Detail of INTESTATE SUCCESSION - HINDU LAW

INTESTATE SUCCESSION - HINDU LAW

INTESTATE SUCCESSION - HINDU LAW

Intestate succession for Hindu is governed by the Hindu Succession Act, 1956 (HSA). Testamentary succession of Hindus is governed by the ISA.

Hindu Succession Act, 2005

The HSA applies to both, the Mitakshara and the Dayabhaga Schools. This act was amended in 1991, 2002 and again in 2005. Two striking features of the Act are:

1.      Recognition of the right of women to inherit property of an intestate equally with men.

2.      Abolition of the life estate of female heirs.

1.      Uniformity of application. - The Act applies to all Hindus.

2.      Classification of heirs abolished. - Under the ancient schools, the classes for heirs recognised were;  a) Mitakshara School: i) Gotraja Sapinda, ii) Samanodakas, and iii) Bandhusunder; b) Dayabbhaga School: i) Sapindas, ii) Sakulyas, and iii) Bandhus.

            The present Act has done away with this classification and has divided heirs into four          divisions or categories:

a)      heirs of Class I,

b)      heirs of Class II,

c)      agnates, and

d)      cognates.

The law of succession is, thus, completely unlinked from its former nexus with religion.

1.      Devolution of interest in coparcenary property. - It is evident from the proviso to Section 6 which lays down that if a member of a Mitakshara coparcenary dies leaving a widow then his interest devolves not by survivorship but by testamentary or intestate succession. The widow, therefore, gets a right equal to that of a male.

2.      Inheritance in regard to separate property. - The Act introduces a uniform system as laid by Section 8. 

3.      Abolition of Hindu woman's limited estate. - The Act abolishes a Hindu woman's limited estate. Henceforth, any property held by a female Hindu, howsoever and whensoever acquired by her, is to be her absolute property over which she has complete and unrestricted power to deal with. She can dispose it of by Will also.

4.         Succession to stridhana property. - The Act now lays down that a uniform scheme of succession to property of a Hindu female dying intestate shall apply.

5.         Removal of disqualification of heirs. - Under the ancient Hindu Law, as interpreted by courts, certain defects, deformities and diseases were grounds for excluding a person from succession. Section 28 HSA removes all such disqualifications.

6.         Disposal of coparcenary interest by Will. - Prior to the HSA, according to Mitakshara law, a coparcener had no right to dispose of by Will his undivided coparcenary interest, even if the other coparcener consented to it. This restriction is now totally abolished by the Explanation to Section 30.

7.         Preferential right to acquire property in certain cases. - Where property of an intestine devolves upon two or more persons (heirs) and if any one of them proposes to transfer his or her interest in that property, the other heirs has a preferential right to acquire such interest. This is provided by Section 22 HSA. The right is like a right of pre-emption.

8.         Scheme of simultaneous heirs. - The Act introduces a scheme of simultaneous heirs, like Muslim Law, and lets in quite a large number of female heirs in addition to the recognised ones to inherit the property.

9.         Chance to blood relations. - Section 8 read with Section 3(a) and (c) provides that all blood relations have a chance to succeed to the deceased's property before it is escheated in favour of the government.

10.     Complete equality between male and female heirs. - The Act lays down complete equality between male and female heirs.

11.     Remarriage of a widow after inheritance. - As evidenced by Section 24, remarriage by a widow after inheriting from her former husband would not divest her of the inherited properly.

12.     Joint tenancy in succession removed. - By the provisions of Section 19, the joint tenancy in succession by co-heirs is abolished.

13.     Presumption introduced. - Section 21 of the Act introduces a rule of artificial presumption in case of simultaneous deaths where the younger survived the elder.

 

Application  [S. 2]

Section 2 embodies in itself the principal application clause of the Act, in the sense that it lays down the details as to the groups of persons governed by the Act. It states that this Act shall apply to:

1.      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;

2.      any person who is a Buddhist, Jain by religion; and

3.      any other person who is not a Muslim, Christian, Parsi or Jew by religion.

The Explanation appended to the section makes clear as to who will be considered as Hindus for the application of this Act. It states that for the purpose of this Act, following persons shall be considered as Hindus, Buddhists, Sikhs and Jains:

1.      any child, legitimate or illegitimate, one of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;

2.      any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain 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; and

3.      any person who is a convert or reconvert to the Hindu, Buddhist, Jain or Sikh religion.

Definitions [S. 3]

1.      Two persons related to each other "wholly through males" are agnates of each other.

2.      Two persons related to each other "not wholly through males" are cognates of each other.

3.      In either case, the relationship may be by blood or by adoption. Such relationship may exist between males and females, i.e.  there may be both male and female agnates and both male and female cognates.

4.      A person is deemed to die intestate in respect of his property of which he has not made a testamentary disposition (i.e. a Will) which is capable of taking effect.

5.      Related means related by legitimate kinship. The definition further provides that illegitimate children shall be deemed to be related to them and also to one another. Their legitimate descendants are also deemed to be related to them and also to one another.

6.      This definition is purposive. In that it gives recognition to the status of illegitimate children and their mother in matters of succession. In other words, the expression "related" is so defined as to ensure that the rights of illegitimate children are safeguarded against their mother, as also against their own legitimate descendants.

The Act overrides the personal law of the Hindus as derived from the Shastras, commentaries and their interpretations, and also the customs and usages which are incorporated into such law as governing the persons who are subject to that law.

     For matters for which no provision is made, the old law will continue to apply. Scope of the  word "Hindu" is widened so as to include therein all persons or every citizen of India who is not a Muslim, Christian, Parsi or Jew by religion. The Act also applies to Hindus domiciled outside India. Besides this, the status of a Hindu is conferred on persons even though such status may be doubtful when the personal law of the parties is invoked.

Act not to apply to certain properties [S. 5]

The Act, as the section provides, applies to all the properties belonging to a Hindu except the two categories specified in clauses (i) and (ii). First, where the parties are married under the SMA and only one of the parties is a Hindu. However, where there is a civil marriage and both the parties are Hindu they are not excluded. Second,  "any estate which descends to a single heir by the terms of any covenant or agreement" entered into by:

1.      the ruler of any Indian State with the Government of India; or

2.      the terms of any enactment passed before the commencement of this Act.

Section 6 only deals with a Mitakshara coparcenary because it is only under Mitakshara law that members hold their shares as joint owners -  where each member has a ownership over the whole undivided ancestral property, i.e. they hold the property as joint tenants.

Devolution of interest in coparcenary property: After the 2005 Amendment [S. 6]

The Amendment Act, 2005 brought about a major change in Section 6 HSA. this amendment is considered revolutionary as far as the position of women in Hindu Law is concerned. It was a product of the 174th Report of the Law Commission of India on "Property Rights of Women: Proposed Reform under Hindu Law", which aimed at ending the discrimination against women in property matters.

    The amended Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9 September 2005. The legislature has now conferred substantive rights in favour of daughters. Section 6 provides that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as a son. Thus, from 9 September 2005, a daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. Also, the section, notably, does not make any distinction between a married or unmarried daughter. If a partition takes place after the commencement of the Act, the daughter is entitled to her share.

    However, as per sub-section (1), this amendment does not apply to a daughter married before 2005, i.e. before the Hindu Succession (Amendment) Act, 2005 came into force. This provision shall also not affect or invalidate any partition, disposition or alienation made before 20 December 2004.

    Section 6(2) provides that every property that a woman acquires by virtue of sub-section (1) shall be regarded as one of which she can make a testamentary disposition. In other words, she shall have full rights and not just a limited interest over the property.

    In Hari Chand Roach v. Hem Chand, it was held that

    Section 6 HSA provides that property shall be held by a female Hindu 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. The court also held that once a property becomes her absolute property she may dispose it of as she likes.

The new section has completely done away with succession by survivorship. Now where a Hindu, i.e.  a male or female, who is a coparcener dies, the section provides for notional partition. That is, upon such death the share of the deceased is fixed at what it would have been had the joint family property been partitioned at the time of such Hindu's death. Such a share is then succeeded by the deceased's sons and daughters, divided equally. A child of a pre-deceased son or daughter, or that or that of a pre-deceased son or daughter, shall be allotted per stripes. Three important points laid down in Section 6(3) are:

1.      Daughters shall get an equal share with sons in the coparcenary.

2.      The share of the pre-deceased son or a pre-deceased daughter would be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter.

3.      The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter will be allotted to the child of such pre-deceased child of the predeceased son or a pre-deceased daughter, as the case may be.

The Explanation appended to this sub-section makes clear that the share referred to in this section shall be the one which the deceased coparcener would have been entitled to immediately before his death, irrespective of whether he has was entitled to claim partition or not. However, the section provides that this section shall not apply to any partition effected before 20 December 2004.

    The question as to whether the amendment is prospective or retrospective in nature would depend upon its construction.

    Section 8 to 13 and 19 of the Act contain a group of general rules of succession in case of a male "dying intestate", i.e. without having made a valid Will of his property. The Act also gives different rules of succession for the devolution of property of a female dying intestate.

General rules of succession in the case of males [S. 8]

     8. 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.

For the application of Section 8, the following requirements must be satisfied:

1.      There must be death of a male.

2.      The male must be a Hindu.

3.      The male must have left behind some "property".

4.      The male must not have made any valid Will in regard to his property.

5.      The male must have died after the coming into operation of the HSA.

As laid down by Section 8, the property of a male Hindu dying intestate shall devolve firstly upon Class I heirs and then upon Class II heirs. If there is no heir of Class I or II, the same will devolve upon the agnates of the deceased (as defined by Section 3 of the Act) who, for convenience, may be termed as Class III heirs and if there is no agnate, the property would devolve upon the cognates of the deceased (as defined by Section 3), who may be termed as Class IV heirs.

    Section 8, thus, mentions four classes of heirs and prescribes the  order of preference between them. Consequently, Class I heirs wholly excludes Class IV (unless the deceased was legally a follower of the marumakkattayam or aliyasantana law).

Classification of heirs

The Section and the Schedule classify the heirs of a Hindu male as under:

1.      heirs of Class I,

2.      heirs of Class II,

3.      agnates of the deceased, and

4.      cognates of the deceased.

Class I heirs

The following are Class I heirs:

1.      son,

2.      daughter

3.      widow,

4.      mother,

5.      son of a pre-deceased son,

6.      daughter of a pre-deceased son,

7.      son of a pre-deceased daughter,

8.      daughter of a pre-deceased daughter,

9.      widow of a pre-deceased son,

10.  son of a pre-deceased son of a pre-deceased son,

11.  daughter of a pre-deceased son of a pre- deceased son, and

12.  widow of a pre-deceased son of a pre-deceased son.

After the 2005 Amendment the following are also included:

1.      son of a pre-deceased daughter of a pre-deceased daughter,

2.      daughter of a pre-deceased daughter of a pre-deceased daughter,

3.      daughter of a pre-deceased son of a pre-deceased daughter, and

4.      daughter of a pre-deceased daughter of a pre-deceased son.

Sub-section (b) lays down that in the absence of any heirs in Class I, the heirs in Class II succeed to the property of the deceased.

    Looking to the table, it is evident that there are only four primary heirs who take property in their own rights. They are: mother, widow, son and daughter. The remaining 12 heirs represent a primary heir, i.e. they inherit if the primary heir dies before the propositus.

Class II heirs

In Class II, there are 23 heirs. Out of these, 12 are females and 11 are males. Class II heirs are divided into Entries 1 to 9, where each entry excludes the other; however, each entry constitutes a single group in which all members inherit per capita. These Class II heirs are as under:

        I.            Father

     II.            (1) Son's daughter's son, (2) Son's daughter, daughter, (3) Brother, (4) Sister

   III.            (1) Daughter's son's son, (2) Daughter's son's daughter (3) Daughter's daughter's son, (4) Daughter's daughter's daughter

  IV.            (1) Brother's son, (2) Sister's son, (3) Brother's daughter, (4) Sister's daughter

     V.            Father's father; Father's mother

  VI.            Father's widow; Brother's widow

VII.            Father's brother; Father's sister

VIII.            Mother's father; Mother's mother

  IX.            Mother's brother; Mother's sister

As is evident from the above list, there are four heirs who appear in both Class I and II. These are the ones who were added through the 2005 Amendment Act in Class I but not deleted from the list of Class II.

    The reference to a brother or a sister does not include those who are by the same mother but different fathers.

Order of succession among Classes I and II [S. 9]

Section 9 lay down that the heirs of class I shall take simultaneously and to the exclusion of all other heirs. In other words, Class I heirs form one group of heirs and succeed as a body. So long as there is a single heir in Class I, heirs mentioned in Class II will be excluded.

     Thus, it is clear that heirs in Class I succeed in preference to all others mentioned in Class II.

Distribution of property among heirs in Class I [S. 10]

     10. Distribution of property among heirs in Class I of the Schedule. - The property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following rules:

     Rule 1. - The intestate's widow, or if there are more widows than one, all the widows together,  shall take one share.

     Rule 2. - The surviving sons and daughters 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 so 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 

Distribution of property among agnates and cognates [Ss. 12 and 13]

The section lays down three rules called the "rules of preference" according to which the order of succession among these Class III and Class IV heirs shall be determined. For understanding these rules, one must seek assistance from Section 13 which provides for computation of degrees of relationship in terms of degrees of ascent and degrees of descent. Each generation constitutes a degree.

     Section 12 does not provide us with a detailed order of succession. Its rules decide and determine a preference between two competing interests, i.e. competing heirs, of different degrees. If analysed, these rules are as follows:

1.      Fewer or no degree. - Between two competing heirs, the one who has fewer or no degrees of ascent is preferred.

2.      Degree of ascent. - Between two competing heirs, if only one has degrees of ascent, the other heir who has no degrees of ascent shall be preferred.

3.      Both, having no degree of ascent. - Between two competing heirs, if both do not have degrees of ascent, degrees of descent will be considered.

4.      Degree of ascent same or none. - Between two competing heirs, if the number of degrees of ascent is the same or none, then one who has fewer or no degrees of descent is preferred.

5.      Degree of descent. - Where degrees of descent are to be considered and if only one heir has such degree, the other heir having no such degree will be preferred.

6.      Both having degrees of descent. - Where both heirs have degrees of descent, the one having fewer such degrees will be preferred.

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

Computation of degrees [S. 13]

Section 13 lays down the rules determining the degrees of relationship between the intestate and his agnates and cognates. The section lays down three simple principles with the aid of which the order of succession among agnates and cognates can be determined.

    Briefly viewed, these rules are as under:

1.      For 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.

2.      These degrees shall be computed inclusive of the intestate.

3.      Every generation constitutes a degree either ascending or descending.

The section, thus, makes clear the meaning of degrees of ascent and degrees of descent. Accordingly, parents stand in second degree of ascent in relation to their children and grandparents stand in third degree of ascent in relation to their grandchildren. Children stand in the second degree of descent to their parents.

General rules of succession in the case of a female Hindu [S. 15]

It is the first piece of legislation on the subject of succession to the property of female Hindus. As the section says, it applies when a female Hindu dies intestate leaving behind property of which she was an absolute owner. Section 15 will not apply where she leaves property over which she had only a limited right, under instances mentioned under Section 14(2).

Kinds of property of the deceased intestate females [S. 15(2)]

Section 15(2)(a) and (b) classifies property into the following three groups:

1.      property inherited by a female Hindu from her father or mother;

2.      property inherited by a female from her husband or father-in-law; and

3.      rest of the property.

Kind 1 property includes property which a female inherits from her parent or parents. Kind 2 which includes property received by a female from her-in-laws' side.

   Kind 3 property is quite wide and includes property inherited by a female from her deceased son or deceased grandson or brother, and the property she got as gift either from her father or mother or husband or father-in-law or any outsider.

Groups of heirs [S. 15(1)]

The property specified as Kind 3, i.e.  the rest of the property, devolves upon the persons specified in Section 15(1). It devolves according to the rules specified in Section 16. The following are the persons mentioned in Section 15(1):

1.      Entry (a) - Sons and daughters; children of any pre-deceased son or daughter; and husband.

2.      Entry (b) - Heirs of the husband (as determined by Section 8 to 13 of this Act).

3.      Entry (c) - Mother and father (parents) of the deceased.

4.      Entry (d) - Heirs of the father (as determined by Sections 8 to 13 of this Act).

5.      Entry (e) - Heirs of the mother (as determined by Sections 15 to 16 of this Act).  

Heirs in Entry (a). - These heirs inherit the property simultaneously. In order words, son, daughter and husband will take one share each.

Heirs in Entry (b). - These are the heirs of the husband. When there are no heirs in Entry (a), the property to be inherit will be deemed to be the property of the husband.

Heirs in Entry (c). - In this entry, the only heirs are the mother and father of the deceased female. "Mother" includes adoptive mother but does not include a stepmother. Unchastity or remarriage of the mother does not disqualify her as an heir.

Heirs in Entry (d). - On failure of heirs in Entry (c), heirs in Entry (d) would take the property. In this entry, heirs of the father would take the property and the property will be deemed to be the property  of the father.

Heirs in Entry (e). - In this entry, the heirs are the heirs of the mother.

Exceptions to Section 15(1)

1.      If a female Hindu dies without leaving any issue, then in respect of the property inherited by her from her parents, the property shall devolve not in accordance with the order laid down by Section 15(1) (i.e. in five categories) but it shall go to the heirs of the father.

2.      Similarly, if a female Hindu dies without leaving any issue, then in regard to the property inherited by her from husband or father-in-law, the property shall devolve not in accordance with  the order laid down by Section 15(1) (i.e.  in five categories) but it shall go to the heirs of the husband.

However, sub-section (2) is intended only to change the order of succession specified in sub-section (1) and not to eliminate other categories of heirs set out in sub-section (1). Consequently, by virtue of sub-section (2), property will first go to heirs of the father or husband as the case may be.

Absolute property of a female Hindu [S. 14]

It is evident from a reading of Section 14 that the section is divided into three parts. Part one of Section 14(1)  is of a declaratory nature. Explanation attached to sub-section (1) is the second part explaining the meaning of the word "property" occurring therein. Sub-section (2) of this section is a saving clause which saves certain properties and excludes them from the application of sub-section (1) and is the third part of the section.

"Any property"

The Section regulates all kinds of properties as referred to in the explanation to sub-section (1) and the properties which are saved from the scope of sub-section (1) are referred to in sub-section (2). It means "any property" includes both movable and immovable property.

     Regarding the source of acquisition of property, the Explanations make it clear that "property" includes property acquired:

1.      by inheritance;

2.      by devise;

3.      at a partition;

4.      in lieu of maintenance;

5.      by gift from any person whether a relative or not, before, at or after marriage;

6.      by her own skill or exertion;

7.      by purchase;

8.      by prescription; or

9.      in any other manner, whatsoever; and also

10.  any such property held by her as stridhana  immediately before the commencement of the Act.

Sub-section (2) of Section 14 saves the following and excludes them from the application of sub-section (1). It is like a proviso to Section 14(1). The properties covered by this section are properties acquired by way of:

1.      gift,

2.      Will,

3.      any other instrument,

4.      under a decree or order of a civil court, and

5.      under an award which prescribes a restricted estate in such property.

However, the fact that a female Hindu originally had a limited right and later acquired full right does not in any way alter the rules of succession given in Section 15(2), i.e. property inherited by a female Hindu from her father or mother, and husband or father-in-law.

"Possession by"

The word "possessed" is used in a broad sense and in the context it means the state of owning or having in one's hand or power. That possession might be actual or constructive in any form recognised by law.

    Possession, whether physical or constructive or in a legal sense, on the very date  of the coming into operation of the Act, is not the a requirement for the acquisition of full ownership in property. All that has to be shown is that the property was "acquired" and "possessed" by the woman at the point of time where title was called into question. Thus, for "possession" two things are necessary: 1) a right to possession, and 2) to be in possession of the property either actually or constructively at the point of time when her title is called into question.

    A person's widow, who himself had a limited right in the property through a Will, cannot claim absolute right over the same by virtue of Section 14(1).

Female Hindu

A female Hindu, as explained by the Supreme Court, does not mean only "wife", to limit this expression only to wife will be an interpretation against the plain language of sub-section (1). It includes daughter as well.

General provisions relating to succession [Ss. 18-24]

 When succession opens, a number of problems may arise. For this purpose, every system of succession lays down some general rules with a view to providing solutions to such problems. If one looks into the general headings of theses sections it would be evident that these solutions are based on social values which come near to moral values. What would be these problems? They may be:

1.      regarding preference of heirs when they are related by blood relationship;

2.      regarding the mode of succession when two or more heirs succeed together;

3.      regarding the right of a child in the womb to succeed;

4.      regarding who died earlier when there are simultaneous deaths of persons (heirs);

5.      in respect of sale of his share of property by one of the heirs and the right of the other heir to acquire that portion of property or interests;

6.      in respect of claims in regard to a dwelling house;

7.      regarding entitlement of certain widows for succession;

8.      with respect to disqualifications of heirs; or

9.      about failure of heirs.

Full blood preferred to half blood  [s. 18]

Thus, when there are heirs who belong to both, full and half blood, and a question arises whether they would inherit simultaneously or one would be preferred to the other, the answer is provided by this section.

Mode of succession of two or more heirs [S. 19]

The section when it directs that the heirs of a Hindu dying intestate shall take his property as tenants-in-common, it is dealing with the rights of the heirs inter se and not with their relationship with a stranger having a superior or distinctly separate right therein.

Right of children in womb

On the death of an intestate, succession opens up immediately and thereupon the property in question vests immediately in the heirs. For this reason, a child who is in the mother's womb at the time of the intestate's death, but who is born alive subsequently, is placed on the same footing as the other living heirs of the testator.

    The following two conditions should be fulfilled before the section applies:

1.      The child must be in the mother's womb when the propositus died.

2.      The child is born alive after the death of the propositus.

 Presumption in cases of simultaneous deaths [S. 21]

The section applies to cases of simultaneous deaths as well as to deaths of two persons one after the other where it is not known or proved who died earlier. The burden of proof lies on the party who asserted the affirmative.

   This presumption applies to both intestate and testamentary successions.

Preferential right to acquired property [S. 21]

The seller's co-heir's right to sell his interest in immovable property is subject to the preferential right of his co-heir to purchase it. If any sale is made violating this provision, the sale would be voidable at the option of the other co-heirs who hold a preferential right.

Nature of right granted by the section

The section applies to the property of a deceased male as well as a deceased female. This is evident from the language of the section as used in sub-section (1). It applies to all forms of transfer.

Disqualification  [Ss. 24-28]

The HSA disqualifies the following persons from succeeding as heirs of the intestate:

1.      One who is a murderer. [S. 25]

2.      One who abets the commission of murder. [S. 25]

3.      One who has ceased to be a Hindu by conversion. [S. 26]

Widows remarrying [S. 24] [now omitted]

The widows who remarried before the succession opened could not inherit in their respective capacities. That is to say, when the widows remarried during the lifetime of the deceased, they were no longer the members of the family or they no longer remained the widow of their son, grandson and brother. This was a rule of common sense.

Murderer disqualified [S. 25]

Section 25, thus, disqualifies the following persons from inheriting:

1.      One who commits murder.

2.      One who abets its commission.

The section, therefore, lays down that one who commits murder or abets the commission of murder shall be disqualified from inheriting

1.      the property of the person murdered, or

2.      any other property of the person murdered, or

3.      any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.

Convert's descendants disqualified [S. 26]

Section 26, which applies to testamentary succession, a continuation of that policy. In spite of this disqualification, if the children or descendants of such a convert are Hindus at the time when the succession opens, they are not disqualified. Children born to a convert before conversion are also not disqualified; same is the case of descendants of these children.

Unchastity: No disqualification

Disease, defect, etc. not to disqualify [S. 28]

Section 28 is a refinement of the old Hindu notices. Under the old Hindu Law, some of the diseases, deformities and unchastity were disqualifications from becoming an heir.

Escheat [S. 29]

The term "escheat" is employed to denote lapsing of property to the government in default of heirs on the death of an intestate. It means the total absence of heirs to the intestate. In present times, escheat is not very common since there is at least some remote relative who may claim the property of the intestate.

    The principle of escheat was enforced under the old Hindu Law also, as observed by the Supreme Court in Rama Chandra Arya v. Man Singh. However, this provision is now very rarely invoked because the Act lays down such as extensive list of heirs that there is hardly any room for its operation. Moreover, operation of the section can be successfully avoided by making a Will of the property.

   Escheat is considered, under the section, as a mode of devolution of property as bona vacantia for want of a rightful owner. When the property is escheated to the government, it will stand in the shoes of the intestate's heir with all the liabilities and obligations to which the heir would have been subject, i.e. subject to trusts, mortgages, charges, maintenance of dependants. Such an estate would devolve upon the State Government or the Union Government.

Testamentary succession [S. 30]

As observed in Sadhu Singh v. Gurdwara Sahib Narike, an owner of property has normally the right to deal with self-acquired property including the right to devise or bequeath that property. He could, thus, dispose it of by a testament. Section 30 of the Act, does not curtail or affect this right, but it actually reaffirms it. Thus, a Hindu male can testamentaritly dispose of his property. When he does it, a successor under the Act stands excluded and the property passed to the testamentary heirs. When, therefore, a male Hindu executes a Will bequeathing the properties, the legatees take it, subject to the terms of the Will unless any stipulation therein is found invalid. Hence, there is nothing in the Act which affects the right of a male Hindu to dispose of his property either completely or by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties as well. Separate properties can be dealt with by the owner as he/she deems fit. the Will, in this case, thus could not be challenged as being hit by the Act.