#Testamentarysuccession

[we-legodesk-lawfirm-things]

Intestate Succession and Inheritance Under Hindu Law

 Introduction

 The Hindu Succession Act, 1956 is an act enacted by the parliament, keeping in view the resolution of disputes relating to the succession of the property after the death of a Hindu. Its preamble draws emphasis on dispute resolution for succession both with and without a will or testament. There are two concepts to this act. One being that of Intestate or non-testamentary succession which means inheritance of the property of a deceased without a will, and testamentary succession meaning in the presence of a will. This Act applies to any person who is a Hindu by religion including those who are a Virashaiva, Lingayat, or a follower of Brahmo, Prarthna or Arya Samaj. The act also extends to the Sikhs and Buddhists not having applicability to any Muslim, Christian, Parsi or Jew as per Chapter 1 Section 2 of the Act.  The word 'Inheritance’ is synonymous to ‘succession’ as inheritance is a loosely used term which is legally recognized and defined as ‘succession.’ The other term relevant to this Act is ‘survivorship’ which reflects another type of interest towards the property. We shall look at the contrast between inheritance through intestate succession and inheritance by way of survivorship.  Read Also: Succession Rights of Daughter

The contrast 

Inheritance by way of survivorship (before amendment):  The Hindu Succession Act, 1956, dealt with three types of inheritance. These are:  The separate or own property of a male Hindu from the Mitakshara family The separate or coparcener property of male Hindu from Dayabhaga family The undivided interest of a Mitakshara Coparcener in a Joint Hindu family The Mitakshara School recognized two types of devolution of property. These are:  Devolution by way of Succession  Devolution by way of Survivorship  The criterion followed in the Mitakshara system, before the commencement of the Hindu Succession (Amendment) Act, 2005 to determine the mode of devolution of the property was to check two things : Whether the male Hindu had an undivided interest in the coparcenary property and; Whether he was a member of the coparcenary.  If he had undivided ownership of the coparcenary property, it would be devolved to other coparcener members by way of ‘survivorship.’ Coparcenary property is nothing but the ancestral property as according to Section 6 of the 1956 Act. The exception to this section is that if a mitakshara coparcener dies leaving a female relative as per Class 1 of the Schedule or a male relative in the same class claiming the property from the female relative, the interest of the mitakshara coparcenary property shall devolve by testamentary or intestate succession and not by survivorship. The concept can be understood more by referring to the case Shyama Devi v. Manju Shukla 1994 The Act also consisted of the separate property of the coparceners, and Property acquired jointly by the members of the family and, property acquired by the members of the joint family by the way if the inheritance of ‘ancestral property.’ Note that:  The coparcenary property was devolved by survivorship and not succession  It is a property in which the male coparcener’s relatives of up to three degrees acquired interest by birth.   Illustrations: Illustration 1: Suppose that A had a property inherited from his father. He has two sons and one daughter: B, C, and D, respectively. In the mitakshara system, B and C along with A would get 1/3rd of the property by way of partition.  Illustration 2: There are two brother X and Y. X dies, leaving behind his two daughters and a widow. The rule of survivorship in Mitakshara system will devolve the undivided coparcenary property to Y. Nothing will be obtained by X’s family.    The rule of succession as per the Mitakshara system for the self-acquired property of a Hindu male can be illustrated as :  Any self-acquired property in a Mitakshara system is inherited through succession and not survivorship, i.e. entitlement by birth.  In case if the deceased is a sole surviving member of the coparcenary, the whole of his property is devolved on his heirs through succession.    Inheritance by way of Intestate succession (After amendment):  It can be concluded that before the amendment, the property was inherited by a Hindu female through intestate succession when the coparcener member died leaving behind a coparcenary property (with an assumption that the partition was made prior to his death). Otherwise, it was devolved onto the male heirs by survivorship; indicating no absolute ownership over the property by a female heir.  The Hindu Succession (Amendment) Act came into force in the year 2005 amending Section 4, 6, 23, 24 and 30 of the 1956 Act. The primary objective of this amendment was to bring laws that give daughters and wives equal rights with the male coparceners, including subjecting them to the same liabilities and limitations. This was not the scenario in the past where although full ownership of property by the female members was sought after, the only property the woman was really entitled to be the 'stridhan.'  The two major amendments made were: Where it was proposed to remove gender discrimination under section 6. Section 23 (omitted) as it disentitled female members to ask for partition in a dwelling house, wholly owned by the joint Hindu family unless the male inheritors agreed to do so. Furthermore: Section 6: Gave equal rights to the female member of the family in the same way as was given to the male members in the joint Hindu family. Such right is now also recognized from the time of the female's birth. It recognizes the daughter of the Hindu coparcener as a legal heir with respect to the deceased Hindu coparcener. Hence, giving her the title of a female coparcener. The concept of survivorship was abolished. Section 24: Omitted as it disentitled widows from obtaining their share in the coparcenary property. Section 30: Female heir's rights and obligations specified as per the new amendment for testamentary succession. Read Also: Know About Family Law In India

Conclusion :

The amendment in 2005 shows how the fundamental rights of every citizen in the country were upheld. It was necessary to not discriminate on the basis of sex and provide equal representation to the female members of the family. This leads us to believe the progressive attitude of the legislature and instills faith in the judicial mechanisms of the country. In addition, awareness through education needs to be spread amongst people in order to abolish the disparity in the least developed cities/districts of the country. Read the full article