Devolution of Interest in Case of Male Dying Intestate

 INTRODUCTION

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. Succession, in the sense of the partition or redistribution of the property of a former owner is, in modern systems of law, subject to many rules. Intestate succession is defined by Legal Dictionary as the distribution when a person dies without leaving a valid will and the spouse and heirs will take (receive the possessions) by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse. Collectively these are called the laws of intestate succession.[1] In case person dies without making a will there needs to be some broadly accepted rules upon which the property shall devolve upon those succeeding him. 

HISTORICAL BACKGROUND:

The presence of ancient Hindu law of can be traced back for long in history. The joint family system comes first in this familial historical order. At that time, shastric and customary laws that varied from region to region governed Hindus and sometimes it varied in the same region on a caste basis resulting in diversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations.[2] The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex. Basically at that time, the rule of inheritance given by ancient law givers is meager. Women were as a rule excluded from inheritance in the earliest time. Rights of women as heirs have been the subject of controversy till the age of commentators.

Coparcener property, in the contra-distinction with the absolute or separate property of an individual coparcener, devolved upon surviving coparcener in the family. The rule is basically known as devolution by survivorship.

Earlier, Under the Mitakshara law, the rights to inherit arise from propinquity, that is, proximity of relationship. According to this school, on birth, the son acquires a right and interest in the family property as well as a son, grandson and a great-grandson constitute a class of coparcenars, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. The Mitakshara law also recognises inheritance by succession but only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara law. It recognised only five female relations as being entitled to inherit namely - widow, daughter, mother, paternal grandmother, and paternal great-grandmother.[3] Under this school of law devolution of interest of property was as follow:

i)                    Where the deceased was, at the time of his death, a member of joint & undivided family, technically called coparcenary, his undivided interest in the coparcenary property devolves on his coparceners by survivorship.

ii)                  If the deceased was joint at the time of his death, he might have left self-acquired or separate property. Such property goes to his heirs by succession.   

Following classes of heirs are constituted under this school of law[4]:

1)      Gotraja Spindas- 57 Spindas were part of this category.

2)      Samanodakas- 147 Spindas were part of this category.

3)      Bandhus- they are basically cognates divided further into three parts:

Atta Bandhus

Pitri Bandhus

Matri Bandhus

4)      Escheat

On the other side in Dayabagha, Succession is governed by the doctrine of spiritual benefit. This doctrine includes ceremony of Pinda, Pinda-Leaps and Libation of Waters. In this school of law also, following classes of heir is constituted[5]:

1)      Sapindas

2)      Sakulyas

3)      Samanodakas     

Both school of law differs on following point:

In Dayabagha, there is only one course of succession for joint as well as separate property.

In Mitakshra, property which is joint will follow one and property which is separate will follow other course of succession.

Hindu Law of Inheritance (Amendment) Act 1929, brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption. It was passed to confer certain rights on the female members of joint family & to prefer certain near bandus or cognates to distant agnates in the matter of succession to the estate of a Hindu male dying without male issue. The Act included Son’s Daughter, Daughter’s Daughter etc. in the list of heirs. This act has limited the rule of survivorship.

The Hindu Woman’s Right to Property Act, 1937 was enacted which introduced changes in the law of succession by conferring new rights of succession upon certain categories of females. The 1937 has radically altered the order of succession as it stood before it. The old rule that widow succeeds to a man’s estate in the absence of male issue has been altered by making the widow heir to his property along with his son, grandson and great grandson where they are in existence. Even the Act altered law of coparcenary. The widow of a deceased coparcener will have in the joint family property the same interest as male had. This act has taken away by rule of survivorship.

Under old Hindu Law the inheritance rights of a person were not absolute and there were several disqualifications based on mental infirmities, physical defects, diseases and conduct. Despite the nearness of relationship, a person could still be disqualified from inheriting property on account any of the above mentioned disqualifications. This exclusion from inheritance was not mere on religious grounds, viz, an incapability to perform religious rites, but depended upon social and

moral grounds and bodily defects as well.

Hindu Succession Act, 1956 (Position Prior to 9-9-2005)

To lay down uniform and comprehensive system of succession law Hindu Succession Act, 1956 was enacted and came into force on 17th June, 1956. It applies to all the Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and comprehensiye system of inheritance and applies to those governed both by the Mitakshara and the Dayabahaga Schools and also to those in South India governed by the the Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu Law.

The section 6 of the Act, while recognising the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left a surviving female relative specified in Class I of the Schedule I or a male relative specified in that Class who claims through such female relation, the interest of

a deceased in mitakshara coparcenary property shall devolve by testamentary of intestate succession under the Act and not as survivorship.

Thus non-inclusion of women as coparceners in the joint family property under the mitakshara system as reflected in section 6 of the Act relating to devolution of interest in coparcenary property, has been under criticism for being violative of the equal rights of women guaranteed under the Constitution in relation to property rights. This means that females cannot inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Only when one of the coparceners dies, a female gets share of his interest as an heir to the deceased. Further as per the proviso to section 6 of the Act, the interest of the deceased male in the Mitakshara Coparcenary devolve by intestate succession firstly upon the heirs specified in Class I of Schedule I. Further explanation 1 states that the interest of deceased has to be ascertained on notional partition by applying a fiction irrespective of the fact whether he was entitled to claim partition or not.

 Moreover, Explanation 2 appears where the claim is made on intestacy of a coparcener and it says that a divided coparcener cannot claim along with undivided coparcener.

Position after 9-9-2005

Amending Act 2005 was one of the steps to remove discrimination contained in S. 6 of Hindu Succession Act, 1956.

It gave equal rights to daughters in the Hindu Mitakshara Coparcenary Property as to sons have. It makes all daughters, including married ones, coparceners in joint family property. Simultaneously section 23 of the Act as disentitles the female heir to ask for partition in respect of dwelling house wholly occupied by a Joint Family until male heirs choose to divide their respective shares therein, was omitted by this Amending Act. It also made women right in agricultural land equal to men.

According to the amending Act of 2005, in a Joint Hindu Family governed by the Mitakshara Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in the same manner as the son heir. She shall have the same rights in the coparcenary property as she would have had if she had been a son. She shall be subject to the same liabilities and disabilities in respect of the said coparcenary property as that of a son and any reference to a Hindu Mitakshara Coparencer shall be deemed to include a reference to a daughter. But this provision shall not apply to a daughter married before the commencement of the Hindu Succession (Amendment) Act of 2005.

This provision shall not affect or invalidate any disposition or alienation including partition or testamentary disposition of property which had taken place before 20th December, 2004

In the matter of succession of property of a Hindu male dying intestate, the Act lay down a set of general rules in sections 8 to 13.

General rules of succession in the case of males. –

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-

(a) Firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) Secondly, if there is no heir of class II then upon the heirs, being the relatives specified in class II of the Schedule;

(c) Thirdly, if there is no heir of any of the two classes, then upon the agitates of the deceased; and

(d) Lastly, if there is no agnate, then upon the cognates of the deceased.

Class I Heir is defined as:

M

                                                 W                     (A)

                        W            (S)                                                                (D)

(W)     (SS)                                                 (SD)                DS                           DD  

(SSD)               (SSS)                                 (SDD)           DSD              DSD                           DSS

The adopted children (son or daughter) are also to be counted as heirs when succession is done.

The children born of void or voidable marriage (by effect of section 16) are deemed to be legitimate children and are thus entitled to participate as sharers in the succession to the intestate.

The widow inherits simultaneously with the other heirs and in case there are more than one widow, together they are entitled to one share which is to be divided equally amongst them.

The widow is entitled to a share from the property of the intestate even is she remarries after his death.

The widow of a predeceased son inherits with the other heirs. However her right (along with the children of the predeceased son) is dependent upon the share that the predeceased son would have been entitled to had he been alive. Also, she is excluded from the share if she has remarried before the death of the intestate.

The daughter inherits simultaneously with the other heirs and gets the share as that of a son. She takes the property in her individual capacity and not in the capacity of a woman’s estate. Also, she is entitled to the property of the intestate even if she is married.

All these heirs inherit simultaneously. On failure of any such heir as specified in Class I, the property devolves upon the enumerated heirs specified in Class II, wherein an heir in the first entry is preferred over an heir in second category in the Class II and similarly, any heir in a higher entry shall be preferred over an heir in a lower category.

Class II Heirs:

The father in entry I includes an adoptive father. However, a father is not entitled to any interest in the property of his illegitimate son as opposed to the mother. Nevertheless, a father is entitled to inherit from his son born of a void or voidable marriage (under section 16). Also, a step father in not entitled to inherit from his step son.

All brothers and sisters inherit simultaneously with the sister and other heirs in the Entry. Here the term brother include both full and half brother. However whenthere is a full brother, he is always preferred to a half brother where, half brother means son of the same father but different mother. Uterine brother is not entitled to share the intestate’s property. However when the intestate and his brother are illegitimate sons of their mother, they are related to each other as brother in this entry.

However, there is one basic distinction between the Class I and the Class II heirs. While all the heirs in Class I inherit the property simultaneously, each of the entries in Class II constitute distinct and separate groups of heirs. Heirs in higher entries inherit in priority, but there I no such concept of priority among the heirs in Class I. For example, if a Hindu male dies intestate leaving behind his widow, two sons, son of a predeceased son, widow of another predeceased son, two daughters and son of a predeceased daughter, all of them will inherit simultaneously because all of them are heirs in the Class I of the Schedule. However, if another Hindu male dies intestate leaving behind his sister and his brother’s son, the sister being an heir in Entry II of Class II will get preference over his brother’s son who is an heir in Entry IV of Class.[6] 

Classification of agnates- When a person traces his relationship to the propositus wholly through males, he is an agnate. His sex or the sex of the propositus is immaterial. Agnates fall in three classes: (a) descendant agnates, (b) ascendant agnates, and (c) collateral agnates. 

Descendant Agnates- S, SS, SSS, SSSD, SSSS of a person are all decandant agnates. S, SS and SSS are in class I. We are not concerned with them here. But SSSD and SSSS are the agnates who are not included in class I or class II and with them we are concerned here. For descendent agnates there is no limit as to degrees, howsoever remote they may be. Thus, all descendants of SSSS through males will also be agnates. Descendants have only degrees of descent. 

Ascendant Agnates- Intestate’s F, FF, FFM, and FFF are all ascendant agnates. But F and FF are already in Class II (in categories I and V respectively) and therefore we are not concerned with them here. FFM and FFF are the nearest agnate descendants after F and FF. All ascendants through males will also be ascendant agnates there being no limit of degrees. 

Collateral Agnates - Collaterals are descendants in the parallel lines. They may be on the maternal side or they may be paternal side.

Cognates

A person is said to be a cognate of another if the two related by blood or adoption but not wholly through males. In a cognate relationship, it does not matter as to whether there is intervention of one or more females. So long as one female exists in the line, it becomes a cognate relationship.

Cognates:

(a) cognates who are descendants, for example, son’s daughter’s son’s son and daughter’s son’s son’s son.

(b) cognates who are ascendants, for example, father’s mother’s father and mother’s father’s father.

(c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent, for example, father’s sister’s son and mother’s brother’s son.

The object of Section 10

[7] is to deal with the amount of shares each person will be entitled to when there are more than one to inherit simultaneously. The widow, the son, the daughter and the mother will inherit to the property. However, this does not mean that each one of them will get 1/4th of the property. The four rules given in this Section are explanatory to the extent of understanding how much share each one will get.

1) The widows, if there is more than one, shall take together only one share and inherit that share equally as tenants-in-common and not joint tenants.

2) When there is more than one son, each son will get a share and similarly each daughter will get a share and mother will also get a share. Thus this is based on the Principle of Equalization.

3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall be entitled to take together a share of the property of their father or mother as the case maybe, and divide them equally among themselves. The family of the predeceased son would be entitled to one part that the predeceased son would have been entitled to, had he been alive. Same thing applies to a predeceased daughter. Thus these heirs succeed to the intestate’s property not as per capita but as per stripe.

4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a predeceased son of a propositus, she will take the share of the predeceased son equally with her sons and daughters.

Section 11- Distribution of property among heirs in Class II of the Schedule- The property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally. This Section provides that when there are more than one heirs in one entry of Class II, they shall inherit equally.

Section 12-Order of succession among Agnates and Cognates- The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:

Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degree of descent.

Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take simultaneously.

This Section deals with the order of succession among agnates and cognates. Agnates come within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). The question of succession of cognates come only when there are no cognates and the question of succession of agnates and cognates come only when there are no heirs in Class I and Class II.

In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be preferred to a lower subcategory i.e. descendants shall be preferred over ascendants who in turn shall be preferred over collaterals.

Section 13-Computation of degrees.- 

1)      For the purpose of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.

2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.

3) Every generation constitutes a degree either ascending or descending.

Section 13 lays down the rules for computation of relationship between the intestate and his agnate and cognate heirs. This relationship is traced from the intestate to the heir in terms of degrees of relationship with the intestate as the starting point. There is no discrimination or preference between male and female heirs.

The second rule states that the computation of the degrees of ascent and descent are to be made inclusive of the intestate. The relationship is to be traced from the propositus on terms of degrees with a propositus as terminus a quo, i.e. the first degree.

However, the order of succession among agnates and cognates is not determined merely by the total number of degrees of ascent and descent. It is subject to and regulated by Section 12 of the Act.

Example:

father’s mother’s father of the intestate- Hence there is no degree of descent but there are four degrees of ascent represented by (i) the intestate, (ii) the intestate’s father, (iii) that father’s mother and (iv) that mother’s father.

General rule with regard to preference and distribution of property among agnates and cognates:

Rule (i) - When the claimants are descendants, ascendants and collaterals, the descendants are preferred over the latter two. When there are no descendants, ascendants are preferred over collaterals. The collaterals take only in the absence of both descendants and ascendants. 

Rule (ii) - When all the claimants are descendants, the one having fewer degrees of descent will be preferred if they have the same degrees of descent, they will take simultaneously and as between themselves will take per capita. 

Rule (iii) - When all the claimants are ascendants, the one having fewer degrees of ascent will be preferred. If they have the same degrees of ascent, they will inherit simultaneously and as between themselves will take per capita. 

Rule (iv) - When all the claimants are collaterals, the rules of preference will be (if should be kept in mind that collaterals have both degrees of ascent and degrees of descent) as under:

Sub-Rule (a) - Among the claimant collaterals those who have fewer degrees of ascent (irrespective of degrees of descent) will be preferred.

Sub-Rule (b) - Among the claimant collateral when degrees of ascent are the same, the one who has fewer degrees of descent will be preferred. 

Sub-Rule (c) - Among the claimant collaterals when degrees of ascent and descent are the same, all of them take simultaneously, and among themselves share per capita.

Position after Amendment Act

Amendment Act 2005 is an important step towards gender equality. But in many aspects the act remained same.

1)      After the amendment, daughters has an share equal to that of sons at the time of the notional partition, just before the death of the father, and an equal share of the father's separate share. However, the position of the mother stays the same. She, not being a member of the coparcenary, is not getting a share at the time of the notional partition. Making daughters coparceners     decreased the shares of other Class I female heirs, such as the deceased's widow and mother, since the coparcenary share of the deceased male from whom they inherit declined.

2)      The amendment made the position of the female members of the joint family worst. With a daughter along with the sons acquired a birthright, which she can presumably partition at any time, the rights of other members of the joint family got diminished. The only protection women had in the marital home was the status of being married, which carried with it the right to be maintained, not only by the husband, but by the joint family and its assets as a whole. This protection now eroded, to the extent that the total divisible amount got reduced.

3)      Since Hindu law does not grant any rights to wives in marital property, their only chance of getting anything was on an inheritance, as equal share with the sons and daughters, if the marriage was subsisting on the death of the husband. On divorce, of course, even that right to inheritance disappears and Amendment 2005 reduced the share of wives.

4)      The general exemption granted in favor of laws of the Scheduled Tribes that they are not bound by the provisions of the Act seeks to perpetuate inequality with respect to females in these tribes wherein the exploitation of the female class is highest and unchecked.[8]

Conclusion

In the end I would like to conclude by saying that the Preamble to the Amending Act indicated the objective as the removal of discrimination against daughters inherent in the Mitakshara Coparcenary but this discrimination need to be removed against every woman i.e. mother, widow etc.

In general sense, succession represent the view of society at large as to what ought to be the normal course of succession in the readjustment of property after the death of a citizen. Our Constitution emphasizes on gender equality. An equality is only possible if we able to provide it to every section of society.

The joint family system in our country has slowly been eroded and an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more economically independent. With the growth of the nuclear family a married woman dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Recently Law Commission Report 207 recommended amendment in S 15 of Hindu Succession Act, 1956. The amendment will basically change the position of heirs in case female dies intestate leaving her, self acquired property.