Hindu Law-2 Questions and Answers

FAMILY LAW – 2

SA Questions

1. Explain the rules of succession relating to the property of a Hindu, Muslim

& a Christian dying intestate – VVVVVVVVVVVVVVV IMP
2. What is will? How a will can be made by Muslim & Christian OR

3.Explain the Interpretation & revocation of the will - VVVVVVVVVV IMP

4. What are the changes brought down by Hindu succession (Amendment) Act
2005 to Hindu succession act 1956 – VVVVVVVVVVV IMP

5.Who is the Karta of joint hindu family. What are his powers–VVVVVVVIMP

6.Enumerate the Class I & Class II heirs under Hindu Succession act 1956

7.Distinguish between the Sunni &Shia laws of inheritance- VVVVVVVVIMP

Short Questions
1.Agnatus and cognates
2.Doctrine of Pious obligation
3. Stridhana property
4. Codicil
5. Privileged will
6. Administration of estates under Muslim law
8. Mithakshara & Dayabaga
9. General rules of Hindu intestate Succession.
10 .General rules of Christian Succession
11. Hindu Succession (Amendment) Act 2005
12. Joint Hindu family.
13.General rules of succession to the property of females
12. Intestate succession
14. Succession certificate

Case Comments
8. Coparcenary property
9. Succession
10. Doctrine of Radd or Return

1.Explain the rules of succession relating to the property of a

Hindu, Muslim & a Christian dying intestate.

INTESTATE SUCCESSION AMONG THE HINDU UNDIVIDED FAMILY

A. Hindu MALE- the Hindu succession act, 1956, provides for the order of
succession. This order is mainly based on the doctrine of propinquity.
The doctrine describes the order of nearness of blood. The heirs are
divided into four categories under this act, namely first-class heir,
second class heir, agnates and cognates
. In the case of an intestate male, the act devolves the share of the separate
properties of a mitakshara male and dayabhaga male and the interest of the
coparceners in the joint family.
1. FIRST CLASS HEIRS
The property devolves in the first class heirs first. This class describes twelve
preferential heirs to be succeeded. This class I heir order includes-
1. Mother,
2. Widow,
3. Son,
4. Daughter,
5. Widow of the pre deceased son,
6. Son of the pre deceased son,
7. Daughter of the pre deceased son,
8. Widow of the pre deceased son of a pre deceased son,
9. Son of the pre deceased son of a pre deceased son,
10. Daughter of the pre deceased son of a pre deceased son,
11. Daughter of a pre deceased daughter,
12. Son of a pre deceased daughter. 4 more heirs have been added
by virtue of Hindu succession (Amendment)Act-2005,they are:-
13. Son of a pre-diseased daughter of a pre-diseased daughter..
14. Daughter of a pre-diseased daughter of pre-diseased daughter.
15. Daughter of a pre diseased son of a pre-diseased daughter and
16. Daughter of a pre-diseased daughter of pre-diseased son
According to the section 10 of the act, the property must be distributed among
the class I heirs according to the four rules.
RULE 1- the widow of the interstate should succeed and if there is more than
one then the widows should take one share together.
RULE 2- the sons and daughters along with the mother each shall take one
share.
RULE 3- the heirs of the predeceased son or pre-deceased daughter of the
intestate shall take one share together.
RULE 4- the distribution of the property among the heir of the pre deceased
son should be such that the widow, sons and daughters gets the equal share
and the other heirs of his predeceased sons gets the same portion. The
property should be distributed among the heirs of the predeceased daughter
in such manner that the sons and daughters get equal portions.
2. SECOND CLASS HEIRS

If there is no class one heir then the property shall be distributed among the
class two heirs. The class II heirs include nine categories of heir. The heir in the
higher entry excludes the heir in the lower entry.
1. Father,
2. Son’s daughter’s son, son’s daughter’s daughter, brother, sister.
3. Daughter’s son’s son, daughter’s son’s Daughter, Daughter’s
Daughter’s son, Daughter’s Daughter’s Daughter.
4. Brother’s son, sister’s son, brother’s daughter, sister’s daughter.
5. Father’s father, father’s mother.
6. Father’s widow, brother’s widow.
7. Father’s brother, father’s sister.
8. Mother’s father, mother’s mother.
9. Mother’s brother, mother’s sister.
The second class heir shall succeed in the intestate property and manage to
have the equal share. Each one should share per capita including the widow.
3. AGNATES AND COGNATES
A person who is agnate of another by blood relation or adoption entirely or
wholly by the males. The cognates can be male or female. The agnate doesn’t
include the widow of the lineal male descendent.

The cognates are related to another by blood or adoption but not entirely or
wholly through males.
When there is neither class I and class II or agnates heir then the property shall
devolve to the cognates.
The cognate just like agnates only recognizes the blood relation or adoption
therefore the widow of a lineal descendent cannot be cognate.

The order of the distribution of the property among the agnates and cognates
is described under section 12 of the act which provides some rules, which state
the preference level.

RULE 1- the one should be preferred of two heirs who have fewer or degrees
of ascent.
RULE 2- the heir who has fewer or no degrees of ascent is preferred when the
number of degrees is same or null.
RULE 3-when neither heir is preferred under rule one or two then they take
simultaneously.
GOVERNMENT- when the deceased owner of the property has no heir
whether from class I, class II, agnates and cognates then the property shall
devolve to the government. The government shall then take the property
subject to all obligations and liabilities to which an heir would have been
subject.
When Female dies Intestate- prior to this act of Hindu succession act, 1956,
the women was subjected to the liability of men and had no absolute property
rights.
The act replaced the prior classification and introduced section 14 which
conferred absolute rights of ownership to the women on every property
acquired by her through lawful means. Section 15 states the distribution of the
Hindu female’s property.
The property of a Hindu female intestate shall be distributed upon-
Section 15(1)-
1. Upon the son and daughters, (including the children or heirs of
any pre deceased son or daughter) and the husband.
2. upon the husband’s heir,
3. upon the mother and father,
4. Upon the mother’s heir.
Here the property acquired by gifts or other manner doesn’t get affected and
the property under section 15(1) determines the preference of those of higher
order upon the lower order.
Section 16 states the order of the succession of an intestate property of a
female Hindu and gives three rules. According to the section-
RULE I- the heir in the first entry shall be preferred upon the second heir. The
heirs in the second entry shall inherit in the absence of the heirs of the first
entry.
RULE II- the children of pre deceased son or daughter shall get the share which
the son or daughter would have taken at the time of intestate’s death, each
division per stripes.
RULE III- the devolution of the property on the heirs of father, heirs of the
mother or on the heirs of the husband shall be the same order.
AMENDMENT ACT OF 2005

The amendment act of 2005 repealed section 6 of the Hindu succession act
1956, and allowing daughters to have equal rights as a son. The daughters are
subjected to the equal liabilities and responsibilities.
B.Succession among Christians
Who is an Indian Christian?

An Indian Christian, as per Section 2(d) of ISA, means a native of India who is,
or in good faith claims to be, of unmixed Asiatic descent and who professes
any form of the Christian religion.

The law that lays down the rules of distribution of property of a Christian dying
intestate (without making a Will), is the Indian Succession Act, 1925 (ISA).

The Indian Succession Act, 1865, Cochin Christian Succession Act, 1921,
Travancore Christian Succession Act, 1916 etc applicable to Christians in the
past were repealed and consolidated into ISA.

Legal provisions of ISA applicable

The Sections 31 to 49 of ISA deal with rules of Christian succession.
A Christian who dies intestate, as per Section 32 of ISA, will have three
categories of legal heirs: they are the
Spouse,
Lineal Descendants and
the Kindred.

The Section 24 of ISA refers to the concept of kindred or consanguinity.

The term is defined as the “connection or relation of persons descended from

the same stock or common ancestor”.
Kindred of an intestate can be
descendants such as children, grandchildren,
ascendants such as his father, mother, grandfather, grandmother, or
collaterals such as his brothers, sisters and their descendants, or his uncles,
cousins and other relations, who are not the descendants of the siblings of the
deceased.

The Section 25 of ISA defines “lineal consanguinity” as the descendants in a

direct line such as man and his father, grandfather and great grandfather,
children and grandchildren etc. Lineal descendants mean all those who are
directly related to the deceased and are living at the time of distribution of the
property.

The succession to the movable property in India of the deceased, as per

Section 5 of ISA, will be governed by the law of the country where he had his
domicile at the time of his death

But the succession to his immovable property will be governed by the law of
India, wherever he had his domicile at the time of his death.

When the widow and lineal descendants remain

Where an intestate has left a widow and lineal descendants, such as children
and grandchildren,
• one-third of his property shall belong to the widow, and
• the remaining two third shall go to the lineal descendants (Section 33).

If the intestate has left the widow, no lineal descendants but some people who
are kindred to him
• the widow will get one-half and
• the remaining one-half to be shared by the kindred.
• If the intestate has left the widow, no lineal descendants and no kindred,
then the entire property will devolve on to the widow/widower.
The law applicable to a widow will be applicable to a widower who survives
his wife, under Section 35 of ISA.
Succession laws when there are no lineal descendants
• If the intestate’s father is living, the widow will get one-half of the share
the father of the deceased will get one-half of the share.
• The father will get the whole, if the widow of intestate is no more,
irrespective of the fact that others among the kindred are alive (Sec. 40).

Where the intestate’s father is dead, but his mother, brothers, and sisters are
living,

• then the widow will get one-half share and

 • the remaining one-half share will be divided equally between mother,
sisters, and brothers or
• full share to be shared equally between them, if widow of intestate is
alive (Section 43).

If no heirs, government will have the property as per the doctrine of escheat,

C.Intestate succession of Muslim

Introduction

.Islamic Law of inheritance is a mixture of the pre-Islamic customs and the

rules introduced by the Prophet.
Learn the Laws of inheritance and teach them to the people, for they are one-
half of the useful knowledge” – said by Prophet Mohammed.

The Muslim Law of Inheritance derives its principles from four principal
sources of Islamic Law. They are as follows-
• The Holy Quran
• The Sunna (it is the practice of the prophet)
• The Ijmaa (it is the consensus of the learned men of the
community on what should be the decision over a particular
subject matter)
• The Qiyas (it is the deduction based on analogy on what is right
and just in accordance with God)

Inheritance means the transfer of property to the living person from the
deceased along with any other transferable rights. Inheritance has a different
meaning in Islam.
Types of Heirs:-
There are two types of heirs under Muslim law –
the Sharers and
the Residuary.
Firstly, the Sharers are the ones who are entitled to a certain share in the
property of the deceased and,
secondly, the Residuary are the ones who would take up the share in the
property that is left over after the Sharers have taken their part

Total 12 relations fall under the category of Sharers in Muslim Law:

1. Husband,
2. Wife,
 3. Daughter,
4. Daughter of a son (or son’s son or son’s son and so on),
5. Father,
6. Paternal Grandfather,
7. Mother,
8. Grandmother or the male line,
9. Full sister,
10. Consanguine sister,
11. Uterine sister, and
12. Uterine brother.
The share taken by each sharer will differ in some conditions.
For example,
• a wife of a deceased will takes 1/4th of the share in case where the
couple is without lineal descendants, and 1/8th share otherwise.
• A husband (in case of succession to the wife’s estate) takes a half share
in case where the couple is without lineal descendants, and a 1/4th share
otherwise.
A sole daughter takes a half share. Where the dead person has left behind
more than one daughter, all daughters jointly take 2/3rd.

If the dead person had left behind sons and daughters, then the daughters
stop to be sharers and become residuary instead, with the residue being so
distributed as to make sure that each son gets double of what each daughter
gets.
General Principles of Inheritance under Muslim Law

Unlike Hindu law, there is no provision of distinction between individuals i.e.

self-acquired or ancestral property.
Each property that remains within the ownership of a person can be inherited
by his successors.
Whenever a Muslim dies, all his property whether acquired by him during his
lifetime or inherited from his ancestors can be inherited by his legal heirs.
Consequently, on the death of every such legal heir, his inherited property and
property acquired by him during his lifetime shall be transferred to his heirs.

The general principles associated with the Muslim Law of inheritance are as
follows –
1. Nature of heritable property: The meaning of heritable property is that
property which is available to the legal heirs for inheritance. After the death of
a Muslim, his properties are used for paying funeral expenses, debts and wills.
After the payment of these expenses, the remaining property is called
heritable property.
For the purpose of inheritance, the Muslim Law does not make any difference
between corporeal and incorporeal or movable and immovable property.

2. Joint or Ancestral property: Unlike Hindu law, the Islamic law of Inheritance
does not recognize the concept of joint family or coparcenaries property.
Whenever, a Muslim dies, his properties will pass on his heirs in definite share
of which the heir becomes the absolute owner.

1. Birth right under the Muslim Inheritance Law: Inheritance opens only after
the death of a Muslim. Muslim law follows the principle of ‘nemo est
haeres viventis’ i.e. nobody can become an heir to a living person. It means
the legal right to inheritance of property will only arise when the death of a
deceased person will take place and not upon the birth of a child.

5. Doctrine of Representation: This Doctrine is a well-known principle

recognized by the Roman, English and Hindu laws of inheritance. According to
this principle of Representation, the son of a predeceased son represents his
father for the purpose of inheritance. The Islamic law of inheritance does not
recognize this Doctrine. It is because under Muslim law the nearer ones will
exclude the remoter ones.
5. Rights of Females: Under the Muslim law of Inheritance, both men and
women have given equal rights. On the death of an ancestor, nothing can
restrict both girl and boy child to become the legal heirs of the inheritable
property.
However, it is generally found that the quantum of share of female heir is half
of that of the male heirs.
6.Rights of a Widow: Under the Shia law, a Muslim widow who does not have
any children shall be entitled to inherit one-fourth share of the property of the
deceased husband.
However, a widow with children or grandchildren is entitled to one-
eighth of the deceased husband’s property.
7. Rights of Inheritance of a child in womb: Under Muslim law, a child in the
womb of a mother at the time of his/her father’s death shall only entitle to
inherit the property if he or she is born alive.
8. Right of Inheritance of the stepchildren: The stepchildren are not entitled
to any right to inherit the property of their stepparents. Similarly, the
stepparents are also not entitled to inherit the property from stepchildren.
9. Escheat: It refers to the transfer of right to the government to take
ownership of estate assets or unclaimed property. It occurs when a Muslim
person dies with no wills and no heirs, then the property of a deceased shall go
to the government. The State is then considered the ultimate heir of Property.
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2.What is will? How a will can be made by Muslim & Christian and
Hindu

a. Will under Muslim Law

Will is known as al-wasiyya under the Muslim Law. After the testator’s death,
a Will can be executed after paying for the funeral and debts of the testator. In
case the testator dies without a prior testament, the successors will have to
follow the rules of intestate succession.
As declared by the Prophet, a Will should not be exercised to injure the lawful
heirs.
When a Muslim dies, these four duties have to be performed:
• Payment of their debts
• Payment of funeral expenses
• Execution of their Will
• Distribution of the estate to the rightful heirs according to Shariat.

Who Can Draft a Will Under Muslim Law?

According to Muslim Law:

According to the Shafi School of Sunni Law:

1. A person who can perform duties can make a valid Will
2. An individual under inhibition on account of insanity is not allowed to
make a Will
3. A person who has lost their senses cannot draw a Will
4. A Will made by a minor is invalid.

In Whose Favour Can Muslims Make a Will?

The legatee can be Muslim or Non-muslim, woman or man, major, minor, or
even a child born within 6 months of the testator’s death.
Making a Will in favour of institutions and Non-Muslim should not be hostile
to Islam.
A Will in favour of Hindu society or Hindu temples will be invalid.
Under Sunni law, if the legatee of the Will has murdered the testator either
accidentally or intentionally, the Will won’t be valid. Even if the murderer was
unaware of the fact that she/he is the legatee of the Will, that Will can not be
considered valid.
Whereas under Shia Law, if the legatee accidentally kills the testator, then the
legatee can still enjoy the benefits of the Will.

Rule of Abatement under Sunni Law:

If more than one-third of the asset of the deceased’s Will takes effect, the
excess will be divided by inheritance. If more than one-third of the property is
given to more than one legatee, all the beneficiaries may get a proportionally
reduced share. This is the ‘Rule of Rateable Proportion’ in Sunni Law. The
exception is when there is no heir, in which case the spouse will inherit the
entire property.

Rule of Abatement under Shia Law:

This rule follows Chronological Priority. The bequests made earlier are
prioritised over the later ones. But in case the later bequest is mentioned in
the same Will, the earlier bequest will be revoked. In this Concurrent Wills, the
one whose name appears first will get priority over the next. No legatee can
enjoy the benefit if the name appears after one-third of the property.

What Is A Hindu Will?

A Hindu Will is a legal document that outlines how a Hindu’s property will be
distributed after their death. Hindu Will is governed by the Hindu Succession
Act, 1956, which is a codified law that governs the distribution of property
among Hindus.
The act applies to Hindus, Sikhs, Jains, and Buddhists, and it has been amended
several times to bring about gender equality and to give equal rights to women
in inheritance.

Under the Hindu Succession Act, a Hindu can make a will and dispose of his or
her property as per their wishes. The will can be made orally or in writing, and
it can be registered or unregistered. However, it is advisable to have a written
and registered will, as it is more legally binding and reduces the chances of
disputes among the heirs.

Some Of The Key Provisions Related To Hindu Wills Under The Hindu
Succession Act 1956 Are As Follows:
• A Hindu can dispose of his or her property by way of a will.
• The will can be made by a Hindu of sound mind who is not a minor.
 • The will can be made in any language and can be in writing or oral.
• The will can be registered or unregistered.
• The property can be bequeathed to any person or institution, including a
family member, friend, or charity.
• The will can be revoked or altered at any time during the testator’s
lifetime.
• In case of multiple wills, the latest will prevails.
• The property not covered under the will shall be distributed among the
legal heirs as per the Hindu Succession Act.

It is important to note that any Hindu who dies intestate (without making a
will) will have their property distributed among their legal heirs as per the
Hindu Succession Act. Therefore, making a will is an important step for any
Hindu to ensure that their property is distributed as per their wishes.

In Rajamma v. Rami Reddy, it was held by Andhra Pradesh High Court that
explanation of section 30 of the Act states that ‘property capable of being
disposed of by him or by her’ in the matter of a male Hindu in Mitakshara
Coparcenary Property. A male Hindu can only dispose of his share of the
deceased out of the joint property. He is not legally bound to dispose of the
entire joint family property of coparceners by Will.

What is a “Will “? Christian Law

Will deed is a legal document conferring ownership of personal property and

assets to the heirs of the testator (the one who makes the will) upon his or her
demise. It comes with guidelines on the distribution and disposal of property
and assets, ensuring that there are no future legal disputes amongst the heirs.
however, it may be changed or revoked by the testator anytime.

Testamentary Succession among Indian Christians:

A will is the expression by a person of wishes which he intends to take effect
only at his death. In order to make a valid will, a testator must have a
testamentary intention to which he gives deliberate expression to take effect
only at his death.
Testamentary Succession is dealt with under Part VI of Indian Succession Act,
1925. Part VI of the Act has Sections 57 to 191, that comprehensively deal with
all issues connected with wills and codicils and the making and enforcing of the
same, capacity and formalities to make a will.
Section -59. Person capable of making wills.-
Every person of sound mind not being a minor may dispose of his property by
will.
Explanation 1.-A married woman may dispose by will of any property which
she could alienate by her own act during her life.

Explanation 2.-Persons who are deaf or dumb or blind are not thereby
incapacitated for making a will if they are able to know what they do by it.

Explanation 3.-A person who is ordinarily insane may make a will during
interval in which he is of sound mind.

Explanation 4.-No person can make a will while he is in such a state of mind,
whether arising from intoxication or from illness or from any other cause, that
he does not know what he is doing.

Illustrations

(ii) A executes an instrument purporting to be his will, but he does not

understand the nature of the instrument, nor the effect of its provisions. This
instrument is not a valid will.

(iii) A, being very feeble and debilitated, but capable of exercising a judgment
as to the proper mode of disposing of his property, makes a will. This is a valid
will.
Soundness of mind and freedom from intoxication or any illness that render a
person incapable of knowing what he is doing are laid down as pre-requisites
to the process.
What are the key features of Will deed?

Here are some key points about will deeds:

• Legal instrument for succession and estate planning

 • The will is legally effective only upon the testator’s death
• Will come under the Indian Succession Act, 1925
• The Section 2 (h) defines them as the legal declaration of the intention
of a testator with respect to his property which he desire to be carried
into effect after his death
• The conditions for a legally valid will include the signatures of witnesses,
clear intentions for inheritance and the capability of the testator to
execute the same
• The testator may change or revoke the will in his or her lifetime
• It can be revoked with a fresh will, a written declaration, or the
destruction of the will
• Upon the testator’s demise, the enforcement of the will takes place via a
court application for obtaining a letter of administration or probate. This
is the certificate given by the court to the executor. Court fees are also
payable for the probate petition.

3.Explain the Interpretation & revocation of the will -

VVVVVVVVVV IMP
What is a “Will “?

Will deed is a legal document conferring ownership of personal property and

assets to the heirs of the testator (the one who makes the will) upon his or her
demise. It comes with guidelines on the distribution and disposal of property
and assets, ensuring that there are no future legal disputes amongst the heirs.
However, it may be changed or revoked by the testator anytime.

Privileged wills.-

Any soldier being employed in an expedition or engaged in actual warfare, 1[or

an airman so employed or engaged,] or any mariner being at sea, may, if he
has completed the age of eighteen years, dispose of his property by a will
made in the manner provided in section 66. Such wills are called privileged
wills.
Illustrations

(i) A, a medical officer attached to a regiment is actually employed in an

expedition. He is a soldier actually employed in an expedition, and can make a
privileged will.

(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in

actual warfare, and as such can make a privileged will.

What are the key features of Will deed?

Here are some key points about will deeds:

• Legal instrument for succession and estate planning

• The will is legally effective only upon the testator’s death
• Will come under the Indian Succession Act, 1925
• The Section 2 (h) defines them as the legal declaration of the intention
of a testator with respect to his property which he desire to be carried
into effect after his death
• The conditions for a legally valid will include the signatures of witnesses,
clear intentions for inheritance and the capability of the testator to
execute the same
• The testator may change or revoke the will in his or her lifetime
• It can be revoked with a fresh will, a written declaration, or the
destruction of the will
• Upon the testator’s demise, the enforcement of the will takes place via a
court application for obtaining a letter of administration or probate. This
is the certificate given by the court to the executor. Court fees are also
payable for the probate petition.

Section-59. Person capable of making wills.-

Every person of sound mind not being a minor may dispose of his property by
will.
Explanation 1.-A married woman may dispose by will of any property which
she could alienate by her own act during her life.
Explanation 2.-Persons who are deaf or dumb or blind are not thereby
incapacitated for making a will if they are able to know what they do by it.
Explanation 3.-A person who is ordinarily insane may make a will during
interval in which he is of sound mind.
Explanation 4.-No person can make a will while he is in such a state of mind,
whether arising from intoxication or from illness or from any other cause, that
he does not know what he is doing.
Illustrations
(ii) A executes an instrument purporting to be his will, but he does not
understand the nature of the instrument, nor the effect of its provisions. This
instrument is not a valid will.
(iii) A, being very feeble and debilitated, but capable of exercising a judgment
as to the proper mode of disposing of his property, makes a will. This is a valid
will.
Section-62. Will may be revoked or altered.-

A will is liable to be revoked or altered by the maker of it at any time when he

is competent to dispose of his property by will.

Section-69. Revocation of will by testator's marriage.-

Every will shall be revoked by the marriage of the maker, except a will made in
exercise of a power of appointment, when the property over which the power
of appointment is exercised would not, in default of such appointment, pass to
his or her executor or administrator, or to the person entitled in case of
intestacy.

Section-70. Revocation of unprivileged will or codicil.-

No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise
than by marriage, or
by another will or codicil, or
by some writing declaring an intention to revoke the same and executed in the
manner in which an unprivileged will is herein before required to be executed,
or
by the burning, tearing, or otherwise destroying the same by the testator or by
some person in his presence and by his direction with the intention of revoking
the same.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes another unprivileged
will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged will. Afterwards, A, being entitled to make a
privileged will, makes a privileged will, which purports to revoke his
unprivileged will. This is a revocation.
Section 72. Revocation of privileged will or codicil.-

A privileged will or codicil, may be revoked by the testator by an unprivileged

will .or codicil, or by any act expressing an intention to revoke it and
accompanied by such formalities as would be sufficient to give validity to a
privileged will, or

by the burning, tearing or otherwise destroying the same by the testator, or by

some person in his presence and by his direction, with the intention of
revoking the same.

4.What are the changes brought down by Hindu succession

(Amendment) Act 2005 to Hindu succession act 1956 –
Introduction

The Hindu Succession (Amendment) Act, 2005 was introduced in India to

amend the previously existing Hindu Succession Act, 1956. It aims at providing
equality, which has been enshrined in the constitution.

Hindu succession amendment Act 2005 has brought about

following important changes:
1. Amendment to Section 4(2) of the Act

The said amendment deleted Sub section (2 )of Section 4 of The Act, which
provided for exemption of agricultural property from the scope of The Act. The
provision was regulated by State level tenure laws and resulted in bias against
women as it was obscuring their right to capacitate agricultural land.
The Delhi High Court answered this question in Nirmala and Ors. v.
Government of NCT of Delhi and Ors., in which it held that the omission of
sub-section 2 of Section 4 will result in the overriding effect of the provisions of
the Hindu Succession Act over the Delhi Land Reform Act.

2. Revamping of Section 6
Before the said amendment was passed, women had negligible rights in terms
of inheritance of property either from their father or husband. Women were
allowed to inherit properties in only two cases, that is,
a.) when they received gifts from relatives and
b). when they received gifts from strangers.
They had absolute ownership and rights to dispose of the property for the
former, whereas, for the latter, they had limited rights.

The amendment resulted in restructuring the provision of Section 6 .

The old provision was deleted and a new provision was inserted which
provided that

• daughters become coparceners in the property of a Joint Hindu Family

by birth and they have equal rights and liabilities in comparison to a son
born in the same family.
• The new provision states that “On and from the commencement of the
Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu
family governed by the Mitakshara law, the daughter of a coparcener
shall,―

(a) by birth become a coparcener in her own right the same manner as
the son;

(b) have the same rights in the coparcenary property as she would have
had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary

property as that of a son, and any reference to a Hindu Mitakshara
coparcener shall be deemed to include a reference to a daughter of a
coparcener

• Furthermore, due to the said amendment, daughters continue to hold

the positions of coparceners even after marriage.
 • As the daughter has been provided with the right to become
coparceners by birth, she remains to hold such right even after marriage
which results in giving her a chance to even become Karta of the family
• Rights of a female in a joint family dwelling place- The earlier provision
of Act under which a female heir could not demand a partition of a
dwelling house wholly occupied by a joint family has now been deleted.

2) Doctrine of pious obligation abolished; Section -6. Clause (4)

3. The Omission of Section 23

Section 23 of The Act deprived a female heir to seek partition of a dwelling

house unless a male heir chose to do so The provision provided that a female
heir could only dwell in the house if she was separated, unmarried, widowed,
or deserted. The said amendment omitted Section 23 of the Hindu Succession
Act.

4. Rescinding of Section 24

Section 24 of The Act provided that any heir who is related to an intestate as
the widow of a predeceased son or the widow of a brother shall not be entitled
to succeed to the property of intestate as to such widow if on the date the
succession starts, she has remarried. The said provision was made invalid by
the amendment .

5) Addition of heirs in Class 1 – After 2005 amendment ,four more categories

of heirs have been added in class 1 of schedule to the Act. They are
A)-Son of a pre-diseased daughter of a pre-diseased daughter..
B)- Daughter of a pre-diseased daughter of pre-diseased daughter.
C) – daughter of a pre diseased son of a pre-diseased daughter and
d) – daughter of a pre-diseased daughter of pre-diseased son

Chandribai Vs. Tulsiram -High Court of MP

Whether daughter can claim share in joint family property prior to death of
father?
Section 6 of the Act has been amended on 09.09.2005 effacing devolution by
survivorship through insertion of intestate succession in Mitakshara
Coparcenary by substituting the concept of intestate succession for giving equal
shares to daughter at par with sons by virtue of their birth. As evident in Section
6(3), the provisions of amended Section 6 can only be invoked in case of
property being ancestral. However, it is significant to note that the phrase
"devolution of coparcenary property" only takes place when succession opens
and not before. It is well settled that succession opens on death of Karta i.e.
Tulsiram in this case. As a necessary corollary, Tulsiram being alive, the suit in
issue was not maintainable.
Whether children born out of void marriage are class 1 Legal heirs as S 8 of
the Hindu Succession Act?
This Court in the matter of Laxmibai. and others vrs. Limbabai 1983
Has recorded a finding that the children born out of the marriage
which is void cannot be termed illegitimate one and they are
covered by the expression ‘son and daughter - class-I' heir.

Effect of the Amendment

While the impact and effect of the amendment have been largely positive, a
shortcoming of The Act has made it difficult for the courts to determine
whether The Act is retrospective or prospective in nature.

In Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar &
Ors, it was held that:

“It would have to be seen when the appellants would be coparceners being the
daughter of a coparcener. The section gives the right to a daughter of a
coparcener “on and from” the commencement of the Act.

The amended provision under Section 6 of the HSA came into effect from 9
September 2005. On and from that date the daughter of a coparcener would
become a coparcener in her own right just as a son would be by virtue of her
birth and she would have the same rights and liabilities as of that of a son. The
devolution of her interest should, therefore, be on and from 9 September
2005.”

5..Who is the Karta of joint Hindu family. What are his

powers–VVVVVVVIMP
Introduction to Karta
Karta - The joint Hindu family is a patriarchal organization and the head of the
family is known as Karta.

The joint Hindu family as an institution is peculiar to Hindu Jurisprudence and

has its origin in ancient orthodox texts and writings. Though it originated in the
propagation of the theory of conferring upon the father nearly absolute
authority, however by efflux of time, the system was considerably changed to
confer equal rights on the sons by birth.

A Karta is a person in whom, others in the family repose confidence, so

between the Karta and the family members, there is a fiduciary relationship
because there is always a need for a manager to look after the welfare of
minor members and females in a joint Hindu family.

A Karta incurs unlimited liability and is representative of the family in all affairs.
It has been said regarding the position of Karta that no one else is equivalent
to him in the family. The position and powers are wider than anyone.

Power
Power over income and expenditure
Power to manage the joint family business
Power to contract a debt for family purposes
Power to enter into contracts
Power to refer to arbitration any matter involving the interest of the joint
Hindu family and the other members of the family, including minors
Power to enter into compromise in any matter relating to joint Hindu family
property .
Power to give discharge to the debt due to joint family
Power to acknowledge debts or make a part payment of it, so as to extend the
period of limitation . - Power to represent in suits

Power of alienation of joint Hindu family property

But this does not mean that he is a dictator. His position is extremely sensitive.
He has to move along with all the members.

Thus the position of the Karta is a mixture of rights and duties.

He has to maintain the balance between rights and duties.

 In Dudhmath v. Satnarain Ram AIR 1966 All. 315, the Court observed that in
order to uphold an alienation of joint Hindu family property by the father or
the manager, it is not only necessary to prove that there was a legal necessity
but also that the father or the manager acted like a prudent man and did not
sacrifice the property for inadequate consideration.

Duties and Liabilities

He has the duty to render accounts to the other coparceners regarding the
income from joint family property and expenditure thereon.
He has the duty to realize the debt due to the family.
He has the duty to spend the joint family funds only for the purposes of the
family and should spend reasonably.
It is the duty of Karta not to start a new business without the consent of other
coparceners.
It is the duty of Karta not to alienate the coparcenary property without legal
necessity or benefit to the estate.
What is Benefit of estate?
Karta for improvement of property or for preserving some property from
extinction or for consolidation of land holding can alienate some property
instead purchase some property elsewhere. However, he has to exercise his
own prudence in such cases and if he makes and error of judgment, he shall
not be held responsible for the same unless a fraud has been alleged against
him.
Legal Necessity
Karta is bound to do numerous duties. It means certain legally binding duties
which the Karta has to fulfil.
For example, there is any civil/criminal proceeding pending, marriage
expenses, pind daan, funeral expenses, maintenance of family members.

REMEMBER: Karta has unfettered power when to sale.

Défense of benefit and necessity will come into question after sale has been
made. A complete sale has to be made.

In Kehar Singh v. Nachitar Kaur & Ors, 2018, the Hon’ble Supreme Court of
India, stated the following to be legal necessity:

Payment of government revenue.

Maintenance of coparceners and members of their family.
Marriage expenses of the male coparceners and their daughters.
The cost of necessary litigation which may be civil or criminal.
The payment of debts incurred for family businesses etc.

Who can be a Karta ?

- Hindu Law believes that the senior-most coparcener is the Karta of the family.

Refer case of Ram v. Khera (1971).

Any coparcener becomes Karta of the family because of his seniority, not
because of anyone appointed him. Refer a case to this effect,

Mann v. Jayani (1918) it was held that such a person such a person till he lives
continues as the Karta of the family although he may be aged, handicapped,
weak or ill.

However, any Karta becomes unsound mind then the senior-most coparcener
would become the Karta.

Whether a Junior-most coparcenary becomes a Karta ?

Generally, it does not happen, but
in the case of Narendra Kumar v. Income Tax Commissioner-1976,
it was held that a junior coparcener could be the Karta with the consent or
agreement of all the coparceners.
In another case of Harihar Sethi v. Ladu Kishore Sethi -2002,
it was held by the Orissa High Court that a junior coparcener can be the Karta
when the senior most coparcener waives his right of Karta then a junior
member can become Karta.

Whether a mother can become a Karta ?

In the case of Pandurang v. Pandurang (1947), it was held by the Nagpur High
Court that the mother could become Karta if there is no other adult
coparcener.

here, the Supreme Court does not agree to this view in the case of
Commissioner of Income-tax v. Seth Govind Ram AIR 1966 SC 24.
The Karta of a Joint Hindu Family at a time can only be one.
Position of Daughter
It was in 2005 when the amendment was brought in the Hindu Succession Act
with the aim to remove gender discriminatory provisions regarding the right to
property.

A female member, the daughter of a coparcener, shall by birth become a

coparcener in the same way as the son.

This was upheld in the case of Shreya Vidyarthi v. Ashok Vidyarthi & Ors (AIR
2016 SC 139).

In the recent case of Sujata Sharma v. Manu Gupta, the Delhi High Court held
that a daughter can also be made a Karta by virtue of section 6 (1). Earlier,
daughters could not be made a Karta.

6..Enumerate the Class I & Class II heirs under Hindu

Succession act 1956
Introduction

But what happens if the property’s owner dies intestate or without leaving a
Will? In such circumstances, the property is split into equal portions among all
lawful heirs in accordance with the deceased’s religious laws.

Who is a legal heirs:

An heir is a person selected by law to inherit the inheritance of an ancestor who

died without leaving a testament. The word legal heir often refers to a person
who inherits property, which might be by law or by will.

Types of Heirs in Hindu Succession Act

Different types of Legal heirs are as following order:

• Class 1 heirs of a Hindu male;

• His Class 2 heirs ;
• Agnates: related by blood or adoption through the male;
• Cognates: related by blood or adoption, not necessarily through males.

If a man who practices Hinduism passes away intestate (without a will), the
property will be distributed according to the list of relatives provided
in class 1 heir listed in of the Hindu Succession Act-1956

If none of the relatives described in Class 1 heir is living, the Act gives a list of
relatives under Class 2.
If class 2 heirs are not present, then to agnates
if agnates are also not present, then to cognates.

Similarly, if the dead is a Hindu female, the Act provides a list of relatives who
might be regarded as legal heirs.

I. Hindu males passing away intestate (or without a will)

As per the Hindu Succession Act, 1956,

Class 1 Legal heirs of a Hindu male are the following:
1. “Son;
2. daughter;
3. widow;
4. mother;
5. son of pre-deceased son;
6. daughter of a pre-deceased son;
7. son of a pre-deceased daughter;
8. daughter of a pre-deceased daughter;
9. widow of a pre-deceased son;
10. son of a predeceased son of a pre-deceased son;
11. daughter of a pre-deceased son of a pre-deceased son;
12. widow of a pre-deceased son of a pre-deceased son”.

The following 4 heirs have been added by Hindu Succession Acrt-2005.

A)-Son of a pre-diseased daughter of a pre-diseased daughter..

B)- Daughter of a pre-diseased daughter of pre-diseased daughter.
C) – daughter of a pre diseased son of a pre-diseased daughter and
D) – daughter of a pre-diseased daughter of pre-diseased son

While class 2 legal heirs include:

1.“Father;
2.Sons daughter’s son;
3.Sons daughter’s daughter;
4. Brother;
5.Sister;
6. Daughters son’s son;
7. Daughters son’s daughter;
8. Daughters daughter’s son;
9. Daughters Daughter’s daughter;
10. Brothers son;
11. Sister’s son;
12. Brothers daughter;
13.Sister’s daughter;
14.Fathers father;
15. Fathers mother;
16. Fathers widow;
17. Brothers widow;
18. Fathers brother;
19. Fathers sister;
20. Mothers father;
21. Mothers mother;
22.Mothers brother;
23. Mothers sister.”
These Class-2 heirs have been categorised into -9 categories in Schedule as
under:-

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; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Explanation.―In this Schedule, references to a brother or sister do not include
references to a brother or sister by uterine blood.

When a person dies leaving behind property but without leaving a will or
testament., is known as intestate succession.

When a person passes away intestate, the property passes first to class 1 heirs
of a Hindu male;

if just one class 1 heir of a Hindu male is present, the property does not pass to
his class 2 heirs. If no Class-1 heir is available then it passes on to Class-2 heirs.

In the absence of a class 2 heir category, the property will pass to heirs in class
3 or agnates, which principally consists of the intestate’s blood relations linked
to him through a full male chain of relatives.

If no heir is present in class III also,the interest in the property passes to any
other blood related to the intestate that is Cognates

Conclusion
Class 1 heirs of a male Hindu are those to whom the property interest passes in
the first instance upon the death of the intestate. There are eleven female
members and five male members in this category and 4 members have been
added by Amendment Act-2005.
All class 1 heirs of Hindu males take the property totally and solely as their own
property, and no one may claim a right by birth in this inherited property, unlike
the former joint family rule.

7..Distinguish between the Sunni &Shia laws of

inheritance- VVVVVVVVIMP
Introduction
Inheritance refers to the transfer of property from a deceased person to a
living person who is legally related to him or her. The process of devolution of
inheritance for Muslims is governed by various Muslim personal laws, which
are based on pre-Islamic customary succession laws and principal scriptural
sources like the Holy Quran, the Sunnah, the Ijma, and the Qiyas.

As one might know, there are two kinds of succession – testamentary (where a
will was created before the death of the deceased person) and non-
testamentary (where the person dies intestate, i.e., without creating a will).

Concept of inheritance under Muslim law

The concept of inheritance is rooted in the Islamic or Quranic principles
enumerated by the Prophet. Islamic laws do not recognise joint tenancy, and
the heirs are tenants-in-common, i.e., they can only seek to inherit the shares
of the property that is held in common.

In the case of Abdul Raheem v. Land Acquisition Officer (1989), the

court remarked that Muslims do not follow or recognise the joint family
system in matters of inheritance, and after the death of a Muslim person, the
rights, title, and interest he held in his estate cease to exist and stand vested
in others.

Sunni Law of inheritance

The Sunni in India primarily belong to the Hanafi school and are governed by
Hanafi school of law. The Hanafi laws attempt to create a more harmonious
relationship between the customary law and the Quranic law by which the
inclusion of the Quranic class of heirs does not deprive the customary heirs
of their share but rather just a portion of the estate is allotted to the Quranic
heirs.

It is important to note that, even though the new class of heirs created
included females, it still retained the preference of agnates over cognate
heirs. That is, the Quranic class recognizes the female agnates’ right to
inherit a share much like their male counterparts.

The position of the Quranic heirs and the customary heirs with respect to
inheritance differs in two cases:

• If the Quranic heir is more in proximity to the deceased than to a

customary heir, the Quranic heir gets a portion of estate first and
then the residuary is given to the customary heir.
• If both the Quranic and customary heirs are equally close, the
customary heir gets double of the amount of share given to the
Quranic heir.
•
Even though the agnates are given preference in inheritance over cognates,
they’re not completely excluded from the scope of succession, as cognates
such as uterine brothers and uterine sisters are included.

Under the Hanafi law, the heirs of the deceased are either sharers or
residuaries, and in the absence of both of these classes of heirs, the estate is
passed down to other relatives of the deceased, who fall under the category
of “distant kindred”.

In case of absence or some inability that restricts the distant kindred from
inheriting, the estate is passed on to the state by escheat, meaning that if a
Muslim dies heirless, then the property is devolved on to the state.

Further, the distribution of estates under the Sunni law is per capita,
according to which the estate of the deceased is distributed equally among
the heirs. Thus, the number of shares one gets is proportional to the number
of heirs.

Shia Law of inheritance

The Shia law of inheritance is guided by the general principles of the Ithna-
Ashari law. The Quranic rules here are interpreted very widely, unlike the
strict interpretation followed by the Sunni law. This causes a very significant
divergence in the principles and rules of succession under Shia laws, leaving
them with an almost independent scheme of succession.

Shia law follows per strip distribution, i.e., the distribution of property
among the heirs is based on the strip they belong to.

The Shia law does not prioritise the rights of agnates over cognates or of
males over females with respect to inheritance.

But there is a certain exception to the rights of husband and wife – the
estate of the deceased devolves to the blood relations equally, and the
females are allowed only half of the share of the males in each class.
Therefore, there is no hierarchy with respect to who inherits the estate first
between the descendants, ascendents, and collaterals, as they all inherit side
by side.
Thus, the shias right to inheritance is based upon two categories of relations:

1. Nasab – blood relationships or consanguinity;

2. Sabab – special cause or heirs by affinity, through marriage.
In testamentary succession, if the property in question is an immovable
property located in Chennai, West Bengal, or Bombay, then it becomes an
exception, where the Muslims will be bound by the Indian Succession Act,
1925, rather than Shariat laws.

Class of heirs under Hanafi law

The heirs of a deceased Muslim fall under the following classes –

1. Sharers
2. Residuaries
3. Distant kindred relations
Class – I heirs
The sharers fall under class I heirs, and there are 12 relatives of the
deceased on the list of sharers.
1. Wife (Widow) – takes 1/8 (one-eighth) part of share if she has
children and
¼ in case of her being childless. She can never be excluded.
2. Husband (widower) – gets 1/8 (one-eighth) shares, but in case
he is childless, the share portion increases to 1/2 (one-half). He can
never be excluded.
3. Daughter – a single daughter gets 1/2 (one-half) shares. If there
are two or more then they take 2/3 (two-thirds) of shares together.
In the presence of a son, she becomes a residuary. She can never
be excluded.
4. Son’s daughter – gets 1/2 (one-half) shares and if two are more
then, 2/3 (two-thirds) shares.

• Share is reduced to 1/4 (one-fourth) when there is only one

daughter and to 1/8 (one-eight) in presence of one higher
son’s daughter. In the equal presence of a son’s son, she
becomes a residuary. Can be excluded under certain
conditions.

5. Full sister – a full sister gets 1/2 (one-half) shares and in case
there are two or more in number they together take 2/3 (two-
thirds) shares.

In the presence of a full brother, she becomes a residuary. Can be

excluded under certain conditions.

6. Consanguine sister – gets 1/2 (one-half) shares and 2/3 (two-

thirds) together if there are two or more. In presence of a full
brother, share gets reduced to 1/6 (one-sixth) and in presence of a
consanguine brother, she becomes a residuary. Can be excluded
under certain conditions.
7. Uterine sister – gets 1/6 (one-sixth) shares if single and 1/3 (one-
third) together if two are more in number. Can be excluded under
certain conditions.
 8. Uterine brother – gets 1/6 (one-sixth) shares if single and 1/3
(one-third) together if two are more in number. Can be excluded
under certain conditions.
9. Mother – gets 1/6 (one-sixth) shares and never excluded. Share
increases to 1/3 (one-third) if there is no child or no son’s child or if
she has a sibling. If the husband or wife of the deceased exists,
then she gets 1/3 (one-third) of shares after deducting the shares of
the husband or wife.
10. Father – gets 1/6 (one-sixth) shares and is never excluded.
When there is no child or son’s child then he becomes a residuary.
11. True grandmother – gets 1/6 (one-sixth) shares. Under
Certain exceptions she can be excluded.
12. True grandfather – gets 1/6 (one-sixth) shares. Under
certain exceptions he is excluded. If there is no child or son’s child,
he becomes a residuary.

Class – II heirs
The Quranic residuaries and the general residuaries constitute the class – II
heirs. Quranic residuaries are those members who were originally sharers
who become residuaries due to certain conditions or presence of a higher
degree heir.

There are 5 Q uranic residuaries –

1. Daughter – becomes a koranic residuary due to the existence of a

son of the deceased.
2. Son’s daughter – becomes a residuary due to the presence of a
son’s son or a male agnatic heir in a lower degree
3. Son’s son’s daughter – becomes a residuary due to the presence of
a son’s son’s son or a male agnatic heir in lower degree.
4. Full sister – becomes a residuary due to the presence of a full
brother

10.Consanguine sister – becomes a residuary due to the presence of

a consanguine brother
The residuaries can be classified into three categories –

• the ascendants – the parents, grandparents the other relation who

precede or ascent directly to the deceased.
• the descendants – individuals succeeding in the direct biological
line of the deceased, like children, grandchildren, and so on.
 • the collaterals – individuals who are descendants in parallel lineage
of the ancestors of the deceased but are not direct blood relatives.
Eg., consanguine brothers, sisters, paternal aunts and uncles.
Maternal aunt and uncles etc.

Class – III heirs

In the absence of both sharers and residuaries, the estate of the deceased is
devolved to the distant kindred. All those blood relations that did not make it
to the list of sharers and residuaries are constituted in this class, which
includes female agents and the male and female cognates.

The distant kindred can be categorised under descendants, ascendants, and

collaterals. The number of collaterals, ascendants, and descendants is
limitless, and relations of all degrees are included.

• Descendants

1. Daughter’s children and their descendants however low

2. Son’s daughter’s children and all the succeeding descendants
however low

• Ascendants

1. False grandfather how so ever high

2. False grandmother how so ever high
• Collaterals – descendants of parents

Class of heirs under Shia Law

The Shia Muslim heirs fall under two classes –

1. Heirs by marriage – the husband and wife

2. Heirs by consanguinity
Under the Shia scheme of heirs, the husband and wife are never excluded,
and thus they always inherit with all other classes of heirs. The class of
distant kindred is not recognised under Shia law.

Class – I heirs
Under Shia Law, all Sharers are not Class – I heirs.

1. Husband
2. Wife
 3. Father
4. Mother
5. Daughter
6. Son
7. Grandchildren
8. Remote lineal descendants

Class – II heirs
Class – II constitutes heirs by consanguinity, with three sub – categories,
say, a, b and c, with priority of heirs decreasing from a to b.

1. Parents
2. Children and succeeding descendants

3. Grandparents (both true and false )

4. Brothers, sisters and their descendants

5. Paternal uncles and aunts of the deceased, the parents and grandparents
and their descendants of all degrees.
6.Maternal uncles and aunts of the deceased, their parents and grandparents
and their descendants of all degrees

If a Muslim dies without leaving any heirs to inherit his or her property, it
passes to the state by escheat.
under the Indian succession act, 1925. Without these certificates, it will not
be possible to take legal action against the debtors of the deceased.

Case Law

Imambandi v. Sheikh Haji Mutsaddi (1918)

In this case, a man named Ismail Ali Khan died, leaving behind three widows
and several children. The petitioner, Enayet-uz-Zhora is one of his widows.
She, along with her two minor children, bought a share of his estate through
a suit. The defendants disputed the legitimacy of her marriage to Ismail and
the children, thus denying her claims over the shares and her right to sell
them.
The court observed that Under Sunni law, after the death of the father,
custody vests in the executor appointed by him. If the father dies without
appointing an executor, then custody devolves to the paternal grandfather.
Therefore, it was held that the petitioner (the mother) had no authority to
alienate the property as she was not the natural or legal guardian of the
children.
Short questions
1.Doctrine of Pious obligation-

Origin of Doctrine Of Pious Obligation

The doctrine of pious obligation is based on piety and religion. Hindu law states
that when a Hindu dies and his soul is indebted, he may have to face evil
consequences. Therefore, the son of such a person has the responsibility to
free the soul of his father from indebtness. In this regard, Brihaspati states
that:
“He who having received a sum lent or the like does not repay it to the owner
will be born hereafter in his creditor’s house a slave, a servant, a woman or a
quadruped.”

Thus, the sole object of the doctrine of Pious Obligation is to confer the
spiritual benefit upon the deceased and not for the benefit of the creditor.
In the case of Anthonyswamy v. M.R. Chinnaswami[4] it was held that the
liability of the son is not a gratuitous one but is a counter balance to his right in
the property by the virtue of his birth in the family.
Scope Of Liability in Doctrine Of Pious Obligation

The extent of liability to pay the sum owed by the father or the grandfather or
the great grandfather is limited to the principal and not the interest on the
same.
Before the British Era, the son and the grandson had a personal liability to pay
the debt whereas the liability of the great-grandson was limited to his share in
the joint family estate. During the British Era, the liability of the son, the
grandson and the great-grandson was limited to his share in the joint family
estate. Thus, even if the son is in possession of some personal property, he is
not liable to repay the debts of the father.
Effect Of Partition Of Joint Family Property
It was held in the case of Ram Saran v. Bhagwan,that the liability of the son
does not arise post the partition of the property. However, for pre-partition
debt, the liability continues even after the partition as long as the debts were
not immoral or for an illegal purpose.

In the case of V.D. Deshpande v. S.K.D. Kulkarni. the father borrowed loan
from the government for the purpose of improving joint family lands. There
was a partition amongst members of the joint family and no provision was
made for the repayment of the debt. It was held at the joint family property in
the hands of the sons would remain liable for the payment of the loan. Even
though the father was a Karta and the loan was taken for the benefit of the
entire joint family, only the sons were held liable under the doctrine of pious
obligation.
Liability of Pious Obligation When Father Is Still Alive

Earlier the view of the courts was that the liability of the son cannot arise in
cases where the father is still alive. However, this view was discredited in the
case of Brij Narian v. Mangla Prasad[12].
.
Avyavaharik Debt
Avyavaharik debt means debt incurred which is not in the normal course of the
business. It can also be referred to as the debt “for a cause repugnant to good
morals”. According to Usanas, what is not vyavharik must not be paid by the
son.
According to Brihaspati, Gautama, Manu and Usanas, the son is not liable to
pay the following debts:
1. Debts for spirituous liquour.
2. Debts due for lust.
3. Debt due for gambling.
4. Unpaid fine.
5. Unpaid tolls.
6. Useless gifts or promises without considerations or made under
the influence of lust or wrath.
7. Suretiship Debts
8. Commercial Debts.
The following have been held to not be Avyavaharik debts:
1. Debts incurred for a new business.
2. Debts incurred due to negligence in performance of a duty.
3. A promissory note executed for payment of a time-barred debt.
.[1] Post the Hindu Succession (Amendment) Act, 2005, the
pious obligation of the son has been abolished. Section 6(4) of the Hindu
Succession (Amendment) Act, 2005 in this regard states that-

“(4) After commencement of the Hindu Succession (Amendment) Act, 2005, no

court shall recognize any right to proceed against a son, grandson or great-
grandson for the recovery of any debt due form his father, grandfather or
great- grandfather solely on the ground of the pious obligation under the
Hindu Law, of such son, grandson or great- grandson to discharge any such
debt.”
However, if the debt is incurred before 2005, the son, grandson and the great-
grandson will be liable under the doctrine of pious obligation.[2] Thus, the
amendment is prospective in nature. The aim of this article is to discuss the
scope of doctrine of pious obligation in India.
Conclusion
The doctrine of pious obligation lays down that a son is liable to pay the debts
of his father as long as those debts incurred are not tainted by immorality.
While the earlier position was that the liability of the son is that of personal
nature, it was later limited to the share of the son in the joint family property.
How ever it has been abolished vide Hindu Succession (Amendment m)Act-
2005

2..Privileged wills.-
Any soldier being employed in an expedition or engaged in actual warfare, 1[or
an airman so employed or engaged,] or any mariner being at sea, may, if he
has completed the age of eighteen years, dispose of his property by a will
made in the manner provided in section 66. Such wills are called privileged
wills.

Illustrations
(i) A, a medical officer attached to a regiment is actually employed in an
expedition. He is a soldier actually employed in an expedition, and can make a
privileged will.

(ii) A is at sea in a merchant-ship, of which he is the purser. He is a mariner,

and, being at sea, can make a privileged will.

(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in

actual warfare, and as such can make a privileged will.

66. Mode of making, and rules for executing, privileged wills.-

(1) Privileged wills may be in writing, or may be made by word of mouth.

(2) The execution of privileged wills shall be governed by the following rules:-
(a) The will may be written wholly by the testator, with his own hand. In such
case it need not be signed or attested.

(b) It may be written wholly or in part by another person, and signed by the
testator. In such case it need not be attested.

(c) If the instrument purporting to be a will is written wholly or in part by

another person and is not signed by the testator, it shall be deemed to be his
will, if it is shown that it was written by the testator's directions or that he
recognised it as his will.

(d) The soldier, 1[airman] or mariner may make a will by word of mouth by
declaring his intentions before two witnesses present at the same time.

Section-72. Revocation of privileged will or codicil.-

A privileged will or codicil, may be revoked by the testator by an unprivileged

will .or codicil, or by any act expressing an intention to revoke it and
accompanied by such formalities as would be sufficient to give validity to a
privileged will, or by the burning, tearing or otherwise destroying the same by
the testator, or by some person in his presence and by his direction, with the
intention of revoking the same.

3.. Administration of estates under Muslim law

Inheritance under Muslim Law
According to the Indian legal system, the rules governing inheritance under Muslim
law vary depending on the type of property involved. The Muslim Personal Law
(Shariat) Application Act, 1937, for example, will apply in the situation of non-
testamentary succession. Contrarily, in the event of testamentary succession (which
means the individual made a will before to passing away), the Muslim law of Shariat
governs the inheritance of the deceased's property and is equally applicable to Shia
and Sunni religions.
What are the sources of Muslim Law of Succession
Four main sources of Islamic law serve as the foundation for the Muslim
Law of Inheritance. The list is as follows.
1. The Book of the Holy Quran.
2. The Sunna is also known as an example of the
Prophet's actions.
3. The Ijma, is also known as the general agreement
among the educated members of the society over the
 course of action that should be taken regarding a
certain issue.
4. The Qiya, is a logical inference of what God has
established as the proper and fair course of action in
line with the moral precepts that he has established.
TYPES OF HIERS
The Sharers and the Residuary and Distant Kindred are the different categories of
heirs recognized by Muslim law.
1. The individuals who are legally entitled to a portion of
the deceased person's property are known as sharers.
2. After all of the sharers have taken their portion of the
property, the remaining portion of the property will be
divided among the residuary.
3. The term "Distant Kindered" refers to relatives by blood
who are neither sharers nor heirs of the estate.
2.Residuary
In the event that there are no Sharers or if there are Sharers but there is a residue left
over after fulfilling their claims, the whole inheritance or the residue, whichever is
applicable, is distributed among the Residuaries in the order that is laid out.
I Descendants: i. Son ii. Son’s son
II Ascendants: i. Father. ii. True Grandfather
III Descendants of father: i. Full brother. ii. Full sister. iii. Consanguine brothers. iv.
Consanguine sister. v. Full brothers son vi. Consanguine brother’s son vii. Full
brother’s sons’ son viii. Consanguine brother’s son’s son
IV Descendants of true Grandfather i. Full paternal uncle ii. Consanguine Paternal
Uncle iii. Full paternal uncle’s son iv. Consanguine Paternal uncle’s son v. Full
paternal uncle’s son’s son vi. Consanguine paternal uncle’s son’s son vii. Full
paternal uncle’s son’s son viii. Consanguine paternal uncle’s son’s son ix.
Consanguine paternal uncle’s son’s son x. Male descendants or more remote true
grandfathers
3.Distant Kindred
In the event that there are no shares or residuary, the inheritance is given out to
various distant relatives.
If there is just one sharer, and that sharer is a husband or wife, and there is no other
connection that belongs to the class of Residuaries, then the husband or wife will
receive their whole share, and the rest of the estate will be distributed among Distant
Kindred.
Four different categories are considered to be distant kin. These categories are as
follows: (1) Descendants of the deceased, other than sharers and residuary; (2)
Ascendants of the deceased, other than sharers and residuaries; (3) Descendants of
parents, other than sharers and residuaries; and (4) Descendants of ascendants how
highsoever other than residuaries.
It is customary for the descendants of the dead to take precedence over the
ascendants of the deceased, the ascendants of the deceased to take precedence
over the descendants of the parents, and the descendants of the parents to have
preference over the descendants of the ascendants.
DISTRIBUTION OF PROPERTY
There are two ways to distribute property in accordance with the Muslim Law of
Inheritance i.e., Per Capita and Strip Distribution
Per Capita- (used in Sunni Law) - Inheritors share equitably in the inheritance of their
forebears. The number of heirs determines how much each individual will get.
Per strip- (used in Shia Law)- Each generation, such as the first, the second, and so
on, receives a certain portion of the estate.
THE DOCTRINE OF REPRESENTATION
Those who are farther removed from the deceased are disinherited by those who are
closest to them under Muslim law. If two people can trace their lineage back to the
same ancestor, the one who is physically closest to the ancestor will get the
inheritance. Since A is closer to P in generational degree than E is, A will remove E.
Protection of Women's Rights There is no observable difference between men and
women, however, women often earn less per hour than men. Because she gets
spousal support in the form of Mehr and alimony.
A Muslim widow who does not have any children is entitled to one-fourth of her late
husband's estate.
When she has children or grandchildren, she gets one-eighth of her late husband's
estate.
Note- A Muslim man's wife forfeits all claims to his inheritance if he marries while ill
and dies before they can consummate their marriage. She may inherit till she
remarries if her sick husband or wife divorces her and then dies.

Other important Points

The child has a chance to inherit the estate if he or she is born healthy. If a Muslim
passes away without a direct descendant, his estate will escheat by the state.
According to Islamic law, a Muslim's ability to inherit property is terminated when he
marries under the Special Marriage Act of 1954. After death, no Muslim's heirs would
be entitled to inherit such a person's possessions under Islamic law. The Indian
Succession Act of 1925, rather than Islamic law, governs the transfer of property
ownership among Muslims. Section 51 of the Mulla Law on Inheritance states that
there is no distinction between inherited and personally earned property.

4.. Mithakshara & Dayabaga

Introduction
Due to the emergence of various commentaries on SMIRITI and SRUTI,
different schools of thoughts arose. School means rules and principles of Hindu
Law which are divided into opinion. It is not codified.
There are two Schools of Hindu Law:-
a) Mitakshara
b) Dayabhaga.

The Mitakshara and Dayabhaga Schools differed on important issues as regards

the rules of inheritance. However, this branch of the law is now codified by the
Hindu Succession Act, 1956, which has dissolved the differences between the
two. Now, the main difference between them is on joint family system.

Mitakshara- Rights in the joint family property is acquired by birth, and as a

rule, females have no right of succession to the family property. The right to
property passes by survivorship to the other male members of the family.

Dayabhaga- Rights in the joint family property are acquired by inheritance or

by will, and the share of a deceased male member goes to his widow in default
of a closed heir.

1. MITAKSHARA SCHOOL:
The Mitakshara School exists throughout India except in the State of Bengal.
Mitakshara school is based on the code of Yagnavalkya commented by
Vijnaneshwara, a great thinker and a law maker from Gulbarga, Karnataka.

The Inheritance is based on the principle or propinquity i.e. the nearest in

blood relationship will get the property.
Sapinda relationship is of blood.
The right to Hindu joint family property is by birth. So, a son immediately after
birth gets a right to the property.
The system of devolution of property is by survivorship (But now it has been
amended by 2005 Amendment Act).
The share of co-parcener in the joint family property is not definite or
ascertainable, as their shares are fluctuating with births and deaths of the
coparceners.

The co-parcener has no absolute right to transfer his share in the joint family
property, as his share is not definite or ascertainable. The widow of a deceased
co-parcener cannot enforce partition of her husband‟s share against his
brothers.
 A woman could never become a co-parcener. But, the Hindu Succession
(amendment) Act of 2005 empowered the women to become a co-parcener
like a male in ancestral property.

A major change enacted due to western influence. Sub-Schools under the

Mitakshara School: There are four Sub-Schools under the Mitakshara School:
i. Dravidian School of thought : (Madras school) It exists in South
India.
ii. ii. Maharashtra School: (Bombay School of Thought) It exists in
Bombay (Mumbai) and Gujarat. The Bombay school has got an
entire work of religious and Civil laws.
iii. iii. Banaras School of Thought: It extends of whole of northern
India except in Punjab where its authority is modified by
customary law in rural areas. by this school is Viramitrodaya
authored by Mitra Mishra.
iv. Mithila School of Thought: It exists in Tirhut, North Bihar
and Uttar Pradesh near the Jamuna (Yamuna) river areas.

2.DAYABHAGA SCHOOL OF THOUGHT:-

It exists in Bengal and Assam only. The Yagna Valkya smriti and some
other Smrities are commented on by Jimutavahana under the title
Dayabhaga.

It has no sub-school. It differs from Mistakshara School in many respects.

Dayabhaga School is based mainly on the code of yagnavalkya commented
by Jimutuvahana,

Inheritance is based on the principle of spiritual benefit. It arises by pinda

offering i.e. rice ball offering to deceased ancestors. This school is followed
in Bengal and some parts of Assam only.

The main features of this School are as follows:

• Sapinda relation is by pinda offerings.

• The right to Hindu joint family property is not by birth but only on the
death of the father.
• The system of devolution of property is by inheritance. The legal heirs
(sons) have definite shares after the death of the father.
• Each brother has ownership over a definite fraction of the joint family
property and so can transfer his share.
 • The widow has a right to succeed to husband‟s share and enforce
partition if there are no male descendants.
• On the death of the husband the widow becomes a co-parcener with
other brothers of the husband. She can enforce partition of her share.

Differences between the two Schools in Coparcenary:-.

Srl.No Mitakshara Srl. Dayabhanga

No
1 Property of a deceased Hindu is 1 Property is of two types-
partitioned into two ways as the (a) Joint,
property is of two types- (a) (b) Separate.
Ancestor‟s property, (b) Separate The descendants inherits the
property. Ancestor‟s property is property whatever type it is.
partitioned in accordance to the
Rules of Survivorship.
But a Separate property is
partitioned to the descendants.

2 Mitakshara- In default of close heir, 2 If coparcener dies, his widow

brother and immediate survivors will get the property in default
inherit, the wife does not inherit. of a close heir but she cannot
alienate
3 The order of heirs is decided by 3 The order of heirs is decided
mere ness of blood. by the competence to offer
Pinda and Sraddho to the
deceased.

5..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 the two classes, then upon the agnates
of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
 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.

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 intestate 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 the pre-deceased son shall be
so made that his widow (or widows together) and the surviving
sons and daughters get equal portions; and the branch of his
predeceased sons gets the same portion;
(ii) (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.

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.

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:
Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is
preferred.
Rule 2- Where the number of degrees of ascent is the same or none, that heir
is preferred who has fewer or no degrees of descent.
Rule 3- Where neither heirs is entitled to be preferred to the other under Rule
1 or Rule 2 they take simultaneously.
6. 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 predeceased 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.

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

7. .General rules of Christian Succession

Succession Rules applicable to Indian Christians.

Who is an Indian Christian?

An Indian Christian, as per Section 2(d) of ISA, means a native of India who is,
or in good faith claims to be, of unmixed Asiatic descent and who professes
any form of the Christian religion.

The law that lays down the rules of distribution of property of a Christian dying
intestate (without making a Will), is the Indian Succession Act, 1925 (ISA).

The Indian Succession Act, 1865, Cochin Christian Succession Act, 1921,
Travancore Christian Succession Act, 1916 etc applicable to Christians in the
past were repealed and consolidated into ISA.

Legal provisions of ISA applicable

The Sections 31 to 49 of ISA deal with rules of Christian succession.

A Christian who dies intestate, as per Section 32 of ISA, will have three
categories of legal heirs: they are the Spouse, Lineal Descendants and the
Kindred.

The Section 24 of ISA refers to the concept of kindred or consanguinity. The

term is defined as the “connection or relation of persons descended from the
same stock or common ancestor”.

Kindred of an intestate can be descendants such as children, grandchildren,

ascendants such as his father, mother, grandfather, grandmother,

or collaterals such as his brothers, sisters and their descendants, or his uncles,
cousins and other relations, who are not the descendants of the siblings of the
deceased.

The Section 25 of ISA defines “lineal consanguinity” as the descendants in a

direct line such as man and his father, grandfather and great grandfather,
children and grandchildren etc. Lineal descendants mean all those who are
directly related to the deceased and are living at the time of distribution of the
property.

The succession to the movable property in India of the deceased, as per

Section 5 of ISA, will be governed by the law of the country where he had his
domicile at the time of his death. But the succession to his immovable property
will be governed by the law of India, wherever he had his domicile at the time
of his death.

A person can have only one domicile for the purpose of succession to his
movable property, as per Section 6 of ISA.

When the widow and lineal descendants remain

Where an intestate has left a widow and lineal descendants, such as children
and grandchildren, one-third of his property shall belong to the widow, and the
remaining two third shall go to the lineal descendants (Section 33).

If the intestate has left the widow, no lineal descendants but some people
who are kindred to him the widow will get one-half and the remaining one-half
to be shared by the kindred.

If the intestate has left the widow, no lineal descendants and no kindred, then
the entire property will devolve on to the widow/widower.

The law applicable to a widow will be applicable to a widower who survives his
wife, under Section 35 of ISA.

9... Hindu Succession (Amendment) Act 2005

Position after Amendment Act

Amendment Act 2005 is an important step towards gender equality. But in
many aspects the act remained same.
As per new sectin-6 Substituted to old Section:-

1) daughters has an share equal to that of sons at the time of the

notional partition, just before the death of the father, and an
equal share of the father's separate share.

However, the position of the mother stays the same. She, not being a
member of the coparcenary, is not getting a share at the time of the
notional partition. Making daughters coparceners decreased the shares
of other Class I female heirs, such as the deceased's widow and mother.

2) The amendment made the position of the other female members of

the joint family worst. With a daughter along with the sons acquired a
birth right, which she can presumably partition at any time, the rights of
other members of the joint family got diminished.

3) Since Hindu law does not grant any rights to wives in marital
property, their only chance of getting anything was on an inheritance, as
equal share with the sons and daughters, if the marriage was subsisting

II. Pious obligation of Sons has been abolished

III.Sub Section (2) of Section 4 has been deleted

10.Joint Hindu family.

WHAT IS A HINDU JOINT FAMILY
Joint Hindu Family in present-day is governed by the Hindu Succession Act,
1956. It is a normal condition of Hindu society. It was earlier mentioned that it
is inevitable that a Hindu will come into existence as a joint family. The
reasoning behind that is if one generation is brought to an end by the means of
a partition, it comes back into existence in the next generation automatically.
This supports the presumption that every Hindu family is a Joint Hindu Family.

It was observed in Rukhmabai vs. Lala Laxminarayan and Rajagopal vs.

Padmini that a family continues to be a joint family if it is joint in affairs of
food, worship, and estate.
However, even if a family is not joint in food and worship, i.e. if they live
separately, they still constitute a Joint Hindu Family provided they are joint in
the estate.
 It was held in the case of Chhotey Lal & Ors. vs. Jhandey Lal & Anr. that a
Joint Hindu Family is neither a corporation nor a juristic person as they do not
have a separate legal entity from that of its members.
A Joint Hindu Family is a unit and is represented by the Karta of the family in all
matters.
In the case of Gur Narain Das vs. Gur Tahal Das, it was observed that even an
illegitimate son of a male descendant is a part of his father’s Joint Hindu
Family. It includes their mothers, wives, widows, and unmarried daughters.

An unmarried daughter remains a part of the joint family till she is married.
Once she is married, she becomes part of her husband’s Joint Hindu Family.
However, if the daughter is abandoned by her husband or becomes a widow,
and returns to her father’s home permanently, she becomes a part of that
Joint Hindu Family again.

But her children remain a part of their father’s joint family. However, it is
important to note that without a common ancestor there cannot be a Joint
Hindu family.
The family continues to be a Joint Hindu Family even after the death of the
common ancestor.

One can stop being a part of a joint family

upon conversion to another religion or
by marriage to a non-Hindu u/s 2 of the HMA.
One ceases to be part of a joint family even when one is given in adoption to a
third party by competent parents or
when a daughter is married off.

11..LAWS RELATED TO HINDU UNDIVIDED FAMILY

Hindu Undivided Family is closely related to laws under Hindu Succession Act
and Hindu Marriage Act.
Hindu Succession Act: This Act deals with the rules of succession among the
Hindus. Where there is a Joint Hindu Family concerned, there usually is an
ancestral property that is to be inherited by the descendants. This is governed
by the Hindu Succession Act.

Hindu Property Act: The act recognizes the concept of Hindu Undivided
Family. This means the ancestral property inherited by a family of persons who
are lineally descended from the common ancestor and related with each other
by birth or marriage is governed by this act.

Hindu Marriage Act: Then there is the Hindu Marriage Act. Wives of the male
descendants are a part of that particular joint family. If they are widowed they
remain a part of that joint family unless they choose to return to their
maternal home permanently.
The daughters too are a part of the joint family until they are married off.
Hence, the Hindu Marriage Act plays an important role in the Hindu Undivided
Family.

Hindu Maintenance and Adoption Act: In case you were wondering, what
about the adoptions in Hindu Undivided Families, well, they are governed by
the Hindu Maintenance and Adoption Act of 1956.
Income Tax Act: HUF is treated as a person u/s 2(31) of the Income Tax Act.
Individual members of a Joint Hindu Family can file their separate Returns
under the Income Tax Act and filing of these Returns is irrespective of the
status of the family.

PROPERTY RIGHTS
The Hon’ble Supreme Court has reiterated that all assets belonging to a Hindu
Undivided Family would be considered as joint family property.
Hindu Adoptions and Maintenance Act of 1956 and the Hindu Succession Act
of 1956 enables widows to have absolute rights on the husband’s property and
it cannot be stripped by remarriage.

Earlier, the property of a deceased husband could only be moved ahead within
the HUF. In case a deceased male descendant is survived by a wife and a
daughter, the deceased self-acquired property will pass on to his wife and
daughter and all the ancestral property will be taken upon as part of the Hindu
Undivided Family. But if the deceased has a partitioned share in his name, it
shall be rightfully passed to his wife and daughter. A gift by a mother can also
be considered as a HUF property.

COPARCENARY RIGHTS

Under the Hindu Succession Law, Coparcener is someone who assumes a legal
right in his ancestral property by birth in a HUF.
As per the Hindu Succession Act, any person who is born in a HUF becomes a
Coparcener by birth.
Any Coparcener can seek a partition of his or her share at any time.
The continuing coparceners can choose to buy out the share of the said
coparcener by exercising the right of pre-emption.
A coparcener can sell or gift his share to another coparcener or even a third
party. In case of legal necessity or benefit of the estate when the Karta chooses
to alienate the joint family property, the coparceners can challenge the same
as not being for legal necessity or benefit of the estate within 12 years of
knowledge of the said sale or gift.

CASE LAWS

1. Janakiammal vs. S. K. Kumarasamy & Ors. Date: 30th June 2021

The Supreme Court Bench observed that acts and conduct of the parties
may lead to the inference that the parties reunited after partition. The
Court held that the house property purchased in the name of one member
of the Hindu joint family was for the benefit of all... The Bench held that all
three branches had an equal share in the residential property

12..General rules of succession to the property of females

Introduction:-

FEMALE- Prior to this Act of Hindu succession act, 1956, the women was
subjected to the liability of men and had no absolute property rights.
The narrower and incorporated concept of shridhan was replaced and a wider
connotation was introduced to recognize the rights of the women.
Prior the two concepts’ were there, namely, shridhan and Hindu women’s
estate.
The Act replaced the prior classification and introduced
Section 14 which conferred absolute rights of ownership to the women on
every property acquired by her through lawful means.

Section 15 states the distribution of the Hindu female’s property.

The property of a Hindu female intestate shall be distributed upon-
Section 15(1)-
Upon the son and daughters, (including the children or heirs of any pre
deceased son or daughter) and the husband.
upon the husband’s heir,
upon the mother and father,
Upon the mother’s heir.
EXCEPTIONS- section 15(2)-
If the property which is inherited from her father or mother then in the
absence of any son or daughter (including the children of any pre deceased son
or daughter) the property shall devolve upon the heirs of the father.

If the property inherited from her husband or father in law then in the absence
of son or daughter of the deceased (including the children of any pre deceased
son or daughter) the property shall devolve upon the husband’s heir.

Here the property acquired by gifts or other manner doesn’t get affected and
the property under section 15(1) determines the preference of those of higher
order upon the lower order.
Section 16 states the order of the succession of an intestate property of a
female Hindu and gives three rules. According to the section-
RULE I- the heir in the first entry shall be preferred upon the second heir.
The heirs in the second entry shall inherit in the absence of the heirs of the
first entry.
RULE II- the children of pre deceased son or daughter shall get the share which
the son or daughter would have taken at the time of intestate’s death, each
division per stripes.
RULE III- the devolution of the property on the heirs of father, heirs of the
mother or on the heirs of the husband shall be the same order.
AMENDMENT ACT OF 2005
The amendment act of 2005 repealed section 6 of the Hindu succession act
1956, and allowing daughters to have equal rights as a son.
The daughters are subjected to the equal liabilities and responsibilities.

The amendment also expanded the list of the class I heir as it added the son of
a pre-deceased daughter of a pre deceased daughter, daughter a of
predeceased daughter of a pre-deceased daughter, daughter a of pre deceased
son of a pre deceased daughter and daughter of a pre-deceased daughter of a
pre deceased son and provided that the birth right to property of both male
and female is equal.

13..Intestate succession

What is “succession”?
In common parlance, succession means inheritance. Upon death of a person,
succession follows.
In most cases, The Hindu Succession Act prescribes the rules relating to
succession applicable to Hindus, Sikhs, Buddhists, Jains etc. It extends to
majority of the Indians. Next is the Sharia Law which is applicable to Muslims.
Then is the Indian Succession Act which applies to Christians and other persons
not covered by the Hindu Succession Act and the Sharia Law.

Intestate Succession
In a dynamic and diverse country like India, succession is a very tactful issue. It
may either be

1. Testamentary succession – one with a will; or

2. Intestate succession – one without a will.
In the event a person dies intestate, ie with out making a will his/her assets are
distributed as per the mandate of the Indian Succession Act. The vesting of the
assets takes place under the relevant personal laws. However intense
complexities arise when there is more than one heir, given the fact that some
assets are more lucrative than their counterparts.

Intestate Succession among Hindus

The Hindu Succession Act, 1956 was passed to amend and consolidate the law
relating to intestate succession among Hindus. It extends and applies to all the
persons who practice the religion or who are defined as Hindu’s (Buddhists, Jains
and Sikhs) under the legal regime.

The act was further amended in 2005. As per the provisions of this Act, if a Hindu
male dies intestate then the following persons can make a claim:
First Claim: Class I legal heirs. They have equal rights to the assets.
They are mother, spouse and children. If any child has died, then their children
and spouse have an equal share;
Second Claim: In the absence of Class I heirs, the Class II heirs can make a claim.
They are, father, sibling, living children’s grandchildren, sibling’s children etc.;
Third Claim: In the absence of Class I and Class II heirs, the Agnates can make a
claim. Agnates can be defined as the distant blood relatives of male lineage
(fathers’ side).;
Fourth Claim: In the absence of Class I, Class II heirs and Agnates,
the Cognates can make a claim. Cognates can be defined as the distant blood
relatives of female lineage (mothers’ side).
In the case of a Hindu female the following persons can make a claim:
First Claim– the sons and daughters and the husband can make a claim;
Second Claim– In the absence of the first claimants, the heirs of the
husband can make a claim;
Third Claim– In the absence of the first and second claimants, the mother and
father can make a claim;
Fourth Claim- In the absence of the above-mentioned claimants, the heirs of
the father;
Fifth Claim – And even in the absence of the heirs of the father, the heirs of the
mother can make a claim.
In the case a Hindu dies intestate and without any heirs as above-mentioned,
the property devolved to the State Government under due procedure of the
law.

Intestate Succession among Muslims

In case a person governed by the Mohammedan Law dies intestate, the
following persons can make a claim: sharers and residuaries.
Sharers are basically those heirs entitle to a certain specific share
whereas Residuaries are those that acquire the remainder of the property.
In the absence of sharers and residuaries, a class of persons known, as Distant
Kindred can make a claim to the property of the deceased.
Intestate Succession among Christians.
The Sections 31 to 49 of ISA deal with rules of Christian succession.

A Christian who dies intestate, as per Section 32 of ISA, will have three
categories of legal heirs:

they are the Spouse, Lineal Descendants and the Kindred.

The Section 24 of ISA refers to the concept of kindred or consanguinity. The

term is defined as the “connection or relation of persons descended from the
same stock or common ancestor”

. Kindred of an intestate can be descendants such as children, grandchildren,

ascendants such as his father, mother, grandfather, grandmother,

or collaterals such as his brothers, sisters and their descendants, or his uncles,
cousins and other relations, who are not the descendants of the siblings of the
deceased.
The Section 25 of ISA defines “lineal consanguinity” as the descendants in a
direct line such as man and his father, grandfather and great grandfather,
children and grandchildren etc. Lineal descendants mean all those who are
directly related to the deceased and are living at the time of distribution of the
property.

14. Succession certificate

Introduction

In a dynamic and diverse country like India, succession is a very tactful

issue. It may either be

3. Testamentary succession – one with a will; or

4. Intestate succession – one without a will.
A will is basically a declaration expressing the desires of a person with
regard to his estate and provides for its transfer upon his death.

A person is said to have died intestate with respect to an asset that he

has not disposed under a will, or the disposition under the will is not
capable of taking effect either on account of invalid bequest or illegal
bequest.

In the event a person dies intestate, his/her assets are distributed as

per the mandate of the Indian Succession Act. The vesting of the assets
takes place under the relevant personal laws. However intense
complexities arise when there is more than one heir, given the fact
that some assets are more lucrative than their counterparts.
Who can make a claim?
In order the make a claim, one requires either a letter of
administration or succession certificate issued by the court.
Letter of administration is an instrument granted by a competent
court to an Administrator appointed by Court, in order to distribute
the assets of the deceased among his heirs. They can be acquired by
filing a petition in a district or high court.
Succession certificate, on the other hand, is issued to a person
claiming the authority to inherit debts, securities and any other
movable assets. A succession certificate sets forth who the legal heirs
of the deceased are. Obtaining a succession certificate gives the
person concerned only the right to distribute the assets of the
deceased under the relevant personal laws.

Succession Certificate may be obtained in the following

circumstances

1. Where probate or letters of administration are not required;

2. Where the deceased is a Mohammaden or a Christian
3. Where the deceased is a Hindu who has left a Will.
4. Where joint family property of a Hindu Family is involved.\
Procedure for obtaining a Succession Certificate

1. Approach a competent district court and file a succession

certificate petition.
2. The petition should contain vital details like the name of the
petitioner, name of all heirs of the deceased, the petitioner’s
relationship with the deceased, etc. Generally, a death
certificate is attached along with the petition.
3. The Court reviews the petition and then issues a notice to the
relevant parties, and also in the news requiring objections to
be raised. If, within the time frame allowed, no objections are
raised and the court is satisfied, it may pass an order to grant
a succession certificate.
4. In the succession certificate, the Court shall specify the debts
and securities contained in the application, and may thus,
authorize the person in whose favour the certificate is issued
to either receive interest/dividends or to negotiate/transfer
the securities or to do both.
In alternative to the succession certificate, a legal heirship
certificate may be obtained. It sets for the relationship of the heirs
with that of the deceased. It is used for claims relating to pension,
provident funds or other service benefits of the central or state
government. It is not conclusive and has a limited scope. The legal
heirship certificate is generally issued by the revenue officers like
tahsildars or talukdars.

15.Stree dhan
Types of Women’s Property

The property of a Hindu women is divided into two types:

1. Stridhan – In Stridhan, the women have absolute power over the
property. She can enjoy it without any restrictions.
2. Women’s Estate – In Women’s Estate, the women have limited
power over the property. She can enjoy it during her life but after
death it will not pass to the heirs.

However under the Hindu Succession Act, 1956, all property in the
possession of a Hindu female either before or after the
commencement of the Act will have absolute control and power to
it. Thus it have dispensed the difference between stridhan and
women’s property.

Meaning of Stridhan

The word Stridhan literally means women’s property. ‘Stri’ means

women and ‘dhan’ means property together constitute the word
Stridhan.

It includes all type of movable and immovable property such as

ornaments, cash, deposits, etc. The historical background of Stridhan
is as old as the Hindu law.
The earlier meaning of stridhana by the Mitakshara commentary is
that, stridhan is what was given to a women by father, mother,
husband, or her brother or received by her at the nupital fire (the
wedding fire where the bridegroom take vows) or presented on her
succession.

While the Dayabhaga commentary, rejects the term stridhan and

states that she has all the power upon the property given to her even
during the life of her husband.

After the enactment of the Hindu Succession Act in 1956 there were
clear provisions made relating to Hindu woman’s property. According
to Section 14 of the Act, any property possessed by a female Hindu,
whether acquired before or after the commencement of the Act,
shall be held by her as the full owner thereof and not as a limited
owner.
In the case of Rajamma vs. Varidarajulu Chetti it was observed that
a gift given to a Hindu woman before and after her marriage
constitute a woman’s property .
Sources of Stridhan
There are different sources for Stridhan. According to ancient Hindu
law as Manu said
1. what has given before the nupital fire
2. what was given at the bridal procession
3. what was given in token to love
4. what was received from a brother,
5. a mother, or
6. a father

These 6 forms were considered as a women’s property. There were

lot of interpretations given to stridhan by different commentaries.

Later in the case of Pratibha Rani v. Suraj Kumar, the Supreme and
held that all the articles, ornaments, clothes and all other items
comes under Stridhan and the women will have all the absolute and
complete power over it [3].
Rights of Women over Stridhan

Stridhan implied absolute ownership of property for women.

She had full rights over property when she is a maiden or a widow.
But there are certain restrictions made on women on the disposal of
such property.
After marriage the stridhan was classified into two heads Saudayaka
and Non – Saudayaka.
Saudayaka refers to gifts of love and affection given by relatives to
the woman and over which she has complete right of alienation.
Non – Saudayaka refers to those gifts over which the woman has no
rights of alienation without the consent of her husband.

After the amendment of Hindu Succession Act in 2005 the women

can also claim for immmovable property in certain situations. In the
case of Bhai Sher Jang Singh v. Smt Virinder Kaur, it was stated that
if a women claims her property which are given to her at the time of
marriage, then the husband and his family is bound to return back
such property .

16.Codicil
What is a Codicil?
One of the major advantages of creating a Will is that it comes into
effect only after the death of the testator. Until that event, the
testator can revoke or alter a Will any number of times. A document
by which a Will is altered is known as codicil.
Codicil Definition
Section 2(b) of the Indian Succession Act defines a codicil as:
‘Codicil’ means an instrument made in relation to a Will, and
explaining, altering or adding to its disposition, and shall be deemed
to form part of the Will”.
How to execute a codicil?
A codicil must be executed similar to Will, being written and attested
by two witnesses. Further, as a codicil is a part of the Will, reference
must be made to the Will in interpreting the provisions of the Will
and vice-versa. Like a Will, a codicil can be altered, added to and
further explained by another codicil by proper execution and
attestation by witnesses.

How to Write a Codicil

o write a codicil, you will need to follow the same formalities as when you
wrote your will. This means that you will need to sign the codicil in front of
at least two witnesses, who must also sign the document.

Here are the steps to follow when writing a codicil:

1. Begin by stating at the top of the document that it is a codicil to your

existing will.
2. Specify the date of the codicil and the date of your will.
3. Clearly state the changes that you are making to your will. Be as
specific as possible and include the exact language that you want to
add, remove, or change.
4. Sign and date the codicil in front of at least two witnesses.
5. Have the witnesses sign the codicil in your presence.

It is important to keep the original will and the codicil together, so that they
can be easily located and read together. It is also a good idea to inform
your executor and any other relevant parties about the changes that you
have made to your will.

If you need help writing a codicil, you may want to consult with an attorney
who specializes in estate planning. They can provide you with guidance
and ensure that your codicil is legally valid.

Special Considerations
Even though a codicil is technically an addendum to the original will, it can
change the terms of the will entirely or null and void the original will.
Because of the serious nature of codicils and their power to change the
entire will, two witnesses are usually required to sign when a codicil is
added, much like in creating the original will itself. Some states, however,
have loosened the legal regulations surrounding codicils and now allow for
them to notarized.

Codicil Recommendation

• In most cases, it is easier to create a new Will rather than add a

codicil to an existing Will. Creating a new Will by adding clauses
like “I revoke all former testamentary dispositions” is more
advisable than creating a codicil, which could result in
confusion.
• In case a codicil is created as an addendum to an existing Will, it
should be stored along with the Will with proper attestation. It
is recommended that any codicil be reviewed by a professional
to avoid any discrepancies or conflicts with the Will.

Meaning of “Agnates” and “Cognates” under the

Hindu Succession Act, 1956
DEFINITIONS

1. HEIR- heir means any person whether a male or a female, who is

entitled to succeed in the intestate property under this act.
2. AGNATES- if the two persons are related to blood to each
other or through adoption wholly through males then
they are said to be agnates.
3. COGNATES- if the two persons are related to blood to
each other or through adoption but not wholly through
males then they are said to be cognates.
1.Agnate means a person related to wholly through males either
by blood or by adoption. The agnatic relation may be a male or a
female.
Cognate means a person related not wholly through males. Where
a person is related to the deceased through one or more females,
he or she is called a .2.cognate. Thus son’s daughter’s son or
daughter, sister’s son or daughter, mother’s brother’s son, etc. are
cognates, whereas one’s father’s brother, or father’s brother’s son
or father’s son’s son or father’s son’s daughter are agnates.
 A cognate or agnate may be in ascending or descending line.

Class III heirs

This consists of the agnates of the deceased. Class III heirs only inherit
the property when none from the earlier classes gets the property.

An agnate is a person who is related to the intestate only through male

relatives. An agnate can be a male or a female.

Rules of preference among agnates

• Each generation is referred to as a degree. The first degree is
intestate.
• Degrees of ascent mean ancestral or upwards directions.
• Degrees of descent means in the descendants or downward
direction.
• Where an agnate has both ascent and descent degrees, each has to
be considered separately.
• An agnate having a descent degree will be preferred over the one
having an ascent degree.
• When two agnates have ascent and descent degrees, the one having
a lesser number of ascent degrees will be preferred.

Class IV heirs
A cognate (Class IV) is someone who was related to the intestate through
mixed relatives, in terms of sex. For example, an intestate’s paternal aunt’s
son is his cognate, but his paternal uncle’s daughter will be an agnate.

Therefore, to sum up it can be said that the property of the Hindu male
devolves in the following manner:

• First, to the heirs in Class I.

• Second, if there exists no heir of Class I, then it goes to Class II
heirs.
• Third, if none from the Class I or II exists, then it goes to the
agnates (Class III).
• Fourth, if no one from the earlier three classes exists, then it goes
to the cognates (Class IV).