An amendment to Hindu property law elevated some heirs in the line of succession

Real Estate

After an amendment to the Hindu Succession Act 1956 in the year 2005, more descendants, specially females, have been elevated as Class I heirs in respect of property left behind by a Hindu male, who has died intestate i.e. without making a Will. The Hindu Succession Act 1956 is a codified law dealing with the matters of succession of a deceased dying intestate and it applies to any person who is a Hindu by religion in any of its forms or development. The Act also applies to any person who is a Buddhist, Jaina or Sikh by religion. The general rules of succession under the Hindu Succession Act 1956 for a male who dies intestate is that heirs known as Class I heirs succeed in preference to heirs in other classes.

   Prior to the amendment these were the Class I heirs:

   Son Daughter Widow Mother Son of a pre-deceased son Daughter of a pre-deceased son Son of a pre-deceased daughter Daughter of a predeceased daughter Widow of a pre-deceased son Son of a predeceased son of a predeceased son Daughter of a pre-deceased son of a pre-deceased son Widow of a pre-deceased son of a predeceased son

   After the amendment, these heirs have been added in the list of Class I heirs:

   Son of a predeceased daughter of a pre-deceased daughter Daughter of a predeceased daughter of a pre-deceased daughter Daughter of a predeceased son of a pre-deceased daughter Daughter of a predeceased daughter of a pre-deceased son

Class II heirs   

In Class II there are many categories, father falls in the category I, these fall in category II:

   Son's daughter's son Son's daughter's daughter Brother Sister

These fall in category III   

Daughter's son's son

Daughter's son's daughter

Daughter's daughter's son

Daughter's daughter's daughter

   Four heirs from category II and III of Class II are the same as that of Class I. This discrepancy is so because these heirs were elevated to Class I after the amendment, but were not deleted from Class II. However, these deletions can be implied.

   It is to be noted that the father has not been elevated to Class I. Further, even son's daughter's son and daughter's son's son have not been elevated to Class I. There are nine categories in Class II. If there are no heirs in Class II, then the property devolves upon agnates and failing which to cognates. Lastly, if the deceased does not have any of the above heirs, the government will succeed to the property.

Example 1   

A male dies leaving behind father, mother, widow, one son and one daughter surviving him. The deceased also had one other daughter who predeceased him, the predeceased daughter had husband, one son and one daughter, all of whom survived the deceased.

In the given case, the father of the deceased and the husband of the pre-deceased daughter will not inherit anything. The mother, widow, son and the surviving daughter will get one-fifth share each in the property of the deceased, while the son and daughter of the pre-deceased daughter will get one-tenth share each.

Example 2   

A male dies leaving behind mother, father, brother and sister. In this case, the mother will succeed to the entire property.

Example 3   

A male dies leaving behind father, brother and sister. In this case, the father will succeed to the entire property.

Example 4   

A male dies leaving behind two brothers and one sister. In this case, the property will be divided equally between the three siblings. It may be noted that words such as son, daughter mean legitimate son or daughter and includes a son and daughter who are adopted but does not include a step-son or a stepdaughter. A posthumous son or daughter is also included. It is also immaterial whether the daughter is married or not. Brother or sister includes brother and sister by full blood, by half blood and by illegitimate relationship. Full blood will, however, take preference over half blood.

In case of women    As per the general rules of succession, in case of females under the Hindu Succession Act 1956, if a female dies intestate, her property devolves as:

Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.

  Secondly, upon the heirs of the husband.

   Thirdly, upon the mother and father.

   Fourthly, upon the heirs of the father.

   Lastly, upon the heirs of the mother.

However, if a female has inherited any property from her father or mother, in the absence of any son or daughter or the children of any predeceased son or daughter, such property will devolve upon the heirs of her father. Further, if the female has inherited any property from her husband or from her father in-law, such property will in absence of any son or daughter or children of any pre-deceased son or daughter, devolve upon the heirs of her husband.

The word inherited is emphasised and would therefore mean inherited under intestate succession and not by testamentary succession or gift. Sons and daughters in relation to a female mean natural born son or daughter, both legitimate and illegitimate, as well as adopted or posthumous.

Example   

A female dies leaving behind her self-acquired property and leaving behind her husband, a son and two sons of a predeceased son and two daughters of a pre-deceased daughter. In the given case, the husband and son will get one-fourth share each, while the two sons of the predeceased son and the two daughters of the pre-deceased daughter will get one-eighth share each. These rules of succession vary slightly in case of certain Hindus. It is also provided under the Special Marriage Act 1954 that succession to the property of the persons married under that Act or whose marriage is registered under the Act will be governed by the Indian Succession Act 1925 and not by their personal law.  
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                                                                                                 Courtesy:  Times of India 31-05-08