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Published : January 27, 2012 | Author : shahistapathan
Category : family law | Total Views : 18262 | Rating :

  
shahistapathan
I am Shahista Musa Pathan. I am studing in Third Year of Five Year Law course, at Ismailsaheb Mulla Law College, Satara.
 

 “Succession to the property of a Hindu Male”

The Hindu Succession Act, 1956, is a law that was passed by the ‘Parliament of India’. The preamble of the Act signifies that an Act to amend and codify the law relating to intestate succession among Hindus. The Act lays down a uniform and comprehensive system of succession whereas attempt has been made to ensure equality inheritance rights between sons and daughters. It applies to all Hindus including Buddhists Jains and Sikhs. The Hindu Succession Act, 1956 preserves the dual mode of devolution of property under the Mitakshara School. The joint family still devolves by Survivorship with this important exception that if a Mitakshara Coparcener dies leaving behind mother, widow, daughter, daughter’s daughter, son’s daughter, son’s son’s daughter, son’s widow, son’s son’s widow, or daughter’s son his interest in the joint family property will devolve by succession.

Succession to the property of a Hindu Male
The Hindu Succession Act, 1956 deals with the inheritance to
a) The separate properties of a Mitakshara male,
b) The separate and coparceners properties of a Dayabhaga male, and
c) The undivided interest in the joint family property of a Mitakshara Coparcener.

The Act does not apply to the property of a Hindu who is married under the Special Marriage Act to a non -Hindu.

Heirs of a Hindu Male

The heirs of Hindu male fall under the following categories:-
1) Class I heirs,
2) Class II heirs,
3) Agnates,
4) Cognates, and
5) Government.

Class I heirs:-

The property of a Hindu Male dying intestate would be given first to heirs within Class I. They are:
i. Mother,
ii. Widow,
iii. Daughter,
iv. Son,
v. Widow of a predeceased son,
vi. Son of a predeceased son,
vii. Daughter of a predeceased son,
viii. Widow of a predeceased son of a predeceased son,
ix. Daughter of a predeceased son of a predeceased son,
x. Son of a predeceased son of a predeceased son,
xi. Daughter of a predeceased daughter, and
xii. Son of a predeceased daughter.

Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are:

i. Son of a predeceased daughter of a predeceased daughter,
ii. Daughter of a predeceased daughter of a predeceased daughter,
iii. Daughter of a predeceased son of a predeceased daughter, and
iv. Daughter of a predeceased daughter of a predeceased son.

Shares of Class I heirs :

Section 10, Hindu Succession Act deals with the distribution of the property of the propositus, among class I heirs. The rules are:

A.] Sons, daughters and the mother of the propositus each take one share.
For example:-
If ‘P’ dies leaving behind his Mother ‘M’, two sons S1 and S2 and two
Daughters D1 and D2, each of the above heirs will take one share, i.e., 1/5th
-‘M’ will take 1/5th ;
- D1 and D2 each will also take 1/5th &
- S1 and S2 each will take one fifth.

B.] Widow takes1 share. If there are more than one widow, all of them together take one
Share and among themselves they divide it equally.
For example:-
‘P’ dies leaving behind a widow, ‘W’ and three daughters ‘D’, ‘D1’, and
‘D2’. Here each will take one share, i.e. 1/4th to each.
-‘W’ will take 1/4th,
-‘D’, ‘D1’ &‘D2’ each will take 1/4th .
C.] Among the heirs of the branches of a predeceased son, son of a predeceased son of a
Predeceased son and predeceased daughter, so here the doctrine of representation applies
i.e. heirs in each branch would take the same share which their parent would have taken.

So, we see above three rules in the following example:
If ‘P’ dies leaving behind son ‘S’, widow of a predeceased son ‘S1’, ‘SW’,
Predeceased daughter’s son and daughter ‘DS’ and ‘DD’, predeceased son’s
Predeceased son’s widow ‘SSW’, his daughter ‘SSD’ and his son ‘SSS’.
Distribution is first to be made at a place where branches come into existence.
There are four branches, each will take 1/4th share i.e.
- ‘S’ will take 1/4th .In the branch of ‘S1’ there is only one heir ‘SW’, she
representing ‘S1’ will take 1/4th .
- In the branch of predeceased daughter, there are two heirs, they representing her
will take 1/4th and between themselves divide it equally, with result that ‘DS’
will take 1/8th and ‘DD’ will take 1/8th .
- In the branch of predeceased grandson, there are three heirs, representing him
they will take 1/4th & among themselves share it equally, with the result that
‘SSW’, ‘SSD’&‘SSS’ each will take 1/12th.

Class II heirs and their shares:
If there are no heirs in Class I, the property will given to the heirs within Class II. They are divided into nine categories. The rule is that an heir in an earlier category excludes heirs in later category. Further all heirs in one category take simultaneously per capita share. They are as follows:

1] Category I -
a) Father.

2] Category II -
a) Son’s daughter’s son.
b) Son’s daughter’s daughter.
c) Brother.
d) Sister.

3] Category III -
a) Daughter’s son’s son.
b) Daughter’s son’s daughter.
c) Daughter’s daughter’s son.
d) Daughter’s daughter’s daughter.

4] Category IV -
a) Brother’s son.
b) Brother’s daughter.
c) Sister’s son.
d) Sister’s daughter.

5] Category V -
a) Father’s father.
b) Father’s mother.

6] Category VI -
a) Father’s widow. [Step mother].
b) Brother’s widow.

7] Category VII -
a) Father’s brother.
b) Father’s sister.

8] Category VIII -
a) Mother’s father.
b) Mother’s mother.

9] Category IX –
a) Mother’s brother.
b) Mother’s sister.

The rule of share in Class-II heirs is that each will take per capita including widow.

Agnates and Cognates:
Next heir of Hindu male is ‘Agnates and Cognates’. In it first preference is given to ‘Agnates’ & then ‘Cognates’. The rules for determining who are agnates & cognates are the same; so are the rules relating to distribution of property among them.

Agnates mean when a person traces his relationship with another through males, he or she is an ‘Agnates’. For instance brother, brother’s son, son’s son, son’s son father, father’s father, father’s mother, father’s father’s father & mother, son’s daughter, son’s son’s daughter………. etc are agnates.

On other hand cognates means whenever in the relationship of a person with another, a female (or more than one female) interverence anywhere in the line, one cognate to another. For instance sister’s sons & daughters; daughter’s sons & daughters; mother’s mother & father; father’s mother’s father & mother; mother’s father’s son & daughter………..etc are all cognates.

Government:
If a Hindu male leaves behind neither class I, nor class II, nor any agnates, nor any cognates upon his death, then, his entire property lapses to the government. This is called as “Escheat”. When government takes his property as heir, it takes with subject to all the obligations and liabilities of propositus.

Succession to a Mitakshara Coparcener’s Interest
The Section 6 of the Act has been extensively amended by the Hindu Succession (Amendment) Act, 2005; while recognizing the rule of devolution by Survivorship among the members of the coparcener makes an exception to the rule in the proviso.
According to proviso, if the deceased has left a surviving female relative specified in class I or a male relative specified in that class who claim through such female relation, the interest of a deceased in Mitakshara Coparceners property shall devolve by testamentary of instate succession under the Act and not as Survivorship.

Certain exceptions:-
If , and the heirs are both male and female, the female heir is not allowed to request partition until the male heir chooses to divide their respective shares. If this female heir is a daughter, she has the right to reside in the home if she is unmarried, divorced or widowed.
After the Hindu Succession (Amendment) Act, 2005; Section 6, the difference between the female and male inheritor has been abolished . Now even female inheritor [daughter] can also claim partition of the ancestral property.
Further any person who commits murder is disqualified from receiving any form of inheritance from the victim.

If a relative converts from Hinduism, he or she is still eligible for inheritance.

Amendments
The Hindu Succession (Amendment) Act, 2005, amended Section 6 of the Hindu Succession Act, 1956, allowing daughters of the deceased equal rights with sons. In the case of coparcenary property, or a case in which two people inherit property equally between them, the daughter and son are subject to the same liabilities and disabilities. The amendment essentially furthers equal rights between males and females in the legal system.

Authors contact info - articles The  author can be reached at: shahista@legalserviceindia.com




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Article Comments

Posted by akash mahato on January 09, 2014
My grand father has double marriage . First wife born one child and second gave birth to four child . Now how my grand father property will be distributed among his five children . By religion we are hindu .please mention certain article of indian constitution

Posted by advocate mishra on August 27, 2013
every legal heir gets a share in ancestral property

Posted by advocate mishra on August 27, 2013
Mr. Pradeep K, it should be mentioned in the order sheet, if not than file an application in the same court for the judge to give clarity to the judgment, this will help avoid unnecessary tension amongst family members

Posted by Pradeep K on August 25, 2013
Sir,
A hindu male died leaving behind his wife, one eldest daughter and four younger major sons.The court in final decree proceeding partioned the property by metes and bounds as A,B,C,D,E,and F. My questions is who will get the first share i.e A, and who will B.i.e second share. Is it according to birth that is widow first, elder daughter second and brothers so on or widow first, sons next and lastly daughter. Kinly respond to my query.

Posted by atul sarpal on June 04, 2012
i am getting my ancestral home in New Delhi (India) freehold-ed, my
great grandparents,grandparents father and two aunties have all
expired...
i was wondering whether the husbands or remaining children of my expired
aunties have any rights to my great grandparents ancestral home? both my
expired aunties left the ancestral home over 45years ago after they got
married, if their surviving husbands or surviving children have any
rights please kindly advice me accordingly... i look forward to your
prompt response kindest regards Atul

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