1. Inh Inheri eritance tance:: also known known as testament testamentary ary successi succession on 2. Testamentary: estamentary: will made in the the lifeme lifeme and property property divid divided ed according accordingly ly 3. Intesta Intestate: te: P dies dies witho without ut makin making g a will will 4. Person Personal al laws are applied applied are detaile detailed d in nat natur ure e 5. Distribuon and devoluon devoluon of property property aer death differs from from religion religion to religion 6. In case of transfer transfer of of property property aer death death,, the docs docs may or may may not not be there 7. Accordin According g to Hindu Hindu succession succession Act, a testament testament is a will 8. A person person needs needs to be be aware of all his his property property and distrib distribuo uon n 9. Generally Generally people people don’ don’tt make wills as they feel feel they won’ won’tt die anyme anyme soon 10. A number number of people people are also very supersous and therefore therefore make a will’ wil l’ 11. Somemes property property goes goes by testamentary succession or even with intestate 12. Mo Most st laws deal with intestate intestate succession succession as these are cases without without a will 13. In case of no will, personal personal laws law s come come into picture 14. The Indian succession act is applicable to Chrisans and parsis with some modificaons modificaons 15. There are different laws of succession in different ancient schools in Ancient Hindu Hindu law 16. 16. Ther Theref efo ore with with a reflec efleco on n of Ancien cientt Hind indu law law, the the Hin Hindu succe success ssio ion n act wa wass enact enacted ed on 17th June 1956 17. The Hindu succe ccession amendment act came into being in 2005 and the law is no longer connected with ancient laws 18. Main laws with respect to Hindu succession under Hindu law are: i
Ancien cientt Hin Hind du law law
(ii) Hindu Hindu women’ women’s property property act, 1937 1937 iii Hindu Hindu successio succession n act, 1956 1956 (iv) Hindu Hindu succession amendment amendment act, 2005 19. Hindu law has a concept of ccoparcenary oparcenary property 20. It is not rampant today, today, but it is important important for the study study of ancient law Muslim law: 1. Uncod Uncodified ified,, thus thus unce uncert rtain ain 2. Laws follo followed wed in in India India are based based on on Arabi Arabicc laws 3. Schools Schools followed followed in India India are Hanafi school school and and Ithana Ashari Ashari school school 4. For testamentary testamentary succession succession:: wills and Hindu Hindu succession act Interstate succession: 1. The sche cheme of intestate succe ccession has been menoned in the Hindu succe ccession act act but there is nothing about testamentary succession 2. Only the last secon reads that Indian succession act is applicable to testamentary 1
succession as enacted before Hindu succession act 3. Indian succession act is also applicab applicable le to Hindus, Hindus, Mu Muslims slims and Parsis Parsis 4. But for Muslim Muslims, s, rules rules for prepara preparaon on of wills wills and denotao denotaon n etc are different different 5. Only Only certain certain secons secons apply apply to Musl Muslims ims Spousal property: 1. In India, India, the the heirs heirs are generally generally the the childre children/ n/ spous spouse e 2. But But in the the developed countries, all all the the propert erty goes to the the spo spouse only if both die does it go to the children 3. In India, the the scheme follo followed wed is that that it goes goes to the the wife, sons and and daughter daughterss 4. Earl arlier sons got more prefer efere ence wh when en the father died, ed, but now daug aughters ers have the sam same rights aer the 2005 amendment.
1.1.2: ANCIENT HINDU LAW SCHOOLS: I. MITAKSHARA MITAKSHARA SCHOOL: 1. Propag Propagat ated ed by Vijnan Vijnanesh eshwara wara 2. Is a commen commentary tary on on the the Yajna Yajnavalk valkya ya smri smri 3. Deals onl only y with with rules rules and and laws of of successio succession n 4. Based on ancient ancient Ind Indian ian cultur culture e 5. Mo More re con conserva servave ve than the Dayabhaga Dayabhaga school school 6. Based mainly mainly on on Indian Indian agricu agricultu ltural ral society society 7. Prev Prevale alent nt all ov over er Ind India ia 8. Rule of Prop Propinqu inquity ity is followed followed.. This means ‘nearer in blood blood relaon relaon will inherit’ inherit’ 9. Alon long with with anci ancie ent Hindu law beli elieve eve in joint famil amily y. Ancie cient law beli elieves eves tha that joint fami amily incl includ udes es perso ersons ns wh who o are are livi livin ng toge togeth ther er in foo ood, d, resi reside denc nce e and and reli religi gio on. It is a Hind Hindu u concep nceptt which exists even aer the 2005 amendment. 10. Everyone belonging to a fami amily constute the joint fami amily but only male ale members were regarded as co-parceners and allowed to deal with property 11. Now the right has has been recognised recognised for for women also 12. The 1956 act recognised recognised daughters as heirs but not not co-coparcener co-coparcener 13. Recognises Recognises concept concept of joint joint family and co-parcenary property 14. 14. Based Based on rule rule of surv surviv ivo orsh rship, ip, tha that is on only ly tho those coparc parcen ener erss wh who o will will surv surviv ive e aer aer the the dea death of the common common ancestor ance stor shall get the property II. II . DAY DAYABHAGA SCHOOL: 1. Mo More re modern modern school school and prevalent prevalent in Bengal and and Assam Assam 2. Where Where ever school school is silent, silent, Mitakshara Mitakshara school school is consid considered ered 3. Wrien rien down down by Jimutanah Jimutanahana ana 4. Rule Rule of spir spirit itu ual effic efficacy follo llowed wed. Mean eans wh who oever ever perf erforms cer ceremo emonies ies aer aer death eath of the the man will inherit, which is generally the son 5. Recogn Recognises ises concept concept of joint joint family and coparcen coparcener er property property 6. This This concep cept may go on for gener enera ao on ns but a join jointt famil amily y end ends only wh when en the the last last coparce arcen ner dies. 2
7. Widow Widow may adopt adopt a son, son, the prop property erty would would then then go go to him him 1.1.1: HINDU UNDIVIDED FAMILY: 1. Is acce accep pted ted by law law 2. Acco ccording to the Lan Land revenue act act, it can ann not be cre created by an ar arfici ficial act act an and d should be a natural enty’ 3. It is not not a legal enty enty disn disnct ct from from its memb members ers 4. En Enjjoys a sep separa arate legal egal statu tatuss or enty, ty, Separa arate legal egal ent enty y of its members is not possi ssible but it is composed of all its members 5. Karta is a person person who manages the Hind Hindu u undiv undivided ided family I.
He can file file inc income tax tax retu return rn of his his own own and and th the who whole fam famil ily y tog toget eth her
II.
Can Can have joint and and sev several liab liabiility ity
III.
It is is a na natura turall ph phenom enomen eno on not not an arfic arficia iall crea creao on n
6. Looks like a company company but works works like like a partnersh partnership ip 7. Husband Husband of of daugh daughter ter is not recogni recognised sed as a membe memberr 8. Recogn Recognised ised unde underr income income tax tax act, wealth tax act, land land revenu revenue e act etc 9. Pecu Peculi liar ar to Hin Hindu duis ism m 10. Comes into existence only with the presumpon presumpon of joint joint membership membership 11. Birth leads to immediate membership 12. If person doesn’t want to be a member, such has to be declared or presumed to be a member 13. Even decla declaraon raon for paron has has to be done 14. 14. Defin Defini io on: a Hin Hindu join jointt fami family ly con onsi sist stss of commo mmon ances ancesto tors rs and and all all his lin lineal desce descen ndant dants’ s’ upto pto any any gener enera ao on n toge togeth ther er.. The The wive wivess of the the line lineal al male descen escend dants ants are are the the memb embers ers of the the joint int Hind indu famil amily y. The The common ance ancest sto or is esse essen nal al to brin ring the the famil amily y into into exis existe ten nce but with his death the family will not come come to an a n end. 15. Before 1956, only only sons could could be be adopted 16. 16. A join jointt famil amily y doesn esn’t neces ecessa sari rily ly have property erty.. Presu resum mpo on n of jointn intnes esss is aached ached only when family jointly owns property known as coparcena coparcenary ry property 17. A son used to become a member of the joint family but not a coparcener as the law was interested in giving maintenance to all but not property 18. Unmarried daughter, daughter, wives etc are regarded as members. 19. Therefore the concept concept of coparceners coparceners was narrower than the joint family 20. Cop Coparce arcen ners used to be only the members of the fami amily by birth/ ad ado opon but now even married/ unmarried daughters are regarded as coparceners 21. 21. Dasip Dasipu utran trans: s: ille illegi gim ma ate son sons belo belon nging ging to peopl eople e with within in the the famil amily y, even even if it belo belong ngss to the the maid will be recognised recognised as members but not coparceners. coparceners. 22. 22. Ille Illeg gim imate son sons only reg regard arded as heirs eirs as lon long as patern ternit ity y rec recognised ised by the the father ther.. This This is there only under Hinduism JOINT JOI NT HINDU HIND U FAMILY FAMILY: 1. How a coparce arcen nary ary is formed? ed? – a JHF JHF consists of a common ance ancesstor and and all all his male ale lin lineal eal desce escen ndant ants up to any any gener enera ao on n togeth ether, er, the the wife or wiv wives of all all males ales are are regard arded as members only 2. Family will conn connue ue ll death death of last survivo survivorr, rule rule of perpetu perpetuity ity 3
3. Is a uniqu unique e concep conceptt under under Hindu Hinduism ism 4. Not Not a jur juris isc c per perso son n 5. Til Till 2005, only male ale desce escen ndant ants wer were coparce arcen ners, now even even daug aughters are, are, but not the the wives 6. Under Under Mitak Mitaksh shara ara schoo school, l, 7. Rule Rule of Propin Propinqu quity ity or survi survivo vorsh rship ip 8. The The shar share e of others ers keeps eps increa creassing ing with death of coparce arcen ners or decrea crease sess with with birth of coparceners 9. Thus prop property erty remains remains undi undivided vided and joint joint within within the family family 10. This is called rule rule of survivorship survivorship 11. Unity of possession as joint ownership ownership 12. One cannot always own the same share due to the constant constant births and death deathss 13. The rule of survivorship has now been changed due to the amendment in the Hindu succession act in 1956 and 2005 of secon 6 14. Under Dayabhag Dayabhaga a school, I. Rule Rule of spir spirit itua uall effic efficacy acy II. pinda’ pinda’ in sapinda sapinda refers refers to rice rice balls offered offered durin during g death death ceremoni ceremonies es III. II I. The person who who can offer offer panda panda is the property’s property’s righul owner IV. IV. Only son can take property, succes cession only in one generaon, is called rule of succession. successi on. A son cannot have interest in his grandfather’s grandfather’s property V. Son will have have right, interest interest and share in property, property, only on on death of the father father 15. Secon 6 is an excepon excepon to this. Daughters and sons sons are regarded as coparceners coparceners 16. In case of of paron paron:: 17. Daybhaga Daybhaga school; sc hool; only only aer death of father father 18. Mitakshara school; death of of father father not required required 19. Characteriscs of coparcener coparcener under under Mitakshara school: school: I.
Unit Unity y of of own owner ersh ship ip and and no no in indivi divid dual in intere terest st can be pred predict icted ed
II.
Interest Interest is fluctua fluctuang ng and capable capable of being being enlarg enlarged( ed(dea death) th) or dimini diminishe shed( d(bir birth) th)
III.
On par aro on, bec becomes mes en entl tled ed to a defin definit ite e sha share re
IV. IV.
Commo Common n pos posses sessio sion n and and com commo mon n enj enjoy oyme ment nt is an an imp imp conce concept pt
20. Female coparcener coparcener:: I.
No femal emale e reg regar ard ded as coparce arcen ner under Mitak itaksh shar ara a law law
II. Aer er the the 1956 1956 act, act, daug aughter ters wer were sup supposed sed to take take the the shar share e in the the father’ ther’ss shar share e in the coparcenary property. property. Hence only an heir III. III. Same ame was was posion of the wi widow IV.
But aer the amendment of 2005, daughter became a coparcener in her own
right 21. Rule of survivorship lead to obstructed heritage as the share of the joint family was undivided, undivided, but under dayabhaga dayabhaga school there is definite share sha re 22. Self acquired property property and joint/coparcenary joint/coparcenary property: property: (i) (i) Proper Property ty one one acqui acquires res on on his his own own ii When acquired with help help of of ancestors, ancestors, it it is not not regarded regarded as self acquired (iii) Must be acquired without help of joint joint family iv Coparcenary or ancestral property property is property property which is carried carried on for generaons generaons 4
(v) Self acquired is not not considered considered as part of coparcenary coparcenary property, property, it is separate (vi) vi) The The perso erson n wh who o acqu acquires ires such such prop roperty erty on his own lear learn ning ing may thr throw such such property erty into into the the join jointt sto stock of the the co and and is then then regar egard ded as part art of joint int property erty.. Reco ecognised ised under concept concept of ‘gains of learning’ (vii) vii) If a perso erson n gets ets prop roperty erty from mater ternal sid side and and shar shares es it with with coparce arcen ners, ers, it will will be regarded as coparcenary property viii A property property can can be jointly jointly acquired by by coparceners coparceners if acquired thru thru business business 23. Karta and and Paron Paron:: (i) Manager Manager of of the the joint joint family is called called a Karta Karta ii In JHF respo respons nsibi ibility lity of of the the Karta Karta is very very imp imp (iii) Is the eldest male member as at that that me only the male members were coparceners coparceners iv Whether Whether a daughter daughter can can be a Karta is an unanswered unanswered queso queson n (v) Another ther queso son unansw answer ered ed is whether ther there can be a coparce arcen nary ary only betwee ween daughters (vi) In a cer certai tain case ase a wido idow had 4 minor son sons, hence wa wass taki aking care are of the property. ty. But But she could not dispose any of it as she was not the Karta vii Posio Posion n of of Karta Karta in the family family:: a) Could enjoy enjoy and ulize ulize the joint joint proper property ty in any way which which benefits benefits the joint joint family b
Has every every right right as regar regards ds to coparce coparcenar nary y prop propert erty y
c) Cop Coparce arcen ners can ask ask for par aron if an any y of them lose fait aith in the Kart arta but can ann not d
interfere with the Karta’s mgmt dues He enjoys the property as a sole owner and must do so for the benefit of the
family/ estate e) The Kart arta not liable for the acc accounts, unless in case ase of paron when he has to show them to the coparceners f) He cann cannot ot disp dispose ose off off proper property ty if it it isn’t isn’t bene beneficial ficial g
Kart arta has right to control debt ebts of the the famil amily y business or benefit of the the est estate. The The
burden of proof is on Karta regarding these debts at me of paron h) Held Held:: all all coparce arcen ners ers will will be liab liable le even even tho thou only the the Karta arta sig signed the the promisso issorry i
note Karta can alienate the property for legal necessity and with coparceners all
j)
permission even if there is not a legal necessity Legal necessity like paymen paymentt of taxes, taxes, land revenue revenue etc which may may not be beneficial beneficial
for the family 24. Daughters Daughters as Karta Karta i
Daughte Daughters rs have have now now got equal equal status status as that that of of sons sons wrt wrt Mitaksh Mitakshara ara copar coparcenar cenary y
ii) Mitakshara Mitakshara law recogni recognises ses coparcener coparcener to be be a manager or or Karta of of the family iii iii Dau Daughter ter can beco ecome karta arta sub subject ect to the the cer certain tain provisio ision ns--d s--dau aug ghter ter is sen senior ior to all all other male coparceners, she expresses desire to work as the Karta iv) If senio eniorr male ale coparce arcen ner doesn esn’t wa wan nt to be Kart arta and and a senio eniorr femal emale e coparce arcen ner is next in line then she may be asked to be the Karta PARTITION 1. Whenev eneve er a coparce arcen ner ask asks for par aro on n or expr xpresse essess desire ire for the same, ame, par aro on n tak takes place 5
2. There may be par aral paron if all all coparce arcen ners do not intend to part ways, hence this is when one or more but not all coparceners want wa nt paron 3. Method of disnco con between par aron an and d par aral par aron is not provided in the Hindu succe ccession Act. ct. The courts have referred to old law awss. Cou Courts have held as Man anu u said aid that many any propere eress can only be enj enjoyed commonly by coparce arcen ners ers and and cant ant be par aro oned lik like water, water, places of worship etc 4. The concept of primogeniture is not ap app plicable in Hindu law an and d everyone is equal aer par aron on.. Ther Theref efor ore, e, takin taking g of som some prop proper erty ty by the the elde eldest st son son has has no nott been been rec recognis gnised ed un unde derr Hindu law aer paron. 5. Declaraon Declaraon of of inteno intenon n to paron paron is essenal between between pares pares 6. Par aro on is more imp imp under Mitak itaksh shar ara a sch school as more number of coparce arcen ners ers wh who o must be given their share in the property property 7. Old Hindu law aw:: par aron start arts with declar clara aon of intenon which may be done orall ally/ in wring/ by distribuon etc 8. rule of survivor survivorship ship comes comes to an end with paron paron 9. share share of each copar coparcene cenerr becom becomes es definit definite e 10. if aer paron a coparcener is born, he has no share in coparcenary coparcenary property 11. if one of the coparcener’s r’s wife is pregnant at me of paron, such child is entled to coparcena coparcenary ry property 12. Subject maer maer of paron: i
Only Only cop coparcen arcenary ary or joint joint prop property erty to be paron paroned ed
ii) ii) If any any coparce arcen ner holds lds any any sep separa arate property erty and and has no inte inten no on ns of thr throwin wing the the same into the joint family property, property, such property cannot be paroned iii Property of indivisible nature like right to draw water, air, way etc cannot be paroned iv) Earl arlier a piece of land and in villag llage es was kept ept for grazi azing call alled past asture land and and and could not be paroned 13. Property available for paron: i)
Cop Coparcen arcenar ary y prope ropert rty y
ii
Before Before paron, paron, prov provision isionss to be be made for for fulfillme fulfillment nt of joint joint family family debts debts
iii) iii) Befor Before e 2005 2005:: a. Nece Necesssary ary to keep some money for marr arriage age of unmarr arried dau aug ghters who were regarded as a s members of joint Hindu family, responsibility responsibility of family b. Some Some le for for fun funeral eral ceremo ceremoni nies es c. Some Some for for the the sake sake of of maint maintenan enance ce of widows widows d. Prov Provis isio ion ns were were also also made made for wid widowed wed daugh aughte ters rs coming ming back to the the father’ ther’ss house e. Cas Case: 4 sons and and 1 widowed wed daug aughter ter- property par aro oned in a wa way y that she she got a proper share and a nd lived in a part of the house for the rest of her life 14. Who is entled entled to claim paron paron? ? (i) Sons, Sons, grandso grandsons ns and grea greatt grandson grandsonss can get get paron ii Widowed Widowed daugh daughter ter can can get get share share but but cant cant claim paron paron (iii) iii) Every very adu adult cop opar arcen cener er is ent entle led d to dema deman nd and and sue sue for for par paro on n of the the cop opar arcen cenar ary y 6
prop roperty erty at any any me. me. Excep Excepo on: n: In the the Bom Bombay bay Mitak itaksh shar ara a scho school ol,, son son canno annott ask for for paron without assent of father when father father is joint with grandfather (iv) iv) Aer er passi assin ng of the the Hin Hindu Marr arriag iage act, act, 1955 1955,, a chil child d born out of a void marri arriag age e also also is a coparcener. Earlier illegimate child was not a coparcener v A mino minorr needs needs a guardi guardian an and cann cannot ot claim paro paron n (vi) A person of unsound unsound mind mind is regarded as a coparcener vii Aer 2005, 2005, daugh daughter ter can also claim paron paron (viii viii)) A minor inor aer aer aa ain inin ing g majo ajority rity can ask for reop reopen enin ing g of a par aron on tha that happ appened ened in his minority if he is not sasfied with w ith it ix Adopve son has every right to ask ask for par aron an and d relaon with ad ado opve pare arents has to be established e stablished during paron (x) If a widow ad ado opts a son ae aer death of the father but before par aron then he will be recognised as if he were adopted in the lifeme of the father. So he becomes a coparcener and gets share in the property aer paron xi If person is aw awa ay san any yasi asi etc during par aron then can clai claim m his share are ae aer coming back (xii xii)Mo )Mother cann annot ask ask for par aro on but has a right to an equal share are as the coparce arcen ners ers on paron. It is the same in case of grandmother WIDOWS AS COPARCENERS COPARCENERS 1.1.3 : 1. Under Under Ancien Ancientt Hindu Hindu law law or Mitaks Mitakshar hara a school: school: i
No right right to coparcenary coparcenary property property,, due due to rule of survivor survivorship ship
(ii) (ii) Right Right to mainten maintenance ance (iii) Right to adopt a son, maintain maintain property for for him and ask for paron paron on his behalf behalf (iv) Right to stridhan stridhan which was regarded as absolute property property of the the wife 2. Raja aja Ram Ram Mohan Roy brought ab abo out man any y reforms with respect to widows an and d in 1937 the Hindu Women’ Women’ss Right to Property act ac t was passed. Under this the i Widow Widow got a share to her husb husband’ and’ss coparcenary coparcenary proper property ty but but the daughter daughter did did not. not. (ii) Nat Nature of her right was restricte cted as the share are was lile an and d for her to enjoy in her lifeme. iii As she want a coparcener coparcener she coul couldn’ dn’tt dispose dispose off the propert property y (iv) Her share was termed termed as restricted estate/ estate/ limited property property v In case ase of her death eath such such property erty wen went back to the the coparce arcen nary ary prop roperty erty due to rule of survivorship (vi) Concept also exists under secon 14 of of the 1956 act 3. Under Under Hindu Hindu successio succession n act, act, 1956 1956:: i
Tried ried to to achiev achieve e equali equality ty and and make make itsel itselff a secul secular ar act
(ii) Seco econ n 6 of 1956 act; act; wh when en someone dies leav eaving ing behind(no par aro on n) his share are in the coparce arcen nary ary property at me of his death, it will be presumed as if it has been par aron oned ed or sep separa arated ted fro from cop opar arcen cenar ary y pro propert perty y on his his dea death. th. Such Such shar share e wo woul uld d be regarded as his self acquired ac quired property property and divided amongst his heirs iii Therefore, rule of survivorship survivorship was discarded and rule of succe succession ssion came came into being being (iv) Daughters regarded regarded as heirs under this act v Widows Widows and and daug daught hters ers also also got got equ equal al share share (vi) Sons were sll the only heirs regd as coparceners an and d entled to coparc arcenary ary property 7
4. Under Hindu Hindu succession(am succession(amendm endment) ent) act, 2005: 2005: (i) Daughters Daughters were also regard regarded ed as coparcener coparcenerss and sons sons and daught daughters ers were equal equal (ii) Widow Widow sll not regarded regarded as a coparcener coparcener,, children children get bigger share share (iii) Sons of sons regarded as coparceners coparceners but not sons of of daughters iv But on daughter ’s ’s death her heirs got share in her property but they won’t be coparceners (v) Sons of son sons get shar share e in coparce arcen nary ary prop roperty erty from birth irth wh whil ile e daug aughter’ ter’ss son sons will will get their share as heirs only on mother’s mother’s death 1.2: HINDU SUCCESSION ACT, 1956 AND AMENDED ACT, 2005 1. Secon Secon 2 defines defines who who is a Hin Hindu du? ? (i) The following following persons persons are Hindus, Hindus, Buddhists, Buddhists, Jains or Sikhs by religion, as the case may may be:(a)
any any chi child, legi egima mate or illegi egima mate, one of whose pare arents are are Hindus, Bud Buddhists sts,
(b)
Jains or Sikhs by religion; any an y chi child, legimate or illegimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; Any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh
(c)
religion. ii Hind indu by birth and and relaon: any anyone wh who o is a Hindu by birth is a Hindu by relao laon n but not vice ice versa (iii) Zingayat Zingayat caste has different customs customs like they bury their death death etc (iv) In succession, success ion, Brahmo Samajists, Arya Samajists, Lingayats Lingayats followed different customs customs 2. Secon 3: definion definionss of agna agnates, tes, cogn cognates, ates, heirs, heirs, etc 3. Seco con 4i
Hindu Hindu succes successio sion n act has over overrid riding ing effect effect on all exisng exisng laws.
(ii) (ii) Eg: Eg: custo customs ms etc etc iii Certain schools schools follow follow matriarchal matriarchal society society and others others patriarchal patriarchal society (iv) Act reconciles reconciles these and many customary laws of other communies communies 4. Seco econ n 5- talk talkss of cer certain tain prop ropere eress to wh whic ich h the the act doesn esn’t app apply lik like anyt anyth hing ing regu egulate lated d by Indian succession act, 1925 by way of provision secon 21 of the act PARTICUL ICULA ARS
HIND INDU SUCCE UCCES SSION ION ACT, CT, 1956 Daughter was only an heir
HINDU SUCCESSION ACT(AMENDED), ACT(AMENDED), 2005 Daughter became coparcener by birth in her own right Subject to same rights and liabilies as the son Son’s sons are coparceners by birth and
Secon 6 amended
daughter’s sons become become her heirs aer her death Such daughter entled to testamentary Succession based on
succession successi on of such property property widow gets right to dispossession
survivorship rule 8
rejects concept of survivorship survivorship and follows testamentary or intestate
Pious obligaon Paron
Concept of pious obligaon
succession Concept of pious obligaon is removed
existed Daughter cannot claim paron Daughter can claim paron Added to class I: Son of predeceased daughter da ughter of predeceased daughter Daughter of predeceased daughter of predeceased daughter Son of a predeceased daughter of a
Heirs of male Hindu dying intestate(sec 8)
predeceased son of a predeceased daughter Daughter of a predeceased predecea sed daughter of a predeceased son of a predeceased
Karta Secon 23
Daughter cannot become the
daughter Daughter can become Karta with certain
Karta Relates to dwelling house
qualificaons omied
Secon 24
omied
1.3: DEVOLUTION OF INTEREST INT EREST IN COPARCENARY COPARCENARY PROPERTY (i) Secon 6 is only only applic applicable able to the Mitakshara Mitakshara school school ii Secon 6 1 : Aer the amendment of 2005 when in a joint family governed by Mitakshara school, secon 6 deals with, the daughter of a coparcener shall(i) By birth birth become become a coparcener coparcener in in her own own right right in the the same manner manner as a son ii Has same rights rights in coparcenary coparcenary prop property erty as she would would have have if she would would have have been been a son (iii) And subj subject ect to same liabilies (iii) Therefore since daughter daughter has same liabilies as a s son, she she can also become become a Karta (iv) The amendment has has a retrospecve effect as a s it allows daughter to be coparcener coparcener by birth (v) Where secon secon 6 is not applic applicable? able? – proviso proviso to sec sec 6 a Dau Daughter ter can be regar egard ded as a coparce arcen ner only in prop roperty erty not alr alread eady par aro oned befo efore the amendmen a mendmentt (b) such paron paron must must have have taken place place in wring c Provided ided nothi thing shall all invali alidate any any dispo sposio on n/al /aliena enaon incl inclu uding any any par aro on or testamentary disposion in any way w ay (d) Which has taken place before before 20th Dec 2004 (vi) Secon 6(2): 6(2): (a) Any propert erty wh whic ich h a female ale Hindu is entle tled to by sec sec 6(1) she can dispose such such property by testamentary succession b She can can now now make a will in her lifem lifeme, e, as she is is a coparcener coparcener by by birth birth (c) Includes female female Hindus Hindus as not only includes includes daught daughters ers but also widows widows d Such wid widows have no restr estric ico on n but full rig right to disp isposses ssessi sio on but only aer aer her husban sband d’s death 9
(vii) (vii) Secon 6(3): 6(3): (a) Where
a
Hindu
dies
his
interest
in
the
joint
property
shall
devolve
by
testam stamen enta tarry/in /intest estate succ succes esssion ion and and not by survivo ivorship and and the the property shal shalll be deemed to have been divided as if paron has taken place (b) Completely Completely rejects concept concept of survivo survivorshi rship p c Only Only widows widows and childr children en are are legal legal heirs heirs (d) Concept of nota notaon onal al or deemed paron paron e Ho How w share sharess will will be be allo alloed ed? ? 1. Daught Daughter er alloed alloed same shares shares as son son 2. Son of predeceas cease ed son will get share ares as he would have got if he would have been alive and shall be alloed to such predecease ased son’s son. This applies even for predeceased daughters 3. Talks about about predeceased predeceased daughter’ daughter’ss childre children n (viii (viii)) Secon Secon 6(4): 6(4): Pious Pious oblig obliga aon on a
Und Under the Hindu Law Law, a son son is under a pious oblig ligaon to dischar charg ge his father ther's 's debts ebts out of his ances ancestr tral al prope ropert rty y even even if he had had no nott been een benefit enefited ed by the the debt debts, s, provi rovid ded the the debts ebts are are not avya vyavahar aharik ika, a, or tain tainte ted d with with imm immoralit ality y or ille illeg galit ality y. It is howev wever not follo llowed wed under
the Dayabhaga school b) Acco ccording ing to the Hindu law aw,, the the performance ance of this pious duty by the the son sons relie lieves a father of death eath tor torments ents wh whic ich h he wo wou uld other therwi wisse face ace if the debts are are not cle cleare ared. Inf Infact, act, this duty extends to the grandsons and great-grandsons great-grandsons as well. c) Howev wever, if at the the origi igin of the the debt, ther there e wa wass nothing illegal egal or repugnant ant to good morals als, the the sub subsequ sequen entt dish disho onest nesty y of the the fath father er in no nott disch dischar arg ging ing his his ob obli lig gao on n will will no nott rele release ase the the son from liabil abiliity for the debt. ebt. For exam examp ple if the father inial ally incur curs a debt ebt lawf lawfu ully lly but later misappropriates misappropriates it, the sons will have a pious obligaon to make good the same. sa me. d) Avyavahar ahariik debts are are immoral debts ebts like those for the the purpose of keepin eping g a param aramo our or concubine,
debts
taken
to
defray
expenses
of
his
concubine’s
grand-daughter
(Laksh Lakshma man nswam swamii v. Ragha Raghava vach char aru ul, AIR AIR 1943 1943 Mad 292) 292),, etc. etc. Othe Otherr debts ebts wh which ich need eed not be e
paid by the sons are suretyship debts and gaming debts like those incurred for liquor, liquor, etc Nev Neverth erthe eless less,, sons are are als also liab liablle to pay me-bar -barrred debts of the father sin since they they are are not avyavah ahar ariika. This doctr ctrine als also ap app plies to mortgage age debts incur curred by the father not
f
necessarily jusfied for any legal necessity or benefit. (Pathak v. Pathak, AIR 1967 Guj. 192) However, the burden is on the sons to prove not only that the debts were immoral but als also that the purchas chase ers had noce that they were so tain ainted. (Luh Luhar Mari arit Lal Lal Nag Nagji v. Doshi Jay Jayanl anlal al Jeth Jethal alal al)) Yet, et, it is not esse essen nal al for them them to prove crim crimin inal al liab liabil ilit ity y of the the father ther in order to clai claim m exempo on n. In Kesh eshav Nan Nandan Saha ahay Vs. The The Ban Bank of Bih Bihar, ar, it was held eld that
g
the doctrine of pious obligaon cannot cannot apply to the wife. As per the the cur current law aw,, the obliga igao on n of the sons is not a pers ersonal obligao on n but it is a liabi abilit lity limi limited ted to their their resp respec ecve ve inter interest estss in the the join jointt famil family y prop proper erty ty.. The The ob oblig liga ao on n exist existss wh wheth ether er the the son sons are are majo ajor or mino inor or wh whet eth her the the father ther is aliv alive e (Brij Brij Nara Narayan yan v. Mang angala, ala, AIR 1924 924 PC 59) 59) or dead ead. If the the debt ebt is contract tracted ed by the the father ther aer aer par aro on, the the son son cann annot be made ade
h
liable. If, If, however ever,, the the debt ebt is a pre-p e-par aro on debt, the share are of the the sons would be liab liablle even ae aer par aron, provided the debts of the father are not immoral or illegal and the paron arr arrang angemen ementt does not make ake any any provisio ision n for the the disch ischar arg ge of such such debts ebts.. It is also also open to 10
the the fath father er durin uring g his his lif life me, me, to con onve vey y join jointt famil amily y pro propert perty y inclu includ ding ing the the inte intere rest st of the the son son to pay off ante antece ced dent ent debts ebts not incu incurrred red for famil amily y neces ecessi sity ty or benefi enefitt provi rovid ded the the debts ebts are are no nott tain tainted ted with with imm immorali orality ty (Iyen Iyengar v. Pill Pillai, ai, AIR 1971 1971 Mad 303) 303).. The The father ther how owev ever er can not do so aer aer filin filing g of the the suit suit for par aro on. But, But, it has been een sta stated ted tha that for such such alie alien nao on n to be valid alid,, the the debt ebt incu incurr rred ed must stan stand d ind indepen epend dentl ently y of the the alie alien nao on n and and must be prio rior to i
it. (Virdhachalam v. Syrian Bank, AIR 1964 SC 1425) A disn nc co on als also needs eds to be made ade betwe etween en the debt contracte acted d by a father ther manag anager er and and a broth rother er manag anager er.. The The debt ebt contract tracted ed by a broth rother er manag anager er bind inds the the other ther memb embers ers the the joint joint family only when it was for legal necessity and for the benefit benefit the family while the debts debts
j)
of a father manager need to be paid pa id back only by his sons as a part of their pious obligaon. obligaon. This concept concept has become become almost redundan redundantt aer the commen commencement cement of the Hindu Hindu Succe Success ssio ion n (Amen Amend dment ment)) Act, Act, 2005 2005,, wh which ich under der S.6( S.6(4) sta states tes tha that no cou ourt rt shall shall rec recogn ognize ize any any righ ight to proceed ceed agai again nst a son son, grand andson son or great eat-gra -gran ndson son for the the reco ecover very of any any debt ebt due from his father, er, grand andfather or great eat-gr -grand andfather solely on the ground of the pious oblig ligao on n under the the Hind indu law law, of such such son son, grand andson son or great eat-gr -grand andson son to disch ischar arg ge any any such debt.
1.4: SUCCESSION OF PROPERTY OF A HINDU MALE DYING INTEST IN TESTA ATE 1. Secon 8: 8: (i) Scheme for succession succession of property property of male male Hindu Hindu (ii) Rules differ different ent for for males males and females females iii Mainly Mainly because because daughter’ daughter’ss heirs are not not coparcen coparcenary ary (iv) And daughters daughters when they get married get new heirs who may not be heirs by birth v The property property of of a Hindu male male dying intesta intestate te devolves devolves on his his heirs in this this manner: manner: a) Firstly Firstly,, on heirs heirs men menon oned ed in class I b
Secon Secondly dly,, on on heir heirss men menon oned ed in class II
c) Thir Thirdl dly y, agn agnates tes d
Fou Fourth rthly, ly, cogna gnates tes
(vi) vi) wh when en pers person on has has no heirs eirs then then gove govern rnme ment nt can take take the the prope ropert rty y, bu butt no provi rovisi sion on mad made in secon 8 (vii)there cannot be any overlapping between class I, II, agnates and cognates CLASS I HEIRS: ⦁
before amendment: 1. son 2. dau aug ghter 3. widow 4. mother 5. son son of pred predece eceased ased son son 6. dau daugh ghter ter of prede predeceased ceased son son 7. widow widow of pred predecea eceased sed son son 8. son son of pred predece eceased ased dau daugh ghter ter 9. dau daugh ghter ter of prede predeceased ceased dau daugh ghter ter 10. son of of predecease predeceased d son of predeceased predeceased son 11
11. daughter of predeceased predeceased son of predeceased son 12. widow of predeceased son of predeceased son ⦁
aer amendmen a mendmentt the following were a added: dded: 13. Son of of predecea predeceased sed daughter of predecease predeceased d daughter daughter 14. Daughter of predeceased daughter of of predecease predeceased d daughter daughter 15. Son of of a predeceased daughter of of a predeceased son of a predeceased daughter 16. Daughter of a predeceased daughter of a predeceased son of a predeceased
⦁
daughter All heirs of class I will take property simultaneously and with exclusion of all others
Mother (4) Propositus (d)
Son (1)
Son(d)
Son(d)
W
S(5
D(d
D(6)
Widow (3)
Daughter(d)
Daughter (2)
S(d)
w(12)
Sd D(d)
S(8)
D9
S(10)
S 13
D(11)
12
D 14
D(d)
13
CLASSIFICATION CLASSIFICATION OF CLASS I HEIRS 1. Secon 9: order order of succession amongst amongst the heirs heirs in the schedule schedule (i) Tho Those se in class class I with exclus exclusion ion of all all others others ii If no no class class I heir heirss then then class class II (iii) (iii) Agna Agnates tes iv cognates tes 2. Seco Secon n 10: 10: dist distri rib bu uon on of prop proper erty ty amon among g class class I heirs eirs,, prop proper erty ty shall shall be divi divide ded d acco accordin rding g to the following rules: (i) The The intest testa ate wido idow wil will take ake her share are. If there are are more than than one wido idows then then all all the wido idows tog togeth ether wil will get their share( are( for tho those marr arried befo efore 1955). Rig Right to main ainten tenance ance only in lif life me, me, cann annot be clai claim med aer aer death eath.. For eg: eg: if 2 chil child dren ren and and 2 wives ives then then chi children wil will get one third ird each ach and and the the wiv wives will ill get one sixt sixth h each each of share (ii) Mother surviving the son, sons and daughters and widow will each take one share share (iii) The heirs in the bran anch ch of each ach predeceas cease ed son or dau aug ghter shall all take ake between them, one share each (iv) (iv) Rule Rule 4: 4: a. The The distr istrib ibu uo on n of shar shares es prefer eferre red d in rule 3 amo among heir eirs of predec edecea ease sed d son son shall all be so mad ade e that equal share given to his widow, surviving sons an and d daughters and branch of his predeceased predecease d son will get equal e qual porons b. Same Same only only daug daught hter er instead instead of son 3. Father in law law under moral and and not legal egal obliga igao on n to main aintain ain his daug aughter ter in law aw.. This This can be interpreted and based on the above a bove rules and provisions CLASS II HEIRS: Class II I I heirs heirs include: 1. Full Full bloo blood d rela relaon on ; same parent parentss 2. Half bloo blood d rela relaon on;; same fathe fatherr 3. Uterine Uterine bloo blood d rela relaon on;; same moth mother er 4. These These categ categor ories ies con consid sidere ered d in class II heirs heirs 5. This This class includ includes es broth brothers ers and and sister sisterss as heirs heirs 6. Uterine blood blood relaon relaon is not not consi considere dered d as they have have the same moth mother er 7. Full bloo lood and and half alf bloo lood rela relao on ns will will be consid sidered ered but betwe etween en the the tw two o full bloo lood will will get everything(preferred) 8. Incl Includ udes es 9 ent entri ries es 9. Only when when there there is no heir in one one entry entry is the subsequ subsequent ent entry entry consid considered ered
14
Entries: Entry I: ⦁
1. Natural father, adopve father, father of a son born out of void or voidable marriage 2. Adopve Adopve fath father er is not not entled to succeed prop property erty of of his son son 3. Even Even putav putave e father(ch father(child ild out out of wedlock) wedlock) not not allowed to succeed succeed his son ⦁
Entry II: 1. Heirs entered entered class I aer amendmen amendmentt were previou previously sly part part of entry II 2. Son’ Son’ss daugh daughte ter’ r’ss son son 3. Broth Brothers ers and and sister sisterss are coll collat ateral eral 4. Full blood more imp than half blood, if full blood exists then half blood not considered 5. Uterine Uterine blood blood not not con consid sidere ered d
⦁
Entry III: 1. Daugh Daughte ter’ r’ss son’ son’ss son son 2. Not ther there e aer amend amendme ment nt:: dau daugh ghter’ ter’ss son’ son’ss dau daugh ghter ter,, dau daugh ghter’ ter’ss dau daugh ghter’ ter’ss son son
⦁
and daughter’s daughter’s daughter Entry IV: 1. Compr Comprises ises of of childr children en of coll collat ateral eralss 2. Bro Brother’ ther’ss so son 3. Broth Brother’ er’ss dau daugh ghter ter 4. Sister’ ter’ss so son 5. Sist Sister’ er’ss daug daugh hter ter 6. If the child child is illegim illegimate ate then then canno cannott get the the propert property y 7. Full Full blood blood rela relaon on give given n prefe preferen rence ce
⦁
Entry V: 1. Ascend Ascendants ants from from fath father’ er’ss side side 2. Fath Father’ er’ss fa father ther 3. Fath Father’ er’ss mot moth her
⦁
Entry VI: 1. Fath Father’ er’ss wid wido ow step stepmo mom m 2. Brot Broth her’s er’s wid widow 3. Stepm Stepmom om sho should uld be be from from valid valid marriage marriage
⦁
Entry VII: 1. Fath Father’ er’ss brot brothe herr 2. Fath Father’ er’ss sist sister er
⦁
Entry VIII: 1. Mother’ ther’ss fa father ther 2. Mother’ ther’ss mo mother ther
⦁
Entry IX: 1. Mother’ ther’ss bro brother ther 2. Mother’ ther’ss sist sister er
AGNATES: 15
(i) Defin Defined ed und nder er sec sec 3 (ii) A person is said aid to be an agn agnate of ano another if the two are are relat lated to each ach other by blood or adopon wholly through males iii Not ther there e in class class I or II (iv) May be be dependent dependent on the degree degree v No marital relaon relaon is cons considere idered d like widow widow of son’ son’s son’s son’s son (vi) Only legimate legimate kinship is considered considered COGNATES: 1. If two people people are related through through blood or adopon adopon but but not not wholly through through males 2. Female Female rela relaon on in in betwee between n rela relaon on chain 3. Agna Agnates tes prefe preferre rred d over over them them 4. No marital relaon relaon is con consider sidered ed like widow widow of son’ son’ss daughter’s daughter’s son son 5. Only Only legima legimate te kingsh kingship ip is consi consider dered ed Brother (d)
P
Sister (d)
S (d)
S (d)
S (d)
S (d)
S/D
S/D
(AGNATE)
(COGNAT
6. Under Hindu succes cession act it is given that unless otherwise specified fied, property will be divid ivided ed per capit apita a and and not per str stripes ipes.. As they they tak take property erty as ten tenants ants in common and and not as joint tenants 7. Wh When en ever everyo yone ne has has sep separa arate ow owne ners rsh hip but enjo enjoy y prop proper erty ty in commo ommon n, it is calle alled d tena tenant ntss in common 8. Joint tenants tenants have have commo common n ownershi ownership p i.e. coparcenary coparcenary prope property rty 9. Secon 11:rules 11:rules for for Distribu Distribuon on of of prope property rty among among class II heirs (i) Property to be divided between heirs specifie cified d in one entry in clas classs II so that they share simultaneously and equally (ii) They all stand on equal foon foong g and take the share share per capita capita iii Full bloo blood d given given prefer preference ence over half blood blood 10. Rule in case ase of agn agnates an and d cognates: whoever are are fewer in degree will inherit to those extended in degree in both cases
1.5: SUCCESSION IN CASE OF A HINDU FEMALE FEMALE DYING DYI NG INTEST INT ESTA ATE Secon 14 talks about who will succeed the property of a Hindu female? 16
1. Sec Seco on 14 14(1): (i) Any property possessed by a female ale Hindu whether acq acquired before or ae aer the commencement of the act(1956) shall be held by her as full owner and not as a limited owner (ii) ii) As wid widow had only righ ight to posses ssessi sio on of coparce arcen nary ary prop roperty erty wh whic ich h wa wass to rev revert ert back aer her death iii iii If aliv alive e ll ll 1956, 956, she she beco ecomes full own wner er of the the prop roperty erty wh whic ich h she she can give ive to any anyone now (iv) 1956 act acted retrospecvely retrospecvely 2. Secon 14 2 : (i) Nothing in cl( cl(1) shall ap app ply to any property acq acquired by way of gi or will or by an inst instrrument ent or decr ecree or under an aw awar ard d unless less other therwi wise se spec specifi ified ed tha that they they have limited ownership (ii) Excludes cases cases of inheritance inheritance by women/ wife wife from father/ father/ husband (iii) Stridhan is always her own own property property (iv) iv) Exce Excep po on ns to sec seco on 14: excl exclu udes movable abless and and imm immovab vables, les, her property erty can be goen thru a. Inh Inheritance ance b. Paron c. In lie lieu u of of main mainte ten nance ance d. Arre Arrears ars of maint mainten enanc ance e e. Gi fro from m any any per perso son n f.
Self exeron
g. Purchas chase e h. Prescr escriipon i.
In any oth other er mann manner er and and pro proper perty ty held held by by her her as stridh stridhan an
j.
Any propert property y held held by by her immedia immediately tely befo before re comm commencemen encementt of the act
3. Such wo wom man can be calle alled d a female ale Hindu wh who o holds propert erty under sec seco on 14- Jos Jose v. Ramkrishna Nair AIR 2004 Kerela 4. Married female can acquire agricultural land and such is included in definion of property also- Pratap singh v. UOI AIR 1985 5. Vidya v. Nand Ram 2001- a man gave his property to under will to his 2nd wife(void marr marriag iage) e).. She She was sll sll rega regard rded ed as a female emale Hin Hindu du,, hence ence wo word rdss female emale Hin Hindu couldn uldn’’t be only read as wife 6. Property Property held held by a female female Hindu Hindu to be be regarded regarded as absolute absolute propert property y 7. Sadhu Singh Singh v. v. Gurudwara Gurudwara Singh AIR 2005- a widow can can be regarded regarded as a sole heir heir
17
Secon 15- scheme in relaon to succession of female Hindu 1. Heirs differ different ent as she has heirs from from fath father er,, mother mother and husb husband and 2. Sec 15( 15(1) 1):talk :talkss about about the the foll followi owing ng i
Firstly, upon the sons an and d dau aug ghters inclu cludes sons an and d dau aug ghters of predeceas cease ed
sons and daughters) and husband (ii) Secondly Secondly,, if no one one in first category category then devolve devolve on to heirs of her husband husband iii Thirdly Thirdly,, mothe motherr and father father mostly mostly when when unmarr unmarried ied (iv) Fourthly, Fourthly, upon upon heirs of her father father (v) Fihly Fihly,, upon upon heirs heirs of her her mother mother 3. Secon 15(2) 15(2) not not withstand withstanding ing anything anything in cl (1) (1) a. If prop propert erty y inheri inherited ted fro from m parent parentss then (i) (i) first first goe goess to child childre ren n (ii) if no no children children are alive alive then to parents parents iii heir heirss of of fa father ther (iv) heirs heirs of mothe motherr v government b. property property inherited inherited from from husband husband or fath father er in law: law: i
chil child dren ren an and hu husban sband d
(ii) (ii) heirs heirs of of husb husband and iii iii gov over ern nment ment 4. in abse absen nce of chi childr ldren and and husband and, the step step chi children can inh inheri erit property as they are are heir eirs of the husband. Not possible in case of Hindu males 5. daug aughter ter in law may inherit from mother in law as regar egard ded as father’ er’s heir in case ase of death of son 6. natural natural son of unmarried unmarried woman woman or or illegima illegimate te children children regarded regarded as heirs 7. child born born out of void void or voidable voidable marriage marriage also regarded regarded as heir heir 8. adop adopted ted child of of unmarried unmarried woman, woman, allowed to adopt adopt only only in excepon exceponal al cases 9. same rules rules for daughter( daughter(step, step, natural, natural, adop adopve) ve) 10. only lawfully married husband can can inherit, married to him at me of death death 11. Lachman Lac hman Singh v. Kripa Singh AIR 1987- Stepson can inherit as an heir of the the husband 12. If in case of decree of court, marriage is dissolved or annulled, the the husband wont be an heir. heir. 13. But in case of judicial separaon he will sll be be an heir 14. In case case of of 2nd marriage, only heirs of 2 nd husband will get property 15. Mother will get only only as heir of father; father; adopve, natural, natural, step 16. Putave father cannot inherit 17. Step father father may get get property as heir of mother 18. 18. In case ase of femal emale e Hind indu not just full bloo lood and and half alf bloo lood but also also uter terine ine bloo lood rela relao on ns are are taken into consideraon as heirs of mother. Half blood are heirs of father
18
Secon 16: Rules R ules for order of succession in case of female Hindu: 1. Rule 1: amo among the heirs specifi cified in 15 1 those in one entry shall be preferred to those in subsequent subsequent entry and those in same entry shall sha ll take property simultaneously simultaneously 2. Rul Rule 2: Son or daug aughter of predec edecea eassed son or daug aughter shal shalll tak take betw twee een n them shar share e as such son and daughter would have taken if alive 3. Rul Rule 3: the devoluon of property erty on the heirs menoned in c,d c,d,e father ther,, mother, er, father ther’’s heirs, mother’s mother’s heirs) shall be in same order and according to same rules 1.6: CONCEPT OF STRIDHAN 1. Right Right to stridh stridhan an is regarded regarded as the the absolute absolute right right of of the wife 2. It is all all property( movable an and d immovab ablle) which is given to her during her marr arriage by parents, in laws, husband and as gis 3. In earlier days days she she wasn’t wasn’t allowed to accept gis gis from from strang strangers ers 4. The concept concept of of stridhan stridhan has also been been accepted unde underr the amendmen amendmentt act of 2005 5. She can dispo dispose se such property property at her her own own will 6. Wh Wha at is str stridh idhan and and wh wha at is not is differ ifferen entt acco according ing to differ ifferen entt sch schools and and has differ ifferen entt meanings for each 1.7: DISQUALIFICATION DISQUALIFICATION RELATING TO SUCCESSION ⦁
Secon 25: murderer is disqualified 1. Here murder murder is is of the the predecessor predecessor by by the successor successor to get get property property 2. Pers erson wh who o commits or abet abetss the commiss ission ion of murder shall all be disqu squalifi alified ed from inhering from the person murdered 3. Or succe success ssio ion n in any any other ther property erty in furth rtheran erance ce of the the succe success ssio ion n to wh whic ich h he/ she she commied or abeed the murder 4. Case: Case: Culp Culpab able le homici omicide de no nott amou amoun nng ng to murd murder er also also lead leadss to disq disqu ualific alifica ao on n of the the
⦁
person Secon 26: conversion conversion 1. The person person who dies dies must must be a Hindu Hindu and and one one who inhe inherits rits must must also be a Hindu Hindu 2. Eg: man conver converts ts to Islam and has 2 Hindu children, children, children children canno cannott inherit inherit from from him 3. A Hindu wh when en ceas ceased ed to be a Hindu and and chi children born aer aer conversion shall all be abl able to inh inherit erit.. but such such desce escen ndants ants shal shalll be disq isqualifi alified ed from inh inheri erin ng property erty from any Hindu relave 1.8: GENERAL RULES OF SUCCESSION
⦁
Secon 18: a. Full blood is preferred to half alf blood if the nature of relaonship is same ame in all all other aspects b. This This rule rule is very very imp imp w.r w.r.t .t.. class II heirs heirs c. Case: Case: the the rule of prefer eferen ence ce will will app apply in case ase of conflic flicn ng clai claim ms betwe etween en the the heir eirs of same ame degree or proxim ximity in relaon with the deceas cease ed – Ram Singhari ari Devi v. Govind Thakur AIR 2006
⦁
Secon 19: a. If 2 or more heir eirs succ succee eed d tog together then then they get the property erty per capi apita and and not per stripes b. General General rule: rule: per capita capita except except when oth otherwise erwise specified specified expressly expressly 19
c. Per capit capita: a: will take take prop propert erty y as tenants tenants in comm common on ⦁
Seco Secon n 20: 20: Righ Rightt of chil child d in the the moth mother’ er’ss wo womb mb(p (pos osth thu umou mous chil child d) and and wh who o is subs subseq eque uent ntly ly born aliv alive e shal shalll have the the rig right inh inherit erit as if he or she she had been een presen esentt befo efore the the death eath of the the
⦁
intestate Secon 21: Presumpon Presumpon in case of simultaneous death Wher Wh ere e 2 perso erson ns have have died died in circ circum umst stan ances ces ren renderin ering g it uncer ncertai tain n wh whet eth her eith either er of them them
⦁
survived the other, it shall be presumed that the younger survived the older Secon 22: a. Relates Relates to to pre-empo pre-empon n which which means making making parts in case of paron paron b. Talk alks abo about the preferabl able right of an heir. When there are are 2 heir eirs say daug aughter and and son. If the dau aug ghter gets the property an and d decid cides to sell it then she must give her brother preferable right. This is also available vice versa c. Any heir from clas classs I heirs decid cides to tran anssfer interest, preferenal right given to other class I heirs d. Considera Consideraon on to be decided decided by agreeme agreement nt between between pares pares or by cour courtt e. Heir who gives highest highest considera consideraon, on, property shall be transferred transferred in his favour favour f.
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Doesn’t Doesn’t refer refer to coparcen coparcenary ary property property or proper property ty got got under under survivo survivorshi rship p
Secon 23: a. Has been been deleted deleted by 2005 amendmen amendmentt as it was against equality equality b. Relates elates to dwellin dwelling g house housess c. The The dwell elling ing is not for sale ale and and eve everyone in the joint fami amily has a right to resi esidence in that house d. Probably ably inse inserrted ted as daug aughter may feel eel need eed for shel sheltter, er, but can’ an’t sta stay ther there e with ith in laws and husband e. And now daugh daughter ter can can also ask for paron paron so no no need for secon f.
But seco con als also inclu cludes father’s r’s dwelling house. Now Now she can antt even stay there in
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case there is no coparcena coparcenary ry property Secon 24 omied : ccertain ertain widows remarrying rema rrying may may not inherit as widows
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Seco Secon n 2828- no perso erson n shall shall be disq isquali ualified fied fro from succe succeed edin ing g in any any prop roperty erty on the the groun round d of
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any disease, defect or deformity Secon: in failure of having having any heirs a. Esch Eschea eatt mean eans lap lapsin sing of property erty to the the govern ernment ent in defau efault lt of heirs eirs on the the death eath of the owner b. In case ase of fail ailure of all all heir eirs recognised under this act act, the property devo evolves to the the government c. Govern ernment ent take akes the propert erty subject ect to all all legal egal obligao on ns and and liabi abilies ies wh whic ich h the heir would be subject to d. Ho How w will gov govern ernmen mentt take the the prop propert erty? y? ■
Whenever such incident occurs government has to get a succession
■
cerficate from the court(this court(this is applicable a pplicable to all heirs) Then court will issue noce to all relaves or presumed heirs if any
■
Then Then govern vernm ment ent has to prove rove tha that ther there e are are no heir eirs then then only can they they get the property 20
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Secon 30: a. A Hind Hindu u has has ever ever rig right ht to make a will b. Talks of testamen testamentary tary successio succession n c. May May not not be possib possible le for for person person to to give give defined defined share share by will will d. May May say I give give my my share in coparcenary coparcenary propert property y...” e. If a non-member of family inherits by will, the property is deemed to have been f.
paroned. He cannot be regarded as coparcener Self Self acquire acquired d pro proper perty ty may may also be be given given by will will
g. Also provide providess testamentary testamentary succession succession will will follow follow Indian Indian succession succession act h. Any Hin Hindu may disp ispose off by will will or any any other ther test testam amen enta tarry disp isposio sion n any any property erty which he or she is capab apablle of disposin sing in acc accordance ance with ith provisio sions of the Ind Indian ian i.
succession succession act ac t Prior Prior to this this act female female Hind Hindu u cou could ld not not make make a will will
1.9: .9: MARUM RUMAKATTA TTAYAM AND AHYA HYASANTA NTANA LAWS LAWS GOVER OVERNIN NING G PPL PPL OF TRA TRAVANCOR NCORE, E, COCHIN AND DISTRICTS OF MALABAR AND SOUTH KARNATAKA 1. Matrichal Matrichal society schools schools in Trav Travanco ancore, re, cochin cochin etc etc : (i) (i) Marum arumm maka akaayam yam ii Ahyasan asanttana ana (iii) (iii) Nambhu Nambhudr drii 2. It is called jarmad, and not coparcenary 4. Family Family is call called ed a kutu kutumb mb 5. There There is is a femal female e com commo mon n ancesto ancestorr 6. Then prop property erty will go go to daugh daughter ter and daugh daughter’ ter’ss daughter daughter and so on 7. Husband Husband has to stay stay in the wife’ wife’ss house house and son born born at at mother’s mother’s place place 8. Mainly Mainly foun found d in royal royal families families of of south south India 9. If son marries his sister’s sister’s daughter daughter then then he he can stay stay in in the the family 10. Secons 6-16 not applicable; rules of of survivorship survivorship 11. Secon 7 and 17 applicable; rules rules of success succession ion applicable applicable 12. Maru arumaka akaayam law law is a body of cus custom toms wh whic ich h have rece eceived ived judicial cial san sanco con earlier by the privy council council 13. Founded on matriarch arch an and d the joint fami amily members clai claim m their descen cent from a common common ancestress. ances tress. 1. Members Members of a jarwad have have equal equal right rightss since since birth birth 2. Pecul culiar char charac actter: can ann not clai claim m par aron but by agr agreement the fami amily property may be enjoyed separately 3. Man anag age ement of fami amily property in han and ds of eldest male ale or female ale in ab abssence of an any y male ale member) member 4. The SC SC has also given given jud judicial icial sancon sancon to such such laws laws 5. The word used for property is sthanam and one who holds such property is called a sthavamdar Sec 7 deals with this law – property goes w.r.t. succession under matriarchal system 21
22
1. Muslim lim law can be divided into tw two o part arts: law awss in Ancie cient Arabi abia (Cus Customary ary law aw)) and and law awss aer the advent of the Quran (Mohammedan law). 2. Quranic Quranic law recogni recognizes zes females females as heirs which which were not not there there earlier. earlier. 3. Bef Before the the Qu Qura ran n it wa wass a trib tribal al,, nomadic adic soci societ ety y and and the the concep cept of property erty and and succe success ssio ion n was unknown. 4. Therefore, with respect to Ancient Arabic laws it was mainly movables as they were nomadic. Mohammedan law has not completely discarded ancient Arabic law 5. Prop roperty erty is tran transf sfer erre red d by gi (Hib Hiba); a); tru trust (Wakf) akf);; pre-em e-emp po on n (Shu Shufa) and and inh inherit eritan ance ce by will (Wasi asiyat). All these kinds of transfers are dependent on one another some way or another. Ancient Arabic Laws 1. Concept of property was not as developed as it is today and there were constant wars amongst tribes 2. Female ales were given no or lile importan ance ce an and d polygamy amy was ramp ampan antt an and d neither was maintenance given. 3. When the the Prophet Prophet arrived, arrived, he he consider considered ed this situa situaon on and came came up with law 4. Male ale agn agnates had their own importan tance and and they were ere to take ake property ae aer the death of the proposit situs. Thi This is becau ecause se they fought wars. ars. The The reaso eason ning was that only those wh who o fought fought wars must get property from from those who died in wars. 5. Only male children could inherit their fathers property. Thus the females were not rec recogniz gnized ed as heir heirss at all and and no impo import rtan ance ce was given iven to mari marital tal rela relao on ns and and spou spouse sess could uld not inherit each ea ch others property. property. Quranic Quranic Laws La ws 1. The The Prophet tried to regulari arize the chao chaoc c societ ciety y as preval evale ent during the anci ancie ent Arabi abic mes. 2. The Quran Quran gave gave importan importance ce to female female persons persons and thus thus marriage marriage also was given given importan importance. ce. 3. The Quran Quran talks of of legimacy legimacy and no no sexual interc intercour ourse se before before marriage. marriage. 4. Femal emale e memb embers ers of a famil amily y wer were regar egard ded as heirs eirs and and spo spouses ses could inh inherit erit property erty from each other. 5. Daughters, mothers and widows widows were also recognized recognized as heirs and could could inherit inherit property property.. 6. Descendants Descendants as well well as ascendants ascendants coul could d inheri inheritt proper property ty.. 7. The The Prophet als also consid sidered ered the the Ancie cient Arabi abic law awss and and did not completel etely y discar scard d them but made ade chan chang ges to them them with with the the help elp of Quranic anic laws laws.. It conn nu ued to give ive imp importan tance to male agnates. Persons Entled to Inherit Under Pre- Islamic Customary law 1. The nearest nearest male male agnate/s agnate/s succeeded succeeded to the enre enre estate estate of the deceased deceased 2. Females Females and and cog cogna nates tes were were exclud excluded ed 3. Descendants Descendants were preferred preferred to ascendants ascendants and ascendants to colla collaterals terals 4. When the agents agents were equally equally distant distant to the deceased, deceased, the the estate was divided divided per capita capita Persons Newly Entled to Inherit Under Quranic Law 1. The The hus husban band d or or the the wife wife 2. The The femal females es as well well as cog cogna nates tes 23
3. Parents Parents and ascendants ascendants of the deceased deceased even when there are male descendan descendants ts 4. As a rule, the the females share is one-half one-half of the the corresp correspond onding ing male male relaons relaons share Shia and Sunni Interpretaon of the Quran Compared 1. The grea greater ter part part of Inheritance Inheritance laws are based on the Quran Quran 2. The Quran Quran did not not sweep away away the exisng exisng laws of succession succession but but made amendmen amendments ts to it 3. The amendment amendmentss have have been different differently ly interprete interpreted d by the Shia Shia and Sunni Sunni schools schools 4. The The Shia Shiass dedu educe cer certain tain princi incip ples les wh whic ich h they they consid sider underli erlie e the the amen amend dments ents made ade in the Quran an and d combine these with the princip ciples of the pre-ex -exisng law awss, thus rais aising a completely completely altered alte red set of rules 5. The The Sunnis follow low the pre-i e-islam slamiic princip ciples to som some exte xtent as they stand and, and and they add add or amend those rules as menoned in the Quran or by the Prophet Concept of Joint Family under Mohammedan Law 1. Mo Mohammad hammaden en law doesn’ doesn’tt speak of of joint joint family family prop property erty 2. The The concep cept of fami amily is als also not recognized zed. It is base ased on the the reaso eason ning that one has come alo alone to the the wo worl rld d and and shal shalll go alo alone as well well.. Ther Theref efo ore, a perso erson n is resp respo onsib sible for his own acts to God. One’s liabilies can be put on his son 3. Mo Mohamme hammedan dan law does does not not believe believe in rebirth rebirth either either.. What is Property under Mohammedan Mohammedan Law L aw 1. The The ter term used sed for property erty is materi terial al.. Both Both imm immovable able and and movab vable property erty is tak taken into into consideraon consideraon and there is no disncon between the two. 2. There is no differen difference ce between ancestral and self acquired acquired property property 3. Succession Succession open openss only only at at the the me of death. death. What is Heritable Property? 1. Payment of cer certain ain char charg ges: what is le by the Muslim upon his death ae aer deducn cng the follo ollowi wing ng item itemss is called alled inhe inheri ritab table le prop proper erty ty and and it is this this prop proper erty ty tha that devo devolv lves es on his heir heirs. s. The items are a Funeral exp expenses b) Expenses Expenses relang relang to Proba Probate te and Leers of Admin Administra istraon on from from the Court Court c) Wages for for personal personal service service to the deceased deceased within within three three months months of his death death d) Debts e) Legacies- subject subject to his limits of testamentary testamentary powers powers 2. Movable and Immovable property:
heritable property includes both movable and
immovable property 3. Ancest cestra rall and and self self-ac -acq quired ired property erty-- no disn isnc co on is made ade betwe etween en the the tw two o nor betwe etween en real and a nd personal property property 4. No presu esumpon as to joint int famil amily y: there is no concep cept of joint int famil amily y in Muslims ims and and neit either is ther there e any anythin thing g like like ten tenancy ancy in common in Muslim slim law law. Each heir eir has a defin efinite ite shar share e in the the property. 5. When a person serves him in the last three months before his death, he can give such a person a gi or hiba or marz-ul-maut. Thi This is primari arily becau ecausse a gi cann annot be given wit with respect to immovable property. property. Hiba cannot be given with respect to all a ll property. property. GENERAL RULES OF SUCCESSION 1. Wh When en Inh Inher erita itance nce Op Open ens? s? i
The inherit inheritance ance for the first me me opens opens only only upon upon the the death death of of the person. person. 24
(ii) Bef Before his death nobody can clai claim m any any share are in the property on the basi asis of bein eing the heir apparent or heir presumpve. (iii) A right by by birth is unknown unknown to Muslims. Muslims. iv When a wasiyat has been mad ade e, at the me of death such property shall be given to the heirs 2. Inh Inheri eritance ance is never ever in abey abeyan ance ce or abs absence ence of the heir eir, howev wever an excep cepon is made ade wit with respect to a child in the mother’s womb under Hindu Hindu law but not und under er Muslim law. RULES OF SUCCESSION UNDER MUSLIM LAW 1. RULE RULE OF REPR REPRES ESENT ENTA ATION TION i)
It deal dealss with with wh who o wil willl be be the the heir heirss and and the the qu quant antum um of share share on one e wil willl inh inher erit it..
ii) Acco ccording to Sunni law aw,, one inherits only as per cap apiita, i.e. .e. acc according to individual clai claim ms without regard to the branch they represent 2. RULE RULE OF EXCL EXCLUS USIO ION N i)
Acco ccording ing to the the rule of excl exclu usio sion cer certain tain perso erson ns are are excl exclu uded from rom inh inheri erin ng the the property erty
ii
of another person due to certain certa in impediments imposed on them by Muslim law. These impedi impediment mentss are known known as the grou grounds nds of exclusion exclusion and a person personal. al. They are: a) Homicide: a person who causes the death of a person is not entled to inherit the property of that person, no maer whether the death was caused intenonall ally or accidently.* b) Ille Illeg gim imacy: acy: an ille illeg gim imate chil child d is allo allowe wed d to inh inherit erit the the property erty of his mother ther but not his father. * c) Slavery: it is not applicable as there is an Abolion of Slavery Act. But in case of its app applicaon, a slave cann annot inheri erit property as he does not have property but a maste asterr can inherit the property if any from a slave. * d) Diff Difference ence of Relig ligion ion: the Quran sta states tes that a Muslim can only inherit propert erty from a Muslim. But this is not the case in India due to the Caste Disabilies Act.* The above four * are rules for total exclusion. exclusion. e) Esto Estop ppel in Succe Success ssio ion n: if a perso erson n denie eniess his rela elao on nship ship with with the the prop ropositu situs, s, he cann annot f
subsequently claim inheritance when it opens. Doctr ctrine of Exclusion: this doctrine gives three rules which govern inheritan ance ce an and d cert certai ain n heir eirs by reco ecognizin izing g prefer eferen ena all clai claim ms of cer certain tain other ther heir eirs. ( Rule Ruless of para arall exclusion) RULE RULE 1: A person who is related to the propositus through an ano other is exclu cluded by the prese esence of the the other. For examp ample, X has tw two o son sons, Y and and Z. If Z dies, es, Y cann annot clai claim m his shar share e in Z’s Z’s property as his relaonshi ship with with Z ari arises through thei theirr father X. Hence the the presence of X excludes Y RULE RULE 2: with withiin the limit imitss of each each clas classs of heir eirs, a heir eir neare arer in blood exclu cludes the more rem remote. te. For exam examp ple, le, A has a son son S and and a grand andson son G, S bein eing neare earerr in bloo lood will will excl exclu ude G. RULE 3: A person excluded may exclude others.
g) Exclusion Exclusion of of daughter daughterss in some parts parts of the coun country try for for example example J&K. 3. RULE RULE OF PRIM RIMOGEN OGENIT ITUR URE: E: this rule basic asical allly gives preference to the the eldest son amo amongst several sons over the estate of the deceas cease ed father. Th Thiis is not recognized by the Han anafi afi school though is recognized recognized earlier by the Hindus where the eldest son became the king. 4. RULE RULE OF VESTE ESTED D INH INHERIT ERITA ANCE: NCE: in Muslim law aw,, property never ever remain ains in abey abeyan ance ce but on 25
death eath of the proposit situs passe assess onto his heirs. On the the deat eath of the the pers erson, ther there e is veste ested d inh inherit eritan ance ce wh which ich is basic asically ally the the ves vesng ng of prop proper erty ty in the the heir eir but the the dist distri ribu buo on n will will take take place lace aer aer admi admin nistr istra ao on n of esta estate te.. Ther Theref efor ore e ther there e are are 2 stag stages es:: ves vesng ng of inh inherit eritan ance ce and and then distribuon of inheritance. inheritance. Rights of heirs before distribuon: (i) the prop property erty will will pass on on the basis of vested interest interest (ii) the heir may may transfer transfer his his share to a bona bona fide fi de purchaser purchaser for for a value. iii There will be no no effect if there there is a death of of an heir before before distrib distribuo uon n (iv) A vested right right may be be renounced renounced 5. RULE RULE OF SPES SPES SUCCE SUCCESS SSIO ION: N: inh inherit eritan ance ce will will only tak take place lace on the the death eath of a perso erson n. Bef Before death eath the the heir eir app apparen arentt has only spes spes succe success ssio ion n i.e. i.e. only a mere ere chan chance ce of succe success ssio ion n. No heir can claim a right in the property while the person is sll alive. WHO IS ENTITLED TO INHERIT 1. The heritab ablle property firs first goes to the relaons of the deceas cease ed person, who on basi asis of their preferenal claim cla im have been divided as follows: a) Sharers: Sharers: relaons relaons specifically specifically fixed fixed by the the Quran i.e. i.e. parents and children children how how lowsoever lowsoever b) Resid esidua uari ries es:: wh who o may succe succeed ed to the the resi residu due, e, if any any, le le aer aer sas sasfy fyin ing g the the shar sharer ers. s. They They don’ do n’tt get any any mix mixed shar share, e, it vari varies es in acco accordan rdance ce with with the the resi residu due e i.e. i.e. gran grand dpare parent ntss how highsoever (true (true or false); fa lse); brothers and sist sisters ers of the descendants how lowsoever. lowsoever. c) Distan antt Kindred: these are are the relaons that are are neither share arers not Residuari aries i.e. .e. paternal and maternal aunts a unts and uncles how highsoever. highsoever. 2. Theo Theory ry of of Pro Propi pinq nqui uity ty Propinquity mean eans nearn arness in blood. The The rule that nearer arer in degree excl exclu udes the more remote applies only to the kindred of the same class. It is only applied parally.
26
SUNNI LAWLAW- INHERIT IN HERITANCE ANCE The Possible Heirs and Successors 1. Primary Primary Heirs Heirs or or Rela Relaons ons by Marriage Marriage or or Blood Blood (i) SharersSharers- 12 relaon relaonss who have have their their prescrib prescribed ed shares shares ii Residuaries or Agnac heirs- they are all male agnates descendants, ascendants
or
collaterals) collaterals) and a nd 4 female sharers but maybe converted into Residuaries Residuaries in some cases (iii) Distant Kindred- it covers covers all other blood blood relaons relaons 2. Unrela Unrelated ted Succes Successo sors rs (i) Ackn cknowled wledg ged Kinsm insman an-- is a perso erson n of unknown desce escen nt in wh who ose favou vour the the decea ecease sed d has made an acknowledgement of kinship, not through himself but through another. (ii) Universal Universal Legatee- is a person person to who whom m the deceased had le his enre proper property ty to by will. 3. In ab abssence of the ab abo ove, the property of the deceas cease ed would esche cheat to the State or the public treasury. The Actual Heirs or Successors All possib ssible le heir eirs cann annot succe succeed ed at one me. me. Som Some have to be excl exclu uded by other thers. s. Ther Theref efo ore the the ‘order ‘order of succession’ succe ssion’ is as follows: *the rules are separate for each class* 1. Sharers: some sharers are excluded by other heirs and some are converted to Residuaries. 2. Residuaries: there are 2 sets of rules of exclusion: (i) Tho Those wh whic ich h divid ivide e Resid esidu uarie ariess into into 4 clas classe sess and and provide ide for som some excl exclu usio sion of som some clas classe sess by others. (ii) Those which determine preference within each class 3. Distant Kindred: there are 2 sets of rules: (i) Those which divide them into 4 classes c lasses and provide exclusion for for some classes cla sses by others ii Those who who determin determine e preference preference within within each class. Ground Ground of the Right to Inheritance I nheritance 1. Sabab or valid marriage, marriage, on on the basis basis of which which there there are only 2 sharers: sharers: husb husband and and wife. wife. 2. Nasab or consangu consanguinity inity which which creates sharers sharers by relaons relaonship hip and their their number number is ten 3. Wala, or ficous relao relaonshi nship, p, which is a special case case of inheritance. inheritance. Distribuon of Property 1. Payment Payment of funeral funeral expenses, expenses, debts, debts, legacies etc. 2. Allo llotmen tmentt of share ares or Qurani anic heir eirs to the sharer arerss acc according to their eir resp especv ecve e share ares as stated in the Quran 3. The next is to divide divide the residue residue among among the residu residuaries aries or the the agnac agnac heirs 4. If there be neither neither sharers sharers nor nor residuaries, residuaries, it it will be divided divided amongst amongst the distant distant kindred kindred.. 5. The The dista istan nt kind indred red will will not inh inherit erit anyt anyth hing ing as lon long as ther there e are are any any heirs eirs under the the shar sharer erss or residuari aries. Exce Excep pt when share arer is the wife or the husban and d of the deceas cease ed, then the distant kindred will inherit with the sharer. sharer. 6. It is a rule of succession succession that that the the nearer relao relaons ns exclude exclude the the more more remote. remote. Quranic Heirs 1. All heir eirs reco ecognized ized by Qu Qurran, an, sin since they they wer were rec recognized ized by the the Qu Qurran or the the Prophet, et, they they 27
have priority over the other heirs. 2. Three cond condion ionss may may arise while while sasfying sasfying of the the sharers sharers claims: (i) The Their combined clai claim m may be great eater than than the the heri eritab table property erty.. In thi this case ase their share ares will will be red reduced ced prop roporo on nately tely,, acc accordin rding g to the the doctr ctrine ine of incr increa ease se (Aul) i.e. i.e. the the shar sharer erss are actually a ctually proporona proporonately tely decreased decrea sed to bring it to unity (ii) If their combin combined ed claim is equal to the heritable property property,, no difficulty will arise in the case. case. iii iii Thei Theirr combi ombin ned claim claim may may be smal smalle lerr than than the the heri herita tabl ble e prop proper erty ty,, resi residu duar arie iess come ome into into the the pictu icturre. Wh When en ther there e are are no resid esidu uarie aries, s, in such such case ase the the resi resid due is retu eturned rned to the the shar sharer erss and distributed among them proporonately, according to the doctrine of return (Rudd) 3. Qurani anic heir eirs cann annot take ake the wh who ole propert erty if rela elated ted by marr arriag iage but can tak take the wh who ole property when related by blood. 4. No Quranic Quranic heir heir has has the right right to administer administer the estate. estate. 5. Wh Who o are are the the Quran Quranic ic hei heirs rs:: (i)
Wife
(ii)
Husband
iii
Daughter
(iv)
Son’s daughter
v
Full sister
(vi)
Con Consan ang guine si sister
vii Uter Uterin ine e sist sister er (viii (viii)) Uterin Uterine e brot brothe herr ix
Mother
(x) True rue grandmo grandmothe therr (mater (maternal nal and pater paternal) nal) xi True rue grand grandfa fathe therr mater maternal nal and pater paternal nal (xii) (xii) Fath Father er For examples, please read page 380. Agnac Agnac Heirs 1. Resi esiduari aries or Agnac heirs are are tho those wh who o get the resid sidue share are in the propert erty if any any is le aer the sharers claim is sasfied. 2. Their share depends depends on the residu residue e le in each each case. 3. Residu Residuaries aries are divided divided into 4 categ categories ories:: i
Descendants: a) Son b
(ii) a
Son’ Son’ss son son,, ho how w low lowso soev ever er Ascendants: Father
b) True True grandf grandfath ather er,, how how high highsoever soever (iii)
Desc Descen end dant ants of father:
a) Full brother ther b) Full si siste ster c
Con Consan sanguine ine br brother ther
d) Consan Consangu guin ine e sister sister e
Full brother’ ther’ss son son
f) Consan Consangu guin ine e bro broth ther’ er’ss son son 28
g) Full Full bro brothe ther’ r’ss son’ son’ss son son h) Consanguin Consanguine e broth brother’s er’s son’ son’s son son (iv) (iv)
Descen Descendan dants ts of true true grand grandfa fath ther er ho how w low lowso soev ever er
a) Full Full pate patern rnal al un uncle cle b
Consan Consangu guin ine e pater paternal nal un uncle cle
c) Full Full pat pater ernal nal unc uncle’ le’ss son son d
Consan Consangu guin ine e pater paternal nal uncl uncle’ e’ss son son
e) Full Full pater paternal nal uncle’ uncle’ss son’ son’s son f
Consan Consangu guin ine e pater paternal nal uncl uncle’ e’ss son’ son’ss son son
Illustraons on page 389 Distant kindred 1. Are relao relaons ns by bloo blood d who are neither neither sharers sharers nor residu residuaries aries 2. They They are divid divided ed into into the the follo followin wing g 4 classes: classes: (i)
Descen cendan antts of the deceas cease ed: a) Daughte Daughters rs childr children en and thei theirr descend descendants ants b
(ii)
Children Children of of son’ son’s, s, how lowsoever lowsoever and their descendants descendants
Ascen cendan antts of of the de deceas cease ed: a
False grand grandfa fathe thers, rs, how how high highsoe soever ver
b) False grand grandmo mothe thers, rs, how how highso highsoeve everr iii
Descen cendan antts of pare arents: a) Full brother’ brother’ss daught daughters ers and and their their descend descendants ants b
Consang Consanguin uine e broth brother’ er’ss daughte daughters rs and their their descen descendan dants ts
c) Uterine brother’ brother’ss children children and their descendants descendants d
Daughters Daughters of of full full brothe brother’s r’s sons, sons, how how lowsoeve lowsoeverr and their their descendan descendants ts
e) Daughters Daughters of consang consanguine uine broth brother’s er’s sons, sons, how lowsoever lowsoever and their descendants descendants f) Sister’s Sister’s (full, (full, consan consangui guine, ne, uterin uterine) e) children children and their descendan descendants ts (iv) (iv)
Descen Descendan dants ts of of imm immed edia iate te gran grandp dpare arent nts, s, true true or false false a) Full pater paternal nal uncle’ uncle’ss daughter daughterss and their their descendan descendants ts b) Consanguine Consanguine pater paternal nal uncle’s uncle’s daughters daughters and their their descendants descendants c) Uterine paternal paternal uncle’ uncle’ss daughters daughters and th their eir descendan descendants ts d
Daughter’ Daughter’ss of full full pater paternal nal uncles uncles son’s son’s how lowsoev lowsoever er and their their descendant descendantss
e) Daughter’s r’s of consan ang guine maternal uncle cles son’s how lowsoever and their f
descendants Paternal aunts full, consanguine or uterine and their children and their
descendants g) Maternal uncles and aunts and their children and their descendants and descendants of remoter ancestors a ncestors (how highsoever) SUBSIDIARY/ SECONDARY SECONDARY HEIRS HEI RS 1. Mo Mohamme hammedan dan law generally generally recogn recognizes izes blood blood relaons relaons and not not arficial relaons relaons 2. Only when there are are no primary ary heirs, one can ap app point someone as subsidiary ary heirs. Th The e subsidiary heirs are: i Succe Success sso or by Con Contrac tract: t: one wh who o deriv erives es his rig right of succe success ssio ion n under a contract tract with with the the 29
ii
deceased Ackn cknowled wledg ged Kinsm insman an:: is a perso erson n of unknown desce escen nt in wh who ose favour the the decea ecease sed d has mad ade e an ack acknowledgement of kinship or relaonship not through himself but
through another. iii Uni Univers ersal Leg Legatee or the Sole Leg Legatee: tee: is the perso erson n to wh who om the decea ecease sed d has le the the whole of his property to by will. Th Thiis can be done when there are are neither heirs of the first kind nor the abovemenoned heirs of the second kind. iv Th The e Government: in ab abssence of all all the heirs, the property goes to the Government by the operaon of law. This law is known as the Law of Escheat. In Muslim law, this property will fall into bait-ul-mal bait-ul-ma l (public treasury) for the benefit of Muslims. Rules of Shuffa or Pre-empon 1. If property erty is tran transf sfer errred by an heir eir, the the co-hei -heirrs have a pre-em e-emp pve ve or first first rig right to get such such property. It is a check on the introducon of strangers. 2. There cannot cannot be be a gi gi of immovable immovable property property.. 3. If a pers erson gives property on his death bed (3 months befo efore death) to som someone as a gi, i, the the heirs have a responsibility to give him the same sa me before administraon administraon of estate. Wakf or Trust 1. It is a religi religiou ouss or or pub public lic tru trust. st. 2. If someone doesn’t have an any y heirs he may give his property for Wakf akf an and d the Wakf akf board ards will take over his property 3. He can ann not ask ask the Boar Board d to main aintain ain someone out of such property an and d can ann not impose a permanent burden on them 4. A Muslim Muslim woman can ask for for mainten maintenance ance from from the Wakf Wakf Board. Board.
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Chrisan- Indian Succession Act 1. The main purpose of enacn cng this was to solve the problem of devoluon of property of Eng English lishm man resid esidin ing g in Ind India and and dying ing in Ind India. ia. If perso erson n dies ies in Eng Englan land, the the law law of Eng Englan land was applied. 2. The Act gives a definion of domicile’. It inclu cluded Chrisan anss who dies in Ind India and held property, property, movable movable and a nd immovable and property devolved according to this Act. 3. The rules rules of succession succession are applicab applicable le to every every Chrisan in India and conv converts erts as well 4. Pers erson need not be bapz apzed ed to inh inherit property erty.. The There is no need to verify wh whe ether one is a Chrisan or not, he is only required to profess profess Chrisanity. 5. Defini Definio ons ns Under Under The The Act: Act: i) Consanguinity- mea means ns blood relaonship relaonship a) Wh When en a rela relao ons nshi hip p exis exists ts betw betwee een n 2 peopl eople e wh when en they they are are desce descend ndan ants ts from from the the othe otherr, the relaonship is the relaonship of consanguinity. b) Lineal Lineal Con Consang sanguin uinity: ity: the the blo blood rela relao on nship ship wh which ich subs subsis ists ts betwe etween en 2 pers perso ons by virt virtu ue c
of them being in the direct line of ascent or descent. (Secon 25) Coll Colla ateral eral Con Consan sanguinity ity: Two peop eople wh who o are are not in direct ect line ine of asce ascen nt or descen scentt but
have a common ancestor, neither can have a direct line form the other. (Secon 26) ii) Kindred: persons who are are related by blood but not consanguinity or directl ctly. Only in absence of lineal and a nd collateral collateral consanguinity consanguinity will property go to the Kindred. Kindred. (Secon 24) iii iii) Will: ll: means ans the the legal declar clara ao on n of the int inteno enon n of the the test testa ator tor of the property wh whiich he iv
desires to be carried into affect aer his death Cod Codicil cil: mean anss an instrument mad ade e in relaon to a will an and d expl xplain aining, alt altering or ad add ding
to its disposions and be deemed to form part of the will. wi ll. 6. Ado dop pon on and and ille illegi gim ma ate rela relao ons nshi hip p is no nott rec recogni ognize zed d un und der Chri Chris san anit ity y. Ther Theref efo ore, re, only nly a valid marriage is taken into consideraon consideraon.. 7. There are no no different different sets sets of rules of succession succession for for males males and females. females. 8. There is no differ difference ence between between origin original al Chrisans and and conv converts. erts. 9. For succession, succession, 4 degree degreess or 4 generao generaons ns are taken into consi considera deraon on Who gets property? 1. Whenever a person leaves behind a widow, such widow or widower will take ake 1/3rd of the property, if they have children 2. 2/3rd of the the shar share e will will go to the the lin lineal eal desce escen ndants ants.. Ther There e is no differ ifferen ence ce betwe etween en son sons and and daughters. 3. If wid widow/wi w/wid dower wer has no lin lineal eal desce escen ndants ants but having ing kind indred, ed, ½ will will go to the the wid widow and and ½ to the kindred. 4. Earli arlier er,, if spo spouses ses decid ecided ed not to inh inherit erit from one ano another ther,, it wo wou uld be held eld valid alid.. Now Now this this is not accepted 5. Earlier if there was property valued at less than 5000, then it would go only to the widow/widower. widow/widower. Now this is not applicable 6. In case ase of convert verted ed Chr Chrisa isan ns, if perso erson n has no desce escen ndants ants and and kin kindred and and ado adopo on n has taken place plac e before, it can be taken ta ken into consideraon consideraon.. 7. If convert has le behind property and has no Chrisan heir, it may go back ack to the Hindu father. This has been decided by the Kerala HC. 31
Relevant Provisions relang to Succession 1. Seco econ n 27: (i) Ther There e is no disn isnc co on betwe etween en tho those wh who o are are rela elated ted thro throu ugh the the father ther and and tho those who are related through the mother. ii The is no disnco con between those who are are related by full blood an and d those by half alf blood (iii) No disnco con between child who is born during the lifeme of the decease ased or conceived conceived on/aer on/a er the death of the propositus propositus and is i s subsequently born alive. 2. Secon Secon 33: Scheme Scheme of Successio Succession n (i) Widow Widow and lineal lineal descendants descendants (irresp (irrespecve ecve of how many many people) people) (ii) Widow Widow and No Lineal Lineal descendants descendants and Kindr Kindred ed (iii) Widow and no no lineal descendants and no Kindred Enre property 3. Secon 34: where the intestate has le no widow, the property will go to the lineal desce escen ndants ants,, in the the la laer’ er’s abse absen nce it will will go to the the kin kindred. ed. If ther there e are are no kind indred it will will go to the Government 4. Secon 35: 35: the widower widower will have have the the same rights rights in the prop property erty as the deceased deceased wife 5. Seco con 37: where the intestate has le surviving chi child/chi children, if there is one chi child the property property will go to him, if there are more than one, it will be divided between them equally 6. Secon 38: when the intestate has no child but grandchild/children, if there is one grandchild, property property will go to him or divided equally among all the grandchildren 7. Seco econ n 40: when the decea ecease sed d has chi children out of which one has died, ed, the the dece eceased ased chi child’ ld’s shar share e will will devo evolve lve on his son sons equ equally ally.. This This app applies lies wh when en lin lineal eal desce escen ndants ants are are aliv alive e but do not stand in the same degree. 8. Seco econ n 42: when there are are no lineal descen cendants ants,, but the the intes testate tatess father is sll ll liv living, he shall inherit the whole property. The father is one of the kindred related by blood. For exam examp ple, le, if a pers perso on dies ies lea leavin ving behin ehind d a father ther,, moth mother er and and brot broth her, er, the the father ther will will inh inherit erit the whole property property 9. Seco econ n 43: if the the father ther is dead ead, but the the mother ther,, sist sister er and and brother ther are are aliv alive e and and ther there e are are no lineal descen cendan antts of the brother or sister as well, all all will take ake equal share ares. The person doesn’t doesn’t have lineal descendants. desc endants. 10. 10. Seco econ n 44: if a perso erson n dies, ies, lea leavin ving behin ehind d only mother ther,, broth rother er,, sist sister er and and dead ead brother’ ther’ss chi children. The The chi children of the dead brother are are to take ake the shar share e of the the dead ead brother ther as if he were living at the me. 11. 11. Seco Secon n 46: 46: if all the the sib siblin lings of the the prop roposit ositu us die die lea leavin ving behi behin nd chil child dren ren, such such chil child dren ren to get get their father’s father’s respecve respec ve properes. 12. Secon 47: if only mother mother is there, she gets the whole whole property 13. Seco con 48: kindred shall all take ake the property equall ally between them if no one is there upto Secon 45. 14. 14. Seco econ n 49: no money wh whic ich h the the inte intest sta ate paid aid durin ring his lif life towa towarrds the the adva advan ncem cement ent of a child will be taken into consideraon. consideraon. 15. 15. NOTE: NOTE: aer aer the the sec secon ond d degre egree, e, gener eneral ally ly calcul alcula ao on n of the the nearer earer of farth arther er rela relao on ns is no nott considered. considered. All are a re regarded as kindred and take the property equally.
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PARSI SUCCESSION SUC CESSION 1. Parsi Parsi Successi Succession on Act was amended amended in 1991 1991.. 2. Adopo on n is not rec recognized ized.. But But ther there e is a concep cept of ‘Pala Palak k son son’ wh whic ich h mean eans tha that if a perso erson n has le le behin ehind d no son son, he may app appoint int som someon eone to take take care are of his prop roperty erty and and perf erform his last rights. Such person may take the propositus’ propositus’ property. property. 3. Blood Blood rela relaon on is given given impor importance tance 4. Ther There e is no con onve vers rsio ion n in case of Pars Parsii succe success ssio ion n. Conv Conver ersi sion on dise disen ntle tless one from rom inhe inheri rin ng g. But the children of such persons may be regarded as Parsi and may succe cceed to father’s r’s property. 5. Seco econ n 50 a : for the the purpose of inte intest sta ate succe success ssio ion n amo amongst Parsi arsi’’s, ther there e is no disn isnc co on between person born in the lifeme of the deceased decease d and a posthumous posthumous son. 6. Secon 50(b): a lineal descendant of an intestate who has died in the lifeme of the decease eceased d with witho out lea leaving ving a wid widow ow/w /wid idow ower er or any any line lineal al descen escenda dant nt shal shalll not be taken taken into into account while dividing the intestate’s property. 7. Seco econ n 50( 50(c): c): wh wher ere e a wid widow or wid widower wer of any any rela elave ve of an inte intest sta ate has marr arried ied agai again n in the the lif lifeme eme of the the test testa ator tor, such such wido widow w or wido widowe werr shall shall not be ent entle le to inh inherit erit any any shar share e in the property of the deceased. 8. Secon 51 51 (1) (a): (a): division division between between widow widow and children children shall shall be done done equally. equally. 9. Secon 51 (1) (b): if there is no widow or widower, the division will be equal amongst children 10. Seco econ n 51 2 : where a parsi arsi dies leaving behin ehind d one or both paren arents ts,, wit with wid widow/wi w/wid dower wer and children, parents to get ½ of the share of the child. 11. 11. Seco econ n 53: 53: if a perso erson n dies ies lea leaving ing behin ehind d son sons and and predec edecea ease sed d son son’s son son and and wid widow, they they shall all take shares according to the rules as if the predeceased son died aer the Pro Propo posi situ tus. s. ( bu butt if the the pred predece ecease ased d son son lea leaves ves behin ehind d a son son and and daug daugh hter ter, the the daugh aughte terr will will get 1/4th share and the widower will not get anything.) 12. 12. If Pars Parsii dies dies with witho out lea leavin ving behin ehind d any any wido widow/ w/wi wido dowe werr or lin lineal descen escenda dant nts, s, a Sche Schedu dule le II which menons the next kin will w ill get the property. (i) Father Father,, mother mother (ii) (ii) Broth Brother er,, siste sisterr (iii) Grnadparen Grnadparents ts 13. If no one from this sche chedule is there, the said aid property is to be divided equall ally amo amongst relaves who are in the nearest degree kindred to him.
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1. Whenever there is a tran anssfer of property in the lifeme of a person by an agr agreement, such agreement is called a deed. A deed takes effect on the death of a testator 2. A wil will is wit with respec spectt to the disposio ion of property erty which is made ade in the life ifeme me of a perso erson n and comes into operaon aer the death of the testator. 3. It depends depends on the wish or or the will of of the perso person. n. It is called testamentary testamentary disposio disposion. n. 4. One can can make a will of prop property erty only only of of which which he is the owner owner.. 5. Regi egistr straon of wil will is not compulsory. People prefer efer to transf ansfer er propert erty thi this wa way y as they prefer not to pay stamp duty 6. Will is als also the tran transsfer of property but it is not under TOPA as TOPA covers only transf ansfe er of property property inter vivos. 7. Both movables movables and and immov immovables ables may may be transfer transferred red 8. Requ equirem iremen ents ts of a Valid alid Will ill under the the Ind Indian ian Succe Success ssio ion n Act: ct: (i) it has to be wri wrien en or typ typed, ed, it cann annot be an oral will will.. (ii) ii) it is gener eneral ally ly sugg sugges este ted d to regis egiste terr the the will will.. (iii) iii) no stam stamp p duty is necessary. 9. Nece Necesssi sies: es: i
Always in firs first person: in other types of transfer there are alw always 2 pares. Here 2 pare aress are are not requ equired as the make aker of the will ill alwa alway ys make akes it in firs first perso erson n. The The perso erson n to wh who om the the prop roperty erty is tran transf sfer errred is calle alled d the the ‘leg legatee’ tee’ and and the the property erty
being transferred is called ‘legacy’. (ii) (ii) Two witn witnes esse sess are are neces necessar sary y for the the will will to be held eld vali valid. d. For For conven nvenie ien nce, tho those wh who o are likely to be ali alive ae aer the death of the person making the will are are generall ally cho chosen as witnes tnessses. es. It is not necess cessar ary y for the witn witnes esss to know the conten tents of the the will but he must be able to recognize the signature of the maker. 10. Proba Probate te is not necessary necessary as such. 11. Under the Act, a person can make make a will in favour favour of anyone, anyone, even a stranger. stranger. 12. In order to make ake alt alteraons later on, one has to make ake a new will. Whatever is the last ast will made by the person, whether registered or not, that will, will be considered 13. 13. Cod Codicil icil is som somethi ethin ng add added, ed, alter altered ed or exp explana lanatory tory to the the will will.. Witn Witnes esse sess may no nott be pres presen ent. t. It is regar egard ded as part art of the the will will itse itself lf.. For exam examp ple, le, a docto ctor’s r’s cer cerfic fica ate aached ached to a will will on that parcular day. 14. Renunciaon Renunciaon of a will is also possible. TYPES OF WILLS I.
Privileged Will
1. Somemes it may be impossible to complete all such formali alies of making a will due to certai certain n circ circum umst stan ances ces wh whic ich h on one e canno annott avoid void.. Thus Thus,, he is give given n a priv privil ileg ege e not to follo ollow w such such formalies and maybe excused. 2. For example, example, tho those se in the armed armed forces forces may may not be be able to write write the will in first first person person etc. 3. Princip Principles les with with respect respect to Priv Privileg ileged ed Will: Will: i
It may be oral before 2 witnesses but at the same ame me making a decla claraon with the test testam amen enta tarry inte inten no on n abo about the the disp isposio sion n of the the property erty.. If he is aliv alive e aer aer a perio eriod d of one month, th, the the previo eviou us will will tak take effec effectt and and be vali valid d only if he makes akes an unpriv rivileg ileged ed will. 34
(ii) If it is wri wrien en one, it is not necess cessar ary y for it to be signed or aach ached by the the wit witness. ss. It is to be wrien down in his own hand and wring. If the body of wil will is wri wrien by someon eone else, se, the signature is a must. Aestaon may may not be there. Unprivileged Will
I I.
1. Requi equisit sites es of a Will Will:: i
The Th e testator shall all sign the will or he can affix affix his mark ark or it shall all be signed by some other
person in his presence and a nd by his descripon (ii) The The signature sho should be place aced in such such a wa way y tha that it shall all app appear ear tha that it inten tended to give ive effect as a will iii The will shall be signed by two or more aesng witnesses. For the aestaon, the witn witnes esse sess sho should uld sig sign in the the prese resen nce of the the test testa ator tor. Ther Theref efo ore, re, both oth witn witnes esse sess may may no nott be presen esentt at the sam same me and and it is not neces ecesssary ary for them to see to tha that the testa stator is execung the will. WHO CAN MAKE A WILL? 1. A person person making a will should should have have testamentary testamentary capacity. capacity. 2. Therefore a person should not be a minor, should be of sound mind (i. e. capable of understanding understanding his intenon to make ma ke the will, w ill, proper memory, memory, etc.) etc. ) 3. He should should also have have prop property erty of which he he is the owner owner.. REVOCATION REVOCATION OF A WILL 1. Secon Secon 70 deals deals with with revo revoca caon on of a will. will. 2. There There are are 2 ways ways of of revo revokin king g a will will (i) Destrucon of the earlier will with the intenon of revocaon is one of the modes of revocaon under this Secon. The The test testa ator tor himself elf or any anyone els else in presence ence of the the testa stator may destr stroy the wil will. If not dest estroyed in the the testa stator’s r’s prese esence, ce, the revocaon wil will not be held eld to be proper and and not within the knowledge of the testator. ii Another ther mode of revo evocao on n is by makin aking g a sub subseq sequent ent will will.. The The sub subseq sequent ent will will contain tainss a clau clausse revoking the previous will or otherwise contain ains a clau clausse inconsistent with the previous disposion. (iii) Another Another mode of revocaon revocaon as stated st ated in S. 69, is revocaon revocaon by subsequent subsequent marriage 3. If one revokes a will an and d doesn’t write a new property, his property will go by intestate succession.
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1. This concep conceptt is recogn recognized ized in Western countr countries. ies. 2. Blood relaonships are are recognized more in Ind India than in the West as the concep cept of joint family is unknown unknown to them. (explain under hindu law- concept of joint family) 3. When a man marries a woman, they start living in their marital home and accumulate property thereon. Hence ence there is a presum sumpo on n that whatever ever property belon longs to the the husband and wife, aer the death of one of them, it will go to the other. This concept is recognized as spousal property. 4. In Ind India, ia, becau ecause se of depen epend dency ency,, this this concep cept is not devel evelo oped desp espite ite of S.1 S.125 of the the Cr.P Cr.P..C. (give examples of dependency) dependency) 5. There is a need for for such such a concept. concept. However However,, a change change in society society is also needed. needed. Refer to text- Munshi
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1. A Uniform Civ Civil Cod Code can rightly be regarded as the need of the hour in Ind India. Arcle 44, unde un derr the the Direcv Direcve e Prin Princip ciples les of Sta State Poli Policy cy,, stat states es –“the –“the Sta State shall shall ende endeav avou ourr to secur secure e for for the cizens a uniform civil code throughout throughout the territory of India” 2. Several mes, the apex court has tried to enforce this principle. are some of the few inst instan ances ces wh wher ere e the the jud judiciar iciary y has has pro propaga pagate ted d the the forma ormao on n of a un unif ifor orm m civi civill cod ode e and and ever every y me it has had to face some hurdle: (i) The The first first inst instan ance ce bein eing the the famo amous Shah Shah Ban Bano case ase (Mohamm ammad Ahmed Khan v. Shah Ban Bano Begum) in 1985 wherein the Supreme Court upheld the right of a Muslim woman to main ainten tenance ance under S.1 S.125 of the the Cr. Cr. PC. PC. The The then then Raj Rajiv Gand andhi led led Govern ernment ent overtu erturrned the the Shah Ban Bano case ase decis ecisio ion n by wa way y of Muslim slim Women (Rig Right to Pro Protec teco on on Div Divorce) ce) Act, ct, 1986 1986 wh which ich curt curtail ailed ed the the righ rightt of a Musli uslim m wo wom man for main mainte ten nance ance un unde derr Seco Secon n 125 125 of the the Cr. PC. ii Sarla Mudgal v. Union of I ndia, wherein the Court decided that a Hindu man cannot solemnize a sec second marr arriage age aer aer convern erng g to Isl Islam and and he wo wou uld be liabl able for bigamy amy under S.4 S.495 of the the IPC. IPC. The The most rece recen nt case ase regar egard ding ing a unifo iform civi civill code has been een tha that of Joh John Valla allam maom v. Unio Union n of Ind India, ia, wh wher erei ein n the the Cou Court sou sought to str strike ike down Seco econ n 118 118 of the the Indi Indian an Succe Success ssio ion n Act Act wh which ich prev preven ents ts Chri Chris san anss fro from will willin ing g prop roperty erty for for char charit itab able le and and religious purposes. 3. The The spin spine e of contro ntrove vers rsy y revo revolv lvin ing g aro around UCC rema remain inss the the conflict nflict betw betwee een n secu secular laris ism m and and the the freed eedom of relig eligio ion n enu enumera erated ted in the the Con Constu stuo on n of Ind India. ia. It need eeds to be underst ersto ood tha that secu secula lari rism sm does not mean ean allo allowi win ng all all relig eligio ion ns to be pracce acced d. It mean eans tha that relig eligio ion n should not interfere with the ordinary ary life of an individual. al. In fact act, Art. 44 is base ased on the concep cept that there is no necessary conneco con between religion and personal law in a civilised society 4. Another ther majo ajor problem as regar egard ds crea crea on of UCC UCC remain ains the problem wit with drai aing. It is lar largely ely belie eliev ved tha that if such such a code is crea create ted d, the the Hind indus wh who o are are in a majo ajority ity in the the country try will try to impose their laws on the rest. This feeling needs to be done away with and a complete code taking into consideraon the best tenets of every religion needs to be enacted. 5. Thi This in brief is a possib sible wa way y by which the the best provisi isions from different pers ersonal law awss may be compiled to form a UCC: (i) MARRIA RRIAG GE: Lik Like in the the case ase of marr arriage age, monogamy amy must be made ade a rule and and polygamy amy be made punishab ablle in all cases under S.49 .495 of the IPC. IPC. The minimum age age limit for a male ale should be 21 years ars and and for a femal emale e should be 18 years ars and and punish ishment ent must be meted eted out incase ase this is not followed. ed. Regis egisttrao on n of marr arriag iage must be made ade compulsor sory. Specifi ecificc quali ualific fica ao ons ns and and disq isquali ualific fica ao on ns in case of a marr marria iage ge must must be laid laid do down wn like like marri arriag age e no nott to be allo allowe wed d with within in proh rohibit ibited ed degre egrees es of rela elao on nship ship,, etc. etc. Con Consen sent of both pare aress to be obtain tained ed and and consen sent goen by fraud aud or force or marr arriag iage in case ase of insa insan nity ity must make ake the the marri marriage age void voidab able. le. The The con oncep ceptt of exclu exclusiv sive e and absol absolut ute e prop proper erty ty of a marri married ed wo woman man must must be recognized (as in case of Stridhan). (ii) DIVO IVORCE AND JUD JUDICIA ICIALL SEPARATION: ION: As far as divorce is concerned, the grounds an and d proced rocedu ure for for divo ivorce rce shou should ld be speci specific fical ally ly laid laid do down wn.. The The groun rounds ds enu enumera merate ted d in the the cod ode e sho should uld be reaso reason nable able and and the the proced rocedur ure e pres prescr crib ibed ed sho should uld be acco accordin rding g to the the prin princip ciple less of 37
natural jusce. An aempt must be mad ade e to put down all all possible grounds covered by perso erson nal laws laws in a befi efing mann anner. Sam Same must be with with resp respec ectt to jud judicia iciall sep separa arao on n. Also lso, there should be a provision for divorce by mutual consent. (iii (iii)) MAINTENA INTENANCE NCE AND ALIMONY LIMONY:: A hu husb sban and d sho should main maintai tain n the the wif wife durin uring g the the marri arriag age e and and also aer they have divorced ced ll the wife remarr arries. The amount of ali alimony should be reas reason onab able le and and be decid decided ed on basi basiss of the the inc income of the the hu husb sban and d, the the sta status tus and and the the lif lifesty estyle le of the the wif wife. Paren arents ts sho should main aintain tain thei theirr chil child dren, en, the the son son ll ll he is able able to main aintain tain himse imself lf and and the the daug daught hter er ll ll she she gets ets marri arried ed.. Both Both sons sons and and daug aughter hterss must must main maintai tain n thei theirr pare parent nts. s. Efforts Efforts should be made for provision of maintenance by state, in absence a bsence of kin. (iv) iv) ADOP DOPTION, TION, CUST CUSTODY ODY AND GUARDIA RDIANS NSHI HIP P: As far as ado adopo on n, cust custo ody and and guard ardian ianship ship are are con oncer cerne ned, d, all must must be rec recogni ognize zed d unive nivers rsall ally y. In all thre three e cases, ases, the the ‘welf welfar are e of the the chil child d’ to be given param aramo ount importan ance ce.. Specific guidelines must be laid aid down as regards ado adop pon on and and any any compe ompete tent nt perso erson n must must be allo allowed wed to adop adopt. t. Also, lso, ado adop pon on by foreig reign ners ers must be all allowed wed only aer aer confirm firming ing all all requisit site detail ails and and ensuring that no problems ari arise. Cust Custo ody of the chi child upto the age age of 5-7 year ears normall ally to be wit with the mother (upto puberty erty for girls irls)), unless less she she is deem eemed not fit for the the sam same. In case ase of a divo ivorce, ce, the the sam same to be decide ecided d by the the Cou Court keep keepin ing g in mind mind finan financia ciall sta status tus of pare paren nt, beha ehaviou viourr, pref referen erence ce of the the chil child d and and most most impo import rtan antl tly y, the the welf welfar are e of the the chil child. d. Pare Parent ntss to be the the natu natura rall guar guard dian of the the chil child d and and mother ther to given iven imp importan rtance ce in the the abse absen nce of the the father ther. An aemp empt must be made to make the same rules applicable for both legimate legimate and illegimate ille gimate children. v SUCCE UCCES SSION ION AND INH INHERIT RITANCE: NCE: Th The e concep cept of succe ccession an and d inheritan ance ce is however asso associ cia ated ted with with cer certain tain problem lems like like the the concep cept of Join Jointt Famil amily y wh whic ich h is pecu eculiar liar to Hin Hindu law. law. For For a UCC to op oper era ate, te, this this concep nceptt must must be abol abolis ishe hed. d. Ther There e sho should uld be no discr discrim imin ina ao on n base ased on sex in the maers of inheritan ance ce especial ciallly as regard ards father’s r’s property both self self-acq -acqu uired ired and and cop opar arcen cenar ary y. Pro Provisi vision onss must ust be mad made for inhe inheri rita tanc nce e of the the prop roperty erty of moth mother er,, wh whic ich h she she has has self self acqu acquired ired or acqui acquire red d thro throu ugh her father ther or rela relav ves es.. Remar emarri riag age e of a wid widow not to be a grou round for disq isqualifi alificcao on n from inh inherit eritan ance ce from former husban sband d’s prop proper erty ty.. As regar regards ds testam testamen entar tary y disp dispos osio ion, n, ther there e shou should ld be no limit limita ao ons ns impo imposed sed on the the exte exten nt to wh whic ich h the the prop roperty erty can be beque equea athed thed,, the the perso erson ns to wh who om such such prop proper erty ty can be beque equea athed thed and and the the don ona ao on n of the the prop proper erty ty by will will for for reli relig gious ious and and char charit itab able le purpo urpose se.. All provisions with respect to valid wills, gis, etc. must be specifically laid down. 6. Ind Indeed, eed, the the gove govern rnme ment nt and and pub ubli licc at large large must ust set set aside aside all paro paroch chial ial inte intere rest stss and and devel evelo op such such a code wh whic ich h is the the need eed of ever every y prese resen nt day soci societ ety y. It must be underst ersto ood tha that only if we are are able able to harm armonise ise the the laws laws of the the vari vario ous communies ies can we brin ring them them tog togeth ether and ensure that the naon as a whole prospers.
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