Law relating Succession of Hindu Male

 Q. 23. Discuss the Rules laid down in the Hindu Succession Act concerning the succession to the property of a male Hindu?

General rules for succession in the case of males

Section 8 lays down the general rules for succession in the case of males. Section 8 applies in cases where succession opens after the commencement of the Act. It is not necessary that the death of the male Hindu, whose property has to be devolved by inheritance, should take place after the commencement of this Act.

Classification of heirs

Heirs are classified into four categories:

·         Class I

·         Class II

·         Class III (Agnates)

·         Class IV (Cognates)

Class I heirs 

As per the schedule of the Act, the following are class I heirs:

 

i)             son;

ii)            daughter;

iii)           widow;

iv)           mother;

v)           son of a pre-deceased son;

vi)          daughter of a pre-deceased son;

vii)         son of a pre-deceased daughter;

viii)        daughter of pre-deceased daughter;

ix)           widow of a pre- deceased son;

x)            son of a pre-deceased son of a pre-deceased son;

xi)           daughter of a pre-deceased son of a pre-deceased son;

xii)         widow of a pre-deceased son of a pre-deceased son.

Until the Hindu Succession (Amendment) Act, 2005, the Class I heirs consisted of twelve heirs, eight of which were females and four were males, but after 2005, four new heirs were added, of which eleven are female and five are male.

By the Hindu Succession (Amendment) Act, 2005 the following heirs have been added to the list of heirs of class I.

 

xiii)       son of a pre-deceased daughter of a pre-deceased daughter;

xiv)        daughter of a pre-deceased daughter of a pre-deceased daughter;

xv)        daughter of a pre-deceased son of a pre-deceased daughter; and

xvi)        daughter of a pre-deceased daughter of a pre-deceased son.

 

Now, class I contains a list of 16 persons. Out of these 16 relations 5 are males and 11 are females. Of them, the son, the daughter, the widow and the mother are the only four primary heirs and they inherit by reason of their own relationship to the propositus.

 

The others are the 2nd, 3rd and 4th degree descendants of the propositus.

All of them will inherit simultaneously and even if any of them is present, then the property will not go to the Class II heirs. All Class I heirs have absolute rights in the property and the share of a Class I heir is separate, and no person can claim a right by birth in this inherited property. A Class I heir cannot be divested of his/her property, even by remarriage (1. Section 24, before repeal by Act 39 of 2005, stood as under:

"24. Certain widows re-marrying may not inherit as widows. Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married." ) or conversion, etc. 

Now we will observe who classifies as son, mother, daughter or widow and what kind of interests they have in the property. 

Son & Daughter

The expression ’son’ and daughter can include:-

1.     a natural-born  or

2.   adopted  or

3.    illegitimate child.

4.   Posthumous son & daughter  (Sec 20. Right of child in womb.-A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.)

The daughter’s marital status, financial position, etc is of no consideration. The share of the daughter is equal to that of the son.   but does not include a stepson or daughter.

If a son or daughter adopted by male Hindu under Hindu adoption& maintenance  Act before or after his marriage they are presumed son or daughter equivalent to natural born son or daughter of propositus, whereas son or daughter adopted  by female Hindu (wife of the propositus) under Hindu adoption & maintenance  Act before the marriage or after the death of propositus they are presumed as step son or daughter of the propositus.

The eligibility of illegitimate son of a male Hindu dying intestate has been changed through the decision of courts. In Lakshmi Bai v. Limbabai (1983 HLR 208), it was observed that the right of an illegitimate son to get maintenance is not an adequate substitute for his right to inherit. Even a son born to a person by marriage which is void under Section 11 or voidable under Section 12 or avoided under Section 13 of the Hindu Marriage Act would be entitled to inherit as a son in view of section 16 of the Hindu Marriage Act, 1955. In Rameshwari Devi v. State of Bihar (AIR 2000 SC 735) the Supreme Court held that under Section 16 of Hindu Marriage Act, children of void marriage are legitimate under the Hindu Succession Act, 1956. Hence the illegitimate son is also entitled to the property of father in equal shares along with the natural or adopted son.

Widow

The widow gets a share that is equal to that of the son. A widow would only include a lawfully wedded by a marriage subsisting till such death. If there exists more than one widow, they collectively take one share that is equal to the son’s share and divide it equally among themselves. This widow should have been of a valid marriage. In the case of Ramkali v. Mahila Shyamwati AIR 2000 MP 288, it was held that a woman who was in a voidable or void marriage, and that marriage was nullified by the Court on the death of the husband, would not be called his widow and would not have rights to succeed to his property.

If the widow of propositus, or widow of a predeceased son, or the widow of a brother has remarried, on the date of succession, even then they have the right to inheritance.

The word 'widow' mentioned among Class I heirs is lady who was validly married under the provisions of the Hindu Marriage Act, 1955 and who has acquired the status of widow by virtue of death of her husband. If her marriage with person is void under law, on his death she would not get status of widow under Class I of the Schedule of Hindu Succession Act, 1956; Laxmibai v. Anasuya, AIR 2013 Kar 24. 

Mother

Mother means a natural mother, and adoptive mother ther are covered under class 1 heirs, Step mother inherits in class 2 heirs entry VI (a) fathers widow.

The mother of deceased male Hindu dying intestate is entitled to inherit simultaneously with a son, daughter and widow of the deceased as well as other heirs specified in class I of the schedule. The remarriage of the mother also does not constitute any bar to her succeeding to her son.

Class II heirs

The Class II heirs are categorized and are given the property in the following order:

·         I. Father

·         II. (1) Son’s Daughter’s son

·         (2) Son’s daughter’s 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 (a) Father’s father,

·         (b father’s mother

·         VI. (a) Father’s widow,

·         (b) brother’s widow

·         VII. (a) Father’s brother,

·         (b) father’s sister

·         VIII. (a) Mother’s father,

·         (b) mother’s mother

·         IX. (a) Mother’s brother,

·         (b) mother’s sister

Explanation:- In this schedule, references to a brother or sister do not include reference to a brother or sister by uterine blood.

 

Class II heirs get share only in the absence of any one of the class I heirs. In class II there are nine entries some of them contain more than one heir.

The heirs in an entry exclude the heirs in subsequent entries. If there are no heirs in entry I, those in entry II take and if there are no heirs in entries I and II those in entry III are entitled and so on. Heirs in the same entry take simultaneously and not one after the other

 

Father:

The father is made a class II heir under the Act and is excluded by class I heirs. The father occupies the first position in the class II heirs, if there are no heirs of class I then the property of the deceased goes entirely to the father despite the existence of other heirs of class II.

 

Under the word 'father' may be considered the natural father, the adoptive father and the step father. A natural father in ordinary parlance includes the father of an illegitimate child, that is the putative father, but under the scheme of inheritance outlined in this Act, the putative father has no right of inheritance.

An adoptive father would succeed to the estate of his child in preference to the natural father for by adoption the child severs all his or her connection with his or her natural family. The adoptive father has the same rights as a natural father, but where both exist it is the adoptive father who would succeed to the estate of his deceased adopted son.

 

A step father is not an heir at all whereas a step mother is an heir under class II (father's widow).

Brother:

Brothers may be divided into three kinds:

i)             the natural brother,

ii)            the step or the half-brother; and

iii)           the uterine brother.

 The word brother, as used in this schedule means only the natural brother and the brothers related by half blood i.e. the step brothers. A uterine brother will not be a brother within the meaning of this entry in view of the explanation to the schedule.

 

The position allotted to the brother is in set II of class II-heirs and he succeeds in the absence of class I heirs and in the absence of the father, he shares along with the sisters and the children of the son's daughter equally.

 

Sister:

The position of the sister is akin to that of the brother and a sister may be a natural sister, a step-sister or a uterine sister. 'Sister' means only the natural sister and sister related by half blood i.e. step sister. A uterine sister will not be a sister within the meaning of this entry in view of the explanation to the schedule. In the absence of class I heirs and in the absence of the father, she shares along with the brother and the children of the son's daughters equally.

Step-mother:

 Unlike the step father, a step-mother is an heir under entry VI (father's widow) in class II. Her remarriage does not disqualify her from inheritance.

 

Class III heirs--Agnates

This consists of the agnates of the deceased. Class III heirs only inherit the property when none from the earlier classes gets the property.

An agnate is a person who is related to the intestate only through male relatives. An agnate can be a male or a female. 

Rules of preference among agnates

·         Each generation is referred to as a degree. The first degree is intestate. 

·         Degrees of ascent mean ancestral or upwards directions.

·         Degrees of descent means in the descendants or downward direction. 

·         Where an agnate has both ascent and descent degrees, each has to be considered separately.

·         An agnate having a descent degree will be preferred over the one having an ascent degree.

·         When two agnates have ascent and descent degrees, the one having a lesser number of ascent degrees will be preferred. 

Class IV heirs -- Cognates

A cognate (Class IV) is someone who was related to the intestate through mixed relatives, in terms of sex. For example, an intestate’s paternal aunt’s son is his cognate, but his paternal uncle’s daughter will be an agnate. 

Therefore, to sum up it can be said that the property of the Hindu male devolves in the following manner:

·         First, to the heirs in Class I.

·         Second, if there exists no heir of Class I, then it goes to Class II heirs.

·         Third, if none from the Class I or II exists, then it goes to the agnates (Class III).

·         Fourth, if no one from the earlier three classes exists, then it goes to the cognates (Class IV).

 Sec 9. Order of succession among heirs in the Schedule.-Among the heirs specified in the Schedule, those in class I shall take simultaneously 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.

 

Sec 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 gets equal portions; and the branch of his predeceased 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.

Sec 11. Distribution of property among heirs in class II of the Schedule. The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally.

Sec 12. Order of succession among agnates and cognates.-The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:

Rule 1.-Of two heirs, the one who has fewer or no degrees of ascent is preferred.

 

Rule 2.- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.

 

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

 

Persons disqualified from heirs

 after the amendment, disqualification of heirs has been classified as:

·         Sec 25  murder disqualified 

·         Section 25 of the Act disqualifies a murderer from inheriting the property of the person whom he murdered. He is treated as non-existent and is not considered a part of the line of descent (Nirbhai Singh v. Financial Commissioner, Revenue, Punjab & Ors., 2017). A murderer under the Section also includes a person who aids or abets such a crime. 

 

·         Sec26 converts descendent Disqualified

 

·         Section 26 of the Act disqualifies a person or his children born after conversion, who converts from the Hindu religion to any other religion. The only condition upon which his descendants are eligible to inherit is that they must be Hindus at the time of succession. Section 27 further gives the effect of disqualification and mentions that in case of any disqualification, the property would be inherited considering that the person disqualified died before the intestate.