Property under the Hindu Succession Act, of 1956

Under Hindu Law, we largely deal with the property of two kinds, one which is known as Joint Family Property or also called ancestral property, meaning “The property inherited by a Hindu from his father's father and father's”. However, there exist various categories within the sphere of Ancestral Property. The succession of Joint Family Properties is governed through coparcenary or partition rules. The other property type under the Hindu Code is Separate Property or the property which a person has acquired personally or in an individual capacity.

The devolution of Separate Property has two conditions, One is when the owner of the property has left some bequest or will containing the lawful devolution of the property in the interest of a person or group, this situation is defined as Testamentary Succession in the Hindu Succession Act, of 1956.

Another condition in the devolution of Separate Property is when the owner dies without a will or bequest, this situation under code is defined as Intestate Succession, and the rules and procedures of intestate succession eventually govern the devolution. Moreover, the Hindu Succession Act, of 1956 has different provisions for intestate succession for male and female Hindus.

Rules and Procedures for Inheritance of Male Hindus

Under the Hindu Succession Act, of 1956 (HS Act), the essence of Inheritance can be found in Interstate succession.

Section 8 of the code mentions the general rules of succession in the case of Hindu males, it further distributes the devolution between two classes followed by agnates and cognates. However, the distribution is such that, if class one of the deceased exist then the whole property will be given to them as per the provisions mentioned. Further, it will only go to class second heirs if there exists no class one heirs, the same standard operating procedure will be up till cognates.

Rules and Procedures for Different Classes

Section 9 of the code talks about the order of succession among heirs in the schedule.

Class 1 Heirs, the property will go to this class simultaneously and to the exclusion of all others. These heirs include Mother, Widow, Son, and Daughter further it includes the Widow of the pre-deceased son, the window of the predeceased son of a pre-deceased son the same branch will be followed for a girl child and her lineage as well. However, the father is not an heir in this class.

Mother includes the adoptive mother replacing the natural mother, further a mother is also entitled to inherit the property of her illegitimate son by Section 3(1)(j) of the code, other the other hand the father is not bestowed with this right.

In the leading judgement of Jayalakshmi Ammal and Ors. Vs T.V. Ganesha Iyer (1971), the Hon’ble Court decided that the unchastity of the mother is no bar to her inheriting from her son. Even if she is divorced or remarried, she is entitled to inherit from her son.

The heir's son/daughter includes adopted children, children born out of void/voidable marriage also legitimate children as per section 16 of the Hindu Marriage Act, 1955.

They all are entitled to get an equal share of property, however, if the deceased is left with more than one widow then all the widows will share between one dividend but not from the complete stake. Further, all the lineage of the branch's deceased son/daughter and so on will share the property from the stake of the branch of son or daughter coming out from the original owner. However, if in case there are no class 1 heirs, then the property will go to the class 2 heirs.

Class 2 Heirs, this class includes 9 different entries and the devolution of the property will be like this, if entry (1) viz, Father is present then he will acquire all the property excluding others. However, all the heirs of a single entry viz, (2) will divide the stake equally amongst them, this rule was laid down in the judgement of Arunachalathammal vs Ramachandran Pillai, thus it was opined that the preference will be given based on entries but not within it. However, if the above classes have no heir then the property will go to agnates followed by cognates.

Agnates Section 3 (1) (a) of the code defines ‘agnate’ as a person who is said to be an "agnate" of another if the two are related by blood or adoption wholly through males. However, there is no limit to the degree of relationship by which an agnate is recognized. Hence, an agnate however remotely related to the intestate may succeed as an heir. Further, this relationship does not distinguish between male and female heirs. There is also no distinction between those related by full and half blood. However, the uterine relationship is not recognized.

Cognates Section 3 (1) (c) of the code defines ‘cognate’ as a person who is said to be a cognate of another if the two are related by blood or adoption but not wholly through males. However, it does not matter if the intervention in the line of succession is by one or more females as long as at least one female is intervening, it is a cognate relationship. The cognate relationship is also not based on marriage and only on blood or adoption, thus widows or widowers of those related by cognate relationship do not fall under this category and hence they are not entitled to succeed on this ground.

INTESTATE SUCCESSION OF HINDU FEAMLE

In the previous code, women were not given autonomy as persons in the Hindu culture, hence they had limited Property rights, but the advent of section 14 changed the landscape by providing the absolute right to a female Hindu. Mentioning the verbatim, 16 (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”.

Section 15, discusses the general rules of succession in the case of female Hindus. In addition to that, Section 16 contains the list of heirs which includes. The property of a female Hindu dying intestate shall devolve to, firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband, secondly, upon the heirs of the husband, thirdly, upon the mother and father, fourthly, upon the heirs of the father; and lastly, upon the heirs of the mother. This list follows the same rule of devolution as mentioned above in the class 2 heirs of a Hindu male intestate succession.

16(2) Notwithstanding 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 predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the father;

(b) any property inherited by a female Hindu from her husband or her father-in-law 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 subsection (1) in the order specified therein, but upon the heirs of the husband.

RULES AND PROCEDURE FOR TESTAMENTARY SUCCESSION OF A HINDU

When a Hindu male dies with a will or testament of the succession of separate Property or the property which he has acquired personally or in an individual capacity.

Will Section 2(h) of the Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person concerning his property, which he desires to take effect after his death.

Will under the Indian Succession Act, 1925

A will can be made by anyone at any point in time a person once attaining the age of majority.

Section 59 of the Indian Succession Act says any person with a sound mind and who is a major can dispose of the property via a will. Further, it provides some explanation within.

Explanation I - a Hindu married woman is capable of disposing by Will only that property which she can alienate during her lifetime. Explanation II - persons who are deaf, dumb or blind can prepare a Will if they can prove that they were aware of what they were doing. Explanation III - provides for persons who are mentally ill and insane. However subsequent insanity does not make the Will invalid i.e. if a person makes a Will while he is of sound mind and then subsequently becomes insane the Will is valid and is not rendered invalid by subsequent insanity. Further, a person of unsound mind can make a Will during his lucid interval.