AMITY UNIVERSITY LUCKNOW CAMPUS

FAMILY LAW ASSIGNMENT

TOPIC- LAW OF SUCCESSION AND INHERITENCE AMONG HINDUS

SUBMITTED BY: SUBMITTED TO:

ISHAAN TANDON (A8111118107) MS JYOTSNA SINGH

SWEAKSHA SHUKLA (A8111118073)
MAYANK MISHRA (A8111118076)
JANVI SETH (A8111118105)

B.A.L.L.B.(H)
SEMESTER-4TH
2018-23
 ACKNOWLEDGEMENT

The success and final outcome of this assignment required a lot of guidance and assistance
from many people and I we are extremely fortunate to work on this assignment.
We sincerely thank mam Jytotsna Singh for her guidance and suggestions and for giving us
the opportunity to work on this assignment.

Also we would like to express thanks to our parents and friends who helped in finalizing this
assignment within limited time frame.

Thank you

- ISHAAN TANDON (A8111118107)

SWEAKSHA SHUKLA (A8111118073)
MAYANK MISHRA (A8111118076)
JANVI SETH (A8111118105)
 INDEX

1. Introduction
2. General rules of succession- Male Hindu
3. Agnates
4. Cognates
5. Computation of degrees
6. Position after amendment act
7. General rules of succession- Female Hindu
8. Escheat in Hindu law
9. Testamentary succession
10.Inheritence
11.Division of property of interstate
12.Inheritence under traditional Hindu law
13.Who can not Inherit Propoerty
14.Conclusion
15.Bibliography

___________
 INTRODUCTION
Intestate succession is defined by Legal Dictionary as the distribution when a person dies without leaving a
valid will or testament and the heirs will take (receive the possessions) by the laws of descent and
distribution in the estate. Collectively these are called the laws of intestate succession. In case person dies
without making a will there needs to be some broadly accepted rules upon which the property shall devolve
upon those succeeding him.

Hindu Succession Act, 1956 (Position after 9-9-2005)

Amending Act 2005 was one of the steps to remove discrimination contained in S. 6 of Hindu Succession
Act, 1956.

It gave equal rights to daughters in the Hindu Mitakshara Coparcenary Property as to sons have. It makes
daughter, coparcener in joint family property. Simultaneously section 23 of the Act as disentitles the female
heir to ask for partition in respect of dwelling house wholly occupied by a Joint Family until male heirs
choose to divide their respective shares therein, was omitted by this Amending Act. It also made women
right in agricultural land equal to men.

According to the amending Act of 2005, in a Joint Hindu Family governed by the Mitakshara Law, the
daughter of a coparcener shall, also by birth become a coparcener in her own right in the same manner as the
son heir. She shall have the same rights in the coparcenary property as she would have had if she had been a
son.

She shall be subject to the same liabilities and disabilities in respect of the said coparcenary property as that
of a son and any reference to a Hindu Mitakshara Coparencer shall be deemed to include a reference to a
daughter. But this provision shall not apply to a daughter married before the commencement of the Hindu
Succession (Amendment) Act of 2005.

This provision shall not affect or invalidate any disposition or alienation including partition or testamentary
disposition of property which had taken place before 20th December, 2004.

In the matter of succession of property of a Hindu male dying intestate, the Act lay down a set of general
rules in sections 8 to 13.

Hindu Succession Act, 1956 was basically brought into effect to meet those situations only where there is no
will made by Hindu male or female dying before making the will and hence it has no application in case of
testamentary succession that is in case where there is a will. The need of this act is felt in today‟s world
because of the growing issue of family separations and family related disputes amongst the members. This
act applies to both Mitakshara and Dayabhaga schools.

Mitakshara coparcenary property shall devolve by testamentary or intestate succession under the Act
and not as survivorship.
 General Rules of Succession - Male Hindu
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 II 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 agitates of the deceased; and

(d) Lastly, if there is no agnate, then upon the cognates of the deceased.

Class I heirs:-

The property of a Hindu Male dying intestate would be given first to heirs within Class I. They are:

i. Mother,

ii. Widow,

iii. Daughter,

iv. Son,

v. Widow of a predeceased son,

vi. Son of a predeceased son,

vii. Daughter of a predeceased son,

viii. Widow of a predeceased son of a predeceased son,

ix. Daughter of a predeceased son of a predeceased son,

x. Son of a predeceased son of a predeceased son,

xi. Daughter of a predeceased daughter, and

xii. Son of a predeceased daughter.

Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are:

xiii. Son of a predeceased daughter of a predeceased daughter,

xiv. Daughter of a predeceased daughter of a predeceased daughter,

xv. Daughter of a predeceased son of a predeceased daughter, and

xvi. Daughter of a predeceased daughter of a predeceased son

1955) are deemed to be

legitimate children and are thus entitled to participate as sharers in the succession to the intestate.

together they are entitled to one share which is to be divided equally amongst them.

with the children

of the predeceased son) is dependent upon the share that the predeceased son would have been entitled to
had he been alive. Also, she is excluded from the share if she has remarried before the death of the intestate.

rits simultaneously with the other heirs and gets the share as that of a son. She takes the
property in her individual capacity and not in the capacity of a woman‟s estate. Also, she is entitled to the
property of the intestate even if she is married.

All these heirs inherit simultaneously. On failure of any such heir as specified in Class I, the property
devolves upon the enumerated heirs specified in Class II, wherein an heir in the first entry is preferred over
an heir in second category in the Class II and similarly, any heir in a higher entry shall be preferred over an
heir in a lower category.

Entry I –

a) Father.

Entry II –

a) Son‟s daughter‟s son.

b) Son‟s daughter‟s daughter.

c) Brother.
d) Sister.

Entry III –

a) Daughter‟s son‟s son.

b) Daughter‟s son‟s daughter.

c) Daughter‟s daughter‟s son.

d) Daughter‟s daughter‟s daughter.

Entry IV –

a) Brother‟s son.

b) Brother‟s daughter.

c) Sister‟s son.

d) Sister‟s daughter.

Entry V –

a) Father‟s father.

b) Father‟s mother.

Entry VI –

a) Father‟s widow. [Step mother].

b) Brother‟s widow.

Entry VII –

a) Father‟s brother.

b) Father‟s sister.

Entry VIII –

a) Mother‟s father.

b) Mother‟s mother.
Entry IX –

a) Mother‟s brother.

b) Mother‟s sister.

Section 11- Distribution of property among heirs in Class II of the Schedule. - 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.

This Section provides that when there is more than one heir in one entry of Class II, they shall inherit
equally.

For example, Entry III contains four heirs:

(a) Daughter‟s son‟s son

(b) Daughter‟s son‟s daughter

(c) Daughter‟s daughter‟s son

(d) Daughter‟s daughter‟s daughter.

Thus according to this Section, they all share equally. It should be noted that the legislation does not lay
down any rule of discrimination between any male or female.

If two heirs are enlisted in the same entry, then irrespective of their sex, they share equally. All the heirs in
each one of the entries stand aequali jura and take per capita subject to the only exception that full blood is
preferred over half-blood.

The father in entry I includes an adoptive father. However, a father is not entitled to any interest in the
property of his illegitimate son as opposed to the mother. Nevertheless, a father is entitled to inherit from his
son born of a void or voidable marriage (under section 16). Also, a step father in not entitled to inherit from
his step son.

All brothers and sisters inherit simultaneously with the sister and other heirs in the Entry. Here the term
brother includes both full and half brother. However when there is a full brother, he is always preferred to a
half brother where, half brother means son of the same father but different mother. Uterine brother is not
entitled to share the intestate‟s property.

However when the intestate and his brother are illegitimate sons of their mother, they are related to each
other as brother in this entry.

However, there is one basic distinction between the Class I and the Class II heirs. While all the heirs in Class
I inherit the property simultaneously, each of the entries in Class II constitute distinct and separate groups of
heirs. Heirs in higher entries inherit in priority, but there I no such concept of priority among the heirs in
Class I.
For example, if a Hindu male dies intestate leaving behind his widow, two sons, son of a predeceased son,
widow of another predeceased son, two daughters and son of a predeceased daughter, all of them will inherit
simultaneously because all of them are heirs in the Class I of the Schedule. However, if another Hindu male
dies intestate leaving behind his sister and his brother‟s son, the sister being an heir in Entry II of Class II
will get preference over his brother‟s son who is an heir in Entry IV of Class.

Agnates-
When a person traces his relationship to the propositus wholly through males, he is an agnate. His sex or the
sex of the propositus is immaterial. Agnates fall in three classes: (a) descendant agnates, (b) ascendant
agnates, and (c) collateral agnates.

- S, SS, SSS, SSSD, SSSS of a person are all descendant agnates. S, SS and SSS are
in class I. We are not concerned with them here. But SSSD and SSSS are the agnates who are not included
in class I or class II and with them we are concerned here. For descendent agnates there is no limit as to
degrees, howsoever remote they may be. Thus, all descendants of SSSS through males will also be agnates.
Descendants have only degrees of descent.

- Intestate‟s F, FF, FFM, and FFF are all ascendant agnates. But F and FF are already
in Class II (in categories I and V respectively) and therefore we are not concerned with them here. FFM and
FFF are the nearest agnate descendants after F and FF. All ascendants through males will also be ascendant
agnates there being no limit of degrees.

- Collaterals are descendants in the parallel lines. They may be on the maternal side or
they may be paternal side.

Cognates
A person is said to be a cognate of another if the two related by blood or adoption but not wholly through
males. In a cognate relationship, it does not matter as to whether there is intervention of one or more
females. So long as one female exists in the line, it becomes a cognate relationship.

Cognates:

(a) cognates who are descendants, for example, son‟s daughter‟s son‟s son and daughter‟s son‟s son‟s son.

(b) cognates who are ascendants, for example, father‟s mother‟s father and mother‟s father‟s father.

(c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent,
for example, father‟s sister‟s son and mother‟s brother‟s son.

The object of Section 10 is to deal with the amount of shares each person will be entitled to when there are
more than one to inherit simultaneously.
 The widow, the son, the daughter and the mother will inherit to the property. However, this does not mean
that each one of them will get 1/4th of the property. The four rules given in this Section are explanatory to
the extent of understanding how much share each one will get.

1) The widows, if there is more than one, shall take together only one share and inherit that share equally as
tenants-in-common and not joint tenants.

2) When there is more than one son, each son will get a share and similarly each daughter will get a share
and mother will also get a share. Thus this is based on the Principle of Equalization.

3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall be entitled to
take together a share of the property of their father or mother as the case maybe, and divide them equally
among themselves. The family of the predeceased son would be entitled to one part that the predeceased son
would have been entitled to, had he been alive. Same thing applies to a predeceased daughter. Thus these
heirs succeed to the intestate‟s property not as per capita but as per stripe.

4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a predeceased son of a
propositus, she will take the share of the predeceased son equally with her sons and daughters.

Section 11- Distribution of property among heirs in Class II of the Schedule- 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. This Section provides that when there are more than one heirs in one entry of Class II, they shall
inherit equally.

Section 12-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 degree of descent.

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

This Section deals with the order of succession among agnates and cognates. Agnates come within the scope
of Section 8(c) whereas cognates come within the scope of Section 8(d). The question of succession of
cognates come only when there are no cognates and the question of succession of agnates and cognates
come only when there are no heirs in Class I and Class II.

In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be preferred to a
lower subcategory i.e. descendants shall be preferred over ascendants who in turn shall be preferred over
collaterals.
Computation of degrees (Section 13)--

1) For the purpose of determining the order of succession among agnates or cognates, relationship shall be
reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case
may be.

2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate. 3) Every generation
constitutes a degree either ascending or descending.

Section 13 lays down the rules for computation of relationship between the intestate and his agnate and
cognate heirs. This relationship is traced from the intestate to the heir in terms of degrees of relationship
with the intestate as the starting point. There is no discrimination or preference between male and female
heirs.

The second rule states that the computation of the degrees of ascent and descent are to be made inclusive of
the intestate. The relationship is to be traced from the propositus on terms of degrees with a propositus as
terminus a quo, i.e. the first degree.

However, the order of succession among agnates and cognates is not determined merely by the total number
of degrees of ascent and descent. It is subject to and regulated by Section 12 of the Act.

Example:

father‟s mother‟s father of the intestate- Hence there is no degree of descent but there are four degrees of
ascent represented by (i) the intestate, (ii) the intestate‟s father, (iii) that father‟s mother and (iv) that
mother‟s father.

General rule with regard to preference and distribution of property among agnates and cognates:

Rule (i) - When the claimants are descendants, ascendants and collaterals, the descendants are preferred over
the latter two. When there are no descendants, ascendants are preferred over collaterals. The collaterals take
only in the absence of both descendants and ascendants.

Rule (ii) - When all the claimants are descendants, the one having fewer degrees of descent will be preferred
if they have the same degrees of descent, they will take simultaneously and as between themselves will take
per capita.

Rule (iii) - When all the claimants are ascendants, the one having fewer degrees of ascent will be preferred.
If they have the same degrees of ascent, they will inherit simultaneously and as between themselves will
take per capita.

Rule (iv) - When all the claimants are collaterals, the rules of preference will be (if should be kept in mind
that collaterals have both degrees of ascent and degrees of descent) as under:

Sub-Rule (a) - Among the claimant collaterals those who have fewer degrees of ascent (irrespective of
degrees of descent) will be preferred.

Sub-Rule (b) - Among the claimant collateral when degrees of ascent are the same, the one who has fewer
degrees of descent will be preferred.
Sub-Rule (c) - Among the claimant collaterals when degrees of ascent and descent are the same, all of them
take simultaneously, and among themselves share per capita.

Position after Amendment Act

Amendment Act 2005 is an important step towards gender equality. But in many aspects the act remained
same.

1) After the amendment, daughters has an share equal to that of sons at the time of the notional partition, just
before the death of the father, and an equal share of the father's separate share. However, the position of the
mother stays the same.

She, not being a member of the coparcenary, is not getting a share at the time of the notional partition.
Making daughters coparceners decreased the shares of other Class I female heirs, such as the deceased's
widow and mother, since the coparcenary share of the deceased male from whom they inherit declined.

2) The amendment made the position of the female members of the joint family worst. With a daughter
along with the sons acquired a birthright, which she can presumably partition at any time, the rights of other
members of the joint family got diminished.

The only protection women had in the marital home was the status of being married, which carried with it
the right to be maintained, not only by the husband, but by the joint family and its assets as a whole. This
protection now eroded, to the extent that the total divisible amount got reduced.

3) Since Hindu law does not grant any rights to wives in marital property, their only chance of getting
anything was on an inheritance, as equal share with the sons and daughters, if the marriage was subsisting on
the death of the husband. On divorce, of course, even that right to inheritance disappears and Amendment
2005 reduced the share of wives.

4) The general exemption granted in favor of laws of the Scheduled Tribes that they are not bound by the
provisions of the Act seeks to perpetuate inequality with respect to females in these tribes wherein the
exploitation of the female class is highest and unchecked.

The Preamble to the Amending Act indicated the objective as the removal of discrimination against
daughters inherent in the Mitakshara Coparcenary but this discrimination need to be removed against every
woman i.e. mother, widow etc.

In general sense, succession represent the view of society at large as to what ought to be the normal course
of succession in the readjustment of property after the death of a citizen. Our Constitution emphasizes on
gender equality. An equality is only possible if we able to provide it to every section of society.
 General Rules of Succession - Female Hindu
Under the Hindu law in operation prior to the coming into force of the Act, a woman‟s ownership of
property was hedged in by certain delimitations on her right of disposal and also on her testamentary power
in respect of that property.

Divergent authorities only added to the difficulties surrounding the meaning of a term to which it sought to
give technical significance. Women were supposed to, it was held and believed, not have power of absolute
alienation of property.

The restrictions imposed by the Hindu law on the proprietary rights of women depended upon her status as
a maiden, as a married woman and as a widow. They also depended upon the source and nature of property.

Thought there were some fragmented legislation upon the subject (regard being made to the Hindu
Woman‟s Right to Property Act, 1937), the settled law was still short of granting a status to woman where
she could acquire, retain and dispose off the property as similar to a Hindu male.

The Hindu Succession Act, 1956 and particularly Section 14 brought substantial change, thus, upon the
aspect of a right of a Hindu female over her property and thereby settled the conflict.

Section 15 of the Act prescribes general rules of succession in the case of female Hindus.

The property of a female Hindu dying intestate shall devolve:

1. firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the
husband;

2. secondly upon the heirs of the husband;

3. thirdly, upon the mother and father;

4. fourthly, upon the heirs of the father; and;

5. lastly, upon the heirs of the mother

However sub-Section (2), similar to the scheme of Section 14, is in the nature of an exception to the general
rule as laid in sub-Section (1). The two exceptions are, if a female dies without leaving any issue then,

If any property is inherited by a female Hindu from her father or Mother it shall devolve in the absence of
any son of daughter of the deceased (including the children of any predeceased son or daughter) not upon
the heirs referred to above but upon the heirs of the father; and any property inherited by a female Hindu
from her Husband or from her father in law shall devolve, in the absence of any son or daughter of the
deceased (including the children of any predeceased son or daughter) not upon their referred to above, but
upon the heirs of the husband.

Section 16 talks about order of succession and manner of distribution among heirs of a female Hindu.- 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 including in the same entry shall take simultaneously.

It declares that among the heirs enumerated in entries (a) to (e) of Section 15, those heirs referred to in prior
entry are to be preferred to those in any subsequent entry and those included in the same entry are to succeed
simultaneously.

Rule 2 - If any son or daughter of the intestate had predeceased 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 would have taken if living at the intestate‟s death.

It states that in case of the children of a predeceased son or daughter, they shall not take per capita with the
son and daughter of the intestate but shall take per stripes i.e. the children and the predeceased son or
daughter shall succeed to the property of the intestate as if the predeceased son or daughter was alive at the
time of inheritance.

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) to Section 15 shall be in the same order and according to the same
rules as would have applied if the property would have been the father‟s, the mother‟s or the husband‟s as
the case maybe, and such person had died intestate in respect thereof immediately after the intestate‟s death.

It is applicable only when succession is in terms of entry (b), (d) or (e) of Section 15(1). This rule 3 is to be
invoked when under rule 1 the heirs of the husband or the father or the mother are to be ascertained for
purpose of distribution of property.

The joint family system in our country has slowly been eroded and an increasing number of nuclear and
semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also
becoming more economically independent.

With the growth of the nuclear family a married woman dependency on her natal family and continued
closeness to it is much greater today even if it was not so earlier.

Recently Law Commission Report 207 recommended amendment in S 15 of Hindu Succession Act, 1956.
The amendment will basically change the position of heirs in case female dies intestate leaving her, self
acquired property.
Escheat in Hindu Law

Section 29 of the Hindu Succession Act, 1956 deals with the provisions of Escheat and according to
Giridhari Lal vs. Government of Bengal (12 MIA 448), the Privy Council held that the Crown cannot take
an estate unless it affirmatively would establish that there were no other heirs.

The Privy Council held that when the Crown would take the property as the ultimate heir, it would take it as
if it were an ordinary heir ... and have duties to perform ceremonies of the deceased, whose lands were
escheated, and also to pay the debts if any to the debtors. The Supreme Court of India has upheld the escheat
in Maharaja of Jaipur vs. Ramachandra (AIR 1968 SC 954).

The Hindu Succession Act,1956 Section 29 defines the "Doctrine of Escheatment".

According to this in Hindu Joint Family,if there are no heirs i.e.absence of class I,classII,Agnates and
Cognates to the deceased person,the Government will take the property.This is known as "Doctrine of
Escheatment".

According to Mitakshara and Dayabaga,the State can be take the property of a Kshatriya.But in the
Brahmin,the state cannot take the property.Manu's text also says that,Brahmin property cannot be
taken.According to the Narada Smruti,the property of Brahmin goes to another Brahmin,when thehaiers.no
heirs.

Inheritance is Never in Abeyance,who is the nearest in the relationship at the time of death,they can take the
property.

Eg:-'A' is the nearest heir of 'B'.But the birth of 'C' nearer than 'A' at the 'B' death excludes 'A' from
inheritance.

The Privy Council says that,in the absence of the heirs,the property goes to Escheatment to the
State,whether the deceased was a Brahmin or Non-Brahmin. so,if there is no heirs,the property goes to the
Government.This is known as "Doctrine of Escheatment"

Testamentary Succession:

Section 30 of the Hindu Succession Act, 1956 says that any Hindu may dispose of by will or other
testamentary disposition any property, which is capable of beings so disposed of by him or by her, in
accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in
force and applicable to Hindus.
Inheritence

We are talking about only those inheritance where male or female Hindu died intestate. Intestate means
without WILL. A person who died without writing a WILL is called as „intestate‟ in legal terminology.
Inheritance under Hindu law is possible either through WILL or through operation of law.

As a general principle whenever a Hindu died intestate then a legal presumption comes in to force that the
property get vested in to legal heir automatically and it belongs to Joint Hindu Family.

Once a dispute arise or members of joint Hindu Family feels that there is requirement of distribution of
inherited property then following legal recourses can be helpful and one should have basic information in
this area : -

1) Have a family arrangement within legal heirs deed (though an oral and written arrangement) is acceptable
but preferably have a written arrangement and get it registered.

2) Alternatively a partition deed within legal heirs can also be prepared in the same manner.

3) Deeds should be prepared by a competent lawyer having adequate experience and exposure to Hindu
Law.

4) Carry a mutation proceeding on the basis of partition/ settlement deed before Tehsildar (executive
magistrate) in case of agricultural property and before Municipal authorities in case o f urban property.
„Mutation‟ means the change of name in Govt. Records.

5) Mutation can also take place on the basis of death certificate of the intestate supported by an affidavit of
the legal heirs for the same but remember that mutation cannot be the sole basis of transfer of title. Order of
mutation can be challenged in civil court.

6) In the case of disputes among legal heirs on inherited property then a civil suit of partition and possession
can be filed under code of civil procedure praying the court to declare the portion of inherited property in
favor of petitioner and the trial begins thereafter. Once the court passes a decree of partition then
accordingly mutation can take place.

7) So, it can be said basically, inheritance under Hindu Law revolves around Hindu Succession Act, Hindu
Law, state‟s land revenue code, Municipal Act, stamp & registration, Civil Procedure Code etc.
Division Of Property of intestate
Whenever a Hindu dies then the property get vested among his/her heirs by virtue of Hindu Law. Now,
Hindu Law, which is a well developed law, has four schedule or we can say categories of Legal heirs. If the
first category fails then second comes and then third and so on. First category are direct relatives, second
category is second line relative and third category is of „agnate‟ (relatives from father side and forth
categories are „cognates‟ that is relatives of mother side.

Remember if any Hindu dies instate and without any relatives of abovementioned categories then the
property get vested with the State Government under due procedure of Law.

Today we will see the first category only for inheritance of Male Hindu : -

Rule1.- The intestate‟s widow, or if there are more widow than one, all the widows together, shall take one
share.

Rule 2.- The surviving sons and daughter and the mother of the intestate shall each take one share.

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.

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

(i) among the heirs in the branch of the pre-deceased son shall be son made that his widow (or widows
together) and the surviving sons and daughters get equal portions, and the branch of his pre-deceased sons
gets the same portion.

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and
daughters get equal portions

Similarly there are division of property among rest of the three category defined under Hindu Succession
Act, 1956 and (amendment) Act, 2005.
Inheritance Under Traditional Hindu Law
Dharma sastra exhibits a very pragmatic and practical approach and acknowledges that ultimately and for a
variety of reasons, individuals do want to be independent and set up their own homes. Dharma sastra seeks
to safeguard the interests of different sections of the society and here, the endeavour is to balance the
interests of the individual within the family, and at the same time to prevent disintegration of the family as a
social unit, and avoid fragmentation of economically and sustainable units of property.

Since Hindu society has always been a patriarchal society, property rights of male members of the
family were always supreme and were considered to be more appropriate than family members. Although,
constant efforts were made during that era to provide for women as mothers, daughters-in-laws etc. a right to
property.

If we look at the commentaries and the Vedic age, amongst the dictates of manu, hinting at the negation of
rights of women to be owners of property, there are still ample references, indicating that a woman was
always capable of owning property.

However, there was a lot of difference between theory and the practice which was actually followed.
According to the texts, she could hold property but actually the property given to women was meagre to the
property given to man. Also, she didn‟t have absolute right to dispose of the property and restrictions were
placed on her.

The restrictions were considered to be necessary by our traditionally patriarchal setup and it was thought that
if women were given absolute freedom then they will neglect their marital obligations and management of
household affairs. As declared by Narada, “The transactions of a woman had no validity, especially the gift,
hypothecation or sale of a house or field. Such transactions were valid only when they were sanctioned by
the husband or on a failure of the husband, by the son.”

Before the codifying of Hindu law, there were different commentaries and digests which decided on the
inheritance issues among hindus and as the time grew these commentaries acquired ex cathedra character.

The result was that two rival schools of inheritance, the Mitakshara school and the Dayabhaga school, came
into existence. Regarding the origin and development of these schools, it has been said by the Privy Council,
“The remoter sources of Hindu law are common to all the different schools….Works universally or
generally received became the subject of subsequent commentaries. The commentator put his own glosses
on the ancient text, and his authority having been received in one and rejected in another part……., schools
with conflicting doctrine arose.
 Thus, Mitakshara which is universally accepted by all the schools except that of Bengal as of highest
authority……; and the Dayabhaga,…., prevails in Bengal.” [5] The smritis used by Vijnanesvara and
Jimutavahana in establishing the principles of these schools was same but it was their different interpretation
of these smritis which resulted in both these rival doctrines. The fundamental difference between the two
schools is with regard to the principle on the basis of which the right to inheritance is to be determined

. These schools born of diversity of doctrines marked a new stage in the evolution of Hindu law. The
common principle on which both of them rely is that a sapinda inherits the deceased‟s property.

This is also where differences arise as to how sapindas should be understood for inheritance issues. Under
Mitakshara law, community of blood is to be preferred to community in the offering of religious ablations is
the governing factor whereby the right to inherit arises whereas under Dayabhaga, the right arises from
spiritual efficacy i.e. the capacity for conferring spiritual benefit on the manes of paternal and maternal
ancestors.

Under Mitakshara law, only agantes could inherit the property no matter how distant they were to the
deceased which meant that the property could go to a distant male cousin but not to one‟s own daughter‟s
son. However, under Dayabhaga law, the view was more of liberal and allowed cognates to inherit the
property such as a person can inherit his maternal grandfather‟s property if he had no son.

According to Mitakshara law, each son acquires an equal interest in his father‟s property as soon as he is
born and on his father‟s death gets the property by survivorship whereas under Dayabhaga, the son doesn‟t
acquire any interest in father‟s property by birth and his rights regarding the property are determined only
after father‟s death. Thus, the Mitakshara shows a clear sign of following a strong patriarchal system
whereas Dayabhaga showed a clear departure from set norms and a dilution in traditional patriarchal
structure.

According to Dayabhaga(Bengal) school, the only females who can inherit the property of a male are the
widow, daughter, mother, father‟s mother and father‟s father‟s mother. The Madras school, in addition to the
above mentioned five heirs, also recognises three more heirs known as bandhus which are brother‟s
daughter, brother‟s son‟s daughter and father‟s brother‟s daughter.

According to all schools, except Bombay, a female who has inherited property from a female
relation is not the wholesome owner of the property and is known as a limited owner of the property.

Except in case of fulfilling indispensable religious and charitable purposes including for spiritual benefits to
her husband, a woman doesn‟t have a right to alienate such property. The limitation is with respect to the
power over its disposal and the inability to transmit this estate to her own heirs, but otherwise she had full
powers to possess it and appropriate the income generated from it.

During her lifetime, no person had any right of succession over that property, though after her death the
property passed on to the next heir of the male from whom she inherited it. With regard to the property
inherited from female relation relations also, the concept of limited ownership was present.

In Bombay school, other than five females mentioned above, the other females who had the right to inherit
the property as heirs were daughters of descendants and ascendants and collaterals within five degrees and
widows of gotraja sapindas. Female heirs under this school are divided into two following classes:

Those who come into the gotra of the deceased owner, by marriage i.e. wife of the deceased and the wives
of his sapindas and samanodakas.

Those who are born in the gotra of the deceased owner but pass by marriage into different gotra and their
daughters such as a daughter, daughter‟s daughter, sister, niece, father‟s sister and the like.

Under the first class females have limited ownership of the property whereas under class (ii), the female
heirs become the absolute owners of the property. Such property is considered to be stridhana and thus
governed by Mitakshara law. In cases of property inherited from females, they become the absolute owners
of the property.

Dayabhaga follows the principle that sons can divide the ancestral wealth only after the death of both the
father and the mother. Here, the son is given a position of prominence and widow‟s seemingly absolute right
to the property is circumscribed by the rights of the son. Though, in case of more than one widow, it is said
that partition is as per the widows, it is submitted that the reference to equal number of sons signifies that the
mother‟s right to partition is limited by the sons and that each widow is allowed to take an equal share
temporarily.

As opposed to Dayabhaga, in Mitakshara, as mentioned above, son is vested with an interest in the property
since his birth. The wife loses her position of equality and her status as the joint owner with the husband.
Though Vijnanesvara says that a man should give an equal shar to his wife and sons are also supposed to
give their mother an equal share after father‟s death.
According to Hindu family system, the daughter becomes part of her husband‟s family and accordingly is
entitled to inherit property from her husband or son. However, in case of unmarried daughter, dharma sastras
have clearly laid down that such daughters have right to be maintained by her father and brothers. It has
been laid down by Manu that each brother must give one-fourth of the share to his unmarried sister.

According to Mitakshara, the expression one-fourth did not mean one-fourth of each brother‟s share but
only one-fourth of the share the daughter would have received if she were a son. This interpretation greatly
reduces the share of a daughter and is biased against them. Though, it is, in general, according to the usual
pattern followed by Mitakshara as usually it gives the son a superior right to inherit as compared to
daughters.

As we all know that women always had limite ownership of the property they inherited which has been
reiterated in the Privy Council‟s judgement:

“her right is of the nature of a right of property; her position is that of owner; her powers in that character
are, however, limited; but so long as she is alive no one has any vested interest in the succession” [15] The
estate of a Hindu widow is an absolute one subject to certain restrictions.

As far as the rights of a sonless widow to inherit the property are considered, Mitakshara has
clearly laid down that sonless widow can inherit the separate estate of the husband i.e. his self acquired
property and his share in ancestral property if he has separated from the family.

However, she gets no share in the husband‟s ancestral property if he was undivided or had rejoined the
family, though husband‟s family had to maintain her in that case.
 WHO CAN NOT INHERIT PROPERTY
The Hindu Succession Act 1956 lists certain conditions under which a person is disqualified to inherit a
property or may not be the first preference, as the case may be.

These are the cases where person cannot inherit a property according to the law:

1)Half blood

2)In case of simultaneous death

3)Daughter came later

4)Remarried widows

5)Crime

6) Heirs of converts

7)Heir of disqualified heir

8)In absence of an heir

Half-blood

If all aspects of the relation to the person from whom one is expecting to inherit property remain same, then
the one who is of a biological descent shall be taken into preference. Half-blood is referred to those who
share a common parent and either the father or the mother might have remarried.

In such a case, the father's biological child (born of the previous wife) has the first right over the
property as against. In short, full blood is preferred to half-blood relations.

In case of simultaneous deaths

This is based on a presumption. If two people have died and if it becomes uncertain as to which of them
survived the other, then for reasons of succession, it is presumed that the younger survived the elder unless
proved contrary.

Daughters come later

In case the Karta of a Hindu Undivided Family (HUF) dies without leaving a will, survived by both sons and
daughters and if his property includes a dwelling house which may or may not be wholly occupied by either
of these heirs, the daughter's right to the property will arise only after the sons choose to segregate their
shares.

However, no one can deny her the right to live in the house till then if she is unmarried, separated,
deserted or a widow. Married women do not enjoy this provision (at least not for long)

Remarried widows

If the widow of a predeceased son or a widow of a brother is remarried by the time a succession case opens,
she shall not be considered to inherit property.

Crime

Even if one is a legal heir and is to inherit property, if he/she is found guilty of a murder or in abetting a
murder, such a person would be disqualified from inheriting a property.

Heirs of converts

Converts cannot be disqualified from ancestral or father's acquired property. However, heirs of a convert is
disqualified from inheriting any property from his/her Hindu relatives unless they are Hindus at the time
when the succession opens.

Also,

Heir of a disqualified heir

A disqualified heir is considered as if he had expired before the will was even made.

Therefore, succession will continue accordingly that is, the father (disqualified heir) may not have inherited
anything but his son or class I heirs can claim inheritance in a Hindu Undivided Family.

In the absence of an heir

If there aren't any legal heirs, such property is transferred to the government.
 CONCLUSION

Succession is the process of inheriting the assets which includes cash, jewellery, land, house or any property
upon the death of a person. The succession by the legal heirs or next of kin is either based on the general
principles laid down as per the law (it is referred to intestate succession) or the Will of the deceased.

Succession rules apply differently to different communities.Hindus, Sikhs, Jains are governed the Hindu
Succession Act, 1956. The Indian Succession Act 1925 is for Christians, Parsis etc. and the Muslim law is
applicable to Muslims.

Hindu Law
The Hindu Law distinguishes between inheritance of a Hindu Male and a female.

Hindu Male: As per the Hindu Succession Act, 1956 the property of a Hindu Male will be inherited by his
mother, widow, son(s) or their legal heirs in case predeceased. Each heir is entitled to one share in the
property of the deceased male.

Where the deceased has none of the above; his estate shall be inherited by the father, brother, sister,
brother‟s children, sister‟s children. However if the any brother or sister predecease the hindu male; only the
heir living at the time of the death of the Hindu Male will be inherit the property.

Hindu Female: The property of a Hindu female dying intestate, or without a will, shall be inherited by her
sons and daughters (including the children of any pre-deceased son or daughter) and the husband. In case the
property of the Hindu female was inherited by her from her parents; it will only devolve upon her children
and in case of no children will go her parents or their legal heirs.

Hinduism lays stress on distribution of property and have made provisions to distribute it among heirs. Some
of the biggest and fundamental differences that we got to notice in here was between the right to property
and also in the doctrine of representation.

These two could be considered fundamental in the sense that both of these rights rights completely cut off
the right to property in one way or the other for the heirs.

While in Hindu law a child born has an absolute right in the property in mitakshara school of Hindu law,
while in islam the right to property does not open up at the birth of someone itself. In Muslim law a person
has the right to decide the fate of his property fully if we are to look carefully we will see a stark similarity
between Muslim law of inheritance and the dyabhaga school of inheritance in Hindu law .
The Dayabhaga School neither accords a right by birth nor by survivorship though a joint family and joint
property is recognized.

It lays down only one mode of succession and the same rules of inheritance apply whether the family is
divided or undivided and whether the property is ancestral or self-acquired. Neither sons nor daughters
become coparceners at birth nor do they have rights in the family property during their father‟s lifetime.
However, on his death, they inherit as tenants-in-common.

It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their
brothers. Since this ownership arises only on the extinction of the father's ownership none of them can
compel the father to partition the property in his lifetime and the latter is free to give or sell the property
without their consent.

Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs
dies, his heirs, including females such as his wife and daughter would become members of the joint
property, not in their own right, but representing him. Since females could be coparceners, they could also
act as kartas, and manage the property on behalf of the other members in the Dayabhaga School1

As we can see that Dyabhaga school is quite similar to the Muslim law of inheritance.

It is only after the death of the person that the right to property may come into existence up until then the
heirs have only a right to spes-successions to the property which means that they only have a chance to
inherit the property.

The other main difference between the two systems of laws is that of the doctrine of representation.

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1
http://www.lawteacher.net/free-law-essays/equity-law/the-law-of-inheritance-in-bengal-equity-law-essay.php#ixzz46p6dp0tl
accessed at 26 February, 2020
 BIBLIOGRAPHY

 Agrawal K, Family Law In India (Kluwer Law International 2010)

 Brick D, 'The Spirit Of Hindu Law. By Donald R. Davis, Jr.' (2010) 3 The Journal of Hindu
Studies
 CA. R, Succession Laws <http://www.caaa.in/Image/Sucession%20Laws.pdf> accessed 22 April
2016
 https://www.scribd.com/document/311813070/General-Principles-of-Succession-and-docx
 https://legalhelpnri.com/inheritance-and-succession/
 https://www.lawyersclubindia.com/articles/Inheritance-under-Hindu-Law--4148.asp
 https://www.lawweb.in/2018/05/basic-concept-of-escheat-under-hindu.html
 https://www.lawteacher.net/free-law-essays/equity-law/inheritance-under-traditional-hindu-law-
equity-law-essay.php

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