Family Law Succession.docx

INTRODUCTION The Hindu succession Act, 1956 has undergone a lot of change by virtue of the Hindu Succession (Amendment) Act, 2005. The section 6 of the said Act has been totally replaced by a new provision. This new provision has wide sweeping ramifications of Hindu Joint Family. This amendment is based on the 17th Report of Law Commission of India on “Property of women: Proposed Reforms under Hindu Law” under the Chairman of justice B.P. Jeewan Reddy Dated 5th May 2000. This Commission recommended for the removal of anomalies and ambiguities with regard to property right of Hindu women under Act of 1956. As per the view of Law commission, the exclusion of daughters from participating in coparcenaries property ownership merely by reason of sex was unjust. Therefore, this amending Act gives fully fledged property rights to daughters in ancestral property along with sons. Also the Mitakshara dual mode of devolution of property has also been done away with. According to section 6(3) of the Act of 2005, the interest of a deceased Hindu dying after commencement of the act of 2005 shall devolve by testamentary or intestate succession, as the case may be, under this act and not by survivorship. The act has added certain close cognates in the list of class I heirs, viz., predeceased grandfather’s children. Also two sections, viz., section 23 and 24 which discriminated against women have been omitted by the amending act of 2005. Section 23 had special provision with regard to dwelling house. According to it, if a Hindu died intestate leaving behind both male and female heirs in class1 and property left behind him\ she includes the dwelling house wholly occupied by his\ her family then the female heir did not have a right to claim partition of the property till the male heirs decide to opt for division of the same. The female heir was entitled to a right of residence in a dwelling house only if she was unmarried or had been deserted or separated from her husband or was a widow. Happily, the Hindu Law of succession does not hold a student in awe any longer, as it used to be about five decades ago. There are no longer two school of Hindu law basing their inheritance on fundamentally different principles, no longer are there different sub-schools of the Mitakshara creating complications in the detailed working of the Mitakshara rules of succession for all Hindus. Old Hindu law and customary law of succession stand abrogated.1

Customary rules of succession-In

some

tribes

the

Chudabanth(wife-wise

determination of shares)prevails. Such a custom is tribal and not territorial.2 The Hindu Succession Act preserves the dual mode of devolution of property under the Mitakshara School. 1 2

Section 4, Kesharbai v. State of Mah., 1981 Bom. 115. Hardan Singh v. Deputy Director, Consolidation, 1992 S.C. 1009.

The joint family property still devolves by survivorship with this important exception that rule of succession will apply to a Mitakshara coparcener if he dies leaving behind mother, widow, daughter, daughter’s daughter ,son’s daughter , son’s widow and daughter’s son. The Hindu Succession Act, 1956, bases its rule of succession on the basic Mitakshara principle of propinquity, i.e., preference of heirs on the basis of proximity of relationship. The Mitakshara limited the effect of the principle by the twin rules of exclusion of females and of agnatic preference. The rule of exclusion of females has been done away with, while the rule of agnatic preference has been considerably modified so far as it concerns the nearer relations. The Dayabhaga principle of religious efficacy has been abrogated. The modern Hindu Law of Succession is essentially a secular law. Religious or spiritual considerations figure nowhere. A person, so long as he is alive, is free to deal with his property in any way he likes. In our contemporary world, someone must be the owner of the property, an individual, corporate person or state. The law of succession is classified as under: (1)Testamentary succession, and (2)Intestate succession The law of testamentary succession is concerned how best the effect could be given to the wishes of the testator (i.e. the person who made the will); what are the rules relating to making of a will and allied and subsidiary matters. The testator enjoys full freedom of bequeathing his property. The law of intestate succession is concerned with matters such as: who are the persons entitled to take the property, i.e. who are the heirs; what are the rules of preference among the various relations; in what manner the property is to be distributed in case a person has more than one heir; what are the disqualifications of heirs and the allied and subsidiary matters. Apart from Section 30, which confers upon a person a power of disposing of, by will or other testamentary disposition, his property including the undivided interest in the Mitakshara coparcenaries property3 the Hindu Succession Act, 1956, deals with intestate succession among Hindus? We would discuss the subject under the following heads. (1) Succession to a Hindu male, (2) Succession to a Hindu female, (3) Disqualifications of heirs, and (4) General rules of succession. Succession opens at the time of the death of person whose estate is in question and is governed by this law in force at the time.4

3 4

Puna v. Babana, (1971) 28 C.I.J. 387. Daddo v. Raghunath, 1979 Bom. 176.

Line of succession qua Settlement cannot be created by a Hindu: Now a Hindu dispose of his property by a settlement or otherwise in and by manner known to Hindu law. But he cannot lay down line of succession against the Hindu law of Inheritance. This has now been settled by a series of decisions beginning from the judicial committee’s decision in Tagore v. Tagore.5 A Hindu can also prevent the property from passing to his heirs and altering the course of succession by making a transfer inter vivos including the gift or an executor gift or by a testamentary disposition in the form of a will. He can also create a trust. These are modes of disposition reorganised by Hindu law. For in doing so he would be legislating.6 Before we proceed further, it is necessary to understand the meaning of certain terms. 7

[DEVOLUTION OF INTEREST IN COPARCENARY PROPERTY: Section 6 of the Act deals with devolution of interest of a male Hindu in Coparcenary property and recognises the rule of devolution by survivorship among the member of coparcenary When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a 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 a 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.

5

(1872) Ind. App. Sup. Vol. 47 : 16 W.R. 359 Brijendra Pratap Singh v. Prem Lata Singh, AIR 2005 All 113. 7 Sectin 6, subs. By the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) (w.e.f.5-9-2005). 6

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.

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 marumakkattayam 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 the 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. MODERN HINDU LAW, 2015 It has also been made clear that a daughter whose father was alive at the time of amendment, i.e. on 9.9.2005 would become coparceners. If father had passed prior to this date then she does not become a coparcener. Obviously, on her the old section would be applicable. Marital status of daughter is immaterial.8 This section was given a somewhat strange interpretation by the Bombay High Court in Vaishali Satish Ganorkar v. Satish Keshorao Ganorkar.9 The confusion arose because the word ‘’devolution of interest’’ is still retained in the section. The learned judge created gave the reasoning that devolution takes place only when the person holding the property dies. Therefore, the learned judge reasoned that until a coparcener dies and his succession opens, there is no devolution of interest and hence no daughter of coparcener becomes a coparcener. Then comes Supreme Court’s decision in Prakash and ors. V. Phulavati and ors.10 Where the Supreme Court has held that amended section has prospective effect. 8

K.M. Thangavel v. K.t. Udaya Kuma : Law finder Doc Id #533622. AIR 2012 Bom 101. 10 AIR 2014 Bom. 151. 9

The right is conferred on the daughter of a coparcener ‘on and from the commencement of the amendment.’’ The court has summed up as: An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective.  Contention that the amendment should be read as retrospective being a piece of social litigation cannot be accepted.  Right under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born.

SUCCESSION OF HINDU MALE The Hindu Succession Act, 1956 deals with the inheritance to : (a) the separate properties of Mitakshara male, (b) to the separate and coparcenary properties of a Dayabhaga male, and (c) to the undivided interest in the joint family property of Mitakshara coparcener, who dies leaving behind a widow, mother, daughter, daughter’s daughter, son’s daughter, son’s widow, grandson’s daughter, grandson’s widow or daughter’s son. The act does not apply to the property of a Hindu who is married under the Special Marriage Act, to 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 any enactment passed before the commencement of the Hindu Succession Act and to the Valiamma Thampura Kovilagam Estate and the Palace Fund of former Cochin State. The property of a Hindu male dying intestate, or without a will, would be given first to heirs within Class I. If there are no heirs categorized as Class I, the property will be given to heirs within Class II. If there are no heirs in Class II, the property will be given to the deceased's agnates or relatives through male lineage. If there are no agnates or relatives through the male’s lineage, then the property is given to the cognates, or any relative through the lineage of males or females. There are two classes of heirs that are delineated by the Act.

Class I heirs are sons, daughters, widows, mothers, sons of a pre-deceased son, widows of a pre-deceased son, son of a, pre-deceased sons of a predeceased son, and widows of a pre-deceased son of a predeceased son.11 If there is more than one widow, multiple surviving sons or multiples of any of the other heirs listed above, each shall be granted one share of the deceased’s property. Also if the widow of a pre-deceased son12, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled to receive the inheritance.

Class II heirs are categorized as follows and are given the property of the deceased in the following order:            

Father Son's / daughter's son Son's / daughter's daughter Brother Sister Daughter's / son's son Daughter's / son's daughter Daughter's / daughter's son Daughter's /daughter's daughter Brother's son Sister's son Brother's daughter.

SUCCESSION OF THE PROPERTY OF A HINDU FEMALE Section 14, Hindu Succession Act , introduces fundamental changes in the concept of woman’s property . It abolishes Hindu woman’s estate and converts existing woman’s estate (existing prior to the coming into force of the act and over which Hindu female has possession) into her absolute property.13 Under the Hindu Succession Act, 1956, females are granted ownership of all property acquired either before or after the signing of the Act, abolishing their “limited 11

Sometimes the expressions children, issues, heir carry the same meaning. M/s Bay Berry Apartments Ltd. v. Shobha, 2007 SC 226. 12 Added by Amendment Act of 2005. 13 Section 14 has been discussed in Part 3, Chapter 15.

owner" status. However, it was not until the 2005 Amendment that daughters were allowed equal receipt of property as with sons. This invariably grants females property rights. The property of a Hindu female dying intestate, or without a will, shall devolve in the following order:  upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband,  Upon the heirs of the husband.  upon the father and mother  upon the heirs of the father, and  Upon the heirs of the mother. Thus, when a female inherits property from her brother, inheritance to it is governed by section. 15(1).14Further if a woman becomes absolute owner of a house by virtue of a compromise after his death, she would be absolute owner and succession would be governed by Section 15(1) (a).15

DISQUALIFICATIONS Before 1956, several disqualification were recognized which prevented an heir from inheriting property. Not merely the disqualified heir could not take property inheritance, but he or she also did not transmit any interest to his or her own heirs, also a disqualified person was treated as having predeceased the propositus. However, if the disqualified heir recovered from his disqualification subsequent to the opening of the inheritance, he could recover his share and divest the estate already vested in other heirs.16 Under section 2, ‘’ If any person is disqualified from inheriting any property under this act, it shall devolve as if such person had died before the intestate.’’ Family law is an area of the law that deals with family related issues and domestic relations including, but not limited to: the nature of marriage, civil unions and domestic partnership issues arising during marriage, (including spouse abuse, legitimacy, adoption, surrogacy, child abuse, and child abduction), the termination of the relationship, and ancillary matters (including divorce, annulment, property settlements, alimony, and 14

Balasaheb v. Jaimala, 1978 Bom. 44. Radhey Shyam v. Shyam Devi, 2003 All. 136. 16 Venkatalakeshmammai v. Balakrishnachari, 1960 Mad. 270. 15

parental responsibility orders). Family law is the broad term. The scope of family law is subjective in nature. There are different branches of family law. The most important part under family law is the Hindu Succession Act 1956. In this article, I mainly focused on laws related to disqualification under the Hindu Succession Act 1956, and what old Hindu law and Modern Hindu laws say about disqualification this. There are certain laws related to disqualification law, like certain widows remarrying may not inherit as widows, murderer disqualified, converts decedents disqualified, succession when heir disqualified. There is one exception to disqualification in which person shall not be disqualified - disease, defect, etc. not to disqualify. This article I have discussed scope, applicability of all the section related to disqualification to succession. I went through various case laws, legislative acts which helped me throughout. After completion of my research work I have given some suggestions for disqualification to succession, like step mother should be disqualified under section 2417 of Hindu Succession Act, 1956. Unsuccessful attempt to murder should also be included in the ambit of S.25. Unchastely of a widow should also be a ground of disqualification. Offenses like rape and torture should also be a ground for disqualification. By this I have concluded my research work. In this research work I have tried to fulfill all the loopholes of disqualification to succession.

Section 25: Murderer disqualified – It is a general policy of practically all the systems of law that no one should be allowed to reap the benefits of his crime. Such provision however, was not specifically provided for in traditional Hindu law. It was a disqualification in the Dayabhaga School, but not provided for in the Mitakshara School. Furthermore, even in the Dayabhaga School, only the murderer himself was disqualified, not the abettor of the murder. This Section however, disqualifies both a murderer and an abettor to murder. This was also the old Hindu Law. It is a principle of general policy.18 In such cases, the Murderer should be treated as non- existent and not as one who forms the stock for a fresh line of descent.19 The Joint Select Committee on the Hindu Succession Bill observed: “A murderer even if not disqualified under the traditional Hindu law from succeeding to the estate of the person whom he has murdered is so disqualified upon the principles of justice, equity and good conscience.”

17

Section 24 has been omitted by the Hindu Succession (Amendment) Act, 2005. Biro v. Banta Singh, 1980 P. and H. 164; Minoti v. Sushil Singh, 1982 Bom. 68. 19 Kenchave v. Girimallappa, (19240 51 I.A. 368. 18

In the case of Kenchava v. Girimallappa[12], the Privy Council held that “the murderer is not to be regarded as the stock for a fresh line of descent but should be regarded as non- existent.” Section 26: Convert’s descendants disqualified – Under the old Hindu law, conversion of any Hindu person into another religion was a disqualification which was later removed by the Caste Disabilities Removal Act of 1850 and upheld by this Act. However, although conversion does not disqualify a person form succeeding to the property of an intestate under this Act, his descendants are disqualified from inheriting such property. Thus, the children of a convert and their descendants are disqualified. But if at the time of death of the intestate, any of them are Hindu, they are no longer disqualified.

Section 28: Disease, defect, etc. not to disqualify – Under the old Hindu law dome diseases,20 deformities and unchastely were disqualifications of heirs, though they were not the same in both Dayabhaga and Mitakshara law. According to the Mitakshara law, some disqualifications were: congenial lunacy or idiocy, adoption of a religious order (i.e. taking a sanyas) and unchastely of widows. According to the Dayabhaga law, the disqualifications were: blindness, deafness, and dumbness, want of any limb or organ since birth, idiocy, lunacy, unchastely of widows and, any virulent and incurable form of leprosy rendering one unfit for intercourse.

Testamentary succession – The ancient Hindu laws of succession did not permit any alienation of the coparcenary property by way of will. After the death of a coparcener, his interest was to be distributed equally amongst the remaining coparceners. The question of the remarriage of propositus’ own widow does not arise.21 But this Section has changed the principle and allowed a Hindu, male or female, to alienate their property by way of a will name, in accordance to the provisions of the Indian Succession Act, 1925.

CONCLUSION

20 21

Section 24 has been omitted by the Hindu Succession (Amendment) Act, 2005. Babulal Kewan v. State of Bihar, 2007 Pat. 70.

Although the Hindu Succession Act, 1956, and its amendments have gone a long way in simplifying the rules regulating succession among the Hindus, there are various discrepancies still to be solved. Firstly, the explanation of the amended Section 6 defines “partition” as any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition affected by a decree of court. This definition of “partition” does not include oral partition and family arrangement. Since the amended Act has failed to include oral partition and family arrangement within the definition of “partition”, which are common and legally accepted modes of division of property under the Hindu Law, the Commission undertook this subject suo motu. Secondly, the amended Section 6 includes the daughter into the coparcenary, but no other female has been given recognition as a member of the coparcenary. Furthermore, it is only the daughter of the common male ancestor who has been included and not the daughters of all the coparceners. Justice cannot be secured for one category of women at the expense of another. It is impossible to deal with succession laws in isolation. Thus, there is scope of change in the amended Act also. However, it cannot be argued that The Hindu Succession Act made a revolutionary change in the law relating to succession, especially for female Hindus. It has been a huge relief for females who were devoid of property rights under the traditional Hindu law.