customary rules of succession

8/3/2019 Customary Rules of Succession

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Customary rules of succession² some tribes the Chudahanth (wife-wise determination of shares) prevails. Such a custom is tribal and not territorial. The Hindu Succession Act preserves the dual

mode of devolution of property under the Mitakshara school. The joint family property stilldevolves by survivorship with this important exception that rule of succession will apply to a

Mitakshara coparcener if he dies leaving behind mother, widow, daughter, daughter¶s daughter,son¶s daughter, son¶s son¶s daughter, son¶s widow, and daughter¶s son. The Hindu Succession

Act, 1956, bases its rule of succession on the basic Mitakshara principle of propinquity, i.e., preference of heirs on the basis of proximity of relationship. The Mitakshara limited the effect of

the principle by the twin rules of exclusion of females and of agnatic preference.The rule of exclusion of females has been done away with, while the

rule of agnatic preference has been considerably modified so far as it concerns the nearer relations. The Dayabhaga principle of religious efficacy has been abrogated. The modern Hindu

law of succession is essentially a secular law. Religious or spiritual considerations figurenowhere. A person; so long as he is alive, is free to deal with his property in any way he likes.

He is, by making a will, free to lay down his own scheme of distribution of his property after hisdeath. This is known as a testamentary disposition. If he dies without leaving a will, it is the purpose of the law of inheritance to determine the persons who will take his property. In our

contemporary world, someone must be the owner of the property, an individual, corporate personor state. The law of succession is classified as under

(1) Testamentary succession, and(2) Intestate succession.

The law of testamentary succession is concerned how best theeffect could be given to the wishes of the testator (i.e., the person who made the will); what are

the rules relating to making of a will and allied and subsidiary matters. The testator enjoys fullfreedom of bequeathing his property.

The law of intestate succession is

concerned with matters such as : who are the persons entitled to take the property, i.e., who are

the heirs; what are the rules of preference among the various relations; in what manner the property is to be distributed in case a person has more than one heir; what are the

disqualifications of heirs and the allied and subsidiary matters. The law of intestate succession ismore properly the law of inheritance. The law of inheritance consists of rules which determine

the mode of devolution of the property of the deceased on heirs solely on the basis of their relationship to the deceased, while law of testamentary succession deals with the rules relating to

devolution of property on relations as well as others. This is the main distinction between the twoterms, succession and inheritance.

the Hindu Succession Act, 1956deals with intestate succession among Hindus. under the following heads :

(1) Succession to a Hindu male,

(2) Succession to a Hindu female,

(3) Disqualifications of heirs, and



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(4) General rules of succession.

Succession opens at the time of the death of the person whoseestate is in question and is governed by this law in force at the time.

S. 3, Hindu Succession Act .²Intestate.²A person who dies without making a will is known as³intestate´. Clause (g) of Section 3 of the Act, runs ³A person is deemed to die intestate in

respect of property of which he or she has not made a testamentary disposition capable of takingeffect.´

H eir.²A person who is entitled to inherit property after the death of the intestate is known asheir. Clause (I¶) of S. 3 of the Act runs : ³Heir means any person, male or female, who is entitled

to succeed to the property of intestate under the Act.´

Descendants.²Descendants mean the offspring of a person. Immediate descendants of a person

are his sons and daughters. The children of sons and daughters and their children, and so on, are

also descendants. A person may have descendant through his sons or daughters upto any degreeof descent.

Ascendants.²Ancestors of a person are knowing as ascendants. Immediate ascendants of a

person are his father and mother. The father and mother of his father and mother are also hisascendants, and so are their parents upto any degree of ascent.

Collaterals.²Collaterals are descendants in parallel lines, from a common ancestor or

ancestress. For instance, brother is a collateral, so is a sister. Similarly, paternal uncle and

paternal aunt and their children, maternal uncle and maternal aunt and their children arecollaterals.

Agnates.²When a person traces his relationship with another wholly through males, he or she is

an agnate. For instance, brother, brother¶s son, son¶s son, son¶s son¶s son, father, father¶s father,father¶s mother, father¶s father¶s father or mother, son¶s daughter; son¶s son¶s daughter, etc. are

if agnates. The sex of the person who traces his relationship with another is immaterial. What ismaterial is that in between him or her and the common ancestor or ancestress, all persons

through whom relationship is traced should be males. Clause (a) of S. 3(1), Hindu SuccessionAct, runs : ³One person is said to be an µagnate¶ of another if the two are related by blood or

adoption wholly through males.´ As is obvious from the above Diagrams, agnates can bedescendants, ascendants or collaterals.

Cognates.²Whenever in the relationship of a person with another, a female (or more than onefemale) intervenes anywhere in the line, one is a cognate to another. Number of cognates is

larger than that of agnates.¶ For instance, sister¶s sons and daughters; daughter¶s sons anddaughters; mother¶s mother and father; father¶s mother¶s father and mother, mother¶s father¶s

son and daughter (i.e., maternal uncles and aunts) are all cognates. Clause (c) of S. 3(1), HinduSuccession Act, runs : ³one person is said to be a µcognate¶ of another if the two are related by

blood or adoption but not wholly through males´. A cognate may be a descendant, ascendant or collateral.



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Full Blood.²When the father and mother of two persons are the same, they are related to eachother by full blood. According to s. 3(1) (e) (i), Hindu Succession Act, ³two persons are said to

be related to each other by full blood when they are descended from common ancestor by thesame wife,´ Thus, children of the same parents are children by full blood, e.g., brothers or sisters

or a brother and a sister. In the common parlance, they are known as the µreal¶ brothers, the µreal¶sisters or the µreal¶ brother and sister.

H alf blood.²When two persons have the same father but different mothers, they are related toeach other by half blood. According to clause (e) (i) of S. 3(1), Hindu Succession Act, two

persons are said to be related to each other by half blood ³when they are descended from acommon ancestor but by different wives.´ For instance, A marries Q and a son B is born to him

from Q; Q dies and A marries B and a daughter C is born to him from B; A divorces R andmarries S. A son D is born to him from S, B, C, and D are related to each other as brother and

sisters by half blood.

Uterine blood.²When two persons have the same mother but different fathers, they are said to

be related to each other by uterine blood. According to clause (e) (ii) of S. 3(1) of the Act, ³Two

persons are said to be related to each other by uterine blood when they are descended from acommon ancestress but by different husbands.´ For instance, P takes a husband S and from him

she gets a son A. S dies and P marries Y and gets a son B. Subsequently, she divorces him andtakes another husband Z, and from him a daughter C is born to her. A, B and C are related to each

other as brother and sister by uterine blood.

Legitimate and illegitimate relationship.²A person who is born within a lawful wedlock is

legitimate, and he or she is related to his or her parents by legitimate relationship. A person bornoutside the lawful wedlock is illegitimate, and he or she is related to his or her parents by

illegitimate relationship. With father, only legitimate relationship is recognised. The illegitimaterelationship is recognized to the mother. Section 3(1) (i) runs ³related, means related by

legitimate kinship Provided that illegitimate children shall be deemed to be related to their mother and to one another; and their legitimate descendants shall be deemed to be related to

them and one another; and any word expressing relationship or denoting a relative shall beconstrued accordingly.´ A division Bench of the Andhra Pradesh High Court has declined to take

the view that the proviso to Section 3(1) (i) should be confined to those children who do not become legitimate under Section 16, Hindu Marriage Act.¶ Children of void and voidable

marriages are entitled to succeed to their father, therefore, children of both the wives would beentitled to take benefits, though second wife would not be so entitled.

What is coparcenary ?²Coparcenary consists of male members who acquire an interest by birthin the coparcenary property and who have got a right to demand a partition in the coparcenary property from the holder of the property. It commences with a common ancestor and includes a

holder of joint property and all his descendants in the male line who are not removed from him by more than three degrees. Thus, while a son, grandson, or a great-grandson is a coparcener,

great-grandson cannot be a coparcener with him, because he is removed by more than threedegrees from the holder. Besides, only males can be coparceners and all females are excluded



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from the coparcenary. Though a common ancestor is necessary for the origination of a

coparcenary, it may yet continue without him, consisting of collaterals and their descendants,some of them being removed more than three degrees from the deceased common ancestor.

Coparcenary property.²Means and includes

(1) ancestral property,

(2) acquisitions made by the coparceners with the help of ancestral property,

(3) joint acquisitions of the coparceners even without such help provided there was no proof of

intention on their part that the property should not be treated as joint-family property, and

(4) separate property of the coparceners thrown into the common stock.

The separate property

got by a Hindu father at partition of the joint Hindu family properties with his sons does not become coparcenary property in the hands of his divided sons who had separated from him

during his lifetime. Therefore, each son on father¶s death would take the property as a tenant-in-common with the other divided brothers and not as a joint tenant. The section contemplates the

existence of a coparcenary consisting of propositus and one or more males at the time of death of the propositus. Once the coparcenary comes to an end by partition there is no question of one

member of the earstwhile coparcenary taking the property obtained by another member of thatcoparcenary at the partition by survivorship. The section does not apply to separate property

obtained at partition of coparcenary.¶

Computation of interest of the deceased coparcener (The concept of notional partition).²

Explanation 1.²In a Mitakshara coparcenary the shares of coparceners are not defined. But thisfluctuating interest of the deceased coparcener is fixed by the Explanation for purposes of its

devolution. Explanation I lays down that for the purposes of this section the interest of a Hindu Mitakshara coparcener shall be the share which he would have got, had there been a partition

immediately before his death irrespective of the fact whether he was entitled to claim partitionor not. The language used in the Explanation indicates that, though fictional partition to

ascertain the share of the deceased is presumed to have taken place immediately before hisdeaths it does not automatically result in the disruption of family. To determine the share the

ordinary rule of Hindu Law shall be applied.The

Explanation 1 incorporates the concept of a notional partition. This notional partition is for the purpose of determining the interest which was otherwise liable to devolve by survivorship and

for the ascertainment of the share of the relatives mentioned in Class I of the Schedule out of theinterest of the deceased coparcener. The operation of the notional partition and its inevitable

corollaries and incidents is to be only for the purposes of this section, namely, devolution of interest of the deceased in the coparcenary property. It need not to be taken to be an actual

partition.



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Explaining the whole position in the case of S tate of Maharashtra v. Narayana RaoAIR 1985 S C

716 the Supreme Court has held that in order to ascertain the share of the heirs in the property of a deceased coparcener it is necessary, in the very nature of things and as the very first step, to

ascertain the share of the deceased in the coparcenary property. For, by that alone can onedetermine the extent of the claimants¶ share. Explanation 1 to Section 6 resorts to simple

expedients, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener ³shall bedeemed to be´ the share in the property that would have been allotted to him if a partition of that

property had taken place immediately before his death. What is therefore required to be assumedis that a partition had in fact taken place between the deceased and his coparceners immediately

before his death. The court observed that this assumption, once made, is irrevocable.

In S her S ingh v. Gaindoor S ingh,AIR 1997 S C 1333 the Supreme Court has rightly observed that

once the existence of joint Hindu family was not disputed, the property held by the familynecessarily assumes the character of a coparcenary property and every member of the family is

entitled by birth, to a share in that property unless any coparcener proves that some or all the properties are his self-acquired properties.

The quantumof shares to be allotted to the heirs of the deceased copalcener will be on the footing of the

coparcenary property existing at the date of his death when the notional partition is to be deemedto have taken place and not of the property as may exist at the date of the actual allotment and

delivery of that share to the heirs. After ascertaining the coparcenary interest of the deceasedcoparcener in the coparcenary property on the basis of notional partition, his interest becomes

subject of devolution according to the provisions of this Act. A coparcenary consists of F andhis two sons S 1 S2 and a daughter D. F¶s interest would be 1/3 only, S and S2 will get 1/3 each ;

D is not a coparcener and so she would get 1/3 of 1/3. i.e. 1/9th share. Thus the sons, namely S¶and S2 will get 1/3 + 1/9 each and the daughter will get 1/9 only.

SUCCESSION TO PROPERTY OF A MALE HINDU

The Act deals with the different rules of succession in connection of the devolutioñ of property,

belonging to a male and to a female. Section 6 of the Act as discussed in the foregoing pagesrelates to the devolution of a coparcenary interest of a Mitakshara coparcener. Sections 8 to 13

deal with rules of succession in connection with the separate property of a male Hindu, dyingintestate. Sections 15 and 16 deal with the devolution of the property belonging to a female

Hindu.

Succession to property of males.²Section 8 of the Act lays down general rules of succession in

the case of males dying intestate. Succession opens at the time of death of the person whose property is to be succeeded, and is governed by the law in force at that time. The words µdyingintestate¶ in Section 8 are descriptive of status of the deceased and have no reference to the time

of death of a Hindu male. The Act applies to cases of succession which opens after the Act cameinto force. The property of a male Hindu dying intestate devolve firstly on heirs in clause (1)

which include widow and son. The section divides the heirs of a male for the purposes of inheriting the property into four classes. These are:



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(1) Relations mentioned in Class I of the Schedule.

(2) Relations mentioned in Class II of the Schedule.(3) Agnates of the deceased.

(4) Cognates of the deceased.On failure of heirs qualified to succeed under the Act, the property

of the intestate shall devolve on the Government (Section 29). This is Governments right to getthe property by escheat. But the Government cannot be classed as an heir entitled to succeed

under the Act. Therefore, Government cannot be treated as constituting a fifth class of heirs, and,accordingly, Section 8 mentions only four classes of heirs, Section 8 of the Act runs as follows

³The property of a male Hindu dying intestate shall devolve according to the provisions of thisChapter²

(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;

(d) lastly, if there are no agnates, then upon the cognates of the deceased.´

S ections 6 and 8.²Section 6 is applied to the devolution of coparcenary property of a male

Hindu who dies after the commencement of the Act. Section 8 is applied to the devolution of a

self acquired property of a male Hindu. The words ³the property of a male Hindu dyingintestate´ and the words ³shall devolve´ occurring in Section 8 make it very clear that the

property whose devolution is provided for by that section must be the property of a person whodies after the commencement of the Act. The provisions of Section 8 are, therefore, not

retrospective in operation. Where succession opened before the Act, Section 8 will have noapplication.

1. Heirs of Class 1.²According to Section 9 heirs in Class I of the Schedule are to succeedsimultaneously; in other words, they form one group of heirs and succeed as a body.

Heirs mentioned in class II are excluded so long as there is even a single heir in Class I.Heirs mentioned in Class I succeeds in preference to all others mentioned in Class II. For

instance, if male dies intestate, leaving only a daughter surviving him, the daughter shallsucceed in preference to the father in entry I of Class II. Section 9 runs as follows:

³ S ection 9.² Among the heirs specified in the Schedule those in Class I shall takesimultaneously and to the exclusion of all other heirs ; those in the first entry in Class II

shall be preferred to those in the second entry ; those in the second entry shall be preferred to those in the third entry, and so on in succession.´

It is manifest that the intention of the Legislature is toscheme out a line of succession based upon nearness of relationship and presumed naturalaffection of the deceased and that there should be no distinction between persons

standing in the same degree of relationship merely by reason of sex or by any principle of superiority of one born through a male over another through a female.

Illegitimate son or daughter is not included in the category of heirs of Class I, and this



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respect the settled old Hindu law that illegitimate children succeeded to their putative

father¶s property has been abrogated.

List of heirs specified in Class 1.²Following are the heirs of the deceased specified in Class I:

1. Son.2. Daughter.

3. Widow.4. Mother.

5. Son of pre-deceased son.6. Daughter of a pre-deceased son.

7. Son qf a pre-deceased daughter.8. Daughter of a predeceased 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.12. Widow of a pre-deceased son of a pre-deceased son.

13. Son of a predeceased daughter of a predeceased daughter.14. Daughter of a predeceased daughter of a predeceased daughter.

15. Daughter of a predeceased son of a predeceased daughter.16. Daughter of a predeceased daughter of a predeceased son.

Distribution of property among heirs in Class I of the Schedule.² Section 10 of the Act

defines the share which the heirs in Class I of the Schedule shall get even though they takesimultaneously. Section 10 has given four rulçs regarding the distribution of property. Section 10

reads as follows³The property of an intestate

shall be divided among the heirs in Class I of the Schedule in accordance with the followingrules

Rule. 1.²The intestates widow, or if there are more widows than one, all the widows together,shall take one share.

Rule 2.²The surviving sons and daughters and the mother of the intestate shall each take oneshare.

Rule 3.²The heirs in the branch of each pre-deceased son or each pre-deceased daughter of theintestate shall take between them one share.

Rule 4²The distribution of the share referred to in Rule 3² (1) 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 portion, and the branch of his pre-deceased sons get the same portion.

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

Rule 1.²According to this rule, the intestate¶s widow is entitled to one share. Where theintestate had left behind more widows than one, then all widows together are entitled to one

share and this one share shall be equal to that of a son or a daughter.



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Rule 2.²This rule provides that each of the surviving son, each of the surviving ghter and the

mother is entitled to take one share. Thus, the division is to be per capita.

S hare of adopted son and after-born sons.²The rule makes no distinction between an adopted

son and subsequently born aurasa son. Each of them is entitled to one share and the old rule of Hindu Law that adopted son takes less share than after-born son is over-ridden by Section 4 of

the Act.

Rule 3.²Rule 3 expressly provides for the exception that heirs of the deceased in the branches of

predeceased sons and pre-deceased daughters take not per capita but per stirpes.

Rule 4.²To apply Rule 4, the pre-deceased son or the pre-deceased daughter is to be treated as

the propositus. To apply Rule 3, he is to be treated as an heir of his father, who, though dead, is

represented by his own heirs. In Rule 4, treating the pre-deceased son as the propositus his heirs become his widow, his sons and daughters. May be that he had a pre-deceased son who has left a

son, a widow or a daughter behind him. The heirs of pre-deceased son together shall get only oneshare just as the branch of a predeceased son got only one share under Rule 3. The Doctrine of

Representation has been carried to the third degree in the case of a son an daughter.

S on, son¶s son and son¶s son¶s son.²Son means a legitimate son of the propositus. The special

position of S udra¶s dasiputra has not been retained. This is on account of the definition of theword µrelated¶ in S. 3(1) (i) which lays down that as far as relationship is concerned with a male

propositus µrelated¶ means related by legitimate kinship. A legitimate son may be an aurasa son(natural born) or dattaka (adopted) son. The adopted son takes an equal share with the aurasa

son. An illegitimate child is not entitled to inherit.¶

Gharjamai.²Among the Santhals, Gharjamai has the status of a son. He is for all intents and

purposes like an adopted son. In Ashok v. Rani H embrom, it was held that he is entitled to

succeed to his father-in-law¶s property like an adopted son.

Posthumous son.²A posthumous son is also included. Section 20 of the Act lays down that a

child who was in the womb at the time of the death of the intestate and who is subsequently bornalive has the same right of inheritance as if he was already born when propositus died. Under the

Hindu Succession Act, 1956 the sons born after the partition and the divided Sons inherit withother sons. A son of a voidable marriage is a full fledged legitimate son and will inherit as such.

But a son of void marriage and a son of an annulled voidable marriage will inherit the propertyof the father alone and of no other relation.A stepson is not included in the expression µson¶. By

stepson we mean a male child of wife born to her before her marriage with the propositus.

Daughter, sons¶s daughter, son¶s son¶s daughter.²Just as in the case of a son, daughter means a

legitimate daughter, born natural or adopted. If there are both natural born and adopted

daughters, they inherit equally. An illegitimate daughter cannot inherit. A daughter also includesa posthumous daughter, but does not include a stepdaughter. The position of daughters of void

and voidable marriages is the same as that of the sons. The distinction between married,



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unmarried and widowed daughters or between indigent and rich daughters is no longer operative.

All daughters inherit and inherit equally.1 Unchastity of a daughter is no bar to inheritance. Adivorced daughter is also entitled to inherit.

Daughter¶s son and daughter¶s daughter.²Both natural born and adopted children of a predeceased daughter are included. It seems that illegitimate daughters and sons of a daughter

are also included. Proviso to clause (j) of S. 3 says that ³illegitimate children shall be deemed to be related to their mother and one another´, this means that the illegitimate children are related to

their mother and one another´, this means that the illegitimate children are related to their mother, i.e., daughter. The daughter¶s children take the property representing her when she is

dead.

Widow, sons¶s widow, son¶s son¶s widow.²The propositus¶ widow means the wife of a valid

marriage. If a male dies leaving behind only his widow after coming into force of the Act she

would be the sole heir and would inherit absolutely. Thus, if the propositus¶ marriage is void, theµwife¶ is not his lawfully wedded wife, and therefore she will not be his widow. The same is the

position of the wife of the annulled voidable marriage. It is submitted that S. 16, Hindu MarriageAct, 1955, confers a status of legitimacy on the children of annulled voidable marriage and not

on the wife of such marriage. A divorced wife will also not be his widow. The same appliesmutatis mutandis to son¶s widow and son¶s son¶s widow.

An unchaste widow can also inherit. If she remarries, she will not be divested of her husband¶sinheritance. A son¶s widow or a son¶s son¶s widow who has remarried on the date when

succession opens cannot inherit. In the case of son¶s widow and son¶s son¶s widow, unchastity isno bar.

Mother.²Mother is always a mother. Propositus may be her legitimate aurasa son, or adoptedson or an illegitimate son, she will inherit. She may be unchaste, she might have remarried, she

might have been divorced, she remains a mother, it is also immaterial whether her marriage withthe propositus father was void or voidable. But a stepmother is not included in the expression

µmother¶ µ and she does not inherit as a Class I heir, though she does so as Class II heir

Heirs in Class 11.²According to Section 8 (b) heirs in Class II in the Schedule, ceed only in the

absence of any heirs in Class I. Heirs in Class II are divided into nine each group is mentioned in

a separate entry in the Schedule. Section 9 lays down heir in the first entry is preferred to heirs inthe second entry, and heirs in the second -. are preferred to those in the third entry and so on in

the succession. Section II which regulates the distribution of property among heirs in Class II of the Schedule runs as follows :² µThe 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.´

Thus, whenthere is only one heir in the entry preferred, he or she alone shall take the whole of the estate butwhen there are more heirs than one, in the entry preferred. then all such heirs shall take equally

and the heirs related to the intestate by full blood shall be preferred to heirs related by half blood.

List of heirs in Class II in the Schedule

1. Father.



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II. (1) Son¶s daughter¶s son, (2) son¶s daughter¶s daughter, (3) brother and (4) sister.

III. (1) Daughter¶s son¶s son (2) daughter¶s son¶s daughter, (3) daughter¶s daughter¶s sons, and(4) daughter¶s daughter¶s daughter.

IV. (1) Borther¶s son, (2) sisters son, (3) brother¶s daughter, and (4) sister¶s daughter.V. (1) Father¶s father, awl (2) father¶s mother.

VI. (I) Father¶s widow, and (2) brother¶s widow.VII. (1) Father¶s brother, and (2) fathers¶ sister.

VIII. (1) Mother¶s brother, and (2) mother¶s mother.Ix. (1) Mother¶s brother, and (2) mother¶s sister.

Where a person dying intestate does not haveClass I heirs and leaves behind him brother by half blood and a sister by full blood. In such case

the sister by full blood would exclude the brother by half blood. Thus sister by full blood alonewould inherit the property excluding the brother by half blood.It may be noted that the father¶s

widow and brother¶s widow who were not heirs under the Mitakshara Law, are now recognizedas heirs and are given a high place in the order of succession. The terms µbrother¶ and µsister¶

include brother and sister by full blood as well as brother and sister by half blood. But when brother and sister by full blood are available brother and sister by half blood would be excluded..But when there is brother of half blood and sister of full blood, the former would not be

excluded.

Order of S uccession among Agnates and Cognates.² S ection 12 of the Act lays down rules of

preference determining the order of succession among agnates and cognates.

Classification of agnates.²-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 inthree classes :

(a) descendant agnates,

(b) ascendant agnates,

(c) collateral agnates.

Classification of cognates.²Whenever in between the propositus and

the claimant a female intervenes, the claimant is a cognate. Theclassification of the cognates is on the same basis. Thus, cognates are

(1) Descendant cognates,(2) Ascendant cognates, and

(3) Collateral cognates.

The rule of preference and distribution of property among the agnates and cognates² The

rule of preferences and the mode of the distribution of property among agnates and cognates arethe same, with this overriding rule that agnates are always preferred over cognates. Section 12

lays down the following three rules



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Section 12, Hindu Succession Act, 1956.²

Rule I :²Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule 2.²Where the number of degrees of ascent is the same or none, that heir is preferred who

has fewer or no degrees of descent.

Rule 3.²Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2, they

take simultaneously.

For the purpose of easy

application of these rules, we may convert them into the following four rules Rule (i).²When the claimants are descendants, ascendants and collaterals, the descendants are

preferred over the latter two. When there are no descendants, ascenclants are preferred over coflaterals. The collaterals take only in the absence of both descendants and ascendants.

Rule (ii).²When 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 share itequally between themselves.

Rule (iii).²When 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).²When all the claimants are collaterals, the rule of preference will be (it should be kept

in mind that collaterals have both degrees of ascent and degrees of descent) as under S ub-Rule

(a).² Among the claimant collaterals, those who have fewer degrees of ascent (irrespective of degrees of descent) will be preferred.

Computation of degrees.²Section 13 defines ³degree¶ and provides the nethods of itscomputation, Section 13 runs as follows:

³(l) For purposes of determining the order of succession among agnates or cognates, relationshipshall be reckoned from the infestate to the heirs 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 consitutes a degree either ascending or descending.

Degrees of ascent and descent.² The heirs may be an ascendant or a descendant or a collateral

of a deceased. The relationship in the first case is only in terms of degrees of ascent and in thesecond only in terms of degrees of descent, in the third µoth in terms of degrees of ascent and

descent.



12

Degree of ascent and descent shall be

computed inclusive of the intestate. Therefore, the intestate himself counts as the first degree, hisfather second degree and so :n upwards. Similarly, the intestate shall be computed the first

degree, his son shall be omputed the second degree and so on downwards. In the case of collaterals, such as, rothers son, there are degrees of ascent and also of descent. Intestate is

counted first ree of ascent, his father the second degree of ascent. Then downwards, father¶s sone . brother) first degree of descent and his brother¶s son the second degree of descent. Every

generation in the ascending line or descending line constitutes a degree.

No preference on the ground of sex.² A male heir cannot be preferred to a female heir solely

on the ground of sex. The equality between a female and a male is maintained.

Rules laid down in Section 12 of the Act explained.²Rules laid in Section 12 of the Act may be

explained as follows:

Rule 1 ²Preference to descending line.²The first rule provides that of two heirs, one who has

fewer or no degree of ascent is preferred. It applies to following four cases

I. Where both the heirs are from the ascending line then one who has fewer degree of ascent is to

be preferred.

2. When one heir is from the ascending line and the other from descending line, the heir with nodegrees of ascent is preferred i.e., the heir in the descending line is preferred.

3. When two heirs are from collateral lines, but the number of the degrees of ascent is the same,the heir with fewer degree of descent shall be preferred.

4. When one heir is from the descending line and the other from the collateral line, the former is

preferred as the former has no degrees of ascent.

Rule 2.²The second rule provides that where the number of degrees of ascent is the same or

none the heir having fewer or no degree of descent is preferred. The rule plies to following four

cases(1) When the number of degrees of ascent is the same, the heir having fewer degree of descent is

preferred.

(2) When the number of degrees of ascent is the same, the heir having no degree of descent is

preferred.(3) When the number of degree of ascent is none that heir is preferred who has few degrees of

descent.(4) When the number of degree of ascent is none, that heir is preferred who has no degree of

descent.

Rule 3.² S imultaneous heirs.²This rule provides that where neither heir is entitled to be

preferred to the other under Rule I or 2, they take simultaneously, In such cases, both heirs

succeed together. In absence of any express mode of division, they take the property per capita



13

and holds in as tenants in common. Such a situation may arise under following circumstances

:² (1) Where both the heirs are from descending lines, and each has the same degrees of descent.

(2) Where both the heirs are from ascending lines and each has the same degrees of ascent andno degrees of descent.

(3) Where both the heirs are from collateral heirs but each has the same degrees of ascent and thesame degree of descent.

Devolution of Property under S. 8 of the Hindu Succession Act : Whether Joint or Self

Acquired Property? : The Law

The Delhi High Court in Pratap v. Shiv Shanker AIR 2009 DHC has recapitulated the law

relating to the devolution of property under S. 8 of the Hindu Succession Act. While followingthe dicta laid down by the Hon'ble Supreme Court of India, the Court held that property

devolving under S. 8 of the Hindu Succession Act would be self acquired property of anindividual vis-a-vis his sons. The relevant extracts from the judgment are reproduced

hereinbelow:

5. The entire issue that arises for consideration in the present case hinges on the effect of Section8 of the Hindu Succession Act, 1956 (hereinafter referred to as Äthe Act'). The Act lays down

rules of succession in the case of males. The first rule is that the property of a male Hindu dyingintestate shall devolve according to the provisions of Chapter II, in the manner as stipulated in

Section 8 of the Act. Sub-section (a) of Section 8 of the Act provides that the property of a maledying intestate shall devolve firstly upon the heirs, being the relatives specified in class I of the

Schedule. Class I of the Schedule reads as below:

"Heirs in Class I :- As per Schedule

6. The heirs mentioned in Class I of the Schedule shows that the list includes sons, daughters etc.

as also son of the pre-deceased son, but does not specifically include the grandson, being the son

of a living son. Under the Hindu Law, the moment a son is born, he gets a share in his father s

property and becomes a part of the coparcenery.

Such a right accrues in favour of the son by virtue of his birth and not on the date of demise of

the father or inheritance from the father.

However, it is no longer res integra that under Section 8 of the Act, the property which devolves

on a Hindu would not be HUF property in his hand, vis-a-vis his own sons. The aforesaidconclusion was drawn by the Supreme Court in the case of Commissioner of Wealth-tax, Kanpur etc. vs. Chander Sen etc. reported as AIR 1986 SC

1753, wherein after taking note of the divergent views expressed on the said issue by theAllahabad High Court, Full Bench of Madras High Court, Madhya Pradesh and Andhra Pradesh

High Courts on the one side, and the Gujarat High Court on the other, it was observed as below:-



14

"19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The

Preamble states that it was an Act to amend and codify the law relating to intestate successionamong Hindus.

20. In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law,

in our opinion it is not possible when Schedule indicates heirs in Class I and only includes sonand does not include sons son but does include son of a predeceased son, to say that when son

inherits the property in the situation contemplated by S. 8 he takes it as karta of his own

undivided family. ......... It would be difficult to hold today the property which devolved on aHindu under S. 8 of the Hindu Succession Act would be HUF property in his hand vis-à-vis his

own son; that would amount to creating two classes among the heirs mentioned in Class I, themale heirs in whose hands it will be joint Hindu family property and vis-à-vis son and female

heirs with respect to whom no such concept could be applied or contemplated. It may bementioned that heirs in class I of Schedule under S.8 of the Act included widow, mother,

daughter of predeceased son etc.

21. xxxxxxx

22. The express words of S.8 of The Hindu Succession Act, 1956 cannot be ignored and must

prevail. The Preamble to the Act reiterates that the Act is, inter alia, to Äamend the law. With

that background the express language which excludes son's son but included son of a predeceased son cannot be ignored."

(emphasis added)

7. The aforesaid judgment was referred to and relied upon by the Supreme Court in a subsequent

judgment entitled Yudhishter vs. Ashok Kumar reported as AIR 1987 SC 558. In theaforesaid judgment, it was held as below:

"10. This question has been considered by this Court in Commr. Of Wealth Tax. Kanpur v. Chander Sen (1986) 3 SCC 567; (AIR 1986 SC 1753), where one of us (Sabyasachi Mukharji,

J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father s

property and becomes part of the coparcenary. His right accrues to him not on the death of the

father or inheritance from the father but with the very fact of his birth. Normally therefore,whenever the father gets a property from whatever source, from the grandfather or from any

other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu

family with him. This Court observed that this position has been affected by Section 8 of theHindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in

the situation contemplated by Section 8, he does not take it as Karta of his own undivided family

but takes it in his individual capacity. ............ This Court observed in the aforesaid decision thatthe views expressed by the Allahabad High Court, the Madras High Court, the Madhya PradeshHigh Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept

the views of the Gujarat High Court. ......... In that view of the matter, it would be difficult tohold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act,

1956 would be HUF in his hand vis-à-vis his own sons. If that be the position then the propertywhich devolved upon the father of the respondent in the instant case on the demise of



15

his grandfather could not be said to be HUF property. If that is so, then the appellant authority

was right in holding that the respondent was a licensee of his father in respect of the ancestralhouse." (emphasis added)

9. The aforesaid principle of law is squarely applicable to the facts of the case in hand. It is held

that the trial court did not err in arriving at a conclusion that upon the demise of his father,grandfather of the appellant, the suit property devolved on the respondent in his individual

capacity and thus, had to be treated as self-acquired property in his hands. The appellant failed toestablish that there existed any coparcenary, in which the appellant and the respondent were

coparceners or there existed any HUF of which, the respondent was a Karta. Therefore the claimof the appellant for partition of the suit property on the ground that the same was ancestral, was

rightly turned down. The suit property has to be treated as self-acquired property in the hands of the respondent. The appellant cannot claim any share therein on the ground that the said property

is ancestral in nature.

Succession of the Property of a Hindu Female :-

Who are the heirs ?² Sub-section (1) of Section 15 divides heirs of a Hindu female Into five

categories (Entries). The general rule is that heirs in an earlier entry exclude heirs in latter entries. If there are no heirs in any of these entries, property of the deceased Hindu female goes

to the government by escheat.(1) Heirs in the first entry:

(a) Sons.(b) Daughters.

(c) Children of pre-deceased son.(d) Children of pre-deceased daughter.

(e) Husband.

S ons and daught ers.² Under this entry sons and daughters are used in a very wide sense. They

include son and daughter by natural birth, legitimate or illegitimate,2 posthumous children, andadopted children. Legitimate children may be by one husband or more than one husband.

Children of void and voidable marriages are also included. However, step-children3 are notincluded in the expressions, son and daughter, though it is possible for a stepson or daughter to

succeed to her property in entry (b) as an heir of her husband.

Grand-children.² The sons and daughters of a predeceased son will include only legitimatechildren by natural birth or by adoption. Illegitimate children are excluded. The term ³children¶

does not include children of children, 1 or step-children of the son. Children of a son whosemarriage is void, whether declared void or not are not included. Similarly, children of a son

whose marriage is voidable will not be included if the marriage has been annulled. It is becauseS. 16(3), Hindu Marriage Act provides that such children can inherit the property of their parents

alone. This applies to the children of the predeceased daughter also, with this exception that her



16

illegitimate children will be entitled to inherit as under Section 3 (j), Hindu Succession Act,

illegitimate children are related to the mother, i.e., they are the children of the mother. Under thisentry sons and daughters of a predeceased daughter and predeceased son inherit as the

representative of their mother or father, as the case may be.

Husband.² H usband means the husband who was a lawfully wedded husband of the proposita t

the tj ler death. Thus, a divorced husband is not included, Similarly, the husband of a voidmarriage or of an annulled voidable marriage is also not included.

(2) Heirs in the second entry.² Heirs of the husband of the female dying intestate come under

second entry. The heirs of the husband are:(a) H eirs of the husband specified in Class I of the Schedule.

(b) Heirs of the husband specified in Class II of the Schedule.(c) Agnates of the husband.

(d) Cognates of the husband.In this Entry µhusband¶ means the last husband of the proposita. It

means the person who was her lawful husband at the time of her death.

(3) Heirs in the third entry:

(a) Mother²it does not include step-mother but includes natural as well as adoptive mother.

(b) Father µFather¶ does not include step-father or putative father. But it includes natural or adoptive father.

(4) Heirs in the fourth entry.² Heirs of the father of the female dying intestate come under thisentry. The heirs of the father are:

(a) Heirs of the father specified in Class I of the Schedule.(b) Heirs of the father specified in Class II of the Schedule.

(c) Agnates of the father.(d) Cognates of the father.

(5) Heirs in the fifth entry.²Heirs of her mother come under this entry. Her heirs are:

(1) Sons, daughters of the mother including sons and daughters of a pre-deceased son anddaughter, and husband.

(2) Heirs of husband of the mother.(3) Father and mother of the mother.

(4) Heirs of father of the mother.(5) Heirs of mother of the mother.

Order of succession.²The order of succession and manner of distribution among heirs of afemale Hindu dying intestate are given in Section 16 of the Act.

Rule 1.²Heirs in the first entry of Section 15(1) of the Act shall be preferred to those in thesecond entry. In the absence of heirs in the first entry heirs in the second entry shall be preferred



17

to those in the third entry and so on. Where there are more heirs than one, in the entry preferred,

such heirs shall take simultaneously.

Rule II.² The children of pre-deceased son or daughter between them, get the share which son

or daughter would have taken if living at the intestate¶s death i.. e., the division is per stirpes.

Rule III.²This rule provides that the devolution of the property on the heirs of the father, on the

heirs of mother or on the heirs of husband, shall be in the same order and according to the same

rule as if the father, the mother or the husband, had died intestate in respect of that property,immediately after the female¶s death.

For the purpose of succession, the property of a Hindu female falls under the following threeheads

(a) property inherited by a female from her father or mother,(b) property inherited by a female from her husband or father-in-law, and

(c) property obtained from any other source, by inheritance or otherwise.

It should be noted that the former two

heads would become operative only if the female dies issueless. If she has her issues, thedistinction between the sources from which she got the property is not material.

S har e s of heirs in entry (a).² The heirs of Entry (a) are simultaneous heirs. They inherit the

property of proposita simultaneously. From S. 16, Rules 1 and 2, we may deduce the following

three rules relating to distribution of property among the heirs of entry (a)

(1) Son, daughter and husband each takes one share.

(2) Among the heirs of the branches of predeceased sons, the predeceased daughter, thedoctrine of representation applies, i.e., the children take the same share which the

daughter or son would have taken had she or he been alive.

(3) Among heirs of a branch they take per capita.

Entry (b).² On the failure of heirs in Entry (a), the property will devolve on the heirs of Entry

(b). Entry (b) runs as under ³Upon the heir of the husband.´

This Entry lays down that on the failure of heirs in Entry(a), the property will devolve as if it is the property of her husband. In this Entry µhusband¶means the last husband of the proposita, i.e., the one who was her lawful husband when she died.

Since the property is deemed to be that of her husband, the inheritance will be determined by thescheme laid down in the Act relating to succession to the property of a Hindu male.¶ In other

words, order of succession will be : first to Class I heirs; on their failure to Class II heirs; on their



18

failure to agnates; on their failure to cognates, On the failure of cognates, property will devolve

on the heirs of Entry (c).

Entry (c).² In this Entry there are only two heirs : father and mother of the proposita. The

expression, mother, means natural mother as well as adoptive mother. Even if the proposita wasan illegitimate daughter of the mother, mother will inherit. Mother does not include a

stepmother. Father does not include a putative father or stepfather. Natural or adoptive father isincluded. When the proposita leaves behind both father and mother, they inherit simultaneously

and between them take per capita.

Entry (d)²Upon the failure of heirs in Entry (c), the property of the intestate female devolves

upon µthe heirs of father¶. Here the expression father, means the same thing as in Entry (c). The

devolution of the property under this Entry will take place assuming that the property is that of the father. This means that heirs will be the heirs of a Hindu male, i.e., Class I, Class II, agnates

and cognates.

Entry (e).² Upon the failure of heirs in entry (d), the property will devolve upon µthe heirs of

the mother¶. The devolution of property of the proposita will take place here as if it is the

property of the mother. This means heirs of a Hindu female, from Entry (a) to Entry (c).

Property inherited from father or mother :- Under S. 15(2) (a), only the property that a

female inherits from her father or mother is included. The property which she gets in gift at thetime of her marriage from her mother or father is not included. Such a property is her stridhan

and succession to it is governed by S. 15(1). Similarly, if she has converted the property sheinherited from her parents into some other property; succession will not be governed under S.

15(2). If a proposita had inherited property from father or mother, the heirs fall in the followingtwo categories

Category (1).² S ons, daughters, sons and daughters of predeceased son and sons and daughters

of a pre-deceased daughter. In this category it may be noted, husband is not an heir. The rule of distribution of property among the heirs of this category are the same as of Entry (a) discussed

above, under the head, Heirs to property as specified under (c)¶ above.

Category (2).²Upon heirs of the father. On the failure of heirs in category (1), the property

devolves upon the heirs of father, i.e., as if it was the property of the father. Here there seems to be a flaw in draftsmanship. Suppose, P inherited properties from her mother. When P died, the

father survived her. Does it mean that the father will not take the property and it will go to hisheirs ? It is submitted that the clause should be read, ³upon the father and in default of the father,

upon his heirs.´ Where a female Hindu had inherited property from her mother on her death, itwould devolve on her sister as per Section 15(2) and not on the heirs of her pre-deceased

husband.

Property inherited from Husband or Father-in-Law :- In case proposita had inherited

properties from her husband or the father-in-law, her heirs fall in two categories.



19

Category (1).² S ons, daughters, sons and daughters of predeceased sons, and sons and daughters

of predeceased daughters. (This is the same as under the preceding head).

Category (2).²Upon the heirs of the husband. On the failure of heirs in category (1), property

devolves upon the heirs of the husband, i.e., as if it was. the property of the husband, whichmeans heirs of a Hindu male. Here also, there seems to be apparently a flaw of draftsmanship of

the same nature as stated above. If proposita has inherited property from her father-in-law andher husband survives her, then does it mean that he will not inherit the property, but his heirs will

? However, it should e noted that under the Hindu Succession Act, 1956, the daughter-in-lawinherits only when she is a widow. Therefore, she cannot inherit from her father-in-law as well

be survived by her husband. Thus, in factual operation of this category there is no flaw. Thenanother difficulty may arise : suppose, proposita inherited property from her father-in-law.

Subsequently, she remarried. Under this head, do the heirs of the husband mean the heirs of thefirst husband or heirs of the second husband . It seems clearly the intention of Parliament was

that the property would devolve upon the heirs of the first husband. In case she has also inherited property from the second father-in-law, property will go to the heirs of the second husband. This

will mean that if a woman had inherited property from two fathers-in-law or two husbands, therewill be different set of heirs in each case. In the former case, they will be the heirs of the first

husband, and, in the latter case, they will be heirs of the second husband.The proposita died issueless and she had inherited property from her husband. The husband also

did not have a living heir. The property would go to her brother and not by escheat to thegovernment.¶

Government Escheat :- Just as in the case of a Hindu male, in the case of a Hindu female, if she

dies leaving behind no relation, the Government takes her property, as an heir, subject to allobligations and liabilities of the intestate.

GENERAL PROVISIONS RELATING TO SUCCESSION

Introduction.²There are certain general provisions relating to the succession, as laid downfrom Sections 18 to 28 of the Hindu Succession Act. These provisions apply to all the properties

irrespective of the fact whether it is left by a male or a female Hindu dying intestate. These provisions are supplementary to the provisions in Sections 5 to 17 of the Act. Moreover, the

provisions are not only explanatory but some of them lay down substantive rules involving legal principles.

Full blood preferred to half-blood²Section 18.²Section 18 states that, ³Heirs 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.´Section 18 lays down a rule of general applicability to male and female heirs alike but theapplicability is subject to the words, ³if the nature of the relationship is the same in every other

respect.´ From the provisions of the section it is clear that a full-blood relation is preferred tohalf-blood relation. But the rule cannot be invoked when a particular heir is preferred to another

by operation of any rule effecting the order of succession.Section 18



20

makes it clear that the heirs related by full-blood shall be preferred to heirs related by half-blood,

provided the nature of the relationship is the same in every other respect. Thus, the full sister¶sdaughter shall be preferred to half brother¶s son. Similarly a full sister excludes a half sister.

Mode of succession to two or more heirs²Section 19.²Section 19 of theAct provides that, ³If two or more heirs succeed together to the property of an intestate they shall take the property²

(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.

Joint tenancy and tenancy-in-common.²Joint teuancy is the ownership of property in

common by several persons having a right of survivorship. On the death of one of the jointtenants, the property vests in the survivor or survivors to the exclusion of the heirs of the

deceased joint tenant. The tenancy-in-common arisas where two or more persons are entitled to property in such manner that they have an undivided possession but distinct estate in equal or

unequal shares either by the same or different title. No one of them is entitled to the exclusive possession of any part of the property, each being entitled to whole in common with the others.

On the death of any of them, his heirs succeed to the property left by the deceased. In short, jointtenancy means joint ownership with the right of survivorship, and tenancy-in-common means

joint possession with separate ownership without the right of survivorship.

Right of child in womb²Section 20.²Section 20 provides that, ³A 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´.A child in mother¶s womb is presumed to

be born before the death of the intestate, although subsequently born. To quote Mulla, ³It is byfiction or indulgence of the law that the rights of a child born in justo matrimonio are regarded

by reference to the moment of conception and not of birth and the unborn child in the womb, if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance.

The child in embryo is treated as in esse for various purposes when it is for his benefit to be sotreated.

The view is not peculiar to the ancient Hindu law but one which as adopted by all maturesystems of jurisprudence. This section recognises that rule of beneficient indulgence and the

child in utero although subsequently born is to be deemed to be born before the death of theintestate and inheritance is to be deemed to vest in the child with effect from The date of the

death of the intestate.´ But for the purposes of the application of the provisions of Section 20, itis essential that child must be in womb at the time of the death of the propositus and the child

must be born alive.

Preferential right to acquire property in certain cases²Section 22.²Section 22 provides a preferential right to other heir or heirs to acquire property when one of them desires to transfer

his or her interest in the property inherited. Section 22 runs as follows:Section 22 recognises the rules of pre-emption which has the

tendency to raise clogs on the full sale and purchase of property. But the rule of preferential right



21

to acquire property or business in certain cases is subject to certain rules laid down under this

section. The provisions of the section were necessary in order to safeguard the interests of the co-heirs, otherwise the very foundations of the Hindu family would have been shattered. The

preferential right to acquire property in certain cases as is provided under this section is limitedonly to those cases where the property has devolved upon two or more heirs specified in Class I

of the Schedule. The members of the Joint Committee were of the opinion that it would be justand proper to provide that in a case where any of the heirs desires to transfer his or her interest in

the property inherited under the provisions of this Act, the right of pre-emption should be givento others.

Requirement of the right.² Before the preferential right can be decreed under this section, theconditions laid down should be satisifed. This right is personal and not attached to land. The

conditions are:

I. Available to heirs of Class 1.²Out of the co-heirs mentioned in the Act, subsection

(1) of this section grants the preferential right only to the heirs of Class I of the

Schedule. The right is not extended to Class II, agnates, cognates or their descendantsor transferees.¶

II. Available at the time of transfers.²It is only when one co-heir proposes to transfer

his or her interest in the property or business inherited, that other coheir is given a preferential right to acquire it, thereby giving him or her an opportunity to avoid any

stranger becoming the owner thereof. The word µtransfer¶ is wide enough to includetransfer by sale, gift, exchange or any other mode by which an interest in the property

or business is capable of being transferred.

Court to Which application lies.²Following courts have jurisdiction to entertain the

application:(1) The court within the limits of whose jurisdiction² (a) the immovable property is situated, or

(b) the business is carried on.(2) The court specified by the State Government in the notification.

Preference to the heir who offers highest consideration.² S ub-section (3) lays down the rule of preference between two or more offers made by two or more co-heirs entitled to claim

perference²between two or more such heirs, the one whose offer is highest shall be preferred.The preference in such .a case is not to be made on the ground of priority of offers, sequence of

time, nearness of relationship or on any other ground. Offer of stranger is no offer under this sub-

section. The remedy for seeking relief under Section 22 of the Hindu Succession Act, 1956 is tofile a regular suit before the competent Court)

Disqualification :- The Hindu Succession Act, 1956, has simplified the law and reduced the

disqualifications to the barest minimum.



22

Section 28, Hindu Succession AcL²Disease, deformity and unchastity.²Disease, deformity and

unchastity are no longer disqualifications.¶ Section 28 runs ³No person shall be disqualified fromsucceeding to any property on the ground of any disease, defect or deformity, save as provided in

this Act, on any other ground whatever.´

Remarriag e (Section 24). ² The remarriage of three widows, before succession opens

clisentitles them from inheritance. These widows are son¶s widow, son¶s son¶s widow and brother¶s widow. The widowed mother and widowed stepmother are not disqualified from

inheritance even if they have remarried. The question of the remarriage of propositus¶ ownwidow does not arise. If she has remarried, during the life time of her husband, her second

marriage is void and therefore she would not be considered to have remarried. If she hasremarried after divorcing her husband, she has ceased to be his wife and therefore will not be his

widow when propositus dies. But the subsequent marriage of the widow is no disqualification.Very strangely, Gauhati High Court has held that the second wife because by marrying again has

lost her chastity, is not entitled to a share in the property of her husband. Once a widow becomesthe absolute owner, her remarriage does not divest her.

Section 26, Hindu Succession Act.²Conversion.²Conversion of an heir is not a bar to

succession. But the children of a Hindu, who convert to a non-Hindu religion, cannot inherit. Soalso the descendants of the children cannot inherit, unless such children or descendants are

Hindus at the time when the succession opens. Succession to the property of a convert isgoverned by the personal law of the community to which he converted. For instance, succession

to the property of Hindu convert to Islam is governed by Muslim law. Section 26 provides for aconverse case. The children and descendants of a convert cannot inherit to the property of

propositus, unless they are Hindus. We may illustrate the rule with the following examples(i) P died leaving behind the sons, A, B and C. B had earlier converted to Islam. Even though B

had converted to Islam, he will take his ½ share as conversion is not a disqualification of theheir.

pSection 25, Hindu Succession Act.²Murderer.² Section 25, Hindu Succession Act,disqualifies tw sets of murderers (a) If an heir himself murdered or abetted the murder of the

prop ositus in furtherance of succession, and (b) if an heir has murdered or abetted thecommission of murder of someone other than the propositus in furtherance of the succession.

This was also the old Hindu law. It is a principle of general policy.¶ In such cases, the murderer should be treated as non-existent and not as one who forms the stock for a fresh line of descent.

This is also what S. 27 of the Act lays down If an heir is not convicted under S. 302, IPC, but, bygiving him benefit of doubt, he is convicted under S. 324, the disqualification attaches¶ to him.

But if he is acquitted of the charge of murder even on the basis of benefit of doubt, the

disqualification does not attach to him.Under the provision, murder must be ³in furtherance of succession´. For instance, there was a faction-fight among five brothers, A, B, C, D and E.Father sided with one of the brothers. In that fight, the father was accidently killed by a blow

from A. In this case A will succeed to the property along with B, C, D and E, as A did not kill hisfather in furtherance of the succession.



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Under S. 25 the murderer as well as the abetter of murder are disqualified. For instance, P has

two sons A and B. A himself murders P so that he may inherit his properties. Or, it may be thathe abets B to murder P. In both cases, A will not be entitled to inherit. In the second case, B will

also not inherit. The murder may be of the propositus or of someone else in furtherance of thesuccession. For instance, P has a daughter D and a predeceased son¶s son SS, a daughter is

entitled to inherit, or (ii) suppose that D is alive, P is on the death bed. In furtherance of thesuccession DS kills D, so that when P dies he may take the inheritance. In this case also, DS will

not be entitled to inherit when P dies. Take another example, P has a brother A and a son of a pre-deceased brother BS. BS will inherit from P only if A dies before succession opens. BS kills

A, BS will not be entitled to inherit from P. The rule is that if murder is committed with a viewto accelerate succession, the murderer will not be entitled to reap the harvest of his crime. The

section applies to both testamentary and intestate succession. Where husband had murdered hiswife, neither he nor his parents were held entitled to inherit her property



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customary rules of succession

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