HINDU SUCCESSION ACT, 1956
[ 30 of 1956, dt. 17-6-1956]
An Act to amend and codify the
law relating to intestate succession among Hindus.
Be it enacted by Parliament in
the Seventh Year of the Republic of India as follows:-
HINDU
SUCCESSION ACT,1956
PRELIMINARY
(1) This Act
may be called the Hindu Succession Act, 1956.
(2) It
extends to the whole of India except the State of Jammu and Kashmir
.
(1) This Act
applies-
(a) to any person, who is a Hindu by religion
in any of its forms or developments including a Virashaiva, a Lingayat or
follower of the Brahmo, Prarthana or Arya Samaj;
(b)
to any
person who is Buddhist, Jaina or Sikh by religion; and
(c)
to any
other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any
such person would not have been governed by the Hindu Law or by any custom or
usage as part of that law in respect of any of the matters dealt with herein if
this Act had not been passed.
Explanation:
The following persons are Hindus, Buddhists,
Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, one
of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one
of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe,
community, group or family to which such parent belongs or belonged;
(c) any person who is convert or re-convert to
the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding
anything contained in sub-section (1) nothing contained in this Act shall apply
to the members of any Scheduled Tribe within the meaning of clause (25) of
article 366 of the Constitution unless the Central Government, by notification
in the Official Gazette, otherwise directs.
(3) The
expression "Hindu" in any portion of this Act shall be construed as
if it included a person who, though not a Hindu by religion, is, nevertheless,
a person to whom this Act applies by virtue of the provisions contained in this
section.
3. Definitions and interpretations
(1) In this Act, unless the
context otherwise requires-
(a) "agnate"- one person is said to
be an "agnate" of another if the two are related by blood or adoption
wholly through males;
(b) "Aliyasantana
law" means the system of law applicable to persons who, if this Act had
not been passed, would have been governed by the Madras Aliyasantana Act, 1949,
or by the customary Aliyasantana law with respect to the matters for which
provision is made in this Act;
(c) "cognate"-one person is said to
be a cognate of another if the two are related by blood or adoption but not wholly through males;
(d)
the
expressions "custom and "usage" signify any rule which having
been continuously and uniformly
observed for a long time, has obtained the force of law among Hindus in
any local area, tribe, community, group or family:
PROVIDED that the rule is
certain and not unreasonable or opposed to public policy:
PROVIDED FURTHER that in case
of a rule applicable only to a family it has not been discontinued by the family;
(e) "full blood", "half blood" and "uterine blood"-
(i) two
persons said to be related to each other by full blood when they are descended from a common
ancestor by the same wife, and by half blood when they are descended from a common
ancestor but by different wives;
(ii) two
persons are said to be related to each other by uterine blood when they
are descended from a common ancestress but by different husbands;
Explanation: In this clause
"ancestor" includes the father and "ancestress" the
mother,
(f)
"heir" means any person, male or female, who is entitled to succeed
to the property of an intestate under
this Act;
(g)
"intestate"
a person is deemed to die intestate in respect of property of which he or she
has not made a testamentary disposition capable of taking effect;
(h) "marumakkattayam
law" means the system of law applicable to persons-
(a) who,
if this Act had not been passed, would have been governed by the Madras
Marumakkattayam Act, 1932; the Travancore Nayar Act; the Travancore Ezhava Act;
the Travancore Nanjinad Vellala Act; the Travancore Kshatriya Act, the
Travancore Krishnanvaka Marumakkathayyee Acr; the Cochin Marumakkathayam Act;
or the Cochin Nayar Act with respect to the matters for which provision is made
in this Act; or
(b) who
belong to any community, the members of
which are largely domiciled in the State of Travancore - Cochin or
Madras [1][as
it existed immediately before the Ist
November, 1956,] and who, if this Act had not been passed, would have been
governed with respect to the matters for which provision is made in this Act by
any system of inheritance in which descent is traced through the female line;
but does not include the Aliyasantana
law;
(i)
"Nambudri
law" means the system of law applicable to persons who if this Act had not
been passed, would have been governed by the Madras Nambudri Act, 1932; the
Cochin Nambudri Act; or the Travancore Malayala Brahmin Act with respect to the
matters for which provision is made in this Act ;
(j)
"related
" 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 to one another; and any word expressing relationship
or denoting a relative shall be construed accordingly.
(2) In this Act, unless the context otherwise
requires, words imparting the masculine gender shall not be taken to include
females.
(1) Save as otherwise expressly provided in this Act ,-
(a) any text, rule or interpretation of Hindu
law or any custom or usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with respect to any matter
for which provision is made in this
Act;
(b) any other law in force immediately before
the commencement of this Act shall cease to apply to Hindus insofar as it is
inconsistent with any of the provisions
contained in this Act.
(2) For the removal of doubts it is hereby
declared that nothing contained in this Act shall be deemed to affect the
provisions of any law for the time being in force providing for the prevention
of fragmentation of agricultural holdings or for the fixation of ceilings or
for the devolution of tenancy rights in respect of such holdings.
COMMENTS
A
reading of s.4 makes it clear that provision in s.8 are to prevail over
principles of Hindu law. Applying the principle it comes to conclusion that a
son inheriting separate property of his father, separate property of the father
is his separate and individual property and not joint family property.- Addl.
Commissioner of Income Tax v. Karuppan Chettiar AIR 1979 Mad 1
As per
the language of s. 14 of the Hindu Succession Act, any property possessed by a female Hindu, shall be held
by her as full owner and not as a limited owner. By applying the provisions of
s.2 of the Hindu Widow's Remarriage Act,1856,a widow cannot be divested of the
property as then it would be an inconsistency with the provisions of this
Act.-AIR 1973 Pat.170
Where
the marriage of a widow took place prior to the coming into force of this Act,
as because of marriage her rights to property had already been lost ,provisions
of this Act did not apply.-Sankar
Prasad v. Usha Bala
AIR 1978 Cal. 525
Mode of
devolution as laid down under section 36(5) of the Madras Aliyasantana Act has
to give a way to what is laid down in s.8 of the Hindu Succession Act as regard
separate property and to s.7 (2) where the property is undivided interest-
Sundari v. Laxmi AIR 1980 SC 198
Prior
to the present Hindu Succession Act came into force, there was a custom
prevailing in Punjab, disentitling daughters to inherit. But now the legal position
different according to which where the last male holder died after the Act, the
previous law disentitling the daughters to succeed, is no more valid.- Manshan
v. Tejram AIR 1980 SC 558.
Act
being only of prospective nature so where the heir is not a limited owner, this
Act would in no way affect his succession; but it is essential that succession
should have taken place prior to the commencement of this Act.-Rameshwar v.
Hemant Kumar AIR 1985 Pat.168.
INTESTATE
SUCESSION
GENERAL
5. Act not to apply to
certain properties
This Act shall not
apply to -
(i) any property succession to which is regulated by the Indian
Succession Act, 1925 by reason of the provision contained in section 21 of the
Special Marriage Act, 1954.
(ii) any estate which descends to a single heir by
the terms of any covenant or agreement entered into by the Ruler of any Indian
State with the Government of India or by the terms of any enactment passed
before the commencement of this Act ;
(iii) the Valiamma Thampuran Kovilagam Estate
and the Palace Fund administered by the Palace Administration Board by reason
of the powers conferred by Proclamation (IX of 1124) dated 29th June, 1949, promulgated by the Maharaja of
Cochin.
COMMENTS
Where the
son is brought up a Hindu, the Act in no way puts obstacle before the son being
treated as member of the Hindu undivided family.-Maneka Gandhi v. Indira
Gandhi AIR 1985 Del 114
6. Devolution of interest of coparcenary property
When a
male Hindu dies after the commencement of this Act, having at the time of his
death an interest in Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act:
PROVIDED
that, if the deceased had left him surviving a female relative specified in
class I of the Schedule or a male relative specified in that class who claims through such female relative,
the interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship.
Explanation
I: For
the purposes of this section, the interest of Hindu Mitakshara coparcener shall
be deemed to be the share in the property that would have been allotted to him
if a partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.
Explanation
2:
Nothing contained in the proviso to this section shall be construed as
enabling a person who has separated himself from the coparcenary before the
death of the deceased or any of his heirs to claim on intestacy a share in the
interest referred to therein.
COMMENTS
Property
that is in the hands of the son can not amount to coparcenary property, the
reason behind being that nature and character of ancestral property as far as
Mitakshara law is concerned is completely abrogated- Malchand Thirani &
Sons v. CIT 1980 (121) ITR 976
In
order to ascertain the nature of property within the meaning of s.6 relevant
date is the date on which the father acquired the property whether by
succession or by dissolution-Ram Singh v. Badhu Sen AIR 1981 All 126.
Where
the separate property it got by the father in partition with his sons; the
property is not to be taken as coparcenary property in the hands of father. On
father becoming dead each son takes as a tenant-in-common and not as joint
tenant-Satya Narayana v. Rameshwer AIR
1982 Pat 44.
In the
case, actual partition takes place, share of the person, widow or the mother,
entitled is to be consider so as to ascertain the share of the deceased
coparcener.-Viruprakash v.Bole dawwa 1981 (1) Kar LJ 433
Share
of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the
partition which has taken place during the life time of the deceased. The
allotment of his share is not a processual step devised merely for the purpose
of working out some other conclusion. Heir will get his or her shall in the
interest which the deceased had in the coparcenary property at the time of his
death, in addition to the share which he or she received or must be deemed to
have received in the rational partition-Gurupada v.Heera Bai AIR 1978 SC 1239
Where
upon the partition taking place, the widowed mother is allotted a share, she
cannot be deprived of her right to inheritance on the death of the son. She is
entitled to have a share in the interest of the son in the co-parcenary
property-Savitri v. Devaki AIR 1982 Kar
67
7. Devolution
of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom
(1) When a Hindu to whom the marumakkattayam
or nambudri law would have applied if this Act had not been passed dies after
the commencement of this Act, having at the time of his or her death an
interest in the property of a tarwad, tavazhi or illom, as the case may be, his
or her interest in the property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not according to the
marumkkattayam or numbudri law.
Explanation: For the purposes of this
sub-section, the interest of a Hindu in the property of a tarwad, tavazhi or
illom shall be deemed to be the share in the property of tarwad, tavazhi or
illom , as the case may be, that would have fallen to him or her if a partition
of that property per capita had been made immediately before his or her death
among all the members of tarwad, tavazhi or illom, as the case may be, then
living whether he or she was entitled to claim such partition or not under the
marumakkattayam or nambudri law applicable to him or her, and such share shall
be deemed to have been allotted to him or her absolutely.
(2) When a Hindu to whom the aliyasantana law
would have applied if this Act had not been passed, dies after the commencement
of this Act, having at the time of his or her death an undivided interest in
the property of a kutumba or kavaru, as the case may be his or her interest in
the property shall devolve by testamentary or intestate succession, as the case
may be, under this Act and not according to the aliyasantana law.
Explanation: For the purposes of this sub-section, the interest of a Hindu in
the property of kutumba or kavaru shall be deemed to be the share in the
property of the kutumba or kavaru as the case may be, that would have fallen to
him or her if a partition of that property per capita had been made immediately
before his or her death among all the members of the kutumba or kavaru, as the
case may be, then living, whether he or she was entitled to claim such
partition or not under the aliyasantana law, and such share shall be deemed to
have been allotted to him or her absolutely.
(3) Notwithstanding anything contained in
sub-section (1), when a sthanamdar dies after the commencement of this Act,
sthanam property held by him shall devolve upon the members of the family to
which the sthanamdar belonged and the heirs of the sthanamdar as if the sthanam
property had been divided per capita immediately before the death of the
sthanamdar among himself and all the members of his family then living, and the
shares falling to the members of his family and the heirs of the sthanamdar
shall be held by them as their separate property.
Explanation: For the purposes
of this sub-section, the family of a sthanamdar shall include every branch of
that family, whether divided or undivided, the male members of which would have
been entitled by any custom or usage to succeed to the position of sthanamdar
if this Act had not been passed.
COMMENTS
The
mode of devolution which s.36 (5) of the Aliyasanthana Act prescribes has to give
way to the provisions of s.8 of the Hindu Succession Act prescribing a
different mode of succession.-Ramanaraj v. Jagannath AIR 1982 Kar 270
Devolution
of the undivided interest of the deceased or the separate property of the
deceased is to be in accordance with the s.7 (2) and s.17 of the Hindu Succession Act only.- Ramanaraj v.
Jagannath AIR 1982 Kar 270
8. General rules of succession
in the case of males.
The
property of a male Hindu dying intestate shall devolve according to the provisions
of this Chapter-
(a) firstly, upon the heirs, being the
relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I,
then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of two
classes, then upon the agnates of the deceased; and
(d) lastly , if there is no agnate, then upon
the cognates of the deceased.
COMMENTS
Subsequent
to the compromises decree, property would revert back to the estate of the
donor after his lifetime, and it is the Hindu Succession Act that is to govern
the succession to the property.-Maushan v. Taj Ram AIR 1980 SC 558
Where a
partition of a joint family property takes place and a separate share is given
to the mother, then in the case of death of one of the sons the mother would be
entitled to have a share in the separate property of her son. Fact that earlier
when the partition took place she was given a share would not place any
bar.-Savitri v. Devaki AIR 1982 Kar. 67
In the
case of a Hindu male governed by Mitakshara under s.8 of the Act, the property
that devolves on him will be his separate property. Such a property would never
amount to join family property in his hands as against his son.-Yudhishtir v.
Ashok Kumar AIR 1987 SC 558
In case
the widow remarries, she would not be divested of the property inherited by her
simply on account of her remarrying.-Udham Kaur v. Harbans 1983 HLR 579
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.
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 insteatate 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 pre-deceased son shall be so
made that his widow (or widow together) and the surviving sons and daughters
get 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.
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.
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:
Rule1-Of two
heirs, the one who has fewer or no degrees of ascent is preferred.
Rule2- Where the
number of degrees of ascent is the same or none, that
heir is preferred who has fewer
or no degrees of descent.
Rule3- Where neither heirs is
entitled to be preferred to the other Rule 1 or Rule 2 they take
simultaneously.
(1) For the purposes of determining the order
of succession among agnates or
cognates, relationship shall be
reckoned from the intestate to the heir in terms of degrees or ascent or
degrees of descent or both, as the case
may be
(1)
Degrees
of ascent and degrees of descent shall be computed inclusive of the intestate
(3) Every generation constitutes a degree
either ascending or descending.
14. Property of a female Hindu to be her absolute
property
(1) Any property possessed by a female Hindu,
whether acquired before or after the commencement of this Act, shall be held by
her as full owner thereof and not as a limited owner.
Explanation:- In this
sub-section "property" includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at a partition, or in
lieu of maintenance or arrears of maintenance, or by gift from any person,
whether a relative or not, before, at or after her marriage, or by her own
skill or exertion, or by purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as stridhana immediately
before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall
apply to any property acquired by way
of gift or under a will or any other instrument or under a decree or order of a
civil court or under an award where the terms of the gift, will or other
instrument or the decree, order or award prescribe a restricted estate in such
property.
COMMENTS
This
section recognises equality of sexes and elevates the women from subservient
position in the field of economy to a
higher pedestal. Now the women can enjoy and have full powers as regards
disposal of property held by them. They are to be taken as owners without
putting any artifical limitations on their right of ownership.- Bai Vijaya v. Thakuribai
Chela Bhai AIR 1979 SC 993
Where
the death of the husband took place in the year 1936, before the Hindu Women's
Right to Property Act came into force, as at that time only right of
maintenance was conferred upon the widow, there would not be any application of
s.14 (1)- Suraj Mul v. Babulal AIR 1985 Del 95
Besides
possessing an existing right of maintenance, a woman in the Hindu family is
also conferred right in the family property. It cannot be said that partition
deed is something creating a new right in her in so far as the property is
concerned; nor it amounts to acquiring of the property by her by virtue of
partition deed when the facts are so, there would be the application of sub-s.
(1) of s.14 and not of sub-s.(2) of the said section.-Tulasamma v. Seshareddi
AIR 1977 SC 1944
Where
the property is acquired by the Hindu female under a written instrument or
decree and such acquisition is not traceable to any antecedent title, there
would be the application of sub-s. (2) and when antecedent title is traceable,
a document like will is of no consequence and sub s. (1) would come into
operation-Jaswant Kaur v. Majid Harpal Singh 1990(1) MLJ SC 1.
In the
instant case mutation took place and the records showed as widow of the last
male holder. When present Hindu Succession Act came into force, collaterals
raised the contention that mutation was without any right in the property and
the collaterals had the right in the property it was held that as s.14 (1)
conferred absolute right on the widow, collaterals had nothing to
say.-Bishwanath Pandey v. Badami Kaur
AIR 1980 SC 1329
Application
of the provision of s. 14 (2) is confined to causes where on account of some
grant or disposition, a right is conferred with certain restrictions on the
widow for the first time and not in recognition of any pre-existing
right-Abirami v. Mathuram 1984 (2) MLJ 391
Where a
stipulation in the will suggested the wife to enjoy the property for her life
and thereafter the property had to revert back to the successors of the
testator, it was held that the widow had an absolute estate and there was the
application of s. 14 (1) Pritam Singh v. Bachan Kaur AIR 1985 Punj 4
Where
the Hindu female in possession of the property of her husband becomes absolute
owner and the property is subsequently sold by her, the purchaser would get
absolute right in the property despite the fact that there was no such
necessity or benefit before the family requiring the disposal.-Veerangowda v.
Basant Gowda 1981(2) Kar
LJ 385
15. General rules of succession in the case
of female Hindus
(1) The property of a female Hindu dying
intestate shall devolve according to the rules set out in section 16:
(a) firstly, upon the sons and daughters
(including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father;
and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in
sub-section (1)-
(a) any property inherited by a female Hindu
from her father or mother shall devolve, in the absence of any son or daughter
of the deceased (including the children of any pre-deceased son or daughter)
not upon the other heirs referred to in sub-section (1) in the order specified
therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu
from her husband or from her father-in-law shall devolve, in the absence of any
son or daughter of the deceased (including the children of any pre-deceased son
or daughter) not upon the other heirs referred to in sub-section (1) in the
order specified therein, but upon the heirs of the husband.
COMMENTS
Within
the expression " son and daughter" there is no inclusion of step-son
and step daughter.-Visalakshi v. Chelliah Pillai 1988 (2) MLJ 511
Clause
(a) of the sub s. (1) does not include the widow of a predeceased son and the
husband of a predeceased daughter in the category of heirs. On the death of a
female intestate, the daughter of the predeceased son is given the preference
over the sister of her husband.-Mohindero v. Kartar Singh AIR 1991 SC 257.
16. Order of succession and manner of
distribution among heirs of a female Hindu
The
order of succession among the heirs referred to in section 15 shall be, and the
distribution of the intestate's property among those heirs shall take place,
according to the following rules, namely:-
Rule 1-
Among the heirs specified in sub-section (1) of section 15, those in one entry
shall be preferred to those in any succeeding entry and those including in the
same entry shall take simultaneously.
Rule 2-
If any son or daughter of the intestate had pre-deceased the intestate leaving
his or her own children alive at the time of the intestate's death, the
children of such son or daughter shall take between them the share which such
son or daughter would have taken if living at the intestate's death.
Rule 3-
The devolution of the property of the intestate on the heirs referred to in
clauses (b), (d) and (e) of sub-section (1) and in sub section (2) of section
15 shall be in the same order and according to the same rules as would have
applied if the property had been the father's or the mother's or the husband's
as the case may be, and such person had died intestate in respect thereof
immediately after the intestate's death.
COMMENTS
Where
there was the pendency of the suit filed by a female Hindu against the family
of her father for the partition of the family property but the female filling
the suit died issueless, her husband was not granted permission to enter as her
legal representative for the fact that the property devolved upon the father of
the deceased under s. 15 (2) (a)- Raghuvar v. Jhaniki Prasad AIR 1981 MP 39
17 Special provisions respecting persons governed by Marumakkattayam
and Aliyasantana laws
The
provisions of section 8,10,15 and 23 shall have effect in relation to persons
who would have been governed by the marumakkattayam law or aliyasantana law if
this Act had not been passed as if-
(i)
for
sub-clauses (c) and (d) of section 8, the following had been substituted
namely:-
"(c) thirdly,
if there is no heir of any of the two clauses, then upon is relatives, whether agnates or cognates”;
(ii) for clauses (a) to (e) of sub section
(1)of section 15, the following had been substituted namely:-
(a) “firstly, upon the sons and daughters
(including the children of any predeceased son or daughter) and the mother ;
(b) secondly, upon the father and the husband;
(c) thirdly, upon the heirs of the mother;
(d) fourthly, upon the heirs of the father;
and
(e) lastly, upon the heirs of the husband";
(iii) clause (a) of sub-section (2) of section
15 had been omitted;
(iv) section 23 had been omitted.
GENERAL PROVISIONS RELATING TO
SUCCESSION
18. Full blood preferred to half blood
Heirs
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.
COMMENTS
Brothers
and sisters, when some of them are son of the same mother as that of the
intestate and some not, may be related by full blood while some by half blood.
When that is so, heirs by full blood exclude the heirs by half blood.-
Narayanan v. Pushparajini AIR 1991 Ker 10
19. Mode of succession of two or more heirs
If two
or more heirs succeed together to the property of an intestate, they shall take
the property-
(a) save as otherwise expressly provided in
this Act, per capita and not per stripes; and
(b) as tenants-in- common and not as joint
tenants.
COMMENTS
Upon
the death of the father leaving behind his son, widow and a daughter, all of
them would take as tenant-in-common in the joint family property. Son, in spite
of the fact, that is the karta of the family would not be having any right to
alienate the property and where the alienation takes place that would not be
binding value upon the widow and the daughter.- Usha Singh v. Virendra Kumar
1981 (7) All LR 364
A child
who was in the womb at the time of death of an intestate and who is
subsequently born alive has 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.
21. Presumption in cases of
simultaneous deaths
Where
two persons have died in circumstances rendering it uncertain whether either of
them, and if so which, survived the other, then for all purposes affecting
succession to property, it shall be presumed, until the contrary is proved,
that the younger survived the elder.
22. Preferential right to acquire property in
certain cases
(1) Where, after the commencement of this Act,
interest in any immovable property of
an intestate, or in any business carried on by him or her, whether solely or in
conjunction with others, devolve upon to two or more heirs specified in class I
of the Schedule, and any one of such heirs proposes to transfer his or her
interest in the property or business, the other heirs shall have a preferential
right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest
in the property of the deceased may be transferred under this sub section
shall, in the absence of any agreement between the parties, be determined by
the court on application being made to it in this behalf, and if any person
proposing to acquire the interest is not willing to acquire it for the
consideration so determined, such person shall be liable to pay all costs of or
incident to the application.
(2)
If
there are two or more heirs specified in class I of the Schedule proposing to
acquire any interest under this section, that heir who offers the highest
consideration for the transfer shall be preferred.
Explanation:- In this
section,"court" means the court within the limits of whose
jurisdiction the immovable property is situate or the business is carried on,
and includes any other court which the State Government may, by notification in
the Official Gazette, specify in this behalf.
COMMENTS
Agricultural
land is excluded from the expression "immovable property" as used in
this section therefore the preferential right is confined only to the business
and to the immovable property of the kind which does not include agricultural
lands.-Jeewanram v. Lichmadevi AIR 1981 Raj 16. An application for fixing the
consideration can not be maintained after the transfer is given effect, that is
different thing that application is permitted to be converted into a
suit.-Ghewari Wala Jain v. Hanuman Prasad AIR 1981 MP 250. Where an application
is moved under this section and a decision taken thereupon, there is no
provision for appeal either under this section or some where else under this
Act. The decision taken as such is not a decree so as to prefer an appeal. Even order 43 rule 1 of CPC does not make
it an appealable order-Tarakadas Ghosh v. Sunil Kumar Ghosh AIR 1980 Cal 53
23. Special provision respecting dwelling
houses
Where a
Hindu intestate has left surviving him or her both male and female heirs
specified in class I of the Schedule and his or her property includes a
dwelling house wholly occupied by members of his or her family, then,
notwithstanding anything contained in this Act, the right of any such female
heir to claim partition of the dwelling-house shall not arise until the male
heirs choose to divide their respective shares
therein; but the female heir shall be entitled to a right of residence
therein:
PROVIDED
that where such female heir is a daughter, she shall be entitled to a right of
residence in the dwelling house only if she is unmarried or has been deserted
by or has separated from her husband or is a widow.
COMMENTS
Selling
of half share by sole male heir is an indication of his desire to partition and there cannot operate any restriction
on the female heirs.-Mooka Ammal v. Chitradeva Ammal 1980 HLR 353
24. Certain widows remarrying 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 predeceased son 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.
COMMENTS
Where
on the date the succession opens, the widow is not remarried, she would succeed
to the property. But the fact of her remarriage after the succession opens
would not disentitle her to the property for the fact that s.14 would have
conferred on absolute right in the property so taken by the widow.-Chanda v.
Khusala AIR 1983 Patna 33
A
person who commits murder or abets the commission of murder shall be
disqualified from inheriting the property of the person murdered, or any other
property in furtherance of the succession to which he or she committed or
abetted the commission of the murder.
COMMENTS
Even
though conviction is within the meaning of s. 304 IPC there is a bar for the
person convicted and he would be disentitled to inherit.-Biro v. Banta Singh
AIR 1980 Punj 164
26. Convert's descendants disqualified
Where,
before or after the commencement of this Act, a Hindu has ceased or ceases to
be Hindu by conversion to another religion, children born to him or her after
such conversion and their descendants shall be disqualified from inheriting the
property of any of their Hindu relatives, unless such children or descendants
are Hindus at the time when the succession opens.
27 Succession when heir
disqualified
If any
person is disqualified from inheriting any property under this Act, it shall
devolve as if such person had died before the intestate.
28 Disease, defect etc. not to
disqualify
No
person shall be disqualified from succeeding to any property on the ground of
any disease, defects or deformity, or save as provided in this Act, on any
other ground whatsoever.
ESCHEAT
28.
Failure of
heirs
If an
intestate has left no heir qualified to succeed to his or her property in
accordance with the provisions of this Act, such property shall devolve on the
government; and the government shall take the property subject to all the obligations
and liabilities to which an heir would have been subjected.
TESTAMENTARY
SUCCESSION
1[***] Any Hindu may dispose of
by will or other testamentary disposition any property, which is capable of
being so disposed of by him, in accordance with the provisions of the Indian
Succession Act, 1925, or any other law for the time being in force and
applicable to Hindus.
Explanation:-
The interest of a male Hindu in a Mitakshara coparcenary property or the interest
of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of
the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything
contained in this Act or in any other law for the time being in force, be
deemed to be property capable of being disposed of by him or by her within the
meaning of this 2 [section]
3[***]
REPEAL
[Rep. By Repealing
and Amending Act, 1960 (58 of 1960)]
[Section 8]
HEIRS IN CLASS I AND CLASS II
CLASS I
Son; daughter;
widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son
of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a
pre-deceased son; son of a pre-deceased son of a pre-deceased son, daughter of
a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a
pre-deceased son.
CLASS II
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. Father's father; father's mother.
VI. Father's widow; brother's widow.
VII. Father's brother; fathers' sister.
VIII. Mother's father; mother's mother.
IX. Mother's brother,
mother's sister.
Explanation:-
In this Schedule, reference to a brother or sister do not include reference to
a brother or sister by uterine blood.