LAW 203 (II) – Hindu

Law
Inheritance
Course Instructor – Dr. Nabaat Tasnima Mahbub
 Hindu Law of Inheritance
• Inheritance is the lawful automatic transfer of estate and property of
a deceased person towards his family members (Heirs), the process is
also known as succession, both of them are often used
interchangeably.
• The rules of inheritance in Hindu law are based on the ancient
sources of Hindu Law although some Shastric rules have been
modified by legislative enactments.
• In the Dayabhaga School, the guiding principle of inheritance is
‘Religious Efficacy’ and in the Mitakshara School the guiding principle
is ‘Consanguinity’ or ‘Blood Relationship’.
 Guiding Principle of Inheritance –
Dayabhaga School
• Religious Efficacy, as followed by the Dayabhaga School, means a
person will be entitled to get inheritance based on religious benefits
to be conferred upon the deceased.
• The person who can confer most religious benefits upon the
deceased will have priority in inheritance.
• Therefore, the Dayabhaga law of Inheritance is based on the Doctrine
of Spiritual Benefit/Religious Efficacy and on Consanguinity.
 Guiding Principle of Inheritance –
Dayabhaga School
• A dies leaving behind a son S and
a brother B.
A • As per the Dayabhaga School,
the son S will inherit his father
(Deceased) A’s property by excluding B (the
brother of A) on the ground of
Religious Efficacy.
• Reason – The son can confer
S (Son) B (Brother) spiritual benefits upon his father
and thus enjoys priority in
inheritance.
 Guiding Principle of Inheritance –
Mitakshara School
• The son S will inherit the
property of A excluding the
A brother B according to
Consanguinity or Blood
(Deceased) Relationship.
• Reason – The blood relationship
between father and son (here A
S (Son) B (Brother) and S) is nearer than the
relationship between two
brothers (here A and B).
 Modes of Devolution of Property
Dayabhaga School
• The Dayabhaga School follows only one mode of devolution of
property – Succession.
• Succession applies to all kinds of property whether joint or separate.
• The coparcener of a Dayabhaga Hindu family holds his share in the
joint family property in ‘quasi-severalty’ i.e. a share that is not
absolutely separate although considered to be almost separate.
• Thus, upon the death of any coparcener in a Dayabhaga Hindu family,
his property will pass to his heirs following the rule of Succession as if
he was the separate owner of the property.
 Modes of Devolution of Property
Dayabhaga School
• A and B are brothers and
members of Hindu joint family.
A • A dies leaving his brother B and
(Deceased) widow W.
• A’s share in the joint family
property shall pass to the widow
W by Succession.
B (Brother) W (Widow) • A’s separate property shall also
be passed to the widow W by
Succession.
 Modes of Devolution of Property
Mitakshara School
• The Mitakshara school follows two
modes of devolution of property:
• (1) Succession – Applies in case of A
separate-self acquired property.
(a Mitakshara Hindu
• (2) Survivorship – Applies in case of dies leaving both joint
ancestral/joint family and separate property)
property/coparcenary property.
• Example – A, dies leaving both joint
family property and separate
property. A’s son S will inherit the
separate property as per the rule of S (Son) B (Brother)
Succession and A’s brother B will
inherit A’s share in the joint family
property according to the rule of
Survivorship.
Classes and Hierarchy of Heirs – Dayabhaga
School

•The heirs of a deceased person under the Dayabhaga

School can be segmented under
•three classes and
•according to the hierarchy (order of succession).
Hierarchy of Heirs 1. Son 4. Widow,
2. Grandson Widow of
(Dayabhaga) 3. Great Pre-deceased
5. Daughter
Grandson Son
•The property will
be transferred
6. Daughter’s
according to the Son
7. Father 8. Mother

hierarchy of the
heirs and one will
10. Brother’s
exclude another. 9. Brother
Son
 Classes of Heirs
*** Sapindas exclude Sakulyas and Sakulyas exclude Samonodakas

1. Sapindas 2. Sakulyas 3. Samonodakas

• Persons by • The 4th, 5th and 6th • The male relations of a
Paternal Male Ancestors Hindu by whom and to
whom and to of the Owner. whom he offers oblations
whom Pindas are • The 4th, 5th and 6th male of water while
descendants in the male performing Shraddha
offered. line. ceremony are
• The six male descendants Samonodakas.
in the male line of the of • Dayabhaga School – A
the 4th, 5th and 6th Hindu is Samonodakas of
paternal male ancestors those (i) to whom he is
and 6th descendants in bound to offer libations
the male line of his of water; (ii) who on his
father, grandfather and death are bound to offer
great grandfather. libations of water to him.
 Female Heirs
• Five female heirs can inherit from a male relation under the
Shastric Hindu Law:
• Widow
• Daughter
• Mother
• Grandmother
• Great Grandmother
• Two more female heirs have been further included by the Hindu
Women’s Right to Property Act, 1937:
• Widow of a pre-deceased son
• Widow of a pre-deceased grandson
 Limited or Life Interests of Female Heirs
• Female Heirs inherit only a limited interest in the property i.e.
female heirs whether succeeding from a male or female, take a
limited interest in the property inherited. Male heirs can enjoy an
absolute interest in the inherited property.
• Female heirs are entitled to use and enjoy the property inherited
by them. However, they cannot alienate the property except for
• religious/charitable purposes;
• legal necessity or
• for the benefit of the estate.
• Upon the death of the female heir, the property passes to the next heir of
the person from whom she inherited the property.
 Limited or Life Interests of Female Heirs
• A, a Hindu male, dies leaving his
wife W and a brother B.
• W will succeed as an heir of A. A
• W can only have limited/life (Deceased)
interest in the inherited property.
• W cannot alienate the property
except in the cases mentioned. W B
• Upon W’s death, the property shall (Widow) (Brother)
pass to B as B is the next available
heir of A.
 Last Full Owner & Fresh Stock of Descent
• Last full owner is the person who holds property absolutely at the
time of his death.
• The heirs of the full owner inherit his property upon his death.
• Generally, a female cannot be the last full owner except in the case of
Stridhan.
• It is only a last full owner who can create fresh stock of descent.
• Creating fresh stock of descent means the ability of the last full owner
to pass the property to his heirs and not to the heirs of other person.
• Since a female cannot be a last full owner (except in the case of
Stridhan), she cannot become a fresh stock of descent.
 Last Full Owner & Fresh Stock of Descent
• A dies leaving his wife W, mother M,
brother B and paternal uncle PU. A
• On the death of A, the widow W will (Deceased)
succeed to A’s property. Since she is a
female she will take limited estate in
the property and she cannot become
fresh stock of descent.
• Upon the death of W, the property will
W (Widow) M (Mother)
go to the next heir of A i.e. the mother
M. The mother M being a female,
again will not inherit the property
absolutely and cannot become fresh PU (Paternal
stock of descent. B (Brother)
Uncle)
 Last Full Owner & Fresh Stock of Descent
• Upon the death of mother M, the
property will go to the next heir of A, i.e.
the brother B. Here B will inherit the
property not as a heir of M but as the heir
of his deceased brother A.
• Brother B being a male will inherit the
property absolutely. B will become last full
owner and fresh stock of descent.
• On B’s death, the property will pass to B’s
heir. If B dies leaving a wife, the wife will
inherit the property with limited interest.
Paternal Uncle PU will not inherit the
property.
• However, if the wife of B dies, PU will
inherit the property as the next heir of B.
PU being a male will be last full owner and
fresh stock of descent.
 Property once vested cannot be divested
&
Inheritance never in abeyance
• Property once vested upon someone cannot be divested and this is a
fundamental principle of property law.
• Therefore, property should be vested upon a person following due
regulations and process of law.
• Inheritance refers to an automatic transfer of property of the deceased to
his heirs.
• Therefore, devolution of property cannot be kept in abeyance for the
expectation of the birth of a preferrable heir especially when the heir has
not been conceived at the time of the owner’s death.
• On the death of a Hindu, his nearest heir becomes entitled immediately to
inherit the property left by the deceased.
• Once the property becomes vested on the nearest heir of the deceased, he
cannot be divested from the property.
 Property once vested cannot be divested
&
Inheritance never in abeyance
•Inheritance of property may be remain in abeyance under
two exceptional circumstances:
•To vest the property upon a preferential heir such as a son
or daughter who was conceived before or at the time of
their father’s death.
•To vest the property to an adopted son who has been
adopted by the widow of the deceased in the due exercise
of the authority given to her by her deceased husband.
 Property once vested cannot be divested
&
Inheritance never in abeyance
• A, dies leaving his wife W, an A
insane son S and a nephew N.
(deceased)
• The widow W will inherit the
property and the son S will be
excluded from inheritance due W S
to insanity.
(Widow) (Insane)
• After the death of widow W, the
nephew N will inherit the
property as the next preferential N
heir of A. (Nephew)
 Property once vested cannot be divested
&
Inheritance never in abeyance
• The insane son S gets married with A
SW who gives birth to a son GS.
(deceased)
• GS claims the property from
Nephew N.
W S
• GS is not entitled to inherit the
property as the property has (Widow died (Insane Son)
already been vested upon the after inheriting
property )
nephew N and it cannot be
divested. GS SW
(Wife of the insane
• However, if GS was conceived at (Son of the son S)
insane son S)
the time of W’s (widow of the
deceased A) death, then GS would
have inherited the property. N
(Nephew)
 Doctrine of Spes Successionis
•The right of a person to succeed as heir on the death of a
Hindu person is a mere spes successionis, i.e. bare chance of
succession.
•It is not a vested interest, therefore, the potential heir
cannot transfer the property which he might inherit.
•Any agreement to transfer the property entered into by the
potential heir will not bind any person who actually inherit
when the succession opens.
 Doctrine of Spes Successionis
• A has a brother B and uncle U.
• If A dies, B would succeed as A’s nearest
heir if he (B) still remains alive after A’s
death. However, during A’s lifetime B has A
no interest in A’s property. B has only bare
chance of succession.
• Thus, B cannot transfer any interest to his
wife BW which he has not himself accrued. B U
• For the same reason, a sale or mortgage by (Brother) (Uncle)
B to a third person on the expectation that
after A’s death B will inherit the property is
a nullity.
BW
• If B dies before A, the property shall pass to
the uncle U as A’s next heir and not to B’s (Brother’s
wife BW. Wife)
 Doctrine of Representation
• The Doctrine of Representation means the grandson or great
grandson whose fathers died before the succession opened will
represent their ancestors.
• A son, a grandson whose father is dead and a great-grandson whose
father and grandfather both are dead, all inherit simultaneously the
property of their paternal ancestor.
• The grandson represents his father’s share and the great-grandson
represents his father’s and grandfather’s share.
• Sons, grandsons and great grandson inheriting together succeed to
the estate of the deceased as coparceners.
 Doctrine of Representation
• A, a Hindu male, dies leaving a Son (Son 1), a Grandson (Grandson 1), a Great
Grandson (Great Grandson 1) and a Great Great Grandson as shown in the
diagram in the next slide.
• A’s property will be inherited by Son 1, Grandson 1 and the Great Grandson 1.
They will hold the property together as coparceners.
• Here, Grandson 1 represents the share of his father Son 2 who is pre-deceased.
• Great Grandson represents his father (Grandson 2) and grandfather’s (Son 3)
share who are pre-deceased.
• The Great Great Grandson (whose father, grandfather, great grandfather and
great great grandfather are all dead/predeceased) is not entitled to inherit the
property. This is because the Doctrine of Representation does not extend/apply
beyond four generations.
• This is the only example/situation in which the Doctrine of Representation
applies.
 Doctrine of Representation
A
(Deceased)

Son 2 Son 3 Son 4

Son 1
(Pre-deceased) (Pre-deceased) (Pre-deceased)

Grandson 2 Grandson 3
Grandson 1 (Pre-deceased) (Pre-deceased)

Great
Great Grandson 2
Grandson 1 (Pre-deceased)

Great Great
Grandson
 Co-Heirs
Tenants-in-Common & Joint Tenants
• Co-heirs are persons who inherit the property of the deceased together.
• Co-heirs can inherit property either as ‘Tenants-in-Common’ or ‘Joint Tenants’.
• A Tenant-in-Common means a heir who holds a defined share in the property
which devolves upon his own heirs after his death.
• The Joint Tenants refers to the heirs who have a unity of ownership over the
inherited property. Upon the death of one Joint Tenant, his interest in the
property passes to the other Joint Tenant/s. Thus, the property does not pass to
the own heirs of the deceased Joint tenant.
• In the Dayabhaga School, two or more persons inheriting together take the
property as Tenants-in-Common.
• In the Dayabhaga School, only the following persons take the property as Joint
Tanants:
• Two or more Widows
• Two or more Daughters
 Co-Heirs
Tenants-in-Common
Tenants-in-Common Tenants-in-Common
• A, a Dayabhaga Hindu, dies leaving
two sons, Son 1 and Son 2.
• Son 1 and Son 2 will inherit their
SD
father A’s property as
Tenants-in-Common.
Son 1 (Daughter
A of Son 1)
• If Son 1 dies leaving a daughter SD,
(Deceased)
then Son 1’s share will be inherited
Son 2 by his daughter SD.
• This same rule shall apply if a Hindu
person dies leaving a son and a wife,
two or more sons, brothers, uncles,
nephews etc.
 Co-Heirs
Joint Tenants
Joint Tenants Joint Tenants
• A, dies leaving two widows.
• The Widows will inherit their
A husband A’s property as Joint
Tenants.
(Deceased) • If the Wife/Widow 1 dies, her
undivided interest in the property
shall pass to Wife/Widow 2 by
survivorship.
W1 W2 • When one of the joint tenants die the
(Wife/Widow 1) (Wife/Widow 2) other joint tenant takes the property
by the rule of survivorship.
 Co-Heirs
Joint Tenants

Joint Tenants Joint Tenants

• A, dies leaving two daughters D 1 and
D 2.
A • The daughters will inherit their father
(Deceased) A’s property as Joint Tenants.
• If D 1 dies, her undivided interest in
the property shall pass to D 2 by
survivorship.
D1 D2 • When one of the joint tenants die the
(Daughter 1) (Daughter 2) other joint tenant takes the property
by the rule of survivorship.
 Succession Per Stirpes & Succession Per
Capita
Succession Per Capita
•Heirs of the same relationship with the deceased
person take the property per capita.
•This means that the property of the deceased person
is divided in to as many shares as the number of heirs
and each heir take one share. This is called Succession
Per Capita.
 Succession Per Capita

A
A
(Deceased)
(Deceased)

Son 1 Son 2 Son 3

1/3 1/3 1/3 Brother 1 Brother 2
1/2 1/2
 Succession Per Capita

A A
(Deceased) (Deceased)

Wife Son Daughter 1 Daughter 2

1/2 1/2 1/2 1/2
 Succession Per Stirpes & Succession Per
Capita
Succession Per Stirpes
• Succession Per Stripes means succession according to stock.
• Succession Per Stirpes applies when there are different number of heirs in
different branches. The heirs belonging to each branch gets share from the
property available to the branch where they belong.
• The heirs belonging to each branch shall take Per Stirpes and then the
property will be divided among them Per Capita.
• Succession Per Stripes only applies to the following cases –
• When a Person dies leaving sons, grandsons and great grandsons. These heirs take
the property by Succession Per Stirpes.
• Son’s sons, daughter’s sons and daughter’s daughters succeeding to Stridhan take
by Succession Per Stirpes.
 Succession Per Stirpes

A
(Deceased)

Son 2 Son 3
Son 1
(Predeceased) (Predeceased)
1/3
1/3 1/3

Grandson 1 Grandson 2
Grandson 3
1/2 of 1/3 1/2 of 1/3
1/3
= 1/6 = 1/6