DEVOLUTION OF PROPERTY— ⁃ Coparcenary Property through survivorship. (this mode is gradually diluted through several legislative measures and finally abolished in 2005) ⁃ Separate property through Succession *Intestate succession (Properly called law of succession or inheritance) *Testamentary succession (section 30, HSA) Basic changes brought about by the Hindu Succession Act, 1956:— (1) Uniformity of application: The Act lays down a uniform and comprehensive system of inheritance, and applies to persons governed by both the Mitakshara and the Dayabhaga schools, as also to persons governed by certain parts of southern India. It has expressly repealed the Acts of 1929 and 1937. Therefore, it is a definite repository of Hindu law of Succession in every case in the first instance. (2) Inheritance to separate property: The two systems of inheritance to the separate or self-acquired property of a male dying intestate, which prevailed under a Mitakshara and Dayabhaga Schools before the passing of the Act, are abolished, and a uniform system is introduced by section 8 of the Act. (3) Devolution of Coparcenary Interest through Succession (Proviso to Section 6): The general rule is that coparcenary interest always devolves through survivorship. First jolt to survivorship was given by the Hindu Women's Right to property Act, 1937. The HSA whittled it down to the Minimum through Proviso to Section 6. Although Section 6 allows devolution of coparcenary interest through survivorship, the proviso laid down that if the deceased has left him surviving a female relative specified in Class I of Schedule to the Act, the coparcenary interest of the deceased shall devolve by succession and not by survivorship. The list of such heirs is so long that it rendered in fact, the application of the rule of survivorship exceptional. Finally, survivorship is now dethroned/abolished by the Hindu Succession (Amendment) Act, 2005. (4) Devolution of Coparcenary Interest by Will (Section 30) : Although the Preamble states that the Act relates to intestate succession, yet it devotes one Section to testamentary succession also. Prior to the passing of the Act, according to the Mitakashara Law, no coparcener could dispose of by will. This rule is now abrogated by the Explanation to Section 30, which expressly lays down that such interest is to be deemed to be property capable of being disposed of by a Hindu under a will. (5) Classes of Heirs and Order of Succession: three classes of heirs recognised by Mitakshara and Dayabhaga School cease to exist after the coming into force of the Act. The new classes of heirs and order of succession provided by the Act is broadly based on the doctrine of propinquity (nearness of blood) and accordingly the heirs are divided into four categories, viz; (a) Class I heirs, (b) Class II heirs, (c) Agnates, and (d) Cognates. The property devolves firstly upon the 12 preferential heirs mentioned in class I and failing such heirs upon the second, third and fourth class of heirs in that order as laid down in Section 8 and 9. The outstanding feature of the above division is that the heirs in class I inherit the property simultaneously and according to the doctrine of representation in case of predeceased sons or daughter. Another noteworthy point is that class I contained a list of 12 heirs out of which eight are females and four are males. All of them inherit in equal shares. (6) Abolition of limited estate of Hindu women: The Hindu women's limited estate is abolished by the Act, and any property possessed by a female Hindu, howsoever acquired, is to be held by her as her absolute property, and she is given full power to deal with it and dispose it by will as she likes. (7) Succession to property of a female intestate: Under the provisions uncodified law, succession to stridhan (woman's property) varied accordingly as a woman was married or unmarried, and if married according to the form of the marriage. It also varied according to the source of the stridhan. Further, the rules of descent of the different schools alse varied. All these distinctions are abolished, and Section 15 of the Act lavs down a uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of the act. (8) Disqualification of heirs: Under the texts of the Dharma Shastras as interpreted by the Courts, certain defects, deformities and diseases excluded an heir from inheritance. Now Section 28 of the Act discards such grounds of exclusion, and lays down that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity. (9) Abolition of impartibly estate: Another change brought about by the Act is that impartibly estates (except those mentioned in Section 5(ii) and (iii) of the Act) cease to be recognised as such. Under the Act, such property has all the ordinary incidents of property held by a Hindu. (10) Preferential right to acquire property (Section 22): The Act also provides that in case where property of an intestate devolves upon two or more heirs, if any one of them proposes to transfer his or her interest therein, the other heirs have a preferential right to acquire the interest proposed to be so transferred. (11) Simplification of rules of succession: The Act has made the mode of succession plain and simple, and several doubts cast by conflicting decisions of the Privy Council and the various High Courts are now removed. The Act is indeed characteristic of an age which is one of , ideals and fast-changing theories. THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 [Further Fundamental Changes in Law Of Inheritance] Even after introducing a lot of radical and reformatory provisions through Hindu Succession Act, 1956, gender discrimination is a hard reality which was still persisted in the matter of inheritance. Daughters were still not at par with son and females have a little or no say in the matter of dwelling house.
Some of the most important changes of HSA 2005 are as follows:—
(1) An Interest in Coparcenary Property would devolve by either testamentary or intestate succession and not by survivorship: For this purpose a deeming fiction has been introduced to the effect that on the death of a Hindu, the property to which he is entitled would be deemed to have been divided among those entitled, as if a notional Partition had taken place, the daughter being allotted the same share as that of a son. (2) A daughter would be a Coparcener from her birth and would have the same rights and liabilities as a Son: This is a path breaking basic change in the Hindu law of inheritance. The daughter becomes a coparcener and has the same rights and liabilities as a son. The daughter would hold property to which she is entitled as a coparcener with all the incidents, rights and liabilities of a coparcenary property. These changes seeking to remove the perceived disability to which a daughter was subjected. (3) Doctrine of Pious obligation abolished: Mitakshara law recognises the pious obligation of a son to fulfillthe debt contracted by his father. The Amendment exempt him from being liable for any such debt. (4) Every disposition or alienation including any Partition or testamentary disposition of Property should be by registered deed or decreed by a Court: This is the drastic change. It affects the majority of Partition of the Hindu Coparcenary properties. Earlier, the oral Partitions or written partitions were also accepted as proof/evidence by the Court. (5) Rights of a female in a joint family dwelling house (deletion of Section 23): The earlier provision of the 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. This is by virtue of the fact that necessary hanges have been made treating daughters as coparceners, the necessary orollary thereto being the right of the daughter to seek par.ition of the dwelling house in her own right. (6) Restriction on Hindu widows in the matter of inheritance: Section 24 of the Act barred certain widows who had remarried from eriting. Now, Section 24 has been deleted, and this bar has been removed. (7) Addition of heirs in class-I: By 2005 Amendments, four more categories of heirs have been added in class-I of the schedule to the Act. SUCCESSION TO SEPARATE PROPERTY OF A HINDU MALE [SECTION 8, 9, 10, 11, 12 AND 13] Section 8 enumerates all possible heirs of a male Hindu dying intestate and indicates along with Section 9, the order of succession. Section 8 states that the property of a male Hindu dying intestate shall devolve:- (a) firstly, upon Class I heirs of the Schedule; (b) secondly, if there is no heirs of Class I, then upon Class II heirs of the schedule; (c)thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; (d) lastly, if there is no agnate, then upon the cognates of the deceased. Section 9: states some important rules which are supplementary to the primary rules laid down in Section 8. The explicit declaration of the law in this Section governs the order of succession among the heirs enumerated in Classes I and II of the Schedule. Section 9 reads that 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. Succession among Class I Heirs (Section 8, 9 & 10) Section 8 groups the heirs of a male intestate into four categories and lays down that his heritable property devolves firstly upon the heirs specified in Class I of the Schedule. As per Section 9, the heirs who are placed in Class I succeed simultaneously and there is, therefore, no question of any precedence or priority among them. None excludes the other and none is preferred to the other. All those who are in existence at the time the succession opens are entitled to succeed unless disqualified under any provision of this Act. Preferential heirs of the Intestate: In the presence of any heir or heirs of Class I, no one can succeed to the Property of the intestate. The heirs in Class II are entitled to succeed only when there is no heir of Class I in existence. The Class I heirs are entitled to succeed to the exclusion of all others. Among themselves they take simultaneously. As heirs specified in Class I of the Schedule they constitute a distinct and exclusive category and succeed in preference to all other heirs. Who are Class I Heirs? In Class I of the schedule, the Act enumerates 12 heirs (After 2005 Amendment four more are included). Of them, the son, the daughter, the widow and the mother are the first four and they inherit by reason of their own relationship to the propositus. The others are the 2nd, 3rd and 4th degree descendants of the propositus and get their shares because they are related to the propositus through his predeceased son or predeceased daughter.
In Narasimha Murthy v. Susheela Bai (1996) 3 SCC 644, Punchhi J. has arranged these 12 heirs in the following manner:-
(ii) Son of predeceased son.
(iii) Son of predeceased son of predeceased son.
(iv) Son of predeceased daughter.
FEMALES OTHER THAN DAUGHTERS
(iii) Widow of Predeceased Son.
(iv) Widow predeceased son of Predeceased Son.
(ii) Daughter of predeceased Son.
(iii) Daughter of predeceased son of predeceased son.
(iv) Daughter of predeceased Daughter.
NOTE:it is to be noted that Father, Brothers, and sisters do not come within the preview of class-I heirs.
Four more new Class-I Heirs (2005 Amendments)
(1) Son of predeceased daughter of a predeceased daughter.
(2) Daughter of predeceased daughter of a predeceased daughter.
(3) Daughter of predeceased son of a predeceased daughter.
(4) Daughter of a predeceased daughter of a predeceased son.
DEVOLUTION OF UNDIVIDED INTEREST OF A MALE IN MITAKSHARA COPARCENARY (Sec. 6)
THREE STAGES OF LEGAL DEVELOPMENT
(1) Legal position before HSA, 1956.
(2) Legal Position under HSA, 1956.
(3) Legal Position after 2005 Amendments.
LEGAL POSITION BEFORE (HSA), 1956-
⁃ Only Survivorship
⁃ No Succession.
⁃ No will.
⁃ No Gift
LEGAL POSITION UNDER UNDER, 1956-
⁃ Survivorship in limited case.
⁃ Through Succession and Deemed Partition (Section 6)
⁃ Through will (Section 30)
⁃ No Gift
LEGAL POSITION AFTER 2005 AMENDMENTS-
⁃ Abolition of Survivorship.
⁃ Only through Succession and Deemed Partition
⁃ Daughter Coparcener.
⁃ Through will (Section 3
[Caution: While effecting deemed/notional Partition, one must have a thorough awareness about the rules regarding actual Partition because rules of Partition are not uniform in various States and schools like Andhra Pradesh, Tamil Nádu, Maharashtra, Karnataka, Kerala etc.]
Legal Position before HSA, 1956: Right of Survivorship
According to Mitakshara law, as it existed before the HSA, 1956 on the death of a coparcener his undivided interest devolved by survivorship upon the surviving coparceners and not by succession upon his heirs. So long as the family remains joint and undivided, an individual member cannot claim a particular share as exclusively his own. There was no such thing as succession to property so called in an undivided family. On the death of a coparcener, his undivided coparcenary interest did not pass by descent to his heirs but lapsed in the joint family property and thereby causing an increase in the share of the surviving coparceners. This increase in their share was known as the Right of survivorship.
Legal Position Under HSA, 1956: Before 2005 Amendment Section 6 of the HSA, 1956 deals with devolution of undivided interest of a male Hindu in coparcenary property. It reads as follows:
"When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara Coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1: For the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the poroperty that would have been allotted to him if a Partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2: Nothing contained in this Proviso to this Section shall be construed as enabling a Person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
Main Provision of Section 6: Recognised Right of Survivorship
The rule of survivorship comes into operation only:
(i) Where the deceased does not leave him surviving a female relative specified in Class-I, or a male relative specified in Class-I, who claims through such female relative; or (
ii) When the deceased has not made a testamentary disposition of his undivided share in the coparcenary property.
When proviso operates? The Proviso operates only where the deceased has left surviving him any female heir specified in Class I or a male relative in Class I claiming through such female relative. This is a condition precedent for the application of the Proviso.
Class-I Female Heirs: The following are the female heirs mentioned in Class I–(i) Daughter, (ii) Widow, (iii) Mother, (iv) Daughter of a predeceased son, (v) Daughter of a predeceased son of a predeceased son, (vi) Widow of a predeceased son, (vii) Widow of a predeceased son of a predeceased son and (viii) Daughter of a predeceased daughter. Any of these female heir would undo the scheme of survivorship and it would be substituted by rule of succession provided in the Act. From this it appears that the number of the female heirs is quite large and it is feared that the rule of survivorship will seldom arise. Such an occasion will arise only where a coparcener will die surviving him only male relatives.
"Claims through such female relative": It means one who traces relationship through a female relative mentioned in Class I. The only male telative specified in Class I and who claims through relative in the context of the Proviso, is the daughter's son, that is, son of a predeceased daughter of the male Hindu on whose death the devolution takes place.
Explanation-I: Concept of Notional/Deemed Partition
Explanation-I defines the expression “the interest of the deceased in akshara Coparcenary Property" and incorporates into the subject concept of a deemed/notional Partition. Explanation I provides a Cehanism under which undivided interest of a deceased coparcener can be ascertained. The Act requires that with a view to detcrmine the share of he intestate coparcener, an imaginary Partition of the family property available for Partition is to be assumed, through legal fiction, immediately before the death of such coparcener and the shares of all entitled on real Partition by metes and bounds including the females are to be computed. Out of the shares so computed the share of the deceased coparcener is to be taken out and allowed to devolve on heirs as per rules applicable to intestate succession. The family and the joint family property are left undisturbed and no share is, in fact, allotted to anyone, including the females. This is what is meant literally by notional Partition, as opposed to real Partition. And this was in any case the judicial interpretation given to the nature of Partition envisaged by Explanation I, until recently.
Expression, "whether he was entitled to claim Partition or not"; Outwardly, it would appear strange if one says that a coparcener was not entitled to Partition. But there are, in fact, exceptions to the general rule that every coparcener is entitled to claim Partition in the Mitakshara coparcenary Property. In Punjab, a son cannot enforce Partition during his father's lifetime. In Bombay, a son is not entitled to ask for a Partition in the lifetime of his father without his consent when the father is not separated from his father. It is not necessary for the Proviso to came into operation that the deceased coparcener should have himself been competent to claim Partition. Thus, for instance, the proviso will apply to the case of a minor coparcener.
Recent Judicial Developments: Notional/Deemed Partition is converted into Real Partition The language of Explanation I has to be kept in view while giving effect to the Proviso to Section 6. The language clarifies that to a very limited extent of ascertaining and separating the interest of the deceased coparcener, the fiction of notional partition is to be applied. But the various High Courts expressed conflicting views especially when the female relative happened to be the wife or the mother living at the time of the death of the coparcener
Legal Issue: Whether this notional Partition is to have the effect no merely of bringing about devolution by succession of the interest o deceased coparcener in a Mitakshara family, but goes further and results in a Partition among all the members who would be entitled to a s n the coparcenary property when a regular Partition takes place, that is say, results in determining and vesting in them their own share, and brings about severance of status among the surviving coparceners?
To resolve this issue, it is necessary to go through following five cases in chronological order:— (1) 1966: Rangubai v. Laxaman, AIR 1966 Bom 169 (2) 1975: Sushilabai v. Narayanrao, AIR 1975 Bom 257 (FB). (3) 1978: Gurupad v. Hirabai, AIR 1978 SC 1239. (4) 1985: State of Maharashtra v. Narayan Rao, AIR 1985 SC 716. (5) 2006: Anardevi v. Parmeshwari Devi, AIR 2006 SC 3332. In Rangubai v. Laxman, AIR 1966 Bom 169,
the nature of such Partition (whether notional or real) came up for interpretation.
The Facts were that a coparcenary consisted of the husband, his wife and his adopted son. The husband died and his widow filed the suit claiming half share in the coparcenary property. The sole surviving coparcener contended that on notional partition H would have been entitled to one-third share, had Partition taken place immediately before his death. While this one-third share would have been inherited equally through succession by W and S as H's heirs under the Act, the remaining two thirds of the family property would have continues as joint, S becoming the sole surviving coparcener. Under Hindu law the sole surviving coparcener acquires nearly absolute rights to deal with the joint family property, the only limitation/condition in the present case being Provision of Maintenance for W by S. Since there is no other coparcener in the family who can demand Partition, the widow, for all practical purposes, loses her right to a share on Partition by metes and bounds. Held: The High Court completely rejected these contentions and held that the Partition envisaged by Section 6, Explanation 1 of the Act to determine the share of H was not merely notional or imaginary Partition but a real one and hence W (Rangubai) will take her share, one-third, which she is entitled to at the time of Partition, and then one-sixth on succession as Class I heir of H under the Act, i.e., a total of one half of the joint family property. The effect of this interpretation is that an imaginary or notional partition has been converted into a real one-something, which the legislature never intended or attempted to do has been done by judicial legislation. In Sushilabai v. Narayanrao, AIR 1975 Bom 257 (FB)
The issue was whether the mother was entitled to her actual share on deemed Partition which she would have got on actual Partition.
The Full bench confirming the view taken in Rangubai's case held that any of the Class I female heirs can claim to succeed not only her share in the interest of the intestate deceased coparcener but also her share in joint family property as she would be entitled has the actual Partition taken place. On the issue severance of status among remaining coparceners the High Court observed that it cannot be said that after taking out the interest of the deceased, the coparcenary does not continue among the remaining coparceners. It depends upon their intention whether they like to remain joint or became separate. This intention is a question of fact which can be known either by implication from their an express agreement between them or by an conduct. Taking out the share of the deceased coparcener out of joint family property would amount to partial partition. Under the Hindu law of Partition there is no presumption that the family remains joint after partial partition and he who sets up joint status of the family must prove it.
The Pronouncement of the Supreme Court in Gurupad v. Hirabai. (AIR 1978 SC 1239) is very important as it clinches the controversy which existed between different High Courts of the country. The Supreme Court confirmed the views of the Bombay High Court in Rangubai's case and held that the widow's share must be ascertained by adding the share to which she is entitled at a notional Partition during her husband's lifetime and the share which she would get in her husband's interest upon his death. K, who was a member of Mitakshara Coparcenary consisting of himself and his two sons G and S died, leaving his widow H, the two sons, and three daughters surviving him. In a suit for Partition by H, she was entitled to 7/24 share of the coparcenary property, one-fourth, on the footing of Partition between the Husband and the twe sons, in addition to 1/24 share as an heir of K as visualised in the Proviso and Explanation I. The Supreme Court observed: "The Explanation compels the assumption of a fiction that in fact a Partition had taken place, the point of time of the Partition being the one immediately before the death of the person in whose property the heirs claim a share. What is therefore required to be assumed is that a Partition had in fact taken place between the deceased and coparceners immediately before the death. The assumption once made is irrevocable. All the consequences which flow from real Partition have to be logically worked out which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the Partition which has taken place during the lifeuie f the deceased. The allotment of this share is not a processual siep devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality."
The above decision of the Supreme Court does not say that the notional 213 partition must bring about total disruption of the joint family, or that the coparcenary ceases to exist even if the deceased was survived by two coparceners. It is submitted that the notional partition need not result in O disruption of the joint family. Nor would it result in the cession of coparcenary. Of course, there can be no question of a coparcenary continuing after the death of one of the coparceners, if it Constituted of dy two coparceners, for there must be at least two surviving coparceners if the coparcenary is to continue without disruption.
In State of Maharashtra v. Narayan Rao, AIR 1985 SC 716, the Supreme Court affirmed Gurupad's case but observed that Gurupad's case has to be treated as an authority (only) for Explanation-I to Section 6 of the Act and is not an authority for the proposition that a female member ceases to be a member of the family on the death of a male member whose interest devolves on her without her volition to separate herself from the family. There is no doubt that the right of a female heir to the interest inherited by her in the family property get fixed on the date of the death of a male member under Section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that Provision.
The Supreme Court recently in Anar Devi v. Parmeshwar Devi, AIR 2006 SC 3332 held that Explanation I provides a mechanism under which the undivided interest of a deceased coparcener can be ascertained. It means for the purpose of finding out the undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.
Conclusion: These decisions virtually lay down that if a coparcener dies leaving behind a female heir in terms of Proviso to Section 6, there is automatic Statutory Partition and the Mitakshara Coparcenary comes to an end. It is submitted that the Supreme Court is trying to abolish Mitakshara Coparcenary by judicial legislation what the Kerala State is purporting to do by a Statute. It is most respectfully submitted that the notional Partition as contemplated in Section 6 does not amount to automatic statutory Partition; nor does severance of status takes place the death of the coparcener. The fiction of notional Partition is used as a mere device to find out the share of the deceased coparcener (as by other method we can do so) and it should be confined to that and imagination should not "boggle" under the oppressive feeling that wher the legislature stops in taking a measure of social reform to its logical end the judiciary should step in. (Paras Diwan, Modern Hindu Law, 2000 edn. p. 428).
Legal Position under HSA, 1956: After 2005 Amendment
Under the HSA, 1956, a daughter, irrespective of her marital status has been made a primary/preferential Class I heir to the property of her father. However, due to the continuation of the dual system of Property i.e., separate and ancestral, preferential treatment was continued to bo given to the son with him getting an interest by birth in the ancestral property while denying to the daughter the same. The legislature without abolishing the dual property system, tried to modify the rules in an attempt to give better property rights to women from the coparcenary property. It made an inroad into the application of doctrine of survivorship even where a Hindu male died as an undivided member of Mitakshara coparcenary by replacing it with a notional partition. The outcome is that Class I female heirs who would have been denied a right in the ancestral property without there being any Partition would now get a share out of it.
The result however is still an unequal distribution as far as the daughter and the son are concerned. Now two options were available with the legislature to bring in complete parity between the son and daughter; one to abolish the joint family and separate property distinction by abolishing the very concept of joint family system and the other to make the daughter also a coparcener in the same manner as a son with a right by birth in the coparcenary property. The central legislature opted for the latter and accordingly the Hindu Succession (Amendment) Act, 2005 has been enacted. This Act has substituted Section 6, w.e.f. 9.9.2005. The range of the present Section is wider than old one. It has brought about a radical overhaul of the Mitakshara law.
The newly introduced Section 6 reads as under:
"(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Hindu joint family governed by the Mitakshard law, the daughter of a coparcener shall,–
(a) by birth become a coparcener in her own right in 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 daugther of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any Partition or testamentary disposition of Property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, nothwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation: For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) Abolition of Doctrine of Pious obligation.
DISQUALIFICATIONS FOR HEIRS
The Act mentions certain disqualifications which debar certain heirs who are under such disqualification, in succeeding to the property of the intestate. These disqualifications are:
(1) Disqualification arising from murder (Section 25)
(2) Disqualification arising from conversion (Section 26)
1. Murderer: Section 25 disqualifies a murderer from inheriting the property of the person murdered. "A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder."
2. Convert's descendants: Section 26 prescribes disqualifications of descendants of a Hindu, converted to another religion. It reads: "Where, before or after the commencement of this Act a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindu at the time when the succession opens.
Thus, where A died leaving three sons B, C and D and B had accepted Islam during the lifetime of A, on the death of A, B, C and D would equally take one share each i.e. 1/3 of the property left by A. B is not disqualified from inheriting the property of A despite the fact that he had embraced Islam and is no longer a Hindu. The reason is that under Section 26 the Convert himself is not disqualified from inheriting.
LEADING CASE LAWS Disqualification from Succession of property rights of women on ground of justice, equity and good conscience Vellikannu v. Singaperumal; AIR 2005 SC 2587 [Ratio: Where sole surviving coparcener (son) incurred disqualification having committed murder of his father, he cannot inie property of his father in view of Sections 25 and 27 of the Act and on principle of justice, equity and good conscience, his wife, who claims through him, can have no better claim to property of her deceased father- in-law.] Facts: The defendant (respondent) is the only son of R and also a member in the joint family properties. The Plaintiff (appellant) is the wife of the defendant. The Parties are governed by the Mitakshara school of Hindu law. The defendant son murdered his father R and was convicted for murder. He was released in 1975, but in view of commission of murder, he was disentitled to succeed to the estate of his deceased father. Decision: The effect of Sections 25 and 27 is that defendant/son cannot inherit any property of his father on the principle of justice, equity and good conscience as he has murdered him and the fresh stock of his line of descent ceased to exist in that case. Once the son is totally disinherited then his whole stock stands disinherited i.e., wife or son. The defendant/ son himself is totally disqualified by virtue of Sections 25 and 27 HSA and as such the wife can have no better claim in the property of the deceased R. When the son cannot succeed then the wife who succeeds to the property through the husband cannot also lay a claim to the property of her father- in-law. The Appeal is thus dismissed. Entitlement of females on National Partition Gurupad v. Hirabai; (1978) 3 SCC 383 FACTS: There is no factual dispute in this appeal. One F died leaving behind him a widow (W: Plaintiff), two sons and three daughters. All sons and daughter were defendants. Except S1, all defendants ultimately admitted the plaintiff. DECISION: we see no jurisdiction for limiting the plaintiff share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband’s lifetime between him and his two sons. We think that in overlooking that 1/4th share, one unwittingly permits one’s imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiffs husband and his sons. Where the a partition had actually taken place between the plaintiffs husband and his sons in beside the point for the purposes of Explanation - That explanation compels the assumption of a fiction that in fact “a partition of the property had taken place”, the point of time being the one immediately before the death of the person in whose property the heirs claim a share