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This article is written by Shobhit Singhal. In this article, the author explains types of succession, property subject to intestate succession and the laws of inheritance under Hindu Law.

Introduction

Succession (though not defined anywhere in the statutory law) is the transmission of rights and obligation in an estate, of a deceased person to his heir or heirs, The Louisiana civil code defines it as the process by which the heirs take the estate of the deceased, in other words, it is the right of a legal heir to step into the shoes of the deceased, with respect of possession control, enjoyment, administration, and settlement of all the latter’s property, rights, obligations, charges, etc. Therefore in a nutshell, succession is a process of devolution of interest in a property (movable or immovable) from a deceased to its legal heirs or representative. 

It is important to analyse at this juncture the relationship between succession and inheritance, though both of them may seem to be very similar, there is a fundamental difference between the two. Succession, as explained and stated above, is nothing but the devolution of interest in the property of the deceased, whereas inheritance is an automatic process of devolution of property of the deceased to the people related to the deceased by virtue of blood, marriage or adoption. For instance, a person has acquired the interest in the property by the virtue of a will, the devolution of that interest cannot be said to be an inheritance but a succession, on the other hand, X dies leaving behind a son Y the devolution of interest in a property from X to Y is inheritance. Therefore, it will not be incorrect to say that inheritance is a subset of succession./Therefore, it can be safely stated that inheritance is a subset of succession.

Types of Succession

Succession can  primarily be divided into two parts based on the existence of a testament or will to that effect:

Testamentary Succession

When the succession is governed by a testament or will, it is called a testamentary succession. Thus,  if a person dies leaving behind a will in favour of anyone, the property shall devolve (upon his death) in accordance to the instructions given in the will and not by the rules of inheritance. Provided that the will or testament is valid and capable of taking effect in accordance with the law in force. The person making the will is called a testator and the person or entity in whose favour the will is created is called a legatee.

Intestate Succession

In situations wherein a person dies leaving behind a property but without leaving a will or a testament or any instruction concerning its distribution that is capable of taking effect in accordance with the law in force, the said property will be distributed to its legal heirs by the rules of inheritance. This kind of devolution wherein the property is devolved and distributed by the rules of inheritance is called intestate succession.

Property subject to the rules of intestate succession 

The scheme of intestate succession applies to the following property of a male intestate, one rudimentary condition for the application of intestate laws  (as stated above)is that the property should not have been disposed of by a will or testament.

Self-Acquired Property

Self-acquired property has a wide ambit and covers any property which the deceased has not only earned from his salary or earning but also any property he might have received in a form gift or by a virtue of a will. It is irrespective of the fact whether at the time of his death the deceased was a member of an undivided family or not as the deceased has an absolute and exclusive right on his self-acquired property.

Property held by Sole Surviving Coparcener

Though generally, the interest in a joint family property of a mitakshara coparcenary does not go by intestate succession but if there is only one coparcener surviving then the joint family property in the hands of the surviving coparcener, after his death shall devolve by rules of inheritance and not by survivorship.

Share obtain on Partition

When a partition of a joint family takes place, each member holds his share as his exclusive property, such property (in the hands of the partitioned members) in the absence of his male issues shall devolve by the rules of inheritance. 

Undivided share in Dayabhaga joint family 

An undivided share in the Dayabhaga family would be subjected to section 8 of the succession act and will devolve by the rules of inheritance.

Undivided share in Mitakshara coparcenary

The Hindu succession act introduced some major changes in the devolution of interest in Mitakshara coparcenary, therefore when any male dies as a member of the Mitakshara coparcenary, his undivided share in consonance with section 6 will be demarcated by a notional partition and will devolve by the rules of inheritance.

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Law governing the rules of Inheritance among Hindus

As stated above the rules of inheritance are those which govern the devolution of property on the death of a person solely on account of relation with his heirs, as per Hindu tenets the Hindu joint family comes first in the line of historic order when it comes to the scheme of inheritance. The concept of a joint family was somewhat similar to that of a corporate body and the tendency was to sink the individuals in the family. Further, the said regime was primarily based on spiritual efficacy and natural love and affection rather than scientific or rational rules. Other rules pertaining to stridhan (women’s property) and partial recognition to the status of women in property matters were ancient and medieval and required a major look through, and consequently the Hindu Succession Act, 1956 was enacted. 

The Hindu Succession Act 1956 came into force on June 17, 1956, with the primary purpose to amend, codify and consolidate the law relating to intestate succession among Hindus. It brought about some radical and fundamental change in the law governing Hindu succession. The act abrogates all the rules (having the force of law) of succession whether by text or practice applicable to Hindus and supersedes all other laws contained in any central or state legislatures pertaining to Hindu succession. The act provided a comprehensive scheme of inheritance that will be applicable to people governed by both Mitakshara and Dayabhaga school. It shall further be applicable to any person Hindu by religion in any form or development including those who have deviated from the orthodox standard of Hindus and also to converts and reconverts of this religion. Buddhist Jains and Sikhs are also within the ambit of this act and so are their converts and reconverts.

Arrangement of succession and Scheme of inheritance and as per Hindu Succession Act, 1956

The act lays down a set of general rules for the devolution of property of a male Hindu and also specifies the rules governing the determination of shares and portions of various heirs. It provides for separate general rules for the devolution of property of a female dying intestate. The said act is exhaustive and its latter part covers all the exceptions, disqualifications, and special circumstances. The below-given table explains the arrangement of sections in the act: 

Provision Of Succession

Dealt Under

Male intestate succession

Section 8-13

Female intestate succession

Section 15-16

Modification and changes in general rule

Section 17

Other supplementary provision

Section 18-28

Category of heirs

Schedule I

Succession of a property of a Male Intestate

All the heirs either related by blood, marriage or adoption are divided into four classes or categories this categorization is primarily based on propinquity in the relationship of the heir with the deceased, though other factors like natural love and affection are also taken into consideration. Further, the rule of agnate over cognate has been retained from the earlier regime.

Rules for devolution of property of a Male Intestate

On the death of an intestate, the property shall first devolve to class I heirs, as long as a single class I heir is present, the property will not go to heirs in class II category. In the absence of a class II heir category, the property shall devolve upon heirs in class III or agnates which primarily comprises the leftover heir who are blood relatives of the intestate related to him through a whole male chain of relatives. If in case there is no heir present in class III, the interest in the property shall devolve upon any other blood relative of the intestate.

It is significant to note that the provisions of the act or any schedule to that effect does not put a full stop so far as the heirs are concerned, hence in absence of a near relative a person may be eligible to inherit its property. If he can trace his blood relation to the deceased however distant he or she may be. This was a significant change as in the old regime before this act only four generations were recognized but now the limitation on the degree has been removed.

Class I Heirs

Class I heirs comprises people to whom the interest in the property shall devolve in the first instance upon the death of the intestate. The category contains eleven female members and five male members. All the class I heirs take the property absolutely and exclusively as their separate property, further unlike the old joint family regime no person can claim a right by birth in this inherited property.

The following heirs find a place in Class I:

  • Mother [M]
  • Widow [W]
  • Daughter [D]
  • Widow of a predeceased son [SW]
  • Daughter of a predeceased son [SD]
  • Daughter of a predeceased daughter [DD]
  • Daughter of a predeceased son of a predeceased son [SSD]
  • Widow of a predeceased son of a predeceased son [SSW]
  • Son [S]
  • Son of a predeceased son [SS]
  • Son of a predeceased son of a predeceased son [SSS]
  • Son of a predeceased daughter [DS]
  • Daughter of a predeceased daughter of a predeceased daughter [DDD]
  • Son of a predeceased daughter of a predeceased daughter [DDS]
  • Daughter of a predeceased daughter of a predeceased son [SDD]
  • Daughter of a predeceased son of a predeceased daughter [DSD]

The below-given figure shows all the class I heirs of the deceased (A) and explains their relationship with the deceased:

Rules governing the distribution of interest among class I heirs

Section 10 elaborately defines the rules pertaining to the division of interest among the class I heirs. Following are the rules governing the division of interest among class I heirs 

  1. The share of each son and daughter and that of the mother shall be equal. 
  2. The widow of the deceased shall take one share and if there is more than one widow all of them, collectively take one share i.e., the share equal to the son or daughter and will divide it equally among themselves.
  3. A predeceased son survived by a widow or son or daughter shall be allotted a share equal to a living son. 
  4. Out of the portion allotted to the predeceased son his widow and living sons and daughters will take equal portions with respect to each other. Any branch of the predeceased son of this predeceased son will get an equal portion. 
  5. The rule applicable to the branch of predeceased son of the predeceased son is the same as of predeceased son wherein son, daughter and widow will get an equal share.
  6. A predeceased daughter who is survived by a son or a daughter is to be allotted an equal share to that of a living daughter.
  7. The son and daughter of the predeceased daughter shall take an equal portion in the share. The same rule shall apply to any branches of a predeceased daughter of a predeceased daughter.

Class II heirs

In case wherein a male Hindu dies, unmarried, and is not survived by any class I heir, the property shall devolve among class II heirs. The second class of heirs comprises 19 heirs out of which ten are males and nine are females; these heirs are further divided into nine subcategories. The under given table depicts the classification of class II heirs into various subcategories categories:

Subcategory

List of Heirs

Subcategory I

Father 

Subcategory II

  • Son’s daughter’s son
  • brother, 
  • sister

Subcategory III

Daughter son’s son

Subcategory IV

  • Brother’s son
  • Sister’s son  
  • Brother’s daughter 
  • Sister’s daughter 

Subcategory V

  • Father’s father
  • Father’s mother  

Subcategory VI

  • Father’s widow 
  • Brother’s widow 

Subcategory VII

  • Father’s brother 
  • Father’s sister 

Subcategory VIII

  • Mother’s father 
  • Mother’s mother 

Subcategory IX

  • Mother’s brother 
  • Mother’s sister 

 

Rules of distribution and Preference of interest among class II heirs 

The division of interest among the class II heirs is primarily governed by two rudimentary principles:

  1. The heirs in a higher subcategory will exclude the heirs in the lower subcategory. For instance, the heirs in the first subcategory will have preference over the heirs in the second subcategory, the second one will have preference over the third and so on.
  2. All the heirs in one category shall take the property equally according to per capita rule of distribution of property, the order in which the name appears in a subcategory is irrelevant.

Class III heirs or agnates 

Class III heirs or agnates inherit the property in the absence of class I or class II heirs. An agnate under class III category is a person who is related to the intestate through the line of male relatives only and does not find a place in class I or class II category of heirs, it is also significant to note that an agnate can be male or female as it is the sex of the relative and not the sex of the heir that is material. An agnate can be a direct ascendant or descendant, or a collateral with no limitation of a degree from the deceased.

The rule of preference and division of interest among agnates

For the computation of the degree of relationship and to ascertain the preferences the following rules shall be taken into consideration:

  1. Each generation is called a degree, and for computation of degree, the first degrees is the intestate itself. 
  2. Degree of ascent means upward or ancestral degree and degree of descent means downward or descendant degree.
  3. Where an heir has both ascent and descent degree both degrees shall be taken separately, and not cumulatively.
  4.  An agnate of only descent is preferred over ascent irrespective of the number of degrees (or generation).
  5. When two agnants have both ascent and descent degree, the one with fewer no of ascent degrees will be preferred.

Class IV category or cognates 

The last category includes the rest of the heirs of the intestate who do not find a place in the above three classes. A cognate is an heir who was related to the heir through a mixed chain of relatives in the term of sex. Further,if a single female intervenes between an heir and the intestate then also it is a cognatic chain.

Cognates inherit when none of the class I or class II or the entire category of agnates are present. The rule pertaining to computation of degree and ascertainment of preferences is the same as in the case of agnates.

Doctrine of Escheat 

If none of the class I or class II or agnate or cognate is present the property of the intestate will devolve into the government by the virtue of the doctrine of escheat.


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