Session:2011-2016 FAMILY LAW “ Disqualification as to succession under Mitakshara law” Acknowledgement

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Contents

ACKNOWLEDGEMENT 2 INTRODUCTION 3 The Hindu Succession Act: Divergence from tradition 4 PROVISIONS OF SUCCESSION UNDER HINDU SUCCESSION ACT 5 LAWS OF DISQUALIFICATIONS 7 SUGGESTIONS : 13 CONCLUSION 14 BIBLIOGRAPHY 15

Introduction

Succession under Hindu Law
‘Succession’ implies the act of succeeding or following. It implies the transmission or passing of rights from one to another. In every system of law provision has to be made for a readjustment of things or goods on the death of the human beings who owned and enjoyed them.
The rules of succession are, in modern systems of law, subject to many rules. Such rules may be based on the will of a deceased person. However, there are cases in which a will cannot be expressed, when the person holding the property may have died intestate. In such cases, there need to be some broadly accepted rules upon which the property shall devolve upon those succeeding him. There can be no doubt, however, that these rules primarily are the characteristics of the social conditions in which that individual lived. They represent the view of society as to what ought to be the normal course of succession in the readjustment of property after the death of a citizen.
It is upon this basis that noted author Mulla states, “the law of inheritance comprises of rules which govern devolution of property, on the death of the person, upon other persons solely on account of their relationship with the former.” Speaking purely in legal terms, Black’s Law Dictionary defines inheritance as “receipt of a property from an ancestor under the laws of intestacy” i.e. “by bequest or device.”
The Hindu succession act 1956 came with the objective of providing a comprehensive and uniform scheme of intestate succession for Hindus. According to Hindu law, the inheritance rights of person were not absolute. Despite the nearness of relationship, a person could still be disqualified from inheriting property on account of his certain physical or mental infirmities, or a specific conduct. In Old Hindu Law, this exclusion from inheritance was not merely on religious grounds , an incapability to perform religious rites, but depended upon social and moral grounds and bodily defects as well. Under Modern Hindu Law, The law relating to succession for Hindu’s is governed by Hindu Succession Act, 1956. Under this Act Sections 24 to 28 deal with disqualifications of heirs. Section 28 lays down that no person shall be disqualified from succeeding to any property on any ground except those expressly mentioned in the Act and they are : In case of remarriage by certain widows mentioned under S.24, In case of murder falling under S.25, In case of conversion to another religion as per S.26
The Hindu Succession Act: Divergence from tradition
The Hindu law of succession underwent its first modification by the Caste Disabilities Removal Act, 1850, a general statute, i.e., which applied to all communities and by which conversion ceased to be a disqualification. The Act applied only to the person who had either renounced his religion or was deprived of caste, but it did not enable his descendants to claim the benefit of the provision. This is also the position under the Hindu Succession Act of 1956.
Since the traditional Hindu law did not provide for testamentary succession, the Hindus were permitted to dispose of their property by will for the first time by the Hindu’s Will Act, 1870. In this regard, Madras passed the Hindu Transfer of Bequests Act in 1914 and finally the Central Legislature passed the Hindu Disposition of Property Act in 1916. The provisions of the Hindu’s Will Act, 1870 were, with some modifications, re- enacted in the Indian Succession Act, 1925, which now governs the testamentary succession among Hindus. It is also permitted by Section 30 of the Hindu Succession Act, 1956.
The Hindu Inheritance (Removal of Disabilities) Act, 1928, removed the disqualification of congenital lunacy and idiocy. Though this statute has not been expressly repealed, a similar provision has been enacted in the Hindu Succession Act, 1956.
The Hindu Women’s Right to Property Act, 1937, was passed to amend the Hindu law of all schools so as to confer greater rights on certain women than they had. It conferred upon the widow of a man, the right to inherit to the property even when he left behind a male issue.
The Rau Committee on the Hindu Law Reforms submitted a comprehensive Report and a draft Hindu Code Bill in 1948 which proposed to reform and codify the entire Hindu law. Finally, the Hindu Marriage Act was passed in 1955 and the Hindu Succession Act and Hindu Minority and Guardianship Act were passed in 1956.

PROVISIONS OF SUCCESSION UNDER HINDU SUCCESSION ACT

1) Sections 8, 9 and 10: Succession to the property of a Hindu male –
The Hindu Succession Act, 1856, still retains the dictionary of the old Hindu law where succession to the property of a Hindu male and a Hindu female was dealt with separately. Sections 8 to 13 deal with succession to the property of a Hindu male. The heirs of a Hindu male are broadly of four types – Class I, Class II, agnates and cognates. The persons included in these categories are mentioned in the Schedule to the Act.
Section 8 lays down the order of priority among these classes of heirs by laying down that the property will first go to the Class I heirs and in their default to Class II heirs, failing which to agnates and thereafter to cognates.
Section 9 lays down that Class I heirs are simultaneous heirs, i.e., no one excludes the other, all take simultaneously in accordance with the rules of distribution of property among them, while Class II heirs, who are listed in nine categories in the Schedule, the heirs in the previous category are preferred to later categories.
Section 10 lays down rules of distribution of property among Class I heirs. Section 11 lays down rules of distribution of property among a category of Class II heirs. Section 12 lays down that agnates, however remote, will always be preferred over a cognate, however proximate. Section 13 provides the modes of computation of degrees among the agnates and cognates for the purpose of determining their order of succession. This is a divergence from classical Hindu law, where all the coparceners succeeded to the property of the deceased and all other relations, however proximate and all the legal heirs of the deceased were excluded.

2) Section 14: Property of a female Hindu to be her absolute property
In traditional Hindu law, a female Hindu’s property were of two kinds; stridhana and women’s estate. This Section of the Hindu Succession Act has abolished the division of property belonging to a woman into these two categories. It has converted a woman’s estate and stridhana into her full estate. This Section is the continuation of the main object of this Act, namely to grant better rights to women. It applies to those women’s properties which were in the possession of the woman when the Act came into force.
Sections 15 and 16 of the Act deal with the general rules of succession to the property of a Hindu female dying intestate and the order of succession. It is interesting to note that although there is no such thing as stridhana and woman’s estate after the coming into force of this Act, the source of acquisition of a female Hindu’s property is still important, as the order of heirs depends upon the source of the property of a Hindu female.

3) Section 21: Presumption in case of simultaneous deaths –
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. If the evidence before the Court was balanced, the balance of probabilities was considered to be in the favour of the younger.
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 instatus 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.

4) Section 30: Testamentary succession –
The ancient Hindu laws of succession did not permit any alienation of the coparcenary property by way of will. After the death of a coparcener, his interest was to be distributed equally amongst the remaining coparceners. But this Section has changed the principle and allowed a Hindu, male or female, to alienate their property by way of a will nama, in accordance to the provisions of the Indian Succession Act, 1925.

LAWS OF DISQUALIFICATIONS

Section 24. Certain widows remarrying may not inherit as widows: Any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried.
Purpose of the section:
In the objects and reasons appended to Hindu Succession Bill 13 of 1954(S. 28 of these bill corresponds to S.24 of the said Act) it was stated “the principle underlying this clause is that the widow is the surviving half of her husband, and therefore, when she remarries, she ceases to continue to be such (Section 2 of the Hindu Widow Remarriage Act, 1856), on this basis divested the inheritance already vested in the widow on her remarriage. As the law stands, remarriage disables a widow of a gotraja sapinda from succeeding to the property of a male Hindu when on the date succession opens, she has ceased to be the widow of a gotraja sapinda by reason of remarriage”.
Ambit of the section:
Under the hold Hindu law, certain family’s heirs if they had married before succession opened were disqualified from inheriting the property of the deceased intestate. Under the widow remarriage act 1956, if a Hindu widow remarried, she was divested of the property of her husband which had vested in her as heir.
Under this section only three female heirs are disqualified from inheriting the property of the intestate if they remarried before his death. These females are: (i) son’s widow, (ii) son’s son’s widow and (iii) brother’s widow. No other widow except these three is disqualified from inheritance even if she had remarried before the intestate died. Even father’s widow including stepmother also is not disqualified from inheritance even if she remarried before the succession opened. Also one’s own widow will not be divested of the property already vested in her, on her remarriage. If any of these three widows have remarried before the death of the intestate they incur disqualification. In these section intestates widow is also not disqualified because intestate’s widow’s remarriage before succession opens does not arise, as even if she had, married a second time her marriage would be void, and a void marriage is no marriage. In other words she remains to be a member of the intestate’s family even is she has married before intestate’s death because she is already married and second marriage cannot subsist and so it is void. Since there is no second marriage she remains to be the member of the family and hence she is entitled to inherit the property.

Applicability of the section:
The section applies only to intestate succession. The testamentary succession is beyond the scope of this section, since a testator has power to lay down in his will any conditions on which a legatee will take the legacy. The section applies only to Class I and Class II heirs of a Hindu male. It is submitted that the question of its application in other cases does not arise, as cognates and agnates are all blood relations. In fact, even among Class I and Class II heir’s only five heirs are relations by affinity. These are: (1) intestate’s own widow, (2) son’s widow (3) son’s son’s widow (4) father’s widow (5) brother’s widow. The first three are in Class I and last two are in Class, category (VI). Of these the question of intestate’s widow’s remarriage before succession opens does not arise and its reason is already been explained above. Only father’s widow is allowed to inherit even if she had married. The other three widows are disqualified under this section.
Reason for omission of this section:
Section 24 was simply superfluous and redundant. Hence its omission did not create any significant loss and this section was no longer of any use which finally resulted into the omission by the Amendment Act of 2005.
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.
Purpose:
The doctrinaire theory that provisions of a statute of distribution are paramount and forbid the consideration of any disqualification not contained in the statute itself, was discountenanced by the Judicial Committee of the Privy.
The section has the effect of laying down that a person who commits Murder or abets the commission of murder is disqualified from inheriting
(1) The property of the person murdered; or
(2) Any other property he may become entitled to succeed by reason Of furtherance of succession resulting from the murder. It is not necessary for the application of this section that the person Disqualified should have been convicted of murder or abetment of murder. The disqualification will apply if it is established in any subsequent proceeding That the person to be disqualified had committed or abetted the murder. Thus if the case was one of suicide and there was no case of abatement, Such a person would not be disqualified. It stands to reason that a person Prosecuted for murder but acquitted of the charge would not be disqualified.
Application:
The section applies to both intestate and testamentary succession. The section definitely applies in the cases where the property is to be inherited as per the Act but it also applies where the testator has left behind the will. The principle of this section applies also to testamentary succession. The High court of Madras has held in Sarvanabhaba V. Sellammal that there was no distinction between inheritance and testamentary succession to the property of the person murdered and the murderer of the testator is not entitled to the property bequeathed to him under the will. The following passage from Mantha Ramamurthy’s, Law of Wills also suggest the same “It is settled law that a murder is not entitled to succeed to the estate of his victim. A man cannot slay his benefactor and sustain his bounty. It is equally clear that no title to the estate of the person murdered can be claimed through the murder, that the murderer cannot be regarded as a fresh stock of descent. A murderer who is guilty of murdering the testator cannot take any benefit under his will.”
The section applies to succession under the Act. It does not apply to succession under any other enactments or provision governed under any other statute, for example the U.P Zamindari Abolition and Land Reforms Act.
Section 26. Converts 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.
Scope :
Under the old Hindu law conversion by a Hindu to another religion was a disqualification which was removed by the Caste disabilities Removal Act, 1850. Even under this Act, when a Hindu becomes a convert to another religion he continues to have a right to inherit from his Hindu relative but descendants of a convert are disqualified from inheriting the intestate. It is laid down under this section that where a Hindu ceased to be a Hindu by converting to any religion whether before or after the commencement of this Act, the 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 children or descendants are Hindus when the succession opens.

Ceasing to be a Hindu
This section is not concerned with the right of succession of the convert, i.e., of the person who had ceased to be a Hindu. It merely disqualifies his descendants from inheriting the property of the intestate. A Hindu convert to another religion is not disqualified from inheritance even if he is a non Hindu when succession opens. Similarly, his children born to him before his conversion are also not disqualified. This disqualification also does not apply to descendants of the child born before the conversion of his or her parent, though descendants may be born after conversion. Thus, an heir who converts to a nonHindu religion either before or after the commencement of the Act is not disqualified and will be heir of the deceased Hindu.
In Subramanian V. Vijayarani Madras High court has held that the careful reading of S.26 of the Hindu Succession Act would establish that a Hindu ceased to be a Hindu by conversion to another religion and the children born to him or her after such conversion shall be disqualified from inheriting the properties of their hindu relatives. In case of E. Ramesh V. P. Rajini it was held by the court that the claim for share by the daughter in the properties of her parents could not be resisted by her brothers on the ground that she had married a Muslim and would not be entitled to any share.
Descendants of the convert:
The disqualification of descendants of a convert requires two conditions to be fulfilled:
The children are those who are born to him after his conversion.
They or their descendants are not Hindus when succession opens.
The section lays down that converts children born to him after conversion, and the descendants of such children are disqualified as heirs of the Hindu intestate only if they are nonHindu when succession opens. If they are Hindus (obviously by conversion) when succession opens they are not disqualified. If they convert to Hinduism after the succession has opened, they continue to be disqualified. Under this section the descendants of Hindu convert to nonHindu religion cannot inherit the property of a Hindu relative; conversely Hindu relations cannot succeed to their property.

Applicability:
This section has no application to testamentary succession where the terms of the testament govern the rules of succession but it is only applicable to intestate succession.
Prospective or Retrospective:
Section 26 is partly prospective and partly retrospective. It is prospective in the sense that the disqualification under the section will arise only if succession opens after the commencement of this Act. If the succession opened earlier and the intestate died before the Act came into force, the law prevailing at the time will operate. The section is retrospective in one aspect in that the section will apply also to a case where the conversion had taken place prior to the commencement of this Act.
Section 27 . Succession when heir disqualified: If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate. The section lays down the general relating to the effect of disability disqualification resulting from any of the causes mentioned in the group of section 24 to 28 and is in accordance with the rule of Hindu law that where heir is disqualified, the next heir of the deceased succeeds as if the disqualified person had died before the intestate. A disqualified person transmits no interest to his or her own heir. It may be noted that as a general rule disqualification from inheritance is purely personal and does not extends to issue of the disqualified heir unless there is any provision of law to the contraries the provision relating to the decedents of convert of Hinduism.
Ambit of the section:
This section provides for consequences of disqualifications incurred by an heir from inheriting under any provision of the Act. This section lays down that even though the disqualified heir is alive, he will be deemed to be not in existence. The property of the intestate shall devolve as if such person had died before the intestate.

Consequence of disqualification:
Under this section a disqualified heir is deemed to have died before the intestate, it follows that no person can claim the right of inheritance to the property of the intestate through him or her. The word ‘before’ used in the section makes it abundantly clear that the property does not vest in the disqualified heir, and if it does not vest in him, he cannot be the medium of passing property to others. In other, words a disqualified heir cannot be a fresh stock of descent and a person claiming through the disqualified heir cannot succeed. But it makes no difference to the application of the rule whether the convert ceased to be a Hindu before or after the commencement of this Act.
Section 28. Disease, defect, etc. not to disqualify: 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.
Certain defects, deformities and diseases see notes on excluded an heir from inheritance. This was substantially remedied by the Hindu Inheritance(Removal of Disabilities) Act 1928, which ruled that 'no person, other than a person who is and has been from bilth a lunatic or idiot, shall be excluded from inheritance or from any right or share in joint family property by reason only of any disease, deformity or physical or mental defect'. The present section discards almost all the grou1, which, exclusion from inheritance. It rules out disqualification on any ground whatsoever accepting those expressly recognized by any provisions of: Act. Unchastity of a widow is not a disqualification under the nor is conversion of an heir to any other religion a disqualification under the Hindu Succession Act.
The section is not retrospective. The section comes into operation only in cases where succession opens after the commencement of this Act. Where succession opened prior to the commencement of the Act, it was held that the section not being retrospective, an unchaste was not entitled to take shelter under this section. Similarly in one another case of Anhia V. Bajnath a stepmother of the deceased intestate female remarried prior to the commencement of this Act, though the intestate woman died after the commencement of this Act, it was held that the step mother was not entitled to inherit as she was disqualified.
Applicability: The section applies to both testamentary and intestate succession.

SUGGESTIONS :

Sections 24 to 28 of HSA deals with disqualifications to succession and these provisions are explained in great detail in above chapter. From these detailed discussion it can be inferred that under these Act disqualification takes place only in case of remarriage by the widows mentioned in S.24, murder or abetment to murder for furtherance of chance of property (S.25) and by conversion (S.26). It has been expressly provided in S.28 that all other grounds of disqualifications which were prevalent prior to the commencement of this Act have been abolished except those expressly mentioned under this Act. Due to these several grounds such as unchastity, lunacy, idiocy, physical deformity, disease, specific conduct, etc are no more grounds of disqualifications. Under old Hindu law, blindness, deafness, dumbness, want of limb or organ, lunacy, idiocy, leprosy and other incurable disease disqualified a person from inheriting but the Hindu Inheritance (Removal of Disabilities) Act, 1928 declared that no person shall be excluded from inheritance on any of these grounds unless he was from birth lunatic or an idiot but this Act have removed this disqualification provided under Hindu Inheritance (Removal of Disabilities) Act, 1928.

The following should be included in the disqualification to succession: a . Stepmother should be disqualified under S.24 In the original Hindu succession Bill 13 of 1954, clause 28 corresponding to S.24 of HSA included “father’s widow”. So if father’s widow remarried then she was disqualified from inheritance. But in the amended Bill and in the Act, “father’s widow” has been deleted and the reason behind this is that father’s widow includes both mother and stepmother and mother is entitled to inherit the property in her own right and not as an widow of father and so her remarriage should have no consequence.
b. Unsuccessful attempt to murder should also be included in the ambit of S.25. The scope of S.25 is quiet impressive and is very well drafted to include murderer or an abettor of murder of either an intestate or of any person for furtherance of such property. The section disqualifies a murderer or an abettor from inheriting the property of the deceased but it in no way includes the person who has tried to murder the intestate or any other person for furtherance of property but has somehow failed to do so which resulted into an unsuccessful attempt. Thus in order to serve the purpose of the section and on the grounds of justice, equity and good conscience even an unsuccessful attempt to murder should also be included in the ambit of the section.
c. Unchastity of a widow should also be a ground of disqualification. Under old Hindu Law unchastity was a ground for disqualification and it was based on the ground of family prestige, social cohesion and ethics. But S.28 specifically lays down that no person shall be disqualified from succeeding to any property on any other ground except those specifically mentioned in the said Act. In HSA unchastity has not been mentioned specifically as a ground of disqualification and so as per S.28 it is no more a ground of disqualification.
d. Offenses like rape & torture should also be a ground for disqualification. In HSA there is no provision for disqualification for a person committing either rape or torture to intestate or to person from whom he has to succeed.

Conclusion

The principle of equality is equated with “sameness treatment” in an intrinsically unequal society. Law of succession under HSA is dealt by Ss. 24 to 28 and with respect to these sections a person can be disqualified only in case of remarriage by few widows expressly mentioned in the section, when a person commits murder for furtherance of property and when a person is a descendant of a convert. Under only these three circumstances a person can be disqualified to inherit and rest all disqualifications prevalent under old Hindu Law are abolished.
According to my view the following should be included in the disqualification of succession there is no doubt that these sections enacted by the legislatures are well founded and it has done a great job in providing few specific grounds of disqualifications. But in respect to above discussion it is submitted that few other grounds of disqualifications should be added in addition to those already mentioned and they are as follows:
1.Stepmother should be disqualified on remarriage under S.24
2. Unsuccessful attempt of murder should also be a ground to disqualification to succession under S.25
3. Unchaste women should also be disqualified
4. A person committing rape of person from whom he is going to inherit should also be disqualified.
5. A person torturing another person should also be disqualified to inherit the property of that another person. Hence it is submitted that the present law of disqualification under HSA is appropriate for Hindu law and as such there is no need for any kind of change or alteration in these law except that some other grounds of disqualifications as mentioned above should also be added in Hindu Succession Act, 1956.
BIBLIOGRAPHY

Books Referred:
1. Dr. Diwan Paras , Law of Intestate and Testamentary Succession, Ed. 2nd , universal Law Publishing Co. Pvt. Ltd.
2. Desai. S.A., Mulla Hindu Law Vol.II , Ed. 19th, LexisNexis, Butterworth’s
3. Dr. Diwan Paras, Modern Hindu Law, (2005), Ed. 7th ,Edition.
4. P. M. Bromley, Family Law (5th edn., London: Butterworths, 1976).

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[ 2 ]. Latin: successio, from succedere, to follow after
[ 3 ]. Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277.
[ 4 ]. Bryan A. Garner (ed.), Black Law Dictionary, (West Group. St. Minn, 7th edition), 787.
[ 5 ]. Surayya V. Sabbamma (1920) ILR 43 Mad 4
[ 6 ]. Now, Section 24, omitted by Act 39 of 2005, Section 5(w.e.f 9-9-2005)
[ 7 ]. Section 26.
[ 8 ]. Section 28.
[ 9 ]. Digendra Kumar Roy v. Kuti Mian, AIR 1944 Cal 132.
[ 10 ]. Yeknath v. Lakshmibai, AIR 1922 Bom 347.
[ 11 ]. Dr. Diwan Paras , Law of Intestate and Testamentary Succession, Ed. 2nd , universal Law Publishing Co. Pvt. Ltd.
[ 12 ]. supra 12
[ 13 ]. Mani V. Paru ; AIR 1960 ker 195
[ 14 ]. Ibid 12
[ 15 ]. (2001)2 MLJ 444
[ 16 ]. 10(1999)1MPLJ69
[ 17 ]. Desai. S.A., Mulla Hindu Law Vol.II, Ed. 19th, LexisNexis, Butterworth’s .
[ 18 ]. Appa Sahib V. Gurubaswa AIR 1960 Mys 79 ; Vedavyas Rao V. Narayana Rao AIR 1962 Mys 18
[ 19 ]. AIR 1974 Pat 177