GENERAL RULES OF SUCCESSION

PROJECT SUBMITTED TO: - PROJECT SUBMITTED BY: -

MS. POOJA SRIVASTAVA DEEPTANGSHU KAR

FACULTY OF FAMILY LAW- 2 FOURTH SEMESTER

ROLL NUMBER - 1723

B.A., LL.B (HONS.)

2017-2022

PROJECT WORK SUBMITTED IN THE FULFILMENT OF THE COURSE

FAMILY LAW- 2 FOR ATTAINING THE DEGREE OF B.A., LL.B (HONS.)

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA - 800001

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CONTENTS
CHAPTERS PAGE NO.

1.INTRODUCTION AND
HISTORICAL BACKGROUND……………………….……………….5

2.GENERAL PROVISIONS RELATING

TO SUCCESSION(S.18-28)…………………………………………….12

3.CONCLUSION………………………………………………………...20

BIBLIOGRAPHY………………………………………………………...22

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INTRODUCTION & HISTORICAL
BACKGROUND

There are certain general provisions relating to the succession, as laid down from section 18
to 28 of the Hindu Succession Act, 1956. These provisions apply to all the properties
irrespective of the fact whether it is left by a male or a female Hindu dying intestate. These
provisions are supplementary to the provisions in section 5 to 17 of the Act. Moreover, the
provisions are not only explanatory but some of them lay down substantive rules involving
legal principles.

Before 17 June 1956 the succession of Hindus was regulated by classic Hindu law. 1 The
Hindu Succession Act2 is a codification of the Hindu law of intestate succession and came
into operation on 17 June 1956. It introduced key changes to classic Hindu law of intestate
succession. The Hindu Succession Act is, to a large extent, a codification of the Hindu law of
succession.3 It makes provision for certain changes to the classic Hindu law of succession,
and although it is in essence a codification of the Mitakshara law of succession, it is
uniformly applicable to all the schools of Hindu law in India.4

Classic Hindu law allows two modes of devolution, namely survivorship of coparcenary
property, and succession of separate property. Only males are entitled to a share in the
coparcenary property. Upon the death of the male coparcener his share in the coparcenary
property falls back into the coparcenary and the rest of the surviving coparceners’ shares are
adjusted accordingly. The wife or other female heirs of the deceased coparcener, have no
right to the coparcener’s in the coparcenary property.

Section 6 of the Act, before its amendment in 2005, introduced the first revolutionary change
to the Hindu law of succession by affording a female heir,5 and the son of a daughter of a
deceased Hindu, a share in the coparcenary property.6 If a coparcener dies leaving a female

1
Mulla’s principles of Hindu law vol I (19ed 2005) 101–363 and C Rautenbach ‘Hindu law of succession’(2ed
2006) 269–287.
2
Act 30 of 1956.
3
It does not make provision for the survivorship as a mode of devolution regarding the joint family property.
4
Desai Mulla’s principles of Hindu law vol II (19ed 2005) 283–284.
5
As specified in Class I of the Schedule.
6 M Shastri Status of Hindu women: a study of legislative trends and juridical behaviour (1999) 123, 130–136.

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heir, his share in the coparcenary property will devolve by means of succession and not
survivorship.7 The share of the deceased coparcener, who succeeds, is calculated by taking
his share immediately before the time of his death into consideration.8 In 2005, section 6 as
discussed above, was replaced by a new section 6,9which removed the gender discriminatory
provisions in the ‘old’ section 6. In terms of the new provisions, a daughter of a coparcenar in
a joint Hindu family becomes a coparcener in her own right. She has equal rights and
responsibilities in the coparcenary property and is allotted the same share as a son.

The abolition of the limited woman’s estate was the second most important inroad into the
classic Hindu law of succession. 10 In terms of classic Hindu law, if a female inherited
property from a male or stridhana from another female, she received only a limited woman’s
estate which meant that she was the owner of the property for as long as she lived, but
although she had full and exclusive ownership of the property during that time, her ownership
was restricted in all other respects. Section 14(1) of the Act abolished the limited woman’s
estate and converted existing limited woman’s estates into full estates.11If a female acquires
property in any way whatsoever, she becomes the full owner of such property without any
limitations. Furthermore, section 14(1) is retroactive and applies to limited woman’s estates
and property acquired before the commencement of the Act.

Under classic Hindu law, stridhana was classified in various categories. Section 15 of the Act
abolishes this classification and provides for only one uniform scheme of succession of
stridhana.12

Section 23 used to limit the right of a female regarding the dwelling house to a right of
residence only. Although female beneficiaries became owners of the dwelling house left by
the deceased in equal shares with the male beneficiaries, they were not allowed to have the
house partitioned. Such a right was only available to the male beneficiaries.13 The purpose of
section 23 was to protect the rights of the sons of the deceased who act as the providers of the
joint family, and who rely on their right to reside with their families in the dwelling house. If

7 In terms of Explanation 2 of s 6 a partitioned coparcener who has separated himself from the coparcenary
before the death of the deceased is excluded from taking a share in succession.
8
Explanation 1 of s 6.
9
In terms of the Hindu Succession (Amendment) Act 39 of 2005 which came into operation on 9 September
2005. The Act is not retroactive and partitions before 9 September 2005 have to conform to the ‘old’ section 6.
10
Ministry of Information and Broadcasting Government of India Hindu law reform (1965) 32.
11
Vidya v Nand Ram 2001 10 SCC 747.
12
GCV Subba Rao, Family law in India: Hindu law and Mohammedan law (1995) 314.
13
S Yadav ‘Women, Law and Judiciary in India’ in Sharma (ed) Justice and social order in India (1994) 309.

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a female had the right to claim partition of the dwelling house, it could be disruptive to the
families living in it. Such an argument can equally be applied to the right of the male
beneficiaries of the deceased. They have the right to claim partition regardless of whether
such partition would be disruptive to the female beneficiaries having a share in the dwelling
house. Section 23 was repealed by the Hindu Succession (Amendment) Act of 2005 and it is
nowadays possible for a female to claim partition of the dwelling house.

Although these changes have been applauded by Indian scholars, some are of the opinion that
the changes are not comprehensive enough to remove all gender discriminatory provisions in
the Hindu law of succession.

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GENERAL PROVISIONS IN RELATION
TO SUCCESSION (section 18 to 28)

There are certain general provisions relating to the succession, as laid down from section 18
to 28 of the Hindu Succession Act, 1956. These provisions apply to all the properties
irrespective of the fact whether it is left by a male or a female Hindu dying intestate. Section
18 talks about half blood and full blood relations and succession among them, whereas
section 19 deals with per stripes and per capita rules. Section 20 is about succession regarding
posthumous child. Section 21 and 22, deal with presumption in cases of simultaneous death
and preferential right or right of pre-emption respectively. Concept of Escheat, wherein
absence of any legal heirs, property passes to the government and other rules till section 28 of
the act are expressly dealt under the chapter of general rules of succession. Moreover, the
provisions are not only explanatory but some of them lay down substantive rules involving
legal principles.

Full blood preferred to half-blood- Section 18.— Section 18 states that, “Heirs
related to an intestate by full- blood shall be preferred to heirs related by half-blood, if the
nature of the relationship is same in every other respect.”

Section 18 lays down a rule of general applicability to male and female heirs alike but the
applicability is subject to the words, “if the nature of the relationship is the same in every
other respect.” From the provisions of the section it is clear that a full-blood relation is
preferred to half-blood relation. But the rule cannot be invoked when a particular heir is
preferred to another by operation of any rule affecting the order of succession.

The words ‘full-blood’ and ‘half-blood’ have been explained in section 2 (e) of the Act. Two
persons are said to be related to each other by full blood when they are descended from a
common ancestor by the same wife, and by half-blood when they are descended from a
common ancestor but by different wives.

Section 18 makes it clear that the heirs related by full-blood shall be preferred to heirs related
by half-blood, provided the nature of relationship is same in every other respect. Thus, the

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full sister’s daughter shall be preferred to half brother’s son. Similarly a full sister excludes a
half sister.

Mode of succession to two or more heirs- Section 19— Section 19 of the act
provides that, “If two or more heirs succeed together to the property of an intestate they shall
take the property—

(a) Save as otherwise expressly provided in this Act, per capita and not per stripes; and
(b) As tenants-in-common and not as joint tenants.

The section lays down a general rule of distribution of the property. It says that when two or
more heirs succeed to the property of an intestate, they take the property per capita and as
tenants-in-common unless there is an express provision to the contrary. Instances of
exceptions to the general rule about distribution per capita are laid down under Rules 1, 3 and
4 of section 10 and Rule 2 of section 16, etc.

JOINT TENANCY AND TENANCY-IN-COMMON.—Joint tenancy is the ownership of

property in common by several persons having a right of survivorship. On the death of one of
the joint tenants, the property vests in the survivor or survivors to the exclusion of the heirs of
the deceased joint tenant. The tenancy in common arises where two or more persons are
entitled to property in such manner that they have an undivided possession but distinct estate
in equal or unequal shares either by the same or different title. No one of them is entitled to
the exclusive possession of any part of the property, each being entitled to whole in common
with the others. On the death of any of them, his heirs succeed to the property left by the
deceased. In short, joint tenancy means joint ownership with the right of survivorship, and
tenancy-in-common means joint possession with separate ownership without the right of
survivorship.

The section lays down a presumption in case of simultaneous deaths that the younger person
survived the older, until the contrary is proved. This operates only in cases where persons die
in circumstances rendering it uncertain as to who died first.14

Right of Child in Womb- Section 20—Section 20 provides that, “a child who was in
the womb at the time of the death of an intestate and who is subsequently born alive shall
have the same right to inherit to the intestate as if he or she had been born before the death of

14
Madambath Rohini v. Devi, AIR 2002 Ker. 192.

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the intestate, and the inheritance shall be deemed to vest in such a case with effect from the
date of the death of the intestate.”

A child in the mother’s womb is presumed to be born before the death of the intestate,
although subsequently born. To quote Mulla, “It is by fiction or indulgence of the law that the
rights of a child born in justo matrimonio are regarded by reference to the moment of
conception and not of birth and the unborn child in the womb, if born alive is treated as
actually born for the purpose of conferring on him benefits of inheritance. The child in
embryo is treated as in esse for various purposes when it is for his benefit to be so treated.
The view is not peculiar to the ancient Hindu Law but one which as adopted by all mature
systems of jurisprudence. This section recognizes that rule of beneficient indulgence and the
child in utero although subsequently born is to be deemed to be born before the death of the
intestate and inheritance is to be deemed to vest in the child with effect from the date of the
death of the intestate.”15 But for the purposes of the application of the provisions of section
20, it is essential that child must be in womb at the time of the death of the propositus and the
child must be born alive.

Presumption in cases of simultaneous death—Section 21.-- Section 21

provides that, “Where two persons have died in circumstances rendering it uncertain whether
either of them, and if so which, survived the other, then, for all purposes affecting succession
to property, it shall be presumed, until the contrary is proved, that the younger survived the
elder.”

It may happen that two persons die in an accident or calamity under such circumstances that
it is impossible to ascertain which of them died first. In such a situation, it may be presumed
that both of them died simultaneously or that one of them succeeded the other. There may be
controversy regarding inheritance in such situations as to who will succeed to who’s
property.Before the enactment of this Section, there was no answer to such questions. The
burden of proof was on the party who asserted the affirmative.16 If the evidence before the
Court was balanced, the balance of probabilities was considered to be in the favour of the
younger.17

15
Mulla, D.F., Principles of Hindu Law, Ed. XVI (reprint, 1994) p. 841.
16
Digendra Kumar Roy v. Kuti Mian, AIR 1944 Cal 132.
17
Yeknath v. Lakshmibai, AIR 1922 Bom 347.

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According to this Section, the presumption of survivorship applies, by which the younger is
presumed to have survived the older. In this Section, ‘younger’ means younger in status not
in age and only when the status is the same, younger in age. Thus if an uncle aged thirty years
and a nephew aged thirty five years, die in a plane crash or a ship wreck, it will be presumed
that the nephew died later, even though he is older in terms of actual age. On the other hand,
if two brother die simultaneously in any accident or calamity, the brother younger in age is
presumed to have died later.

This is a peculiar feature of this Act, as it was altogether not provided for at all in the
classical law or the previous legislations regarding Hindu succession.

Preferential right to acquire property in certain cases—Section 22.---

Section 22 provides a preferential right to other heir or heirs to acquire property when one of
them desires to transfer his or her interest in the property inherited. Section 22 runs as
follows:

(1) Where, after the commencement of this Act, an interest in any immovable property of an
intestate, or in any business carried on by him or her, whether solely or in conjunction with
others, devolves upon two or more heirs specified in class I of the Schedule, and any one of
such heirs proposes to transfer his or her interest in the property or business, the other heirs
shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be
transferred under this section shall, in the absence of any agreement between the parties, be
determined by the court on application being made to it in this behalf, and if any person
proposing to acquire the interest is not willing to acquire it for the consideration so
determined, such person shall be liable to pay all costs of or incident to the application.

(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any
interest under this section, that heir who offers the highest consideration for the transfer shall
be preferred.

Explanation.- In this section," court" means the court within the limits of whose jurisdiction
the immovable property is situate or the business is carried on, and includes any other court
which the State Government may, by notification in the Official Gazette, specify in this
behalf.

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Section 22 recognises the rules of pre-emption which has the tendency to raise clogs on the
full sale and purchase of property. But the rule of preferential right to acquire property or
business in certain cases is subject to certain rules laid down under this section. The
provisions of the section were necessary in order to safeguard the interests of the co-heirs,
otherwise the very foundations of the Hindu family would have been shattered. The
preferential right to acquire property in certain cases as is provided under this section is
limited only to those cases where the property has devolved upon two or more heirs specified
in class I of the schedule.

The preferential right can be claimed within 1 year of alienation and not after 13 years. 18 The
right of co-heir to seek transfer of property proposed to be sold is only a personal right which
is neither transferable nor heritable. 19 By exercising the preferential right to purchase the
share of a co-heir in the business or estate, the strangers can be prevented from stepping into
the joint business or estate.

Section 23 Has Been Deleted From The Act By Virtue Of Hindu Succession
(Amendment) Act, 2005.

Section 23 used to limit the right of a female regarding the dwelling house to a right of
residence only. Although female beneficiaries became owners of the dwelling house left by
the deceased in equal shares with the male beneficiaries, they were not allowed to have the
house partitioned. Such a right was only available to the male beneficiaries.20 The purpose of
section 23 was to protect the rights of the sons of the deceased who act as the providers of the
joint family, and who rely on their right to reside with their families in the dwelling house. If
a female had the right to claim partition of the dwelling house, it could be disruptive to the
families living in it. Such an argument can equally be applied to the right of the male
beneficiaries of the deceased. They have the right to claim partition regardless of whether
such partition would be disruptive to the female beneficiaries having a share in the dwelling
house. Section 23 was repealed by the Hindu Succession (Amendment) Act of 2005 and it is
nowadays possible for a female to claim partition of the dwelling house.

18
Aushutosh Chaturvedi v. Prano Devi, 2008 S.C. 2171.
19
Kamak Goel v. Purshottam Das, 1999 P&H 254.
20
S Yadav ‘Women, Law and Judiciary in India’ in Sharma (ed) Justice and social order in India (1994) 309.

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Section 24 repealed: Certain widows remarrying may not inherit as a widow –

In classical Hindu law, certain female heirs if they had remarried after the death of their
spouses, before the succession opened were disqualified from inheriting the property of the
deceased intestate, for being unfaithful to their obligations widows. Under the Hindu Widow
Remarriage Act, 1956, if a Hindu widow remarried, she could not inherit the property of her
deceased husband. Under this Section of the Act, only three female heirs were disqualified on
such grounds, namely:

 Son’s widow
 Son’s son’s widow
 Brother’s widow

Now, this Section has been omitted21, rendering such disqualification null and void, which is
a great diversion from Hindu traditional law.

Section 25: Murderer disqualified – A person who commits murder or abets

the commission of murder shall be disqualified from inheriting the property of the person
murdered, or any other property in furtherance of the succession to which he or she
committed or abetted the commission of the murder.

It is a general policy of practically all the systems of law that no one should be allowed to
reap the benefits of his crime. Such provision however, was not specifically provided for in
traditional Hindu law. It was a disqualification in the Dayabhaga school, but not provided for
in the Mitakshara school. Furthermore, even in the Dayabhaga school, only the murderer
himself was disqualified, not the abettor of the murder. This Section however, disqualifies
both a murderer and an abettor to murder. The Joint Select Committee on the Hindu
Succession Bill observed:

“A murderer even if not disqualified under the traditional Hindu law from succeeding to the
estate of the person whom he has murdered is so disqualified upon the principles of justice,
equity and good conscience.”

In the case of Kenchava v. Girimallappa,22 the Privy Council held that “the murderer is not to
be regarded as the stock for a fresh line of descent but should be regarded as non- existent.”

21
Omiitted by Section 5, Act 39 of 2005.

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Under section 25 the murderer as well as the abettor of murder is disqualified. But if he is
acquitted on the basis of benefit of doubt, the disqualification does not attach to him.23

Section 26: Convert’s descendants disqualified – “Where, before or after the

commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to
another religion, children born to him or her after such conversion and their descendants shall
be disqualified from inheriting the property of any of their Hindu relatives, unless such
children or descendants are Hindus at the time when the succession opens.”

Under the old Hindu law, conversion of any Hindu person into another religion was a
disqualification which was later removed by the Caste Disabilities Removal Act of 1850 and
upheld by this Act. However, although conversion does not disqualify a person form
succeeding to the property of an intestate under this Act, his descendants are disqualified
from inheriting such property unless such children or descendants are Hindus at the time
when the succession opens.24

Thus, the children of a convert and their descendants are disqualified. But if at the time of
death of the intestate, any of them are Hindu, they are no longer disqualified.

Effect of Disqualifications—Section 27--

If any person is disqualified from inheriting any property under this Act, it shall devolve as if
such person had died before the intestate.

This means that no title or right to succeed can be traced through the disqualified person. As
the disqualified person is deemed to have died before intestate, it follows that no person can
claim a right of inheritance to such property, through him or her. For, this can only happen if
the property had vested in the disqualified person, and he or she had thereafter immediately
died. The property, in fact, never vests in the disqualified person. Therefore, a disqualified
person cannot be a fresh stock of descent and a person claiming as an heir of the disqualified
person cannot inherit.

22
(1924) 51 IA 368.
23
Chamanlal v. Mohanlal, 1977 Del. 97.
24
S.26, Hindu Succession Act, 1956.

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Section 28: Disease, defect, etc. not to disqualify –

Disease, deformity and unchastity are no longer disqualifications.25 Section 28 runs:

“No person shall be disqualified from succeeding to any property on the ground of any
disease, defect or deformity, or save as provided in this Act, on any other ground
whatsoever.”

Under the old Hindu law dome diseases, deformities and unchastity were disqualifications of
heirs, though they were not the same in both Dayabhaga and Mitakshara law. According to
the Mitakshara law, some disqualifications were: congenial lunacy or idiocy, adoption of a
religious order (i.e. taking a sanyas) and unchastity of widows. According to the Dayabhaga
law, the disqualifications were: blindness, deafness, dumbness, want of any limb or organ
since birth, idiocy, lunacy, unchastity of widows and, any virulent and incurable form of
leprosy rendering one unfit for intercourse.

The widowed mother and widowed stepmother are not disqualified from inheritance even if
they have remarried.26 If she has remarried during the lifetime of her husband, her second
marriage is void and therefore she would not be considered to have remarried. If she has
remarried after divorcing her husband, and therefore has ceased to be his wife so, she will not
be his widow when propositus dies. But the subsequent marriage of the widow is no
disqualification.27

25
Girija Singh v. Gyanwati Devi, 2001 Pat. 20.
26
Kasturi Devi v. Deputy Div. Commr., 1976 S.C. 2595.
27
Aruna v. Madhava, 2005 Kant. 422.

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CONCLUSION

Before 17 June 1956 the classic Hindu law of succession applied to the estates of deceased
Hindus. Since then the classic rules have been modified and codified to a large extent. Major
changes to the classic rules have been introduced by means of legislation. The most important
legislation regarding the Hindu law of succession is the Hindu Succession Act that came into
operation on 17 June 1956. Although the Hindu Succession Act is a clear break with the
classic Hindu law of succession, it is not free of discrimination. The fact that there are two
different schemes of succession for males and females may be seen as unequal treatment. In
terms of the schedule to the Act, the mother of the deceased is a Class I heir and the father a
Class II heir. The result is that the father of the deceased only inherits if there are no Class I
heirs. This may also be seen as discriminatory.

Before 1956, several disqualifications were recognized which prevented an heir from
inheriting property. Not only the disqualified heir could not take property in inheritance, but
he or she also did not transmit any interest to his or her own heirs, as a disqualified person
was treated as having predeceased the propositus. Under the pre-1956 Hindu Law of
succession, the disqualifications under the Dayabhaga and the Mitakshara schools were
different. The former contained a longer list. Some disqualifications were common. Under
both the schools, an heir who was criminally responsible for the death of the propositus was
disqualified. Under Dayabhaga school, unchastitity was a disqualifications for all women but
under Mitakshara law, only propositus’s own widow was disqualified. Under Mitakshara law.
congenital idiots and lunatics were excluded from inheritance. Under Dayabhaga law, insane
persons, or persons born blind, lame or deaf and dumb, lepers and impotents were also
excluded.

The Hindu Succession Act, 1956, has simplified the law and reduced such disqualifications to
the barest minimum.

Section 23 of the Hindu Succession Act, which prohibited a female heir to claim partition of
the house she inherited, was repealed in 2005.

Although the Hindu Succession Act, 1956, and its amendments have gone a long way in
simplifying the rules regulating succession among the Hindus, there are various discrepancies

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still to be solved. Apart from some discrimination in the Hindu law of succession, the law as
it is applied in India today shows a positive reform with regard to the position of females. It
clearly shows that rules of personal law based on religion are not above reform in order to
bring them into conformity with social and legal change. The women in India are not
properly informed of their rights in terms of the Hindu Succession Act. There is an urgent
need for the proper propagation and popularization of their rights so that they can be
exercised effectively.

There is scope of change in the amended Act also. However, it cannot be argued that The
Hindu Succession Act has not made any revolutionary change in the law relating to
succession, especially for female Hindus. It has been a huge relief for females who were
devoid of property rights under the traditional Hindu law.

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BIBLIOGRAPHY
BOOKS
 Das, P.K.: Handbook on Hindu Succession: Universal Law Publishing, 2012.

 Professor Kusum: Family Law Lectures- Family Law II. Nagpur: LexisNexis

Butterworths Wadhwa, 2013.

 Agarwala, R. K.: Hindu Law.Allahabad: Central Law Agency, 2013.

 Diwan, Paras : Family Law. Faridabad: Allahabad Law Agency, 2012.

INTERNET SITES

 http://www.mightylaws.in/878/succession-hindu-law-analysis-hindu-succession-act-
1956
 http://www.lawteacher.net/indian-law/essays/gender-justice-in-hindu-succession-
laws.php
 http://www.legalserviceindia.com/articles/gehsa.htm

 http://www.shareyouressays.com/117221/general-rules-of-succession-in-the-case-of-
a-female-hindu-in-the-hindu-succession-act
 http://www.jlp.bham.ac.uk/volumes/50/bates-art.pdf

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