Latest trends in Succession among Hindus
Y. SRINIVASA RAO,
(Ph.D) Research Scholar in Torts.,
“A certain amount of common sense must be applied in construing statutes.” – Lord Goddard C.J in Barnes v. Jarvis
‘A joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers.’
Before Amendment in 2005, is now being a latest trend in succession among
Hindu, we are all aware of Section 29-A (as inserted w.e.f. 5-9-1985 by A.P. Amendment Act No.13 of 1986). Then, the question was whether married daughter is entitled to a share in coparcenary property under the amended provision or not. In V. Rajamma v. A. Rami Reddi and others – 2011 (2) ALT 551, it was observed that equal right with son conferred on the daughter in a coparcenary would be of no avail to reopen a partition effected prior to amendment. The Hindu Succession Act, 1956 is an important Act enacted in India to amend and codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs. The Act lays down a uniform and comprehensive system of inheritance and succession into one Act. This Act abolished Hindu woman’s limited estate. Under this Act, one person is said to be an ”agnate” of another if the two are related by blood or adoption wholly through males. (See. Sec. 3 (a) ). One person is said to be a ”cognate” of another if the two are related by blood or adoption but not wholly through males. (See. Sec. 3 (c) ). This Act explains the word ‘heir’. According to sec. 3 (f), “heir” means any person, male or female, who is entitled to succeed to the property of an intestate under this Act. As per sec. 3 (g) of Act,”intestate” means, a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. Under sec. 27 of this Act, if any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate. This enactment makes it clear that No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever. (Sec. 28). If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject as per section 29 of the Hindu Succession Act.
1. Coparcenary is known as a joint heirship.
2. Property under Hindu law may be divided into two classes, viz., 1. Joint-family
property or coparcenary property; and 2. Separate property or self-acquired
3. Joint family property is to be distinguished from separate or self-acquiredproperty.
Even if a Hindu is a member of a joint family, he may possess separateproperty.
4. Property which is not joint is called separate or self-acquired property.
5. Joint-family property or coparcenary property indicates the property in which all
the coparceners have community of interest and unity of possession. Such property may be –1. Ancestral property;2. Property jointly acquired by the members of the joint family;
3. Separate property of a member “thrown into the common stock”;
4. Property acquired by all or any of the coparcener with the aid of joint family funds.
6. The legal position is well settled that on mere severance of status of joint family, the character of any joint family property does not change with such severance. It retains the character of joint family property till partition. See. Para 14 in
Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe & Ors. – AIR 1976 SC 79.
7. Further, the principle of law is that a joint family property continues to retain its joint family character so long as the joint family property is in existence and is
not partitioned amongst the co-sharers.
On the question whether self-acquired property bequeathed by a Hindu father to his son is the separate property of the son or whether it is ancestral in his hands as regards his sons, there is a difference of opinion between the different High Courts, which is referred to by their Lordships of the Judicial Committee in Lalram Singh v. Deputy Commissioner, Pratapgarh AIR 1923 PC 160. The question cannot be said to be absolutely settled as their Lordships of the Judicial Committee declined in that case to settle the difference of opinion, but deferred it to a later occasion.
‘That view is that it is left to the father to determine whether the property which he gives shall be ancestral or self-acquired, and further, that unless there is any expression of intention or wish that the property should be deemed to be self-acquired, it must be held that the property is to be enjoyed as ancestral property. – In Nagalingam Pillai v. Ramachandra Tevar (1901) 24 Mad 429.’
(In 1936, this proposition was followed in Majeti Kasi Viswesra Rao Vs. Pulletikurti Varahanarasimham and Ors.).
It is also a settled law that if A inherits property, whether movable or immovable, from his father or father’s father, father’s father’s father, it is ancestral property as regards his male issue. If A has no son, son’s son, or son’s son’s son in existence at the time when he inherits the property , he holds the property as absolute owner thereof and he can deal with it as he pleases. – Dipo Vs. Wassan Singh – AIR 1983 SC 846.
1. Agnates of the deceased last male holder are not entitled to claim succession as nearest reversionary as was held in V. Venkata Reddy & Others. Vs. G. Venkareddy & Others., 1989 (3) ALT (NRC) 26.2 (DB).
2. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. – Danamma @ Suman Surpur and another Vs. Amar and others – – 2018 (2) ALT (SC) 22 (DB).
To whom this Act apply?
Sec. 2 (1) This Act applies—
(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion; and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Explanation.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of
Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
It has been provided that not withstanding the religion of any person as mentioned above, the Act shall not apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Indian Constitution unless the Central Government by notification in the Official Gazette, otherwise directs. See. Surajmani Stella Kujur Vs. Durga Charan Hansdah.
“Full blood”, “half blood” and “uterine blood”:-
3 (e) “full blood”, “half blood” and “uterine blood”—
(i) two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife, and by half blood when they are descended from a common ancestor but; by different wives;
(ii) two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.
(Sec. 18 says, as to full blood preferred to half blood, that heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.)
1. If two or more heirs succeed together to the property of an intestate, they shall take the property,— (a) save as otherwise expressly provided in this Act, per capita and not per stirpes; and (b) as tenants-in-common and not as joint tenants. (See. Sec. 19).
2. A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. (See. Sec. 20).
3. Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder. (See. Sec. 21).
4. 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 heirs is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously. (See. Sec. 12).
5. Property of a female Hindu to be her absolute property.— (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. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub- section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award
prescribe a restricted estate in such property. (See. Sec. 14).
Rules of succession in the case of males:-
Class I heirs are sons, daughters, widows, mothers, sons of a pre-deceased son, widows of a pre-deceased son, son of a, pre-deceased sons of a predeceased son, and widows of a pre-deceased son of a predeceased son.
1. The property of a Hindu male dying intestate, or without a will, would be given first to heirs within Class I. If there are no heirs categorized as Class I, the property will be given to heirs within Class II.
2. If there are no heirs in Class II, the property will be given to the deceased’s
agnates or relatives through male lineage.
3. If there are no agnates or relatives through the male’s lineage, then the property
is given to the cognates, or any relative through the lineage of females.
4. If there is more than one widow, multiple surviving sons or multiples of any of the other heirs listed above, each shall be granted one share of the deceased’s property. Also if the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled to receive the inheritance.
Class II heirs are categorized as follows and are given the property of the deceased in the following order:
➢ 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
(Sec. 8 of the Act deals with 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.)
Rules of succession in the case of females:-
The property of a Hindu female dying intestate, or without a will, shall devolve in the following order:
1. upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband,
2. upon the heirs of the husband.
3. upon the father and mother
4. upon the heirs of the father, and 5. upon the heirs of the mother.
(Sec. 15 of the Act prescribes general rules of succession in the case of female Hindus. — (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 pre-deceased 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.
Sec. 15(2) of the Act says that 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 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 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 husband.)
1.If a relative converts from Hinduism, he or she is still eligible for inheritance. The descendants of that converted relative, however, are disqualified from receiving inheritance from their Hindu relatives, unless they have converted back to Hinduism before the death of the relative.
2. Any person who commits murder is disqualified from receiving any form of inheritance from the victim.
The Hindu Succession (Amendment) Act,2005:-
Under this Amendment Act, 2005 ( Act No. 39 OF 2005 ), Section 4, Section 6, Section 23, Section 24 and Section 30 of the Hindu Succession Act, 1956 were amended. It revised rules on coparcenary property, giving daughters of the deceased equal rights with sons, and subjecting them to the same liabilities and disabilities. The amendment essentially furthers equal rights between males and females in the legal system. In section 4 of the Hindu Succession Act, 1956 (30 of 1956), sub-section (2) has been omitted.
1. Any property possessed by a Hindu female is to be held by her absolute property and she is given full power to deal with it and dispose it of by will as she likes. Parts of this Act was amended in 2005 by the Hindu Succession (Amendment) Act, 2005
Substitution of new section for section 6.:-
‘6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a referen ce to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; and (c) the share of the pre- deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.-For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.- For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.’.
Amendment of Schedule:-
-In the Schedule to the principal Act, under the sub-heading “Class 1”, after the words “widow of a pre-deceased son of a pre-deceased son”, the words “son of a pre-deceased daughter of a 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” shall be added.
1. Notional partition theory as provided in Explanation – I in sec. 6 before 2005 Amendment:- ”Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum And Ors – 1978 AIR 1239”. When a Hindu dies a partition is to be effected thinking as if he alive. Then he is allotted share in partition between him and his other coparceners. Such persoanl share is divided among his Class- I heirs.
2. The ratio laid down in ”Gurupad Khandappa case, 1978 AIR 1239” is approved in State of Maharashtra Vs.Narayana Rao Sham Rao Deshmukh and Ors. The theory observed in this judgment was continued till 2005 Amendment.
3. Based on the ratio decidendi in ”Gurupad Khandappa case”, Raj Rani Vs Chief Settlement Comm.’s ( 1984 AIR 1234) case, Sathyapremam mamnjunatha Gowda Vs Controller of Estate Duty Karnataka – (1997) 10 SCC 684; Addl. Commissioner of Income Tax , Lucknow Vs.Maharani Raj Laxmi Devi – AIR 1997 SC 1343, Commissioner of Wealth Tax, Kanpur Vs Chander Sen – 1986 AIR 1753; State of Maharasntra Vs. Narayan Rao Sham Rao Deshmukh – 1985 AIR 716, P.S.Sairam Vs. P.S.Rama Rao Pisey – AIR 2004 SC 1619, Anar Devi and Ors. Vs. Parmeshwari Devi and Ors – AIR 2006 SC 3332, Sugalabai Vs. Gundappa A.Maradi – 2008 (2) KarLJ 406, Basavarajappa Vs. Gurubasamma – (2005) 12 SCC 290, Balijiner Singh Vs. Ram Kala, Y.Nagaraj Vs. Jalajakshi – (2012) 2 SCC 161; Ram Jivan Vs, Phoola – 1976 AIR 844 were decided.
4. If any judgment contra to the ratio laid down in Gurupad Khandappa’s case is not bdinding precedent. Example Sheela Devi and others Vs. Lal Chand and another – 2006 (8) SCC 581, Bhanwar Singh Vs. Puran and others – (2008) 3 SCC 87 ; G.Sekar Vs. Geetha and others – 2009 (6) SCC 1999; M.Yogendra and Ors Vs. Leelamma N and others – 2009 (15) SCC 184. These are not binding precedents.
Judgments after 2005 Amendment:-
1. The effect of 2005 amendment was considered in Ganduri Koteshwaramma & Anr vs Chakiri Yanadi & Anr ((2011) 9 SCC 788) which was decided in 12-10-2011. In this case, the Apex Court held that the new section 6 provides for a parity of rights in the coparcenary property among male and female memberd of a join Hindu family on and from 09-09-2005. In this case, the object of the Act was observed. In Rohit Chauhan Vs. Surinder Singh and Others – ((2013) 9 SCC 419) case, new section 6 was discussed. Shasidhara Vs Ashwin Uma Mathad case (Civil Appeal No. 324 OF 2015 (Arising Out of SLP(C) No.14024/2013, dated 13-01-2015) was not decided finally becaused the matter was remanded. In Balhar Singh Vs. Sarwan Singh and others – LAWS(SC)-2015-2-150, the Court relied on Chander sen case. But, Chander Sen case was relating to separated father property. When matter was referred to Larger Bench, the matter was withdrwan by the parties as the parties moved a memo for withdrawal. In Prakash and Ors Vs. Phulavati and Ors – (2016) 2 Supreme Court Cases 36 , it was held that daughter must alive and the father must be alive to apply the new section 6. The finding in Phulavati’s case that ”father was alive” is agaisnt the ratio laid down in Ganduri and Shashidhar cases. This Judgment displaced the daughters of Andhra Pradesh, Tamil naud, Karnataka and Maharashtra because unmarried daughters were already coparceners and after 2005 amendment, they lose that the character as per such finding. This was not the intention of the Parliament in amending section 6. To say in short, Ganduri Koteswaramma’s case is binding on the Court. Therefore, Prakash and others Vs Phulavathi’s case is not laying binding law because it was decided on the principle that ”vesting and no divesting” and that it was decided relying on Sheela Devi’s case and other series of rulings which were decided under the belief of ”coparcenary abolished after 1956 and all those rulings are against the ratio laid down in Gurupadappa Khandappa’s case. In Uttam Vs. Saubhag Singh and others – 2016(2) RCR (Civil) 309, it was observed that new amendned section 6 is not applicable. From the above , it is clear that Ganduri Koteswaramma case bdinds all till the matter is settled by the Larger Bench of the Hon’ble Supreme Court.
Coparcenary gets right by birth. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. In Sheela Devi’s case, there was no discussion about application of amended section 6. In Anardevi’s case, there was no claim by daughters. In Bhanwar Singh’s case, it was observed as succession was opened in 1989, the amendment provision is not applicable, a fortiori, the object of 2005 Amendment was not discussed in this ruling and that it was decided on the principle of law that ”once vested cannot be divested.”. See also. Satrughan Isser Vs Sabujpari’s – (1967 AIR 272) case which was decided on 04-08-1966. In Anand Prakash Vs Narayan Das – AIR 1931 All 162, (decided on 12-11-1930), the Privy Council held that the share is indefinite and fluctuating in extent. The ownership of the coparcenary property is vested in the whole body of coparcerners. No individual member casn claim that he has a definite share. In Controller of Estate Duty, Madras, Vs. Alladi Kuppiswamy – 1977 AIR 2069, Satugharn Isser case ( AIR 1967 SC 272) was referred to., and it was observed that the interest conferred on a Hindu widow arose by statutory substitution and the Act of 1937 introduced changes wheich were alien to the structure of a Hindu Coparcenary . In that sense, it was held that ”the Act in investing the widow of a member of a coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the structure of a coparcenary. The interest of the widow are not inheritance nor by survivorship but by statutory substitution.” G.Sekhar’s case was deat reagrding section 23 of Hindu Succession Act but there was no discussion about section 6. Although amended sec. 6 was discussed in M.Yogendra’s case, it was held that the son born after 1956 is not a coparcener. In fact, the ratio laid down in Sheela Devi’s case was considered in M.Yogendra’s case and therefore it is not a binding precedent. To say in short, Ganduri Koteswaramma’s case is binding on the Court. Therefore, Prakash and others Vs Phulavathi’s case is not laying binding law because it was decided on the principle that ”vesting and no divesting” and that it was decided relying on Sheela Devi’s case
and other series of rulings which were decided under the belief of ”coparcenary abolished after 1956 and all those rulings are against the ratio laid down in Gurupad Khandappa’s case. In Uttam Vs. Saubhag Singh and others, it was observed that new amended section 6 is not applicable. From the above , it is clear that Ganduri Koteswaramma case bdinds all till the matter is settled by the Larger Bench of the Hon’ble Supreme Court.