Introduction
The laws related to Hindu’s is one of the oldest personal law in the world. Unlike, Positive law, in which the law is formed by sovereign authority (a human), Hindu law concerns to Vedas as the earliest source of law. If we look into the Hindu Jurisprudence, Vedas was the source of “Dharma”. It means a moral & social duty of a person which is supposed to obey & adhere to. Although, Vedas, also known as Shruti’s is not the formal source of Hindu law. Smritis were the formal sources which were based on Vedas. The law related to the context of Inheritance in Hindu’s was patriarchal & much focuses on the males. However, the Hindu Succession Act has fundamentally modified that concept & thus necessary reference to changes has also been pointed out in the Act.
Schools of Hindu Law
There were mainly two schools in Hindu law, the Mitakshara & the Dayabhaga which concerns with the law of inheritance. The basic difference between Mitakshara & Dayabhaga is on the principle based on which the right to inheritance is to be determined.
Mitakshara is the most important & oldest schools of Hindu law. This school is practiced in India except in the state of West Bengal and Assam. In this school of inheritance, property is inherited by the successors (coparceners) only if they were born in the family of the property owners.
Dayabhaga is mainly practiced in Assam & West Bengal. It is also important schools of Hindu law. In this school of inheritance, the property goes to the successors (coparceners) only when the property owner is dead.
In the Mitakshara school of inheritance, property is inherited by the successors (coparceners) only when they were born in the family of the property holder.
In the case of Dayabhaga school of inheritance, property is inherited by the successors (coparceners) only when the holder of the property is dead.
It is generally seen that Mitakshara school of inheritance is biased against women & gave them very less right to inherit property. Although Dayabhaga is also biased, but it gives more rights to women to inherit property compared to Mitakshara. It is a liberal school.
The Hindu Succession Act, 1956
The Hindu Succession Act, 1956, amended in 2005, tells the law relating to intestate succession. The act concerns to succession & inheritance of property. It ensures equality between son & daughter while inheriting the property.
The act is applicable to all Hindus including Buddhist, Sikh, or Jain by religion. It does not include those Hindu who is married under the Special Marriage Act to a non-Hindu.
Let us understand different terms which is mentioned under Section 3 of the Hindu Succession Act, 1956 so that we can easily understand the Law of Inheritance.
Agnate, if one person is said to be agnate of another, it means they both are related by blood or adoption wholly through males. The ascendant or descendant of a Hindu in a male line of succession through male are agnate. E.g., father, grandfather, uncle’s son, son, or grandson etc.
Cognate, if one person is said to be cognate of another, it means they both are related by blood or through adoption but not wholly through males. E.g., son’s daughter’s son or daughter, sister’s son or daughter, mother’s brother’s son, etc.
Heir, any male or female who will receive the property of the intestate.
Intestate, refers to that person who dies without leaving behind a will. When there is no will of the person dead, then acceptable succession laws came into effect for the transfer of assets held by that person to the legal heirs.
Types of Succession
The regulation which deals with the inheritance of property is known as law of succession. Succession deals with the transfer of property after the death of the property holder, if he/she does not leave behind any will. Succession & inheritance follow in two ways:
- Intestate Succession (without a will),
- Testamentary Succession (by a will).
Classification of Heirs of a Hindu Male
The heirs of a Hindu male fall under the below mentioned types:
- Class I heirs,
- Class II heirs,
- Agnates,
- Cognates &
- Government.
If nobody from the Class I heirs takes the property, then Class II heirs fall in line to urge the property. Agnates (Class III heirs) only inherit the property when none from the earlier classes gets the property. If nobody from the sooner three classes exist, then it goes to the cognates (Class IV).
Class I Heirs,
- Mother,
- Widow,
- Daughter,
- Son,
- Widow of a predeceased son,
- Son of a predeceased son,
- Daughter of a predeceased son,
- Widow of a died son of a died son,
- Daughter of a died son of a died son,
- Son of a died son of a died son,
- Daughter of a predeceased daughter,
- Son of a predeceased daughter.
Heirs in Class I inherit simultaneously – one does not exclude the other. All of them will inherit simultaneously & even if any of them is present, then the property will not go to the Class II heirs. All Class I heirs have absolute rights in the property and the share of a Class I heir is separate, & no person can claim a right by birth in this inherited property. A Class I heir will anyhow get their property cannot be taken away even on the basis of remarriage or conversion etc.
Class II Heirs,
- Father,
- Son’s Daughter’s son,
- Son’s Daughter’s daughter,
- Brother,
- Sister,
- Daughter’s Son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s daughter’s daughter,
- Brother’s son, sister’s son, brother’s daughter, sister’s daughter,
- Father’s father, father’s mother,
- Father’s widow, brother’s widow,
- Father’s brother, father’s sister,
- Mother’s father, mother’s mother,
- Mother’s brother, mother’s sister.
Now still, if an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this act, such property shall depend on the government. The government shall take the property subject to all or any obligations and liabilities to which an heir would have been subject.
Amendment, 2005, Section 6
The Hindu Succession (Amendment)Act, 2005, daughter will be entitled to an equal share within the property. The Daughter will have the same & equal property as the son.
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