it tells how the devolution of property takes place from the owner to the heir. It acts as a guide for the future of the property after the owner’s death. Laws relating to succession in India are diverse and complicated. The application of these laws depends on the religious background of the person.
Further there are divisions in school of thoughts viz. Mitakshara and Dayabhaga in Hindu law. Dayabhaga was prevalent in Bengal and its adjoining areas whereas Mitakshara was followed in rest of the country. Also there is Hanafi and Shia Schools of Muslim law. Considering the religious multiplicity there are succession laws applicable to people with different religious backgrounds.
The Hindu succession act (hereafter referred as the HSA) deals with intestate succession in Hindus. The HSA discusses the succession for both male and female intestates and also deals with devolution of undivided share in a Mitakshara coparcenary. The current article is an analysis of general rules of succession of males.
SUCCESSION OF PROPERTY BY MUSLIMS
Muslims follow their personal laws which are different for both Shias and Sunnis. These laws remain un-codified. As mentioned earlier the Hanafi law is followed for Sunni Muslims. The personal laws of Muslims restrict legacies up to one third of the estate remaining after the funeral expenses, debts, etc. are settled.
Meher is the first debt which should be cleared if it has not been cleared by the deceased during his lifetime. Under Muslim personal laws there are three classes of legal heirs.
Sharers: they are the legal heirs who are entitled to a prescribed share of the estate. There are 12 sharers under this-
- Daughter of a son (or son’s son or son’s son and so on),
- Paternal Grandfather
- Grandmother on the male line
- Full sister
- Consanguine sister
- Uterine sister, and
- Uterine brother.
- Residuary: They are next in line of the sharers. If there is anything left after the sharers get their prescribed shares it will go to the residuary.
- Distant Kindered: These are the other relatives who het the shares when there are no sharers or residuary
As far as Christians are concerned, one third share is inherited by the widow/widower and the remainder goes to the lineal descendants. If there are no linear heirs, one-half goes to the wife and the rest to the relatives, i.e. prescribed as Kindered.
Amongst the lineal descendants, each child or if he/she is pre-deceased, his children collectively will get equal shares. The father is given the first choice in the kindered, and if he is predeceased then mother, brother and sister (or their children together if anyone is predeceased) are treated equivalent.
SUCCESSION OF PROPERTY BY A HINDU MALE
The section which deals with the succession of property by a Hindu male under the HSA is provided in section 8 to 13 of the act.
Section 8 of the HSA describes the ‘general rules of succession in the case of males’
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter: —
(a) Firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) Lastly, if there is no agnate, then upon the cognates of the deceased.
EXPLANATION OF THE SECTION
When we read the section there are certain terms to be understood before reading the section as a whole. The terms which needs clarification are-
- Who is a Hindu under the HSA?
- What is an intestate succession?
- Who is a Heir?
- Who are class I and class II heirs?
- Who are agnates and cognates?
HINDU UNDER THE HSA
The HSA under section 2 defines the applicability of the act. It says that the act is applicable to-
- Any person who is a Hindu by religion or any of its forms or developments, including a Virashaiva, Lingayat, or a Brahmo, Prarthna or Arya Samaj follower.
- Any person who is a Buddhist, Sikh or Jain by religion.
- Any other person who is not a Muslim, Christian, Parsi, Jew, unless it is proved that such person would not be governed by Hindu law or custom.
- This Act shall extend to the whole of India.
However, the act further states that this section will not apply to any of the scheduled tribes covered under the meaning of Article 366 of the Constitution of India, unless otherwise directed by the central government by a notification in the official gazette.
For a person to qualify as a Hindu, Sikh, Jain or Buddhist the following conditions must be abided and he must be –
- A legitimate or illegitimate child, where both of his parents are Hindus, Buddhists, Jains or Sikhs.
- A legitimate or illegitimate child, where one of whose parents is a Hindu, Buddhist, Jain or Sikh and is brought up as a member of the tribe, community, group or family to which such parent belongs.
- Any person who is converted or reconverted to the Hindu, Sikh, Jain or Buddhist religion.
INTESTATE SUCCESSION: When a person does not dispose of his property during his lifetime he is said to have died intestate. It means that the person died without making a legal will which would have otherwise determined the future of his property.
Section 3 (1) (g) of the act says that a person who dies without leaving behind a will is referred to as intestate.
HEIR: According to Section 3(1) (f), ‘heir’ is any male or female, who is entitled to receive the property of the intestate. It is the legal right of the person next in rank to be entitled of the property after the person’s death.
CLASS I HEIRS
- Sons of a predeceased son
- Widows of a predeceased son
- Son of a predeceased son of a predeceased son
- Widows of a predeceased son of a predeceased son
- Daughter of a predeceased son
- Daughter of a predeceased daughter
- Daughter of a predeceased son of a predeceased son
- Son of a predeceased daughter
- Daughter of a predeceased daughter of a predeceased daughter
- Son of a predeceased daughter of a predeceased daughter
- Daughter of a predeceased daughter of a predeceased son
- Daughter of a predeceased son of a predeceased daughter
NOTE: Class I heirs will inherit the property even if one heir of class I is present. The property will be inherited by class II heirs only when there are no class I heirs. Furthermore, the heirs in class I cannot be divested of the property in case of conversion or remarriage etc. it was only after the amendment of 2005 in the HSA that
CLASS II HEIRS
- Son’s Daughter’s son
- Son’s daughter’s daughter
- 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
NOTE: The same rule is applied in class II heirs also. The property will be held by class II heirs when there are no class I heirs left. And Agnates will be next in line to get the property after the class II heirs.
Before moving to Agnates and Cognates it is important to understand who would fall under the definition of son, daughter and widow.
In the case of Arunachalathammal v. Ramachandran, AIR 1963 Mad 255; A contention was raised that different heirs mentioned in one entry are meant to be a subdivision of that particular entry and that they cannot inherit the same way.
This question arose because in this case there were 5 sisters and one brother and the lone brother contended that he should be preferred over the five sisters as brother is mentioned in subcategory (3) of entry 1 while sister is mentioned in subcategory (4) of entry 1 and thereby claimed full control of the property.
However, this claim was rejected and it was stated that all the heirs in the class II will inherit simultaneously. No preference of heir shall be made because of difference of subcategory. Further the court went on to say that there is subdivision in any entry in class II. The subdivisions are to be read only as roman numerals representing the heirs in the entry.
SON UNDER THE HINDU SUCCESSION ACT
The term son includes natural son as well as an adopted son. But this does not extend to step son or an illegitimate son. This was laid in various cases by the judiciary.
In Lachman singh v Kirpa singh, 1987 AIR 1616; the court said that if the legislature had the intent to include step son in the definition of son it would have done so by stating it expressly in the provisions.
In Raj Rani v Bimla rani, AIR 2011 Delhi 170; the court said that as the term father and mother have a clear reference under the HSA to ‘natural father and mother’ as distinguished from stepfather and step mother.
Under the table of heirs in schedule to the Act, in Class II, step- mother has been put in Entry VI under fathers widow, whereas natural mother has been put in class I heir in the said Schedule
In Mallappa Fakirappa Sanna Naga Shetti v. Shivappa, AIR 1962 Mys 140; a Division Bench of the Mysore High Court took the view that the word son in S. 15(1) (a) could not properly be understood to include a stop son of the deceased.
In the absence of any definition or explanation to the effect that the word son would also include a step son, that word should be given its natural meaning, if so, a son of deceased female would mean a male issue of the body of that deceased female.
DAUGHTER UNDER THE HINDU SUCCESSION ACT
A natural or adopted daughter, but not a stepdaughter or illegitimate daughter, is included in the word ‘daughter’. A legitimate daughter can be the daughter of an invalid or voidable marriage annulled by the Court and hence would be entitled to inherit the property of the father.
The marital status of the daughter, financial condition, etc., is of no concern. The daughter’s share is equal to that of the son.
WIDOW UNDER THE HINDU SUCCSESSION ACT
The widow gets a share which is equal to the son’s share. Where more than one widow remains, they jointly take one share that is equal to the share of the son and split it among them evenly. This widow was meant to be from a legitimate marriage.
In the case of Ramkali v. Mahila Shyamwati, AIR 2000 MP 288; it was held that a woman who was married in an invalid or void marriage and that marriage was annulled by the Court on the death of her husband, would not be considered a widow and would not be entitled to his land. But if the widow remarries she will have no rights in inheritance.
In Mangal Singh v. Rattno, AIR 1967 SC 1786; a widow who had entered into possession of land belonging to her deceased husband in 1917, but who was illegally dispossessed by the collaterals of her husband in 1954, brought a suit for possession and the suit was pending when the Hindu succession act came into force.
The widow died in 1958 during the pendency of the suit. The Supreme Court held that the land was ‘possessed’ by the widow when she died in 1958 within the meaning of section 14(1) of the Hindu succession act and therefore her legal representatives must be deemed to have succeeded to those rights.
The scope of the word ‘possessed’ in section 14(1) of the Hindu succession act has been considered in the above decision.
In Seth Badri Prasad vs Srimati Kanso Devi, AIR 1970 SC 1963; The three different meanings of the word ‘possessed’ as given in Wharton’s Law Lexicon, 14th Edn at p. 777 are extracted at p. 1790 of the decision in AIR 1967 SC 1786.
One is the state of owning, the second is having a thing in one’s hands and the third is having a thing in one’s own power. The widow in that case acquired the property of her deceased husband before the commencement of the Hindu succession act, but she was out of possession on the date when that Act came into force.
It was urged in that case that in order that the provisions of section 14 might apply, it would have to be established that the property was possessed by the widow at the time when the Act came into force.
This contention was repelled as Section 14 covered any property possessed by a female Hindu whether acquired before or after the commencement of the Act.
CLASS III HEIR- AGNATES
Agnates form the class III heir of the deceased and they inherit the property only when the class I and class II heirs are not present anymore. An agnate is a person who is related to the intestate only through male relatives.
An agnate can be a male or a female. The sex of the relative is relevant and not the sex of the heir that is material which is why an agnate can be either a male or a female. Also, there is no difference between full or half-blood.
CLASS IV HEIR- COGNATES
The last division encompasses the majority of the intestate heirs who do not find a place in the three groups mentioned above. A cognate is an heir that, in terms of sex, was related to the heir by a mixed chain of relatives. In addition, if a single female intervenes between an heir and the intestate then also it is a cognatic chain.
If none of the class I or class II or the whole agnate class is available, cognates inherit. The law relating to the degree estimation and the evaluation of preferences is the same as in the case of agnates.
THE RULE OF PREFERENCE AMONG AGNATES AND COGNATES
- Each generation is called a degree, and the first degree is the intestate itself for degree computation.
- Ascent degree means upward or ancestral degree, and descent degree means downward or downward degree.
- If an heir has both degrees of ascent and descent, both degrees must be taken individually and not cumulatively.
- Independent of the number of degrees, an agnate of only descent is favored over ascent (or generation).
- If two agnates have both degrees of ascent and descent, the one with fewer degrees of ascent would be favored.
GOVERNMENT AS THE LAST HEIR
In a case where none of the class I, class II, Agnates and cognates is available then the whole property of the deceased Hindu male moves to the government. This is called Doctrine of Escheat.
There are various intricacies when it comes to succession of property under the personal laws. The judiciary from time to time has made the interpretation of such complex tasks clearer. Under Muslim law the devolution of property is entirely different than that of the Hindu codified law. In the event that a Hindu dies leaving behind a will, there are four groups of heirs to which property devolves, in which case he becomes intestate. In these groups, this property devolves. If there is no one from the earlier class, so it moves to the next class and so on. And finally a single meeting point where all these personal laws meet is the doctrine of escheat, when the government takes over all the property when there are no legal heirs left.