FAMILY LAW – II

Historical perspectives of Hindu

law of inheritance
Introduction
The traditional Hindu law is one of the oldest of personal laws in the world.
Unlike positive law, according to which laws are those which are made by a
sovereign (a human), Hindu law looked to Vedas as the most earlier sources
of law. According to ancient Hindu jurisprudence, Vedas were the source of
“Dharma” which means a person’s moral, social and legal duties, which a
person is supposed to obey and adhere to. However, Vedas (also
called shrutis) were not the formal sources of Hindu law. Smritis were the
formal sources which were based on the Vedas. The Smritis enunciate rules
of dharma (Mulla). Shruti, which strictly means the Vedas, was, in theory, the
root and original source of dharma. The traditional Hindu Law, especially in
the context of inheritance, was patriarchal and much emphasis was on the
male aspect. However, the Hindu Succession Act has fundamentally altered
that concept and thus the specific reference to changes under the Hindu
Succession Act has also been pointed out.

Schools of Hindu law

Various commentaries and digests have resulted in the emergence of two
schools of Hindu law, the Mitakshara and the Dayabhaga, which contained
the law of inheritance. These schools had their own operational areas and
were recognised in different parts of India. Before the advent of British rule,
the major laws of inheritance in India had either their roots in religion or were
deeply influenced by personal laws which owed their allegiance to religion
and custom. The fundamental difference between these two schools is on the
principle based on which the right to inheritance is to be determined.

In the Mitakshara school of inheritance, property is inherited by the

successors (coparceners) merely based on the fact that they were born in the
family of the property holders and in case of Dayabhaga the property goes to
the successors (coparceners) on the death of the father or holder of the
property.

The Mitakshara was considered to be more biased against women and gave
them the least rights to inherit property. Though Dayabhaga was also biased,
it still gave more rights to the women and was thus considered to be a liberal
school.
Mitakshara school which was interpreted by Vijaneshwar’s commentary and
was prevalent all over India except Bengal and Assam, whereas,
Dayabhagha, as interpreted by Jeenutavahan, was prevalent only in Bengal
and Assam.

Understanding the law of inheritance

Few concepts need to be understood first in order to understand the Hindu
law of inheritance.

Joint Hindu family

Joint Hindu families consist of all members who are descendants of common
male ancestors and such members include daughters, wives and widows as
well. The male ancestor is the head of the Joint Hindu family. Thus, a Joint
Hindu family includes the common male ancestor of his wives and unmarried
daughters and sons, collaterals and their wives, sons and unmarried
daughters. Wife deserted by husband u/s 13 (1)(ib) of Hindu Marriage Act
1955 that is husband left a wife without any cause for more than 1 year.
There was no limit to the number of descending generations. This was the
joint Hindu family in the traditional context.

An unmarried daughter on marriage ceases to be a part of her father’s joint

family and joins her husband’s joint family as his wife. If a daughter becomes
a widow or is deserted by her husband and returns to her father’s house
permanently, she again becomes a member of her father’s joint family. Her
children, however, don’t become members of her father’s joint family and
continue being members of their father’s joint family. The cord that knits the
members of a joint family is not property but the relationship with one
another.

In simple words, a joint Hindu family is a group of relatives related by blood

and kinship. It consists of common male ancestors, wives of all those people
who are related to the common male ancestor, their sons, their unmarried
daughters, and people like uncles, aunts, his nephews, nieces etc. The joint
and undivided Hindu family is the normal condition of the Hindu society.

Mitakshara School
Coparcenary under Mitakshara is different from a coparcenary under
Dayabhaga.
Coparcenary
The unique concept of coparcenary is the product of ancient Hindu
jurisprudence which later on became the essential feature of Hindu law in
general and Mitakshara school of Hindu law in particular. The concept of
coparcenary as understood in the general sense under English law has a
different meaning in India or the Hindu legal system. In English law,
coparcenary is the creation of the act of parties or the creation of law. In
Hindu law, coparcenary cannot be created by acts of parties, however, it can
be terminated by acts of parties

As stated earlier there was no limit to the number of generations descending

from a common male ancestor in a Joint Hindu family. However, this is not
the case in a coparcenary. A coparcenary is a type of relationship which is
narrower or smaller than the joint Hindu family, its generations are limited.

Within a joint Hindu family, there is another body of persons called

coparcenary which consists of a father, his son, his grandson and his great-
grandson. Thus, from a common male ancestor, only males descending up to
3 generations were considered as a coparcenary and only these coparceners
had a right to inherit the coparcenary property by birth being the sons,
grandsons, and great-grandsons of the holders of the property for the time
being.

For instance, if F is a common male ancestor then the coparcenary will

consist of 3 generations below him, who are F’s lineal descendants i.e. F’s
son, F’s grandson and F’s great-grandson. F is common to all three
descendants. The three generations are to be counted excluding the last
male holder.

Thus, under traditional Hindu law coparcenary consisted only of male

members, females were excluded. Only the males (coparceners) had the
right to inherit the coparcenary property and only they could demand
partition. Therefore, the wife and daughters were not members of the
coparcenary. Traditionally, coparceners were those who could perform
funeral rites and this was available only to the males.

Coparcenary property or ancestral property is that property which a

coparcener has inherited either from his father, grandfather or great
grandfather. The said property must be inherited and should not be received
either through a will or gift. Further, under a Mitakshra coparcenary, right to
such property is available only to the son(s), grandson(s) and great-
grandson(s), who formed the coparcenary under Mitakshara school, and no
female had a right to such property. Thus, in other words, only agnates had
the right to such property and not cognates. Although females were not part
of coparcenary, they were entitled to maintenance out of coparcenary
property.
It must be noted that the above definition of coparcenary and demand to ask
for partition is under the traditional Hindu law, now the meaning and import
of coparcenary has been changed after the 2005 amendment to Hindu
Succession Act,1956. After the 2005 amendment, even daughters are also
included in the coparcenary in the same sense of the son as if she is also a
son.

Devolution of property
The right to coparcenary property accrued to a coparcener on his birth itself
is a striking feature of Mitakshara coparcenary. Thus, the existence of male
owner of the property was not a hindrance to the acquisition of coparcenary
property, because the factum of birth was enough to bestow the right to
property. Therefore, it is said that a coparcener has an “unobstructed
heritage” to coparcenary property i.e. the right to such property is not
obstructed by the existence of the male ancestor i.e. father, grandfather and
great-grandfather. The allocation of the inherited property was based on the
law of possession by birth.

Further, under the Mitakshara school, the property devolved as per

survivorship i.e. on the death of the last male holder property will devolve in
equal share to those coparceners who are surviving within the coparcenary.
This means that if one of the coparceners other than the last male holder
dies, then his (deceased) probable share would be distributed among the
surviving members of the coparcenary. He leaves nothing behind that can be
called his own share in the joint property.

For example, a coparcenary comprises the father and his two sons. Each of
them has a probable 1/3rd share in the property until the undivided status is
maintained. On the death of one of the sons, his probable 1/3rd in the
property is taken by the surviving coparceners ie father and the surviving
brother and the deceased will die without any share in the coparcenary
property. The share of the father and the surviving son will be increased to a
probable half. The right of survivorship is one of the basic rights of a
coparcener. Thus, the quantum of interest of an individual coparcener is not
fixed as it fluctuates with deaths and births in the family.

This can also be understood as because there is a community of ownership

(co-owners) and unity of possession of coparcenary property by the
coparceners, their specific share is not fixed or they cannot call a specific
portion of coparcenary property as their own until a partition takes place.
There is a common enjoyment of coparcenary property by the coparceners.

This concept of survivorship has been removed after the 2005 amendment to
Hindu Succession Act, now the only way for devolution of property is either
by a will (testamentary) or by the rules of intestate succession given under
Hindu Succession Act.
Dayabhaga School

Coparcenary
There is no concept of a joint family under the Dayabhaga school as
compared to the Mitakshara. There is no coparcenary consisting of father,
son, son’s son (grandson), son’s son’s son(great-grandson). The existence of
a Dayabhaga coparcenary comes only after the death of the father, after
which the son will inherit the property of him and constitute a coparcenary. In
this school, there is no right by birth given to the son. There is also no
distinction between separate and coparcenary property and the entire
concept is based on inheritance, i.e. that the sons inherit the property of their
father after his death.

In a Dayabhaga joint family, the father has absolute powers of management

and disposal over the separate as well as the coparcenary property and the
sons have only a claim of maintenance. It is because of this reason there is
no concept of fluctuating interest of coparceners in Dayabhagha family, as
births and deaths of coparceners, does not affect the absolute right to the
father to the property.

As stated earlier, although there is no coparcenary between father and his

male lineal descendants this does not mean there can be no coparcenary
between two brothers. For instance, F is an absolute holder of a certain
property. He has 2 sons S1 and S2. Now since this is a Dayabhagha family
there is no coparcenary relationship between F and his sons who are his
lineal descendants. After the death of F, the property will go to his sons. But
now there can be a coparcenary relationship between S1 and S2 for
distribution of property. Thus, it is wrong to say that the coparcenary concept
is completely absent in a Dayabhagha family.

Further, females can also become a member of a Dayabhagha coparcenary.

If a male dies without leaving a son, then his place is taken by his wife (now a
widow) or daughters if the widows also die. Thus, Dayabhaga school is more
liberal than the Mitakshara school, however, still, male members were
predominant. Therefore, there is no concept of survivorship in a Dayabhagha
coparcenary.

Devolution of property
Unlike under the Mitakshara school, in which a coparcener has a right to the
property since his birth, under Dayabhaga the right to inherit property arises
only on the death of the father. Thus, the birth has nothing to do with the
right to inherit the property, therefore it is said that under Dayabhaga school,
a coparcenary has unobstructed heritage. The property is inherited in the
Dayabhaga school after the death of the person who was in possession of it.

Since the coparceners under Dayabhaga have no right to property because of

their birth in the family, the father thus has absolute right to dispose of all
kinds of property, separate as well as ancestral, by sale, gift or through a will.
Thus, there is no unity of possession and common ownership of coparcenary
property. In other words on the death of the father, where he is survived by
two or more of his sons, all of them inherit his property jointly and hold it as
tenants-in-common. Under Dayabhaga the father has an absolute right of
alienation of property, whether it is self-acquired or ancestral.

Conclusion
The traditional Hindu law did not treat women equally as men, they were not
given rights similar to what men had. One of the earliest acts to give women
the right to ancestral property was The Hindu Women’s Rights to Property
Act, 1937. However, the landmark change in women’s status in the ancestral
property was brought by the amendment to the Hindu Succession Act 1956.
It for the first time enabled women to be a coparcener and to have the same
rights in ancestral property as she would have had if she had been a son.
However, despite this, the interpretation of court of the Act particularly
in Prakash v.Phulavati (2015) did not confer rights to all females. Daughters
whose father had passed away before coming into force of 2005 were not
covered under the new amendment. However, this was also rectified
in Vineeta Sharma vs Rakesh Sharma, in which the Supreme Court gave
retroactive effect to the 2005 amendment and truly made women a
coparcener in the same manner as the son. This judgement has removed the
final hurdle in women’s right to ancestral property.

Succession of Hindu Male Dying Intestate under the Hindu Succession Act

Introduction

Succession in India can be categorized into testamentary and intestate succession.

Testamentary succession denotes succession via will while intestate succession
refers to succession when someone dies without a will.

The Hindu Succession Act, of 1956 governs the intestate succession to a Hindu
male’s property under Hindu law. A will is an instrument that denotes the wishes
of the deceased with regards to the devolution of their property. When a Hindu
male dies without making a will, his property is distributed among his legal heirs
according to the provisions of the Act.
 The Hindu Succession Act, 1956, divides the heirs into four classes. The
distribution of property depends on the class of heirs and their proximity to the
deceased.

Class I Heirs of Hindu Male

Class I heirs are the closest relatives of the deceased and are entitled to inherit the
property in the first instance.

The Class I heirs include the following:

 Widow of the deceased

 The son(s) and daughter(s) of the deceased
 The mother of the deceased
 The heirs of the predeceased son or daughter of the deceased and,
 The widow of the predeceased son of the deceased

In the event that there is more than one Class I heir, they share the property
equally.

Case I
When a Hindu male dies intestate, leaving behind a widow, children, and mother

When a Hindu male dies intestate, leaving behind a widow, children, and mother,
the property is distributed equally among them. Each of them is entitled to an equal
share of the property.

Case II
When a Hindu male dies intestate, leaving behind a widow, children, and no
mother

When a Hindu male dies intestate, leaving behind a widow, children, and no
mother, the widow and children are entitled to equal shares in the property. The
widow is entitled to one share, and the remaining shares are divided equally among
the children.

Class II Heirs of Hindu Male

If there are no Class I heirs, the Class II heirs take ownership of the property.

The Class II heirs include the following:

 Father of the deceased

 The son(s) and daughter(s) of the predeceased son or daughter of the deceased
 The brother(s) and sister(s) of the deceased
 The nephew(s) and niece(s) of the deceased

The property is distributed among the Class II heirs in the order mentioned above.
If there is more than one heir in a class, they share the property equally.

Case III
When a Hindu male dies intestate, leaving behind no Class I heirs but a Class II
heir

When a Hindu male dies intestate, leaving behind no Class I heirs but a Class II
heir, the Class II heir is entitled to inherit the entire property.

Agnates or Class III Heirs of Hindu Male

If there are no Class I or Class II heirs, the property passes on to Agnates. Agnates
are the relatives of the deceased through male lineage.

The order of succession among agnates is as follows:

 Son’s son’s son

 Son’s son’s daughter
 Son’s daughter’s son
 Son’s daughter’s daughter
 Brother
 Brother’s son
 Brother’s daughter
 Father’s brother
 Father’s brother’s son
 Father’s brother’s daughter
 Father’s sister
 Father’s sister’s son
 Father’s sister’s daughter

Cognates or Class IV Heirs of Hindu Males

If there are no agnates, the property passes on to cognates. Cognates are the
relatives of the deceased through female lineage.

The order of succession among cognates is as follows:

1. Mother’s mother
2. Mother’s father
3. Mother’s brother
4. Mother’s sister
5. Father’s mother
6. Father’s father’s mother
7. Father’s father’s father’s mother
8. Father’s father’s sister
9. Father

Case in absence of any of the above-mentioned Heirs

It is important to note that in the absence of any of the above-mentioned heirs, the
property will escheat to the government. Therefore, it is advisable to make a will,
which will help in the smooth transfer of property to the desired person and avoid
any conflicts that may arise between the legal heirs.

The 2005 amendment to the Hindu Succession Act, 1956

In addition, the Hindu Succession Act, 1956, was amended in 2005 to give equal
rights to daughters in ancestral property. Before the amendment, daughters did not
have any right to the ancestral property and could only claim a share in the self-
acquired property of the father.

After the amendment, daughters are now considered coparceners and have the
same rights and liabilities as the sons in the ancestral property. The amendment is
applicable retrospectively from 1956, the year when the Hindu Succession Act
came into force.

The amendment has given a boost to women’s rights and made them equal partners
in ancestral property. It has also addressed the issue of gender discrimination and
brought the Hindu Succession Act in line with the Constitution of India, which
guarantees equality before the law to all citizens.

Conclusion

In conclusion, the Hindu Succession Act, 1956 governs the succession to a Hindu
male’s property upon his death intestate. The Act divides the heirs into four
classes, and the property is distributed among the legal heirs based on their
proximity to the deceased. It is advisable to make a will to ensure a smooth transfer
of property to the desired person and to avoid any conflicts that may arise between
the legal heirs.