Hindu Male Dying Intestate

Modes of Devolution of Property 1) Survivorship- Rules of survivorship applies to joint family property. For instance, ‘A’ and ‘B’ are brothers, in a joint and undivided family. a dies leaving his brother ‘B’ and a daughter ‘C’. A’s share in the joint family property will pass to his brother ‘B’, the surviving coparcener and not to his daughter ‘C’. 2) Succession- Rules of succession applies to property held in absolute severalty by the last owner. Example- ‘A’ and ‘B’ are brothers but are separate. A dies leaving his brother ‘B’ and a daughter ‘C’. A’s property would on his death pass to his daughter as his heir and to his brother. Per Capita - Persons of same relationship to the deceased take per capita i.e. the estate of the deceased is divided into as many shares as the number of heirs each taking one share. Per Stirpes - Person who take per stipes, does not inherit in a individual capacity but as a representative of deceased ancestor.

Law relating to intestate succession among Hindu is governed by the Hindu Succession Act, 1956. The Act came into force on 17th June 1956. Section 6 of the Act does not interfere with the special rights of those who are members of Mitakashara coparcenary. However, it recognises the rights of certain preferential heirs to claim an interest in the property of deceased coparcener without abolishing joint family property that would have been allotted to such coparcener if a partition of the joint family property had taken place immediately before the death of coparcener. Intestate is a person deemed to die intestate in respect of property which s/he has not made a testamentary disposition capable of taking effect. [Section 3(g)] Heir means any person, male or female, who is entitled to succeed to the property of an intestate under this Act. [Section 3(f)] Before 2005 Amendment

Section 6 gave effect to the Rule of survivorship but if a female of class I heir was alive then the succession will take place according to the Act of 1956. [Only male lineal descendants were coparceners] Explanation 1 – Notional Partition1

F (1/3) [S1] (1/3x1/4 =1/12)

S2 (1/3)

D (No Share)

W1 (1/12)

S3 (1/12)

S4 (1/12)

S1 died therefore his interest in coparcenary property is 1/12; this share will be inherited by his wife & sons after his death. [S1 is assumed to be alive] Class I heir (schedule I) - 12 heirs [8 females & 4 males]

After 2005 Amendment Section 6 abolishes Rule of survivorship and makes notional partition compulsory. Daughter is allotted same share that is allotted to a son in the partition. [Daughter are too coparceners]. If partition is pending on 20th December 2004, then this section will apply. [Surendra Nath vs. Rajendra 2009 (1) HLR 105 (Jhar)] Notional Partition

“[ ]” – Deceased; F – Father; S – Son; D – Daughter; W- Wife/Widow; GFGrandfather and GM- Grandmother 1

F (1/4) D (1/4) [S1] (1/4x1/4 =1/16)

S2 (1/4) (1/4)

W1 (1/16)

S3 (1/16)

S4 (1/16)

S1 died therefore, his interest in coparcenary property will be 1/16. This share will succeed by his wife and sons. [S1 is assumed to be alive] This amended section 6 shall not apply to any partition which took place before 20th day of December 2004. [Sugalabai vs. Gundappa 2008 (1) HLR 359 (Kar) - vires of the amended section] Class I heir (amended schedule I) – 16 heirs [11 females & 5 males] Section 8 – Hindu male dying intestate [General Rules] Interest of such person shall devolve upon firstly, Class I heir; secondly, if no Class I heir is there then property will devolve upon Class II heir; thirdly, if no Class II heir is there then property devolves upon agnates and lastly, upon cognates.

Class I heir Deceased Son

Daughter

Widow

[S]

[S]D

[S]W

[SS]S

[SS]D

[SS]W

[D]S

[D]D

[DD]S

[DD]D [SD]D [DS]D

Class II heirs – 9 Entries Entry 1 – Father

Mother (M)

After 2005 amendment

Section 19 – If two or more heirs succeed together to the property of an intestate, they shall take the property, per capita and not per stirpes (unless contrary is provided) and as tenants-in-common. Section 9 – Class I heirs succeed simultaneously. However, they do not take equal shares. On failure of any such heir as specified in class I, the property devolves upon the enumerated heirs specified in class II; an heir in the first entry in class II is preferred upon the heirs of the second entry and so on. Heirs in single entry succeed simultaneously. Property that is subject to succession includes not only deceased’s interest in Joint family property but self-acquired property as well. [Harbans Singh vs. Tekanami Devi AIR 1990 Pat 26] Status of property acquired under section 8 by a son is separate property of the son not JFP vis-à-vis his sons. [Commissioner of Wealth Tax, Kanpur vs. Chander Sen (1986) 3 SCC 567] Section 10 – Distribution of Property among heirs in Class I of the schedule Rule 1 – Widow or if there are more than one widow, then all widows take one share each. E.g. 1:

Succession of F’s Property

Succession- W: 1/4 x 1/3 = 1/12;

S1: 1/4 x 1/3 = 1/12;

S2: 1/4 x 1/3 = 1/12

[GF]

[F] (Notional Partition1/4)

W

S1

S2

E.g. 2:

Succession of F’s Property

Succession- S1: 1/7 x 1/3 =1/21;

S2: 1/7 x 1/3 =1/21

W1: 1/7 x 1/3 x 1/4 = 1/84; W2: 1/84;

W3: 1/84;

W4; 1/84

1/21

[GF]

[F] (Notional Partition- 1/7)

W1

W2

W3

W4

S1

S2

E.g. 3 Succession of F’s Property (Before 2005) Succession- W: 1/3 x 1/3 =1/9; S1: 1/3 x 1/3 =1/9;

D: 1/3 x 1/3 = 1/9

[GF]

[F] (Notional Partition- 1/3)

W

S1

E.g. 4

D (no share in notional

partition)

Succession of F’s Property (after 2005)

Succession- W: 1/4 x 1/3 = 1/12; S1: 1/4 x 1/3 =1/12; D: 1/4 x 1/3 = 1/12

[GF]

[F] (Notional Partition1/4)

W

S1

D (will get a share in notional partition)

Wife of second marriage, entered into during the subsistence of first marriage, after the Act came into force, will not be entitled to inherit the property of the deceased spouse. Only the first wife would be entitled to inheritance. [Mallipeddy vs. Tulasamma AIR 2005 AP 221] Unchastity of a widow is not a disqualification under the Act. Therefore, the widow of coparcener who is found unchaste on the date of his demise is not disqualified to inherit his estate as a class I heir under the Act. [Narsimahulu vs. Manemma AIR (1988) AP 309] Remarriage of a widow is not a ground for divesting her of the estate inherited by her from her husband. [Cherotte Sugathan vs. Cherotte Bharathi AIR (2008) SC 1476] If the husband dies during pending divorce proceedings, the wife would not lose her rights to succeed to the husband’s property. [Thankam vs. Rajan AIR 1999 Ker 62] Conversion of a Hindu widow to another is not a ground for divesting her of property inherited by her from her husband. [section 26] The widow as class I heir in respect of the properties of her deceased husband and she takes her share absolutely and not as widow’s estate. Neither remarriage of the widow not conversion to another religion will be ground for divesting the estate inherited by her from her husband but also his interest in the coparcenary property. [Animuthu vs. Gandhiammal AIR 1977 Mad 372]

Rule 2- The surviving sons and daughters and the mother of the inestate shall take one share. In partition between F and his son, grandmother will not be entitled to a share.2 E.g. 1

Succession of F’s property (before 2005)

Succession- GM: 1/3 x 1/4 = 1/12; W: 1/3 x 1/4 = 1/12; S1: 1/3 x 1/4 =1/12; D: 1/3 x 1/4 = 1/12 GM

[GF]

[F] (Notional Partition- 1/3)

W

D (no share in notional partition)

S1

E.g. 2 Succession of F’s property (before 2005) Succession- W: 1/4 x ¼ = 1/16; S1: 1/4 x 1/4= 1/16; D: 1/4 x 1/4= 1/16 GM

[GF]

[F] (Notional Partition1/4)

W

S1

2

Mulla; Hindu Law; pg. 506; 21st Edition

D

Mother of deceased do not include step mother but she can be heir as father’s widow under Entry of Class II. Son includes both natural son and adopted son. [Sec 12 Hindu Adoption and Maintenance Act, 1956] Posthumous Child- A child of the intestate, wh was in the womb at the time of the death of the intestate though subsequently born, is to be deemed for the purpose of succession as if born before the death of the intestate. [Section 20] Illegitimate Child is not entitled to inherit the property male Hindu dying intestate.3 Child born of a void or voidable marriage is treated as if born out of lawful wedlock. Therefore, such child is entitled to succeed property his/her parents. [Sec 16 of Hindu Marriage Act, 1956] Daughter, married or unmarried, inherits simultaneously with a son and other class I heirs. Unchastity of a daughter is no ground for exclusion. [Sec 28] Daughter includes an adopted daughter [Sec 7 of Hindu Adoption and Maintenance Act, 1956] Unchastity of a mother is no bar to her for succeeding as heir to her son. [Jayalakshmi vs. Ganesh Iyer AIR 1972 Mad 357] Mother’s remarriage is no bar to her succeeding as heir to her son. [Mantorabai vs. Paratanbai AIR 1972 MP 145] Separated son- Son in class I of the schedule includes a son who had separated from the father as well as one who had continued to remain joint with the father.4 E.g. Succession of F’s Property S1- Separated himself from JHF but rest of family remain joint. Succession- W: 1/4 x ¼ = 1/16; S2: 1/4 x 1/4 = 1/16;

3 4

S1: 1/4 x 1/4 = 1/16

S3: 1/4 x 1/4 = 1/16

Mulla; Hindu Law; pg. 1126; 21st Edition Mulla; Hindu Law; pg. 1126; 21st Edition

[GF]

[F] (Notional Partition- 1/4)

W

S1 (Separated Sonno share in notional partition)

S2

S3

Rule 3- the heirs in the branch of each pre deceased son or each pre deceased daughter of intestate shall take between them one share. [Doctrine of representation] E.g.

Succession of F’s Property

Succession- W: 1/4; heirs of S1 i.e. W1, S3 & D2- together they will take 1/4; Heirs of D1 i.e. S & D- together they will take 1/4; S2: 1/4 [F]

W

[S1]

S2

W1

S3

[D]

S

D2

Rule 4- Distribution of the share referred to in Rule 3

D

a) 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. b) Heirs in the branch of the pre deceased daughter shall be so made that surviving son and daughter get equal portions. (Husband of pre deceased daughter will not get a share) In case of surviving heirs in branches of pre deceased sons and pre deceased daughter enumerated in class I property distribution is per stirpes wherein, division is according to stocks, that is, taking into consideration the share which pre deceased sons or daughter would themselves have taken if they had survived the propositus.5 E.g.

Succession of F’s Property

Succession- W: 1/4; S2: 1/4; Heirs of S1- W1: 1/4 x 1/3 = 1/12, S3: 1/4 x 1/3 = 1/12 & D2: 1/4 x 1/3= 1/12; Heirs of D1- S4: 1/4 x 1/2 = 1/8 & D3: 1/4 x 1/2 = 1/8 (Husband of D1no share)

[F]

W

[S1]

S2

W1

S3

[D1]

H

D2

S4

D3

A widow of pre deceased son or a widow of a pre deceased son is not entitled to succeed if, on the date the succession opens, she has remarried. [Sec 24]

5

Mulla; Hindu Law; pg. 1144; 21st Edition

In such a case a widow remarries after the succession has opened, she cannot be divested of the property due to remarriage. [Aruna vs. Madhava AIR 2005 Kant 422] Section 11- Heirs specified in any one entry in class II of the schedule shall take share equally. Entry 1- Father E.g. Succession of X’s property

F

S (sister of X)

[X]

B (Brother of X)

Father will succeed the property of X at the exclusion of S and B as only Father is specified as heir in Entry 1 of Class II. Father includes adoptive father. A father is not entitled to any interest by succession in the property of an illegitimate son.6

6

Mulla; Hindu Law; pg. 1134; 21st Edition