‘A son is a son till he gets a wife but a daughter is a daughter all her life’ – J.Arun Mishra in a landmark judgment in the case of Vineeta Sharma v Rakesh Sharma (2020) gave this statement that overruled all the previous decisions and in addition to this ordered this ruling to have a retrospective effect. This decision changed the rules of devolution of coparcenary property in the Hindu Succession Act,1956 which now states that daughters would become coparceners by birth irrespective of whether their father is alive or dead.
Before we dive into the technicalities of laws of inheritance, let us understand what do we mean by ‘coparcenary’ :
‘A coparcenary is someone who acquires a legal right in the ancestral property by birth in a Hindu Undivided Family.’
About the Act
The Hindu Succession Act, 1956 states laws of inheritance with an objective of equal partition of property among the legal heirs i.e. sons and daughters, preserving the dual devolution rule, which was done away with after the Amendment in 2005. This law applies to Jains, Sikhs and Buddhists married under the Hindu Marriage Act, 1955, and not to a Hindu married to a Non-Hindu under the Special Marriage Act. This Act was based on the basic Mitakshara principle of propinquity, i.e. to give share preference according to the closeness of the relationship.
Laws of inheritance only come into the picture when the person dies ‘intestate’ i.e. without making any will. After the death of the person, his property devolves in a certain symmetry. The descendants/ascendants of the deceased are divided into classes under this Act, first of all, Class I heirs defined under sec 8 of the Act take their share in the property, if there is no Class I heirs then the property goes to Class II heirs, as defined under Sec 11 of the Act. If there are no sharers in any of these classes, the property then goes to agnates(person-related wholly through males) and cognates(person-related not wholly through males but one or more females) as defined under Sec 12.
Rule of Escheat
In case there are no legal heirs left behind of a Hindu male, the property is then acquired by the Government as an heir.
The succession of property of a Hindu Female
Any existing property inherited by a Female Hindu before or after this act was passed will be her absolute property except properties acquired by her by way of will or gift or by any order of the court.
In cases where a female Hindu dies intestate, her property is divided among her sons and daughters including the legitimate or illegitimate children and her husband. If this fails, then there are two situations the property will then be succeeded:
i. If the property was inherited by her father, then it will revert to her father or mother or, the heirs of the father.
ii. If the property was inherited from her husband or father-in-law then the property would devolve among the heirs of the husband.
General rules of succession
- In the case of Half-blood and Full blood relationships, full blood is preferred over half-blood.
- In cases where two or more heirs succeed altogether, they shall divide the share of the property as tenants-in-common and not as joint tenants. In layman terms, in the case of joint tenants, the share of each of the heirs is not certain whereas, in tenants-in-common share of each co-owner is specifically mentioned.
- Hindu Succession Act considers a child in the womb as a legal heir to the intestate’s property if born alive.
- In cases of simultaneous death under this Act, it will be presumed as if younger survived the elder.
- Murderer: Under this Act, a murderer cannot be an heir if the offense was committed ‘in furtherance of succession’ i.e. if by any means the heir was linked to the murder of the ‘propositus’, he would be considered non-existent.
- Conversion: Disqualification under this Act lies to the children of the heir who converted and not himself/herself.
- Widow’s remarriage: Remarriage of three women under the Widow Remarriage Act, 1856 are disqualified from inheriting the property if they re-marry before the death of the intestate:
– Son’s widow
-Son’s son’s widow
– Brother’s widow
DYK: In one of its judgments, the SC declared live-in relationships as legal relationships, and children born out of that relationship are legitimate. Furthermore, also comes under the ambit of the Hindu Marriage Act, and Hindu Succession Act.