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Property Plus — Chennai

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LEGAL CHAT

Succession under Hindu law

SRINATH SRIDEVAN

Upon a Hindu male's death, the right of succession first devolves upon the Class 1 heirs, if any.

IN THE last column, I had commenced the topic of succession to the estate of a deceased Hindu male. I had also listed the so-called "Class 1" heirs of a Hindu male.

Upon a Hindu male's death, the right of succession first devolves upon the Class 1 heirs, if any. If even one such heir exists, all other relatives who do not fall within this category are excluded automatically.

If there are several Class 1 heirs, then, there are some very sound and certain rules as to how they will share the properties amongst themselves.

The wife, mother and children (son or daughter, the law makes no distinction) take equal shares. Where one or more of such sons or daughters is no more, then, the Class 1 heirs in that branch will all jointly stand in the place left behind by such deceased son or daughter. This is somewhat complicated to understand.

Imagine a tree. It has two branches. Each branch has two twigs. Now, assume that the main trunk of the tree which we have taken as an example, is the deceased Hindu male whose property we are now attempting to divide. The Hindu male has two children who are represented by the two branches. If both are alive, both get equal shares, that is to say, half and half. If, however, one child is no more, leaving behind two children of his own (the two twigs in our example), then, each such grandchild will not share equally with the surviving child of the deceased Hindu male, but will jointly take whatever, their father or mother would have been entitled to, had their father or mother been alive.

Returning to our example, the two twigs would get only the same share as one branch, and would not share in equal thirds with the surviving branch.

So much for Class 1 heirs.

If there are no Class 1 heirs, then, we move on to Class 2 heirs. This is a huge list of persons which includes father, brother, sister and the like.

If someone is unfortunate enough not to leave any Class 1 or Class 2 heirs, then, his agnates, and after them, his cognates succeed to the property. Agnates are persons who are related purely through males by blood. Cognates are persons who are related in any other way by blood. The priorities of succession amongst Class 2 heirs, and amongst agnates and cognates is beyond the scope of this column and I am not touching upon it.

If someone is really unfortunate and leaves behind neither Class 1, nor Class 2, nor any agnates, nor any cognates upon his death, then, his entire property lapses to the Government. This is something called "escheat".

A Hindu woman's property upon her death, devolves first upon her children (and grandchildren through any predeceased children) and her husband in equal shares.

If she leaves behind neither husband, nor children, nor grandchildren, then, the property goes to the heirs of her husband.

If there are no such heirs, then, it goes to the heirs of her father.

Note here that the heirs of the husband or father would have to be reckoned in the manner we have already seen, pertaining to succession to Hindu males.

If there are no heirs of husband or father, then, the property goes to the heirs of the mother.

The heirs of the mother are to be reckoned once more in accordance with this rule.

Thus, with regard to the succession to the estate of a Hindu female, one notices that we come across an infinite loop and therefore, the concept of escheat does not really ever arise in such cases.

There is one exception to the above rule in respect of Hindu women. If a Hindu woman acquires property from her father or mother, and if she dies leaving no children (or grandchildren through predeceased children), then, the property will not go to her husband or heirs of her husband, but will go to the heirs of her father or mother as the case may be.

There is one very radical and far reaching provision in the law with regard to Hindu females. This has been the subject of much litigation and controversy. Therefore, the views that I express on this subject are entirely my own and if you contact ten other lawyers, it is quite likely that you will get ten other opinions. This provision pertains to "blossoming" of a Hindu woman's limited estate.

Prior to 1956, and the coming of the Hindu Succession Act, Hindu women held property absolutely only when it was what was known as "stridhana" property. When their husbands died, Hindu women only acquired a life estate in the property. This meant that they enjoyed the property during their lifetime, with restraints on their powers of alienation. After their death, the property devolved on the husband's family people. In fact, the greed of several husbands' families was what drove innumerable widows to despair, and perpetuated the abhorrent and vile practice of sati.

The lawmakers fortunately saw the utter injustice in not giving women their right to receive their husband's property absolutely. They also recognised that several persons may have given their wives, sisters or mothers, a limited (or life) estate in certain properties with a view to provide for them.

Accordingly, the Hindu Succession Act provides that all properties held by a Hindu woman as a limited (or life estate) owner on the commencement of this law, would automatically "blossom" into full and absolute ownership. Of course, where there is a Court order, or a specific document providing that the woman will hold it only as a limited estate holder, there is some doubt over whether it will become a full estate.

But that, as I have said above, is a matter of much legal debate.

I do not wish to go into any further detail on this topic and this concludes the discussion on succession to male and female Hindus. I shall next proceed to deal with the rules of succession under Islamic law.

(The author holds a Master's Degree in Corporate Law from New York University and is a partner in the law firm, Sridevan and Krishnaswami, Chennai.)

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