🏉

Week 1 — Introduction + Christian

Succession
Succession laws vary based on religion. Even within Hindu’s succession law varies
depending upon your customs.

Religion

Threshold to be in a given religion - Born in a religion, converted to a religion or shows

reverence to things considered holy

Who is a Hindu?

The statute says anyone who is not XYZ religion

Plus there are also indicators like belief in moksha, vedas, etc

Sastri Yagnapurusdasji v Muldas 1966 — Determining whether a group is

Hindu
Issue: The principal question which arises in this appeal is whether the
Bombay High Court was right in holding that the Swaminarayan Sampradaya
(sect) to which the appellants belong, is not a religion distinct and separate
from the Hindu religion, and that the temples belonging to the said sect do
come within the ambit of the provisions of the Bombay Hindu Places of Public
Worship (Entry-Authorisation) Act, 1956.
Judgement:
Swaminarayan sect to which the appellants belong is not a religion distinct and
separate from Hindu religion
Reasoning:

It would be inappropriate to apply the traditional tests in determining the

extent of the jurisdiction of Hindu religion. It can be safely described as a
way of life based on certain basic concepts

Week 1 — Introduction + Christian Succession 1

 Principles enunciated by the Swaminarayan sect:

Philosophically, Swaminarayan is a follower of Ramanuja

The essence of his teachings is that every individual should follow the
main Vedic injunctions of a good, pious and religious life and should
attempt to attain salvation by the path of devotion to Lord Krishna.

The essence of the initiation lies in giving the person initiated the
secret “Mantra” which is: “Lord Krishna, thou art my refuge: Lord
Krishna, I dedicate myself to thee”.

Acceptance of the Vedas with reverence recognition of the fact that the
path of Bhakti or devotion leads to Moksha, and insistence on
devotion to Lord Krishna unambiguously and unequivocally proclaim
that Swaminarayan was a Hindu saint

Whenever a saint or a religious reformer attempted the task of reforming

Hindu religion and fighting
irrational or corrupt practices which had crept into it, a sect was born
which was governed by its own tenets, but which basically subscribed to
the fundamental notions of Hindu religion and Hindu philosophy.

Comparison bw their practices and Hindu practices

The supreme of the sect also subscribed to Hindu gods

What are the tests/parameters they used:

Belief in vedas — dharma as a principle

Belief in some God

Belief in rebirth and moksha

Who is Muslim?

The belief in Allah and that prophet Muhammad is the last messenger of Allah (i.e.,
no god but him)

Caste Disabilities Removal Act has been repealed now.

If a person converts their religion, the law which applies to them changes on conversion

Who is a Christian?

Week 1 — Introduction + Christian Succession 2

 Born/converted

Belief in Christ and the Bible

Marriage

For Hindus, there are essential religious ceremonies

For Muslims, there needs to be offer, acceptance, and witnesses.

For Christians, they always have a ‘registered’ marriage - either in the church or
elsewhere

In SMA, there is a procedure for registration (notice etc)

Effect of marriage under SMA:

If 2 Hindus are getting married, then still Hindu Succession Act will apply to them
and not Indian Succession Act

Legitimacy

If a child is considered legitimate, then it can succeed to the property.

If the child is illegitimate, the position varies in different laws

Week 1 — Introduction + Christian Succession 3

 Under Hindu law if a child is illegitimate, he can succeeds from the property of the
mother only but if he is legitimate he gets both. (unique provision for Hindu Law)
S.16 of the HMA talks about legitimacy of the child - a child our of a null and
void/voidable marriage is also legitimate. In case of a no marriage, there can be no
legitimacy of for the child (eg - essential practices not followed).

In Christian law, an illegitimate child doesn’t inherit at all

In Muslim law, there is the concept of acknowledgment of paternity. Under certain

circumstances, there is possibility for the father to acknowledge the parentage of the
child. However, if the child is proved to be illegitimate, acknowledgement cannot
make him legitimate. They can only acknowledge when there is some confusion etc
(Fyzee has given some conditions where you can acknowledge paternity). An
illegitimate child will get no property in Muslim law
Abdool Razack v Aga Mahomed (1894) is about acknowledgement of paternity.

In Parsi law, s3(2) is about legitimacy of the child.

Week 1 — Introduction + Christian Succession 4

 For Christians, section 21 of the Divorce Act is applicable

Testamentary Succession

Where a person dies leaving a will, a written doc where he expresses his intention wrt
his property.

When a person leaves with a will, he is deviating from the natural line of succession
(legal heirs). Will deviates from the natural course of succession.

Rules under the Indian Succession Act. For Muslims, Shariat Application Act says
classical Muslim law is applicable. Under classical Muslim law, not more than 1/3 of the
property can be given away by will.

If a person only makes a will wrt a part of his property, it is said that it is partially
testamentary and partially intestate.

Intestate succession

When a person dies without a will

The ones who succeed to this person, are called the legal heirs. They do not have a right
by birth.

Hindu Law (Partially Codified)

Week 1 — Introduction + Christian Succession 5

 Intestate succession for Hindus is governed by Hindu Succession Act

Only in the case of joint family property, do coparceners have a right by birth.

Rule of Survivorship (Peculiar to Hindu Law): Among Hindus there is a notion of joint
family property i.e., property belongs to the family and the co-parceners have the
right (by birth) to inherit it. Say there are two-coparceners and one dies, then his share
will be taken up by the surviving co-parcener. The Hindu Succession Act has modified
this rule thoda

Concept of limited estate — Even if widow inherits the property of her husband, it is
only for her lifetime and it will return to his coparceners after her death (position
changed in 1956)

Only male members are considered coparceners (atleast in classical Hindu law) - this
was changed by the the 1956 legislation

In Hindu law, it makes a difference whether a male has died without intestate or a
female

Under Hindu law (peculiar to Hindu), 2 kinds of property: Separate property and Joint
family property

Joint family property (ancestral property) is governed by joint family system

Regarding separate property, Hindu Succession Act has rules.

List of heirs is different for males and females (only in Hindus).

In Hindu law, agnates are preferred over cognates

Agnates: persons related through the male line.

Cognates: persons related through female line.

Succession laws in Goa etc are different (Portuguese Code)

Muslim Law (Not Codified — classical Muslim law)

Shariat Application Act 1937 says that Muslim law of inheritance applies to all Muslims
i.e., classical Muslim law applies

Governed by uncodified Muslim law

Pre-Arabic state (pre-Quran):

Week 1 — Introduction + Christian Succession 6

 Women had no status

Post - Quran:

A definite share is given to female members. Prior to this females had no property
rights.

Quran listed down the heirs - they were called ‘sharers’, 12 sharers identified

Succession varies for Sunnis and Shias. So the list of sharers, and the way that
shares are calculated, are different.

Sharers, residuaries, distant kindred (succession travels in this line of priority — so

distant kindred will only get property if sharers and residuaries do not exist)

Testamentary Succession - This is also according to classical Muslim law (even though
Shariat Application Act mentions this in s3) and the Indian Succession Act shall not be
applicable because the ISA also makes certain provisions inapplicable to Muslims.

So both intestate and testamentary succession is governed by classical Muslim law

Parsi Law (ISA Applies)

When they came to India they adopted local customs of their communities.

The prevailing norm was that of a panchayat system in some areas.

Parsis who settled in Presidency towns were governed by English law.

When ISA was enacted, provisions of the Parsi Intestate Succession Act 1865 were
incorporated in the ISA (S.50-56) - so ISA provisions are applicable to them.

Jews (ISA Applies)

Governed by the general scheme of succesion in the ISA

Christian Law (ISA Applies)

ISA is applicable for both testamentary and intestate succession

Mary Roy v. State of Kerala (SC 2 J)

The Travancore Christian Succession Act 1092 - challenged on A-14 grounds

(women could get life interest only)

The question was whether post the coming into force of part-B State (Laws) Act,
1951 the Travancore Christian succession Act 1092 stood repealed and Chapter II of

Week 1 — Introduction + Christian Succession 7

 part v. of the Indian Succession Act, 1925 became applicable?

Travancore was merged with Kochi and according to the Parts B ACt, central
laws would apply to the new state. By the merging of the state of Travanacore,
will the ISA have an implied repeal on the Trvanacore Act

Held - The Indian Succession Act applied intestate succession to the property of
members of the Indian Christian community in the territories of the erstwhile State
of Travancore was thereafter governed by Chapter II of part v. of the Indian
Succession Act, 1925 (and not the Travancore act so no need for A-14 challenge).

Justice Ismail of the Madras High Court sitting as a Single Judge of the Madras
High court recognised the validity of this position in "Soloma v. Muthiah" and held
that "the conclusion is irresistible that the Travancore Christian Succession
Regulation II of 1092 is a law corresponding to the provisions contained in part v.
of the Indian Succession Act, 1925 so far as Christians are concerned".

This conclusion reached by the learned single judge was overruled by the Division
Bench of the Madras High Court in "D. Chelliah v. G Lalita Bai but even this
decision of the Division Bench while disagreeing with the conclusion reached by
the learned Single Judge accepted the position that the Travancore Christian
Succession Act, 1092 was a law corresponding to Part v. of the Indian Succession
Act, 1925.

s29(2) of ISA says that save as provided by any other law, the provisions of this
part shall constitute the law of India in all cases of intestacy

Doctrine of incorporation was used in this case - when the provs of one law is made
part of another law - so will the two laws co-exist or only new law exists. They
rejected this argument.

Court held: The legislative devices of incorporation by reference is a well-

known device where the legislature instead of repeating the provisions of a
particular statute in another statute incorporates such provisions in the latter
statute by reference to the earlier statute. But when the legislature intends to
adopt this legislative device the language used by it is entirely distinct and
different from the one employed in Section 29 Sub-section (2) of the Indian
Succession Act, 1925.

Week 1 — Introduction + Christian Succession 8

 Held - Wrt Christians, ISA will be applicable (as long as there is no custom to the
contrary and domicile has a role to play here)

Based on domicile, laws vary

Christians in Goa, Daman Diu, ISA is not applicable

Christians in Kerala are governed by 2 legislations

General Pinciples of Intestacy

There is no distinction bw those who are related to a person deceased through his father
and those related to him through his mother i.e., no distinction between cognate and
agnate

So if X dies and his grandparents are the heirs, there will be no difference between the nana nani and
dada dadi

There is no distinction between those who are related to a person deceased by the full
blood, and those who are related to him by the half blood (half blood — one common
parent). So S3 and S1 are half bloods and S1 and S2 are full blood.

Week 1 — Introduction + Christian Succession 9

Week 1 — Introduction + Christian Succession 10
 Computing degrees of generation. The nearer in degree will succeed to the property and others will not
get anything. If the father is alive then grandfather does not get anything.

Those who are actually born and those who were only conceived in the womb at the
time of his death - if a woman is pregnant and then husband dies then no distinction
between person born and child in the womb provided they are born alive. (The rationale
is that succession opens at the time of death, so no distinction bw child in womb and
child who is alive)

No distinction bw widow and widower (s35)

Per Stirpes and Per Capita

Per Stirpes

Divisions are made by each branch

If the lineal descendants are of different degrees of kindred, the division is per
stirpes

Week 1 — Introduction + Christian Succession 11

 Per stirpes division. Since D1 is dead, S5 will get the share that D1 inherited. S4, D2, and D3 will not
get anything. If D1 had two children, they would get 1/6 each. If D1 was not dead, it would be per
capita only, we would not need to look at the generation below.

Per capita

Assets pass equally to the heirs

If the lineal descendants are of equal degree, they share equally

Per capita division.

3 Categories of Heirs are recognised

Week 1 — Introduction + Christian Succession 12

 1. Widower/Widow

2. Lineal Descendants - Includes children, grandchilden, great grandchildren etc for any
number of generations.

3. Kindred

Includes all other relatives

Father, then [the mother and siblings], and

Others who are related by blood and adoption

No in-law is an heir under Christian law.

Is S1 gets property from X and after that S1 dies, then W gets the property (bc she is not
inheriting X’s property, but her husband’s). If S1 dies before X then W has no rights.

Sections of the ISA (Rules in cases of Intestates other than Parsis )

Widow and lineal descendants — s33(a)

Widow/Widower — 1/3

Lineal descendants — 2/3

Widow and kindred— s33(b) (for kindred, the nearer in degree gets the property and
excludes others)

Widow/Widower — 1/2

Week 1 — Introduction + Christian Succession 13

 Kindred — 1/2

No lineal descendant or kindred

Widow/Widower will take whole of his property

s33 of Indian Succession Act

Where there are lineal descendants and kindred, then lineal descendants take all the
property and kindred are excluded.

When there are all three — kindred, Linear descendants and widow — then kindred are
excluded

Rules when there are only kindred alive

Nearest kindred takes the property.

Where intestate’s father is living, he succeeds to the property

If there is no father, then mother, siblings, and children of predeceased siblings

succeed together (s44)

Week 1 — Introduction + Christian Succession 14

 Mother, brother, sister get equal share

Per stirpes and then per capita division (here the sister is dead)

Rules when there are only lineal descendants

Week 1 — Introduction + Christian Succession 15

 Each branch gets a share.

Branches are divided acc to the nearest descendant available

Per stirpes division

s40(2): if one of the persons (at the level where the branch is divided) is dead, that property will be
shared among that person’s lineal descendants

A lower descendant can claim only if the ancestor that they are claiming from is
dead

Calculating degrees of kindred

Week 1 — Introduction + Christian Succession 16

 Degrees

Week 1 — Introduction + Christian Succession 17

 S.44 onwards

Exception to the normal rule of the nearer kindred gets it. Kindred mai the division has
to be in the same portion as what the kindren would get. Read 44, 45, 47 together to get the
right idea

Week 1 — Introduction + Christian Succession 18

 The difference between 44 and 45 is that in 44, the mother and siblings are live but in 45
they are dead.

s44 and 45 doesn’t mention father’s father or brother’s son’s son. It only talks about
children of the siblings. So here we will check who is closer in degree.

The property would go to the fathers father since S.44 does not contemplate
brothers grandchild (but only child)

X dies intestate leaving behind brothers grandon and grandfather (Exception

to the Rule)

Week 1 — Introduction + Christian Succession 19

 s46:

Week 1 — Introduction + Christian Succession 20

 Mother will get everything here

s47 and 48:

In s47, at least one of the siblings are alive, so the per stirpes division is done at this level itself

Week 1 — Introduction + Christian Succession 21

 In s48, no sibling is alive.

S.44 - 47 is per stirpes division. Because mother, father brother or sister are alive.
S.48 - When everyone is dead then u go and branch out neeche. (per capita)

Illustrations

Maria dies leaving behind her sister-in-law and her husband.

(M - dead) ——— Husband ————Husbands Sister

Everything will go to the husband. (In-law gets nothing)

Week 1 — Introduction + Christian Succession 22

 J dies leaving behind his wife and 3 sons
Wife will get 1/3, and 2/3 will be shared equally among the 3 sons. So each son will get
2/9 each (this is per capita division among the sons)

E dies leaving behind her husband and a daughter

Husband will get 1/3 (bc no distinction between widow and widower); daughter will get
2/3

J dies leaving behind his wife and his mother

Wife gets 1/2, mother gets 1/2

Sheela a Christian woman dies leaving behind her mother and son
bye bye mom son gets everything

D dies leaving behind his father and a granddaughter and son-in-law through his
daughter who is dead
Granddaughter will get everything (nothing for in-laws, and nothing for kindred when
lineal descendant is there)

J dies leaving behind his wife, mother and two daughters

Wife gets 1/3. Daughters get 1/3 each.

J leaves behind her brother, husband, and son

Husband gets 1/3, son gets 2/3

J dies leaving behind his wife, father and his mother.

Father and wife get 1/2 each.

R dies and leaves behind her parents. She is unmarried. She also has a brother.
Father gets everything

J leaves behind her mother and one brother. Her sister had died leaving behind 2
daughters
Mother gets 1/3; Brother gets 1/3; 1/6 to one twin daughter each

X has a complicated family:

Week 1 — Introduction + Christian Succession 23

 S6 excluded because nearere lineal descendant is alive

X has a complicated family:

Week 1 — Introduction + Christian Succession 24

 X dies leaving behind S1, S2 (dead) and D1 (dead)

See where the nearest lineal descendant is alive and do the division there - basically
branch it out there.

X has S1 (dead), S2(dead) and D1 (dead)

S1 has S2 and S4, S2 has D2 and D1 has D3

A situation where we will not consider a branch:

Week 1 — Introduction + Christian Succession 25

 In the next case, who is nearer in degree - Fathers father or brothers son? Fathers father
is second degree and nearer.

In the next case:

Week 1 — Introduction + Christian Succession 26

 Circles denote that the person is dead (from now on)

In this case:

S1 excludes his children.

In this case:

Week 1 — Introduction + Christian Succession 27

 In this case:

In this case:

Week 1 — Introduction + Christian Succession 28

 In this case:

In this case:

Week 1 — Introduction + Christian Succession 29

 In this case:

In this case:

In this case:

Week 1 — Introduction + Christian Succession 30

Week 1 — Introduction + Christian Succession 31
 🏗
Week 2 — Parsi Intestate Succession
Section 50 — General Principles

No distinction made between a child in the womb and those born during the lifetime of
the deceased intestate

A lineal descendant having no spouse and children living, died in the lifetime of the
intestate, gets no share

Week 2 — Parsi Intestate Succession 1

 D1 gets no share since she has died without a spouse or children; everything goes to S1.

Remarriage of widow/widower of any relative of intestate — the widow will not be

entitled to a share if she has remarried.

The widow remarried S2 after S’ death. She cannot inherit X;s property since she has remarried

Week 2 — Parsi Intestate Succession 2

 Illustrations

A dies intestate. A had a son E and a daughter. E died before the death of A
and E is not married.

D gets everything

A, dies behind leaving his sons widow named S. S married before the death of
A.

Section 51 — Applies when children exist and all children are alive

Week 2 — Parsi Intestate Succession 3

 Widow/Widower and children — all get an equal share [51(1)(a)]

Only children — all get an equal share [51(1)(b)]

Widow, children, and parents — Parents get half of what children get (each parent gets
half of what each child gets) [51(2)]

Father and son get equal share

Week 2 — Parsi Intestate Succession 4

 Illustrations

S dies intestate leaving behind his wife and two sons.

S, dies intestate leaving behind husband and daughter — s51(1)(a)

Week 2 — Parsi Intestate Succession 5

 D, leaving behind his wife father and two daugthers

G, dies behind leaving father, mother and a daugther — s51(2)

G left behind her parents, and a son and daughter

Week 2 — Parsi Intestate Succession 6

 A dies, leaving behind a divorced husband, 2 daughters and a mother.

Week 2 — Parsi Intestate Succession 7

 A dies leaving a widow, son, mother, and father

Week 2 — Parsi Intestate Succession 8

 A dies, leaving behind a widower, mother and father.

Section 53 — Applies when some are predeceased children, and some lineal
descendants are alive
Section 51 applies only when ALL children are alive. Even if one child has predeceased the
intestate and there exist, lineal descendants, start with Section 53.

Week 2 — Parsi Intestate Succession 9

 This provision creates a presumption (for the purpose of calculating shares), that the
predeceased child is alive. After that, we calculate the shares of the lineal descendants
of the deceased child

s53(a) applies when the son has predeceased.

His widow and children will take shares

s53(b) applies when the daughter has predeceased

share goes ONLY to children NOT widower

s53(c) applies where the child of the deceased child has also predeceased

So, when you are applying Section 53 for a predeceased grandson, you are
using S. 53(c) read with S. 53(a).

s53(d) applies where a remoter lineal descendant has predeceased

Illustrations:

Week 2 — Parsi Intestate Succession 10

 s53 and s51 used

s53(b) does not state the widower to be the heir when the daughter has predeceased

Week 2 — Parsi Intestate Succession 11

 Shah, a Parsi man dies intestate. He had 3 kids - two daughters and one son. Son dies
leaving behind his wife and two children [see s 53 and then 53(1)(a)]

s51(1)(a) talks about when a son dies leaving behind a widow and children

K, had a daughter and two sons. Daugther dies before K leaving behind her husband
and two sons.

Week 2 — Parsi Intestate Succession 12

 P, dies leaving beind a son and daugther. Son died leaving behind a son R and a
daugther. R died leaving behind his wife and daughter. original Daughter dies leaving
behind her son

Week 2 — Parsi Intestate Succession 13

 Using s53(c), then s53(a) , s51(1)(b), 53(a), 51(1)(a) for the branch of the son. For the
daughter, we apply s53(b)

X dies leaving behind three kids. All die during his lifetime. Son A left behind daugther
and widow. B left behind two sons and C left behind a daughter.

Begin w s53, then use s51 for all children getting an equal share. Then for son A, use
s51(1)(a). For son B, use s51(1)(b), and for daughter apply s53(b)

X dies leaving behind daugthers widower and sons widow. (we will look at that later)

Week 2 — Parsi Intestate Succession 14

 s53 doesn’t applu because no lineal descendants who are alive

X dies leaving behind a widow, Daugther A’s daugther, Son B’s widow and son, Son’s
C’s daughter and daugther D’s widower. (A/B/C/D dead)

X leaves behind a daugther and son (who are also dead) D1 has D2 and S1 has S2 who
are alive.

Week 2 — Parsi Intestate Succession 15

 X dies leaving behind daughter A’s husband and daughter B’s son.

X dies leaving behind - widow, daughter A’s daughter, Son B’s widow and son, Son C’s
daughter and Daughter D’s widower

Week 2 — Parsi Intestate Succession 16

 X dies leaving behind - Son A’s son’s daughter, Daughter A’s daugther’s daughter and
another daughters sons daughter and daugthers sons widow

X dies leaving behind Daughter A’s husband,son and daughters daughter, Daughter B’s
son C’s son and Son D’s daughter and Son E’s widow. All his children are dead

Week 2 — Parsi Intestate Succession 17

 Section 54 — No lineal descendant but widow; or widow/widower of any lineal
descendant (If there are children look at 51 and 53 — if not, come here)

Week 2 — Parsi Intestate Succession 18

 Section 54 applies only when there are NO lineal descendants and only widow(er) of
intestate or/and widow(er) of lineal descendants.
When you start with S. 53 and have a residue, the residue goes as per the proviso of S. 53(a).
When you start with S. 54, residue goes as per S. 54 - first, the schedule applies as per 54(d),
if nobody in the schedule exists, look at 54(e).

s54(a): Intestate’s widow only [1/2]

s54(b): Intestate’s widow + Lineal descendant’s widow [1/3 to OG widow, 1/3

divided by other widows equally]

Week 2 — Parsi Intestate Succession 19

 s54(c): Only lineal descendant’s widows (No widow of intestate) [If one widow, then
1/3; If >1 widows, then divide 2/3 equally]

s54(d): Distributing residue to relatives

Part I of Schedule II

Week 2 — Parsi Intestate Succession 20

 Father will be preferred to brother since the father stands first. But the father and mother would
receive equal shares.

s54(e): Distributing residue if no relatives

Week 2 — Parsi Intestate Succession 21

 Illustrations

X has only left behind a widow - 1/2

Only Son’s widow - 1/3

Sons widow and daughters widower

X leaves behind a widow, sons widow, daughter A’s widower and daughter B’s
widower

Week 2 — Parsi Intestate Succession 22

 X leaves behind a widow and a brother

Section 55 — No lineal descendant, No widow, No widow of lineal descendant

Week 2 — Parsi Intestate Succession 23

 Since sister is alive, division will happen there only

Week 2 — Parsi Intestate Succession 24

 Illustrations

X left Sons widow, father, mother and sister

s54(c) → s54(d)

X dies leaving behind widower and son

Week 2 — Parsi Intestate Succession 25

 X is there and this is the scene -

X has daughter and son who are dead but widower and widow of both and the Son
of the deceased son are alive.

Week 2 — Parsi Intestate Succession 26

 Illustrations

1. X leaves behind two sons and a mother.

2. X dies leaving behind son A and predeceased Son B’s widow.

s53 for presumption, then s51(1)(b) for giving each son 1/2. Then, apply s54(a) for son
B’s widow to give her half of son B’s share. 1/4 is the residue. This residue will be
divided according to s51 again (looking at relations from X’s perspective only)

Week 2 — Parsi Intestate Succession 27

 3. X dies leaving her widower and sons widow
s54(b), s54(e)

4. Ix X dies leaving behind widower, sons widow and mother.

Week 2 — Parsi Intestate Succession 28

 5. X dies leaving her daughters widower

6. X dies leaving behind his widow

s54(a) r/w s54(e)

If X had an uncle, then

Week 2 — Parsi Intestate Succession 29

 s54(a) r/w s54(d)

7. X dies leaving his daughter’s widower and son’s daughter

8. X dies leaving son A’s Widow and Son B’s daughter and daughter C’s widower.
s54(a) → Son A’s widow takes 1/4.

Week 2 — Parsi Intestate Succession 30

 9. X has died
s54(b), then s54(e) distributing residue in proportion to what they take

10. X dies leaving behind her widower and her sons widow

Week 2 — Parsi Intestate Succession 31

 11. X dies leaving his mother and sons widow.

12. X dies leaving her father, her son’s daughter and her widower.

Week 2 — Parsi Intestate Succession 32

 Pay attention to the father being alive — this is unlike Christian law where the descendants exclude the
kindred

13. X dies leaving her daughter’s widower and their paternal uncle.

Week 2 — Parsi Intestate Succession 33

 14. X dies leaving his maternal uncle and daughter A’s widower.

15. X dies leaving his maternal uncle’s daughter’s widower

16. X dies leaving behind his brother, his sister’s son and his predeceased brother’s
daughter.

Week 2 — Parsi Intestate Succession 34

 s55 applies bec intestate has no widow or lineal descendant

17. X dies leaving his widow and his son’s daughter

18. X dies leaving all his grandparents and his son in law.

Week 2 — Parsi Intestate Succession 35

 19. X dies leaving behind maternal grandfather, father’s brother’s son, son’s widow and
daughter’s widower.

Week 2 — Parsi Intestate Succession 36

 Entry 4 of Part I of Schedule II

Week 2 — Parsi Intestate Succession 37

 🌜
Sunni Hanafi Law of Intestate
Succession
Muslim law does not differentiate bw a woman dying intestate and a man dying intestate.

No right by birth.

No rule of representation in Muslim law. There is a rule of exclusion (substitute heirs are
excluded by the primary)

Rule of representation mein s3 would have gotten the share that S2 would have. But Muslim law mein rule
of exclusion chalta hai, so s1 will exclude S3

Sunni law heirs:

Quranic Heirs/Sharers

Male Agnates/Residuaries

Sunni Hanafi Law of Intestate Succession 1

 son, father, father’s father are residuaries. A residuary may be a sharer also (eg
father)

Male agnates — related to each other through males. No female intervention.

Son and Son’s son are male agnates. Ascendants can also be agnates. Son’s
daughter is an agnate, but she is not male. Son’s daughter’s son is a cognate.
Immediate relations are all agnates bc there is no female ‘intervention’ (even if X is
a woman and has a sibling/child/parent)

Nearness depends on class, degree, and strength of blood tie.

Class of Heirs

Descendants

asecndants

descendants of father

descendants of paternal grandfather

descendant of higher grandfathers in ascending order

Sunni Hanafi Law of Intestate Succession 2

 X’s son is descendant (1st category). X’s father is ascendant (2nd category). Brother and
brother’s son are descendants of father (3rd category)

The uncle would be descendant of paternal grandfather (4th category)

Degree of heirs

Sunni Hanafi Law of Intestate Succession 3

 Since S1 is nearer in degree, he will exclude S3. There is no concept of S2’s share going to
S3 if S1 exists

S1 will exclude everyone (pehle class, then degree)

Strength of Blood Tie

Full blood relation > Consanguine blood relation

Sunni Hanafi Law of Intestate Succession 4

 Full blood means both parents are common.

A full blood relation takes precedence over consanguine blood relations.

Uterine relations are excluded anyway because they are cognates.

Uterine relations (same as cognates)

Distant kindred

A daughter’s daughter is a uterine relation

If there are sharers and residuaries, then distant kindred will not inherit any property.

Four subsidiary heirs:

Sunni Hanafi Law of Intestate Succession 5

 Successor by Contract

Acknowledged Kinsman

Should have acknowledged during his lifetime in the presence of others.

Sole Legatee

Public Treasury

Illustrations

tick and cross are for true and false

Sunni Hanafi Law of Intestate Succession 6

 No agnatic descendant, so the father will inherit as a residuary

SSD will become residuary if SSS exists

Sunni Hanafi Law of Intestate Succession 7

 In the presence of a daughter, the SD will get 1/6

SSSD is excluded bec daughter’s share is exhausted

Sunni Hanafi Law of Intestate Succession 8

 SS will exclude lower degrees

CS is excluded because full bro and full sis exist

Sunni Hanafi Law of Intestate Succession 9

 Ye sab acc to table of sharers (bc Uterine Brother is not a residuary)

Son makes daughter residuary

Sunni Hanafi Law of Intestate Succession 10

 Father fixed share when there is an agnatic descendant. If no agnatic descendant, then he is residuary

Daughters are not residuaries because equal son is dead

Sunni Hanafi Law of Intestate Succession 11

 Son’s daughter is a sharer here

SD is inheriting 1/6 because of the special condition given in the table of sharers

X dies leaving behind father son and daughter

Sunni Hanafi Law of Intestate Succession 12

 x dies leaving behind father and two daughters

Sunni Hanafi Law of Intestate Succession 13

 Father will inherit all the residue because he is a residuary and daughters are not residuairies. We
won’t do proportionate return when there are no residuaries. If there are residuaries, it will go to them
seedha

X leaves behind wife, full sister and full brother.

Sunni Hanafi Law of Intestate Succession 14

 X dies leaving behind full sister, daughter and sons daughter

FS becomes residuary because there is a daughter (p19). She can’t inherit as a sharer because her
conditions of inheriting are not fulfilled because the intestate has a child (see table of sharers)

X dies leaving behind uterine brother, consag bro and full sister

Sunni Hanafi Law of Intestate Succession 15

 Consanguine brother is the residuary

X dies leaving behind mother, father 2 sons daugthers and sons sons daughter

Sunni Hanafi Law of Intestate Succession 16

 Distant Kindred

Classes of Distant Kindred (This is in particular order)

I. Descendants of the deceased

Daughter’s children (DS, DD) and their descendants given preference

Children of son’s daughters hls and their descendants (SDS, SDD)

II. Ascendants of the deceased

False grandfathers hhs

False grandmother h.h.s

III. Descendants of parents

Sunni Hanafi Law of Intestate Succession 17

 Full brothers daughters and their descendants

Consaguine Brothers, daughters and their descendants

IV. Descendants of immediate grandparents (true or false)

Full paternal uncles' daughters and their descendants

Consanguine paternal uncles' daughters and their descendants

Uterine paternal uncles and their children and their descendants

Daughters of full paternal uncles' son h.l.s and their descendants

Daughters of consanguine paternal uncles' son h.l.s and their descendants

Pat. Aunts (full, consanguine or uterine) and their children and their descendants

Maternal uncles and aunts and their children and their descendants and

Descendants of remoter ancestors h.h.s. (true or false)

Imam Mohammad and Abdul Yusuf are fighting w each other on how to calculate shares
of distant kindred. Quote either of them and do your calculation. We are doing Sirajia ki
calculation

Class I
Order of succession to be determined following 2 rules

Nearer in degree excludes the more remote

Among claimants in the same degree of relationship, the children of sharers or

residuaries are preferred to those of distant kindred

Order of succession:

1. Daughter's children

2. Son's daughters' children

3. Daughters' grandchildren

4. Son's son's daughters' children

5. Daughters' great-grandchildren and sons' daughters' grandchildren

6. Other descendants of the deceased in like order

Sunni Hanafi Law of Intestate Succession 18

 Allotment of shares

After ascertaining which of the descendants are entitled to succeed, the next step
is to distribute the estate among them

Rules of allotment —

1. If the intermediate ancestors do not differ in their sexes the estate is to be

divided among the claimants per capita according to the rule of double share
to the male

2. If the intermediate anecestor differs in sexes —

a. if there are only 2 claimants and sexes of intermediate ancestor differs

— assign the male acestor a portion double that of the female
The share of a male ancestor will descend to the claimant who claims
through him, and the share of the female ancestor will descend to the
claimant who claims through her - irrespective of the sex of the
claimants.

b. Where there are three or more claimants, each claiming through a

different line of ancestors
Stop at the first line in which the sexes of the intermediate ancestors
differ

Assign to each male ancestor a portion double that of each female

ancestor

Collective share of all the male ancestors is to be divided among

all the descendants claiming through them, and the collective share
of all the female ancestors is to be divided among their
descendants

Between the claimants in the same group, the male takes a double
share

c. When two or more claimants are claiming from the same intermediate
ancestor

Count for each such ancestor, if male, as many males as there are
claimants claiming through him and if female, as many females as

Sunni Hanafi Law of Intestate Succession 19

 there are claimants claimithroughhrough her, irrespective of the
sexes of the claimants.

Illustrations

X dies leaving behind daughters sons son and daugthers sons daughter

Rule 1

X dies leaving behind 2 of the daugthers son and daugther of a daugther

Sunni Hanafi Law of Intestate Succession 20

 Rule 1

Rule 1

Sunni Hanafi Law of Intestate Succession 21

 A dies leaving a daughters sons daughter and a daughters daughters son

Rule 2(a): Intermediate ancestors differ in their sexes. Assign to the male ancestor a double
portion. Distirbution is done at the ancestors’ level, not claimants’ level.

Rule 2(b) illustration

X dies leaving behind daughters sons daugther, daughters daughtets son and
a daughters daugthers daugther.

A dies leaving a daughters daughters son, a daughters sons son and a daughters
sons daughter

Sunni Hanafi Law of Intestate Succession 22

 Rule 2(b)

A dies, leaving behind daughters son son, daughters sons daughter, daughters
daughters son and daughters daughters daughter

Sunni Hanafi Law of Intestate Succession 23

 A dies leaving behind 5 grandchildren (Rule 2 c)

Another example

Sunni Hanafi Law of Intestate Succession 24

 Applying Rule 2c twice

Class II

Blue is for True/False Grandmothers, Yellow is for True/False Grandfathers. True people don’t count as
distant kindred, they inherit as sharers or residuaries

Sunni Hanafi Law of Intestate Succession 25

 Among the second class, if there is Mother’s father, he will get everything (because
he is the only one in that degree)

In order of priority:

MF

FMF and MMF (with double share rule because one is paternal
and one is maternal)

MFF and MFM (with double share rule)

Rule 1

If there is no distant kindred of class I - the whole estate will devolve upon
mother’s father (nana).

Mother’s father is the nearest relation among distant kindred of the second class.

Rule 2

If there is no mother’s father, the estate will devolve upon such of the false
ancestors in the third degree as are connected w the deceased thro sharers i.e.

FMF - since he belongs to paternal side he will get 2/3

MMF - maternal side so 1/3

Rule 3

Principles:

Sunni Hanafi Law of Intestate Succession 26

 Class III
If there be no distant kindred of the first or second class then the estate goes to
distant kindred of third class.

This comprises of such descendants of brothers and sisters which are neither sharers
nor residuaries (brother’s son is residuary, baaki sab distant kindred)

Rule 1
Nearer in degree excludes more remote

Children of brothers and sisters exclude the grandchildren of brothers and

sisters

A sister’s son excludes a brother’s son’s daughter

Rule 2
Among claimants in the same degree of relationship, the children of residuaries are
preferred to those of distant kindred

A full brother’s son’s daughter, being the child of a residuary (full brother’s
son), is preferred to a full sister’s daughter’s son who is the child of a distant
kinswoman.

A consanguine brother’s son’s daughter is preferred to a full sister’s

daughter’s son, though the former is of half blood and the latter is full blood

Rule 3

Sunni Hanafi Law of Intestate Succession 27

 Among claimants in the same degree of relationship and not excluded by reason
of rule 2, the descendants of full brothers exclude those of consanguine brothers
and sisters.

But the descendants of full sisters do not exclude the descendants of

consanguine brothes or sisters

The descendants of uterine brothers and sisters are not excluded by descendants
of either full or consanguine brothers or sisters, but they inherit w them

Allotment of Shares

Rule 1

First, divide the estate among the Roots, that is to say, among the brothers
and sisters (as if they were living)

Treat each brother who has 2 or more claimants descended from him as so
many brothers and each sister who has 2 or more claimants descended from
her as so many sisters

If there is a residue left after assigning their shares to the Roots, that will be
distributed to residuaries among the Roots

If thee are no Residuaries among the Roots, apply doctrine of return

Sunni Hanafi Law of Intestate Succession 28

 Illustrations

Sunni Hanafi Law of Intestate Succession 29

 explanation

contd explanation

Sunni Hanafi Law of Intestate Succession 30

 If we assume that Full Brother is not there, then CB is not excluded, he is a residuary.

Explanation

Sunni Hanafi Law of Intestate Succession 31

Sunni Hanafi Law of Intestate Succession 32
 Shia Law
Two types of Heirs:

1. Heirs by consanguinity, that is, blood relations, and

2. Heirs by marriage, that is, husband and wife

No distant kindred will inherit in Shia law

No cognate-agnate distinction

Division of Shares among Classes

Division of shares are according to Classes of heirs, each class excluding the latter.
Note : The spouse always takes a share.

1. Class I- Sharers (a) Parents (b) Lineal Descendants hls

2. Class II - Sharers (a) Grandparents hhs (b) Siblings and their descendants hls

3. Class III - Residuaries (a) Paternal uncles and aunts hhs and their descendants (b)
Maternal uncles and aunts and their descendants

Division of Shares among Sections of Classes

Rules for division of shares among each section of each class:

The heirs of the two sections of each class succeed together. Note: Parents don’t
exclude children but inherit with them. If no children, parents inherit with
grandchildren.

The nearer degree in each section excluding the more remote in that section.

The nearest kinsman is preferred, whether they be agnates or cognates [only mention of
lineal descendants no agnatic/cognatic unlike Sunni law].

Rules for Class II

Paternal Grand Father (FF) — FB/CB (In the presence of full, counts as full. In the
presence of consanguine, counts as consanguine)

Paternal Grand Mother (FM) — FS/CS

Shia Law 1
 Maternal Grand Father (MF) — UB

Maternal Grand Mother (MM) — US

A childless widow will not inherit immovable property in Shia Law.

Exceptions to Doctrine of Radd or Return:

Exception 1 - If there are other heirs, then spouse will not get proportionare return.

Exception 2 - The mother is excluded from the return if the surviving heirs are father +
mother + daughter + two or more brother (full/consanguine/their equivalent).

Exception 3: Uterine Brothers and Sisters are excluded if:

- If there are uterine brothers and sisters, and also full sister, then only full sister will get
the residue
- This does not apply to consanguine sisters: they will take the return along with uterine
siblings

Doctrine of Reduction: If the shares exceed 1, we do not apply the Sunni law. We invariably
remove excess from daughter or full or consanguine sister.

Illustrations
Looking at X’s family

Shia Law 2
 X leaves behind wife, UB, CB and CS

X dies leaving behind husband, full brothers daughter, CB’s son and UB’s daughter

Shia Law 3
 X leaves behind FB1’s Son1 son2 and daughter 1, FB2 Daughter 2, UB1’s son3 and
daughter 3 AND US1’s daughter 4

S3 and D3 mein no double share to the male rule because they are descendants of
Uterine siblings

X has many dead siblings

X has dead siblings

Shia Law 4
 Paternal Grandfather and full sister

Count him as Full Brother

Maternal grandmother, UB and 2 Full sisters

Shia Law 5
 Maternal Grandmother will be considered US

Full bro, full sis, fathers father, fathers mother, mothers father and mothers mother

Shia Law 6
 UB, US, FM, MF,FF, CS

Consider FF and FM to be CB and CS. MF is UB. Uterines ka collective share is 1/3, so all three
uterines take 1/9 each

Shia Law 7
 Husband, FF, FB

Pat GF, wife, US, UB and Mat GF.

Full Pat Uncle, Consag Pat Uncle, Uterine Pat Uncle, Full Mat Uncle, Consag Mat
Uncle and Uterine Mat Uncle.

Shia Law 8
 Start w giving paternal 2/3 and maternal 2/3. Uterines will get 1/6 of whatever share the side is getting.

Full Pat Uncle, consanguine pat uncle and uterine maternal aunt.

Full maternal uncle and uterine maternal uncle

Shia Law 9
 Consanguine paternal uncle, uterine paternal uncle and uterine maternal aunt

Full paternal uncle, full paternal aunt, 4 uterine paternal uncles, 2 uterine paternal aunts,
uterine maternal uncle and uterline maternal aunt.

Full maternal uncle and full maternal aunt - equal ( no double share)

Uterine maternal uncle, uterine maternal aunt, full maternal uncle and full maternal aunt

Shia Law 10
 No double share to the male rule in Maternal side

X has cousins

For distant kindred in Sunni law, we used to count the number of descendants also to figure some stuff
out

X has two cousins

Shia Law 11
 A greatgrand daugther of a full paternal uncle, a great granddaughter and a great
grandson of another full paternal uncle and a great granddaughter of a full paternal aunt.

Doctrine of Return example — mother daughter and brother left.

Shia Law 12
 Brother excluded because he is Class II

Uterine and Consanguine sisters

Shia Law 13
 father daughter and mother

wife father mother and daugther

Shia Law 14
 Spouse is excluded from taking the Return

Exception of mother not getting return

Shia Law 15
 Exception of uterine not getting return

X has siblings

Wife, uterine sister and full sister

Shia Law 16
 Excess of Unity

Example

Shia Law 17
 Excess

Excess

Shia Law 18
 Hindu Law
Here, it is important to see which year each person died in. There have been multiple
changes in the legislation(s).

1937 legislation, 1956 legislation, Southern Amendments, 2005 Amendment

Classical Law
Mitakshara and Dayabhaga school

Mitakshara

Property is not separate, the concept of coparcenary and HUF is here

Applicable throughout India

Believes in the theory of particles of blood: Look at who are close blood
relatives. Male members up to three generations can conduct rituals and
ceremonies etc and have right by birth to the coparcenary property

There are sub-schools within Mitakshara school. In Southern India, the

Dravida/Madras school is applicable

Dayabhaga

Property is separate

Hindu Law 1
 Only in some parts of Bengal and Odisha

Believe in the theory of religious efficacy: Because the sons can do all rituals,
sons’ sons do not have a right by birth

Rule of succession, not Rule of survivorship

Types of succession

Intestate succession — without will

Testamentary succession — with a will

Rule of Survivorship (Only in Mitakshara, not in Dayabhaga)— The surviving

coparceners will inherit property belonging to any other coparcener

Order of succession in Mitakshara

Son

Grandson

Great grandson

Widow

Daughter

Daughter’s son

Mother

Father

Brother

Son, grandson, great grandson succeed simultaneously

Hindu Joint Family/Hindu Undivided Family

Multiple generations together, a common ancestor through which u can claim property

They should live together or have some common property (the ancestral property)
together/ common place of worship.

Coparcenary
Males upto 3 generations are coparceners (last male holder+ three generations^)

Hindu Law 2
 A coparcenary is a smaller unit within a joint family

Whoever is a coparcener has a right by birth in the property of the ancestor (this right
exists by birth even if the ancestor is not dead yet)

There can be only one karta but multiple last male holders ( do not confuse them)

If F had two Sons and F dies, then both sons will be considered LMH and phir unse start hogi
counting

Birth of a coparcenr diminishes the interest of the others. It fluctuates on the death of the
coparcner.

You have branch-wise last male holders, it is a per stirpes division at the branch level.

Why four levels — these can do rituals to send the person to heaven

Illustrations — Who is a Coparcener

Hindu Law 3
 Father, S1, S2,S3 and S4, father being dead.

Father, S1 (both dead), S2,S3,S4,S5,S6

Hindu Law 4
 Father, S1, S2 (dead) and S3,S4,S5,S6

Father has S1 and S2 both have their different branches thereafter of sons.

Hindu Law 5
 Ancestral Property
Any property that X inherits from his F, FF or FFF is ancestral property

Eg, F earns property. His estate is self-acquired property. When his son inherits this
property, then in the hands of S, it is ancestral property. S’s sons will have a right by birth
in the property

Inheriting property from your uncle does not make it inherited property - baap (or FF or
FFF) se aani chaiye

Hindu Law 6
 If it comes to the son by way of a will or a gift, then people have differing opinions on
whether it is ancestral property or not (shruti v ma;am - shruti actively trying to prove her
point here) — SC said it is self-acquired only, unless a contrary intention is there
https://www.livelaw.in/top-stories/fathers-self-acquired-property-given-to-son-by-
willgift-self-acquired-property--148423#:~:text=The Supreme Court has held,is
expressed in the testament

Interest of a Coparcener
Rules

Father and son share equally.

Per stirpes division between the branches

Coparceners have an ‘interest’ and not shares — it is a fluctuating interest since

every birth of a male member in the joint family diminishes the share of other
coparceners.

Interest becomes share when coparceners partition. Until then we call it interest

Interest is fluctuating when people die or take birth it’s not fixed.

Illustrations — Interests of Coparceners

Hindu Law 7
 A shares equally w his sons. 1/5 because A also obv has an interest na

Survivorship — Fluctuating interest

Hindu Law 8
 Per stirpes, then keep father son equal within branch

X dies leaving behind S,S1,S2,S4,S5.

Hindu Law 9
 X has two sons (S1 and S2) and S1 is dead and has one wife and one son and S2 has
S4.

Hindu Law 10
 Illustration 2

Even if this was partition, S2’s W would not get anything because S2 is dead so we cannot consider
it to be a partition bw son and father

Rules Governing Partititon

1. father and son share equally.

2. brothers share equally.

3. If there is paritition between father and son, mom gets share equivalent to the son
(Inapplicable in dravida family)

Hindu Law 11
 4. Bombay HC — Rebus sic stantibus: Look at the position of the property post-partition.
Whatever is the property after the first partition woh dekhke baant do irrespective of
what interests were decided pehle. As on the date of the suit according to the condition of
the family.

This is the Bombay HC rule — Rebus sic stantibus

5. Madras HC Rule —

So the previous partition will have an impact on the subsequent partition

Note - Widow has no right in coparcenery property.

Illustrations — Partition mein Shares of Coparceners

Hindu Law 12
 So the mother takes her share. Uske baad X and his sons will continue their coparcenery but the mother
ka fixed 1/6 usne le liya. Also, she cannot get a share twice even if later another son wans to partition

This is if only S5 demands a partition. Nothing will go to X’s wife. But if the partition was among all
grandchildren, then even grandmother would be allotted a share

Post-1937 Legislation
Hindu Women’s Right to Property Act 1937

Conferred a right on a widow (on the death of husband) to get a share equal to that of a
son

Hindu Law 13
 s3 of the Act

s3(1) creates rights for widows. It protects the intestate’s widow, his son’s widow (first
proviso), and his son’s son’s widow. s3(1) applies to Dayabhaga school mein all property,
and other schools like Mitakshara mein only separate property. Widow gets same share
as son.

s3(2) protects any coparcener’s widow.

s3(3) — widow’s limited estate

Hindu women’s estate

Female never becomes a fresh stock of descent

Property reverts back to reversionary heirs

Illustrations — s3(1)

Hindu Law 14
 The intestate’s widow gets the same share as his son. His son’s widow also gets the same share as her
husband because no grandson exists

Proviso of s3(1)

Hindu Law 15
 If the son of a pre-deceased son is living, then the pre-deceased son’s widow inherits the same share as
the pre-deceased son’s son

If S2 and S3 were alive, then S2 will inherit

Hindu Law 16
 Widow gets because of first proviso (widow of PD son)

Hindu Law 17
 Doesn’t apply till this widow

Illustrations — s3(2)

Hindu Law 18
 This is normal interest in joint family

Hindu Law 19
 S1 is the LMH and coparceners will be calculated accordingly notwithstanding X’s widow. Also, widow
has limited estate so her share will also go back to coparcenery property when she dies

In ancestral properties, is one son(now dead) has a widow, she wil get the same interest
as of her husband but after she dies, the share goes back to the coparcener.

Hindu Law 20
 In case of seperate property, if X has three sons S1,S2 and S3(dead) ahd widow of S3.
Here, after widow dies it goes back to husbands heirs.

When X dies, his widows get nothing because this is before the 1937 Act. We also don’t need to find out X’s
interest at the time of his death because anyway rule of survivorship applies. S4 dies in 1939, his share would
go to his widow, but now widow has also died so the property reverts back to the surviving coparceners. So
now S1, S2, S3 have 1/3 interest each. S1’s widow gets 1/6 because of the 1937 legislation. Also even S1’s
widow has a fluctuating interest, because if W4 dies and the other coparceners’ share increases, so even S1’s
wife’s share would change because of such factors

Hindu Law 21
 Between W1 and W2, the rule of survivorship applies to a limited extent. When X dies, his widows take
equally his interest, so they both take 1/6 each. When W1 dies, her interest will be taken by W2. To this
extent, the rule of survivorship applies to them. When W2 also dies, then it will go to the sons.

The widow should take equal interest as her son. So W1 gets same as S3, and W2 gets same as S1.

Hindu Law 22
 Hindu Succession Act 1956 (before 2005 Amendments)
HSA 1956 retained the Mitakshara joint family and the devolution of undivided share in
it by survivorship

Permissibility of holding two-fold interests by a Hindu male — a separate as well as a

share in undivided coparcenery

Retention of the joint family system and coparcenery

Introduction of concept of notional partition

With the retention of Mitakshara coparcenery, all its fundamental aspects are still in
operation

Categorisation of properties into separate and ancestral

The manner of their acquisition

Concept of karta

Karta’s power and responsibilities

Alienation of coparcenery property

Pious obligation of the sons to pay the father’s debts

HSA abolished the concept of limited estate for Hindu women and replaced it w absolute
ownership

Introduced daughters and her children in her absence as the primary heirs in preference to
the male collaterals

Made her marital status irrelevant for determining her rights of inheritance

Heirs are determined on the basis of the nearness in a relationship or natural love and
affection — Class I and Class II

Wrt a remoter category, agnates are preferred over cognates

Enabled a coparcener to make a will of his undivided share in a Mitakshara coparcenery

Section 6 prior to Amendment

s6. Devolution of Interest in coparcenary property

When a male Hindu dies after the commencement of this Act, having

Hindu Law 23
 at the time of his death an interest in a Mitakshara coparcenary
property, his interest in the property shall devolve by survivorship
upon the surviving members of the coparcenary and not in
accordance with this Act:
Provided that, if the deceased had left him surviving a female
relative specified in class I of the Schedule or a male relative
specified in that class who claims through such female relative, the
interest of the deceased in the Mitakshara coparcenary property shall
devolve by testamentary or intestate succession, as the case may be,
under this Act and not by survivorship.

▸ Explanation 1. For the purposes of this section, the interest of a

Hindu Mitakshara coparcener shall be deemed to be the share in the
property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective
of whether he was entitled to claim partition or not.

▸ Explanation 2. Nothing contained in the proviso to this section

shall be construed as enabling a person who has separated himself
from the coparcenary before the death of the deceased or any of his
heirs to claim on intestacy a share in the interest referred to therein.

Rule of survivorship is retained

s6 deals w devolution of interest in coparcenery property

s8 deals w devolution of all properties other than coparcenery property

Principles of Mitakshara coparcenery are embedded in the Hindu law jurosprudence

and continye to apply after 1956

s6 does not per se bring about severance of status among surviving coparceners, it is
just a notional partition

Class I heirs

Hindu Law 24
 1. Son

2. Daughter

3. Widow

4. Mother

5. Son of a predeceased son

6. Daughter of a predeceased son

7. Son of a predeceased daughter (proviso applies)

8. Daughter of a predeceased daughter

9. Widow of a predeceased son

10. Son of a predeceased son of a predeceased son

11. Daughter of a predeceased son of a predeceased son

12. Widow of a predeceased son of a predeceased son

Illustrations for s6

So the widow gets 1/4 plus a part of X’s 1/4. His share is divided as 1/12 each among the widow and
the two sons, and this devolves as separate property

Hindu Law 25
 Notional Partition

Share of the deceased coparcener is required to be determined by notionally making

allotment of his share, which he was entitled to on partition, on the assumption that
he was alive on that day and thereafter to divide his share among the legal heirs

Legal fiction of partition and separation of the share of the deceased coparcener at his
death

The shares become fixed as if partition had taken place during his lifetime

Two approaches to s6

Narrow Approach

Hindu Law 26
 The presumption that a partition had taken place for a specific purpose only,
and that is to find out the interest of the deceased coparcener

Based on the notion that if partition takes place at the instance of one
member of the family, there is no presumption that the rest of the members
are also divided

Wider Approach — This is the law

Gives prominence to the intention of the legislature in incorporting s6

When the share of the deceased is ascertained, the consequences of a real

partition follow

If there are female members who would have been entitled to get a share if a
real partition had taken place, they must be given a share

The wider approach gives a fair deal to women

Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, 1982

Hindu Law 27
 One of the sons contends that when we do a notional partition, that is
only to find X’s interest in the coparcenery property and then that
property will be succeeded to by all his heirs. The widow should only
be entitled to that division of his interest (1/24), and not anything from
the notional partition

The wife was contending that she will get 1/4 + 1/24.

Trial court said that widow will only get 1/24 share

HC said that she will get 1/4 (by partition) + 1/24 (by inheritance). All
consequences of a real partition will follow in a notional partition.

SC said that an assumption once made is irrevocable and all

consequences of a real partition will follow. We should take the
interpretation which is favourable to women if two interpretations are
possible.

Btw this 1/24 is in the nature of separate property

Hindu Law 28
 This is the law today

Position in South India (Dravida school)

s6 does not enlarge their entitlement to get a share but only changes the mode of
devolution of the interest of the deceased in their presence

In states where females do not receive a share at the time of partition will not be
awarded any share

Summary

When a coparcener dies leaving behind a Class I female heir or the son of his
predeceased daughter, it will be presumed that before his death a partition had
been effected

Wherever there is no female Class I heir, we will apply rule of survivorship (if
the person has died between 1956 and 2005). If there is any female Class I heir,
we will apply rule of notional partition

Succession to the property of a Male Intestate

Hindu Law 29
 Property subject to the rule of intestate succession

Separate/ self-acquired property

Undivided share of a male Hindu in the Dayabhaga Joint Family property

(because Dayabhaga does not have rule of survivorship)

Property held by a sole surviving coparcener

A share obtained on partition

Share demarcated on notional partition in Mitakshara coparcenery

Interest in Tarvad, Tavhazi, Kutumba

Classification of Heirs

Hindu Law 30
 Heirs are included on the basis of natural love and affection, or nearness in
relationship

Includes female relations who are introduced in th efamily by marriage to its

male members

Rules for Devolution of property

The property devolves in the first instance, on the Class I heirs (they exclude any
heirs in class II)

If none of the class I heirs is present, the property would pass on to class II heirs

Class II has 9 separate entries.

The heir in a prior entry excludes the later.

All heirs in the same entry take property in equal shares

Hindu Law 31
 Illustrations: Sections 8 and 9

Widow, sons, son of PD son, widow of PD son, daughters, son of PD daughter are Class I heirs

Hindu Law 32
 Rule 1 — widow, Rule 2 — son, daughter, mother. Rule 3 — branches of PD son/daughter.

Illustrations: Section 10

Hindu Law 33
Hindu Law 34
 Illustrations for s13

1. 4

2. 4

3. 6

Hindu Law 35
 4. 6

5. 4 degrees of ascent

6. 5 degrees of descent

7. 6 (4 degrees of ascent and 2 degrees of descent)

Hindu Law 36
 Agnates

Agnatic descendants are preferred to agnatic ascendants, and they are preferred to agnates who are
collaterals. Similar for cognates.

Cognates

Hindu Law 37
 Illustrations on Rules of Preference under s12

5th degree and 6th degree. So DDDS will inherit

4th degree and 5th degree. So FFM will inherit

Hindu Law 38
 The heir w fewer degrees of ascent is preferred (Rule 1). So, Brother’s son’s
daughter will inherit.

Hindu Law 39
 SDSS will inherit because he has no degrees of ascent

Hindu Law 40
 Brother’s daughter’s daughter will be preferred because of fewer degrees of
ascent (Rule 1)

Hindu Law 41
 Sister’s daughter’s daughter will be preferred because of fewer degrees of ascent
(Rule 1)

Hindu Law 42
 Brother’s son’s daughter will be preferred

Hindu Law 43
 Sister’s DD will be preferred

Hindu Law 44
 MFM is preferred because equal degrees of ascent but no degrees of descent
(Rule 2)

These agnates are equal (Rule 3), so they inherit simultaneously

These cognates are equal (Rule 3), so they inherit simultaneously

Section 14: Property of a female Hindu to be her Absolute Property

Hindu Law 45
 Pre-1956

Pehle it used to be considered as limited estate, widows ke liye 1937 legislation

also mentioned that it was limited estate. So the woman had no absolute right
over the property, she had no right to alienate the property unless there was legal
necessity.

If women died leaving behind the property she got from her husband, on her
death, the property would go back to her husband’s heirs as reversioners

Stridhana was the property given to women on her marriage by her parents or in-
laws. Mitakshara says that this is the property received from father, husband,
husband’s heirs etc. No longer relevant because s14 does away w stridhana

‘Any property possessed by a female Hindu’ — it could be property gifted to her, or

property which she got on partition, etc even if acquired before the commencement of
the Act

s14(2) is an exception to s14(1)

Does not apply to property acquired by abcd if the terms of abcd prescribe a
restricted estate in such property.

V. Tulsamma v V. Sesha Reddi (1977)

If a woman got property in lieu of maintenance w certain restrictions, would

she become absolute owner?

Court said even if she got property in lieu of maintenance, she would still
become absolute owner of the property

Hindu Law 46
Hindu Law 47
 To invoke the application of s14(2), essential condition is that the instrument
which limits the estate should itself be the source of the female’s title to the
property

Hindu Law 48
 If she died before 1956, the property would revert back. If she dies after 1956, the property is hers
absolutely so it will devolve from her

This is partition. Under Classical law, her share would go to the husband’s heirs on her death. Post-1956
this is also her absolute property

Succession to the property of a Female Intestate

Hindu Law 49
 Heirs of the husband are as per s8 — Class I heirs, Class II heirs, agnates, cognates

s15(2) give two specific situations for when she inherits property from ___ and has
no children or grandchildren

Father or Mother — will go to the heirs of the father

Husband or Father in law — will go to the heirs of the husband

Rule 1 — One entry will exclude the succeeding entries

Rule 2 — Children of PD children will take bw them the share that the PD child
would have taken (per stirpes division)

Rule 3 — It will go in the same manner as if the property had been her
father/husband’s property only

Hindu Law 50
 Illustrations for Women’s Property

Grandson of PD son is excluded

Will have to look at husband’s heirs through s8

Hindu Law 51
 Refer to the Schedule

s15(2) will not apply because she has a child of a PD child.

More illustrations

Hindu Law 52
 S1, S2, S3 should take equal shares because father and son share equally

Hindu Law 53
 These are interests in coparcenery

Classical Law illustrations

Hindu Law 54
 interest in coparcenery

Rule of survivorship is also according to the branch

Hindu Law 55
 Post-1937

Hindu Law 56
 If S2 dies, even W2’s interest will increase because she has a fluctuating interest

Hindu Law 57
 Now if X dies, his property will go by intestate succession if this is separate property

Post-1956

Wealth Tax Commissioner v. Chander Sen 1986

Hindu Law 58
 House property is still joint family property in the hands of C

C contends that the property that he inherited by intestate succession should be

considered separate property and not joint family property

Tax authorities and consider it as joint family property wanted to levy wealth tax

Court held that Nature of property when one inherits under s8 is Separate property

State Amendments — Andhra Pradesh

Amendment in 1986

Dravida School of Mitakhsara

Made daughters coparceners in the same manner as son

Hindu Law 59
 Made a distinction bw married and unmarried daughters

Made it clear that the Amendment will not have retrospective effect

Notional Partition → Dravida School so we do not give a share to the mother when the children and father
partition. When S1’s separate property is being devolved, it will go to S3, S4, W as they are Class I heirs

Post 2005 Amendments

Hindu Law 60
 The proviso to s6(1) says that any disposition or alienation already taken place will not
be affected

Abolished the concept of pious obligation — There was an obligation on S, SS, SSS the
father’sdbt

There was an obligation on S, SS, SSS to pay off the father’s debts (only the debts
that are incurred for lawful purposes; no obligation if it was for unlawful or immoral
purposes)

Rationale — Since S, SS, SSS has the right to their property, there should also be
some liability that they are incurring

No distinction bw married and unmarried daughters

Hindu Law 61
 The Amendment also shifted some class II heirs to class I

Illustrations

Bec rule of survivorship has been abolished

Hindu Law 62
 The 1/18 comes from splitting the share of S1 in JFP

Hindu Law 63
 Poora S1 branch ka 1/2 hua and S2 branch ka 1/2 hua.

When S2 dies, there is a male heir claiming through a female so we do a notional

partition.

The coparceners are S2 and S5 w 1/4 interest each.

The 1/4 will devolve by intestate succession under s8 HSA upon S8 and S5.

S3 dies in 1958. His mother (female Class I heir) is alive so we will do a notional
partition.

S3 and S6 are the coparceners so they get 1/8 each (coparcenery property)

Then S3’s 1/8 will devolve on his heirs under s8.

S6 and W are the class I heirs, so they both get 1/16 (separate property)

S4 dies in 1960. Again notional partition because his mother is alive

S4 and S7 get 1/8 each

W gets 1/16 and S7 gets 1/16

Hindu Law 64
 S7 dies in 2006

Notional partition

1/16 goes to daughter as JFP

The other two 1/16 parts go to daughter as separate property

Before Partition

Hindu Law 65
 Wx and W take 1/8 each because 1937 Act se she takes the same share as X, but
then W dies so Wx gets poora 1/4

S1’s 1/8 will go to Wx, S4 and D1

S2 dies in 1961. We will do notional partition

Coparceners are S2 and S5 w 1/8 each.

S2’s 1/8 will go to W, S5 and Wx

You can also split S5’s 1/8 as 1/16 and show S6’s share of 1/16

S3 dies in 1963 — Notional partition

Uttam v Saubhag Singh 2016 (2J)

Fact situation

Hindu Law 66
 Actual correct way of doing this (Gurupad). Chander Sen makes it clear that the 1/30 is separate
property and the 1/6 is coparcenery property.

The question in this case is whether S5 can claim the Joint Family Property

Also S5 was born after X’s death.

Court reasoned that the JFP has ceased to exist so S5 will not get a share in it

Court says:
The law, therefore, insofar as it applies to joint family property governed by the
Mitakshara School, prior to the amendment of 2005, could therefore be summarized
as follows:-

(i) When a male Hindu dies after the commencement of the Hindu Succession Act,
1956, having at the time of his death an interest in Mitakshara coparcenary property,
his interest in the property will devolve by survivorship upon the surviving members
of the coparcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in Section 30 Explanation of the

Act, making it clear that notwithstanding anything contained in the Act, the interest
of a male Hindu in Mitakshara coparcenary property is property that can be disposed
of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso
to Section 6, which states that if such a male Hindu had died leaving behind a female

Hindu Law 67
 relative specified in Class I of the Schedule or a male relative specified in that Class
who claims through such female relative surviving him, then the interest of the
deceased in the coparcenary property would devolve by testamentary or intestate
succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed
by Section 6 proviso, a partition is effected by operation of law immediately before
his death. In this partition, all the coparceners and the male Hindu’s widow get a
share in the joint family property. (It is correct to this extent)
(v) On the application of Section 8 of the Act, either by reason of the death of a male
Hindu leaving self-acquired property or by the application of Section 6 proviso, such
property would devolve only by intestacy and not survivorship. (Yes survivorship
will not apply, but the Court is saying that it always by intestate succession and that
is where it is wrong)
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family
property has been distributed in accordance with section 8 on principles of intestacy,
the joint family property ceases to be joint family property in the hands of the
various persons who have succeeded to it as they hold the property as tenants in
common and not as joint tenants.

The Court is essentially saying that whatever property devolves after a notional
partition, the JFP ceases to exist.

The Court also reasons that since S5 was born after X dies, he had no right by birth
in the property. To read Uttam Singh in a limited way, we can say that it is only
because S5 is born after X’s death that he doesn’t have an interest

Mulla has argued that Vineeta Sharma (3J) has impliedly overruled Uttam Singh.
Basically later cases have limited the interpretation of Uttam Singh

Poonam Pradhan Saxena

This is the position:

Hindu Law 68
Hindu Law 69
Hindu Law 70
 Thus, S1 holds the 1/6 property as the karta of his family so S1 and S5 would still form a coparcenery.
Whether S5 was born before partition or not is irrelevant

Prakash v Phulavati

Father died in 1988, notional partition took place.

After 2005, daughter files a suit for partition and is claiming that she should get
equal share as her brothers

Hindu Law 71
 Issue: Does the daughter become a coparcener bec of the amendment?

Trial court said that on the father’s death, notional partition will happen to find his
share and that will devolve in accordance w s8. But it did not hold that she becomes
a coparcener

She approaches HC. The major contention was whether 2005 amendment has
retrospective effect

The respondents are claiming that she cannot claim to be a a ‘daughter of a

coparcener’ because the coparcener (her father) was already dead on the date of
commencement of the Act

The rights were vested and the shares were crystallised at the time of his death.
So now can’t change

Hindu Law 72
 A notional partition is not one of these two. But the SC says that the rights get crystallised on notional
partition, so even notional partition is included here. This reasoning is wrong.

SC held that

Accordingly, we hold that the rights under the amendment are applicable to living
daughters of living
coparceners as on 9th September, 2005 irrespective of when such daughters are born.
Date of a daughter becoming coparcener is on and from the commencement of the
Act. Partitions effected before 20th December, 2004 remain unaffected as expressly
provided.

Danamma v Amar 2018

Gurulingappa Savadi died in the year 2001 leaving behind two daughters, two sons
and his widow

After his death, Amar, s/o Arunkumar filed the suit for partition and a separate
possession of the suit property in 2002

The question of law which arises for consideration in this appeal is as to whether the
appellants, daughters of Gurulingappa Savadi, could be denied their share on the
ground that they were born prior to the enactment of the Act and, therefore, cannot
be treated as coparceners?
Whether, with the passing of Hindu Succession (Amendment) Act, 2005, the
appellants would become coparcener “by birth” in their “own right in the same
manner as the son” and are, therefore, entitled to equal share as that of a son?

Trial court said that the daughters are not coparceners, not entitled to any share,
because they were born prior to the 1956 Act and 2005 Amendment

Hindu Law 73
 This is what the court has done finally

Hindu Law 74
 Danamma just says that she becomes coparcener by birth, it is not necessary for
coparcener to be alive at the time of the Amendment

Vineeta Sharma v Rakesh Sharma 2020

Formation of Coparcenery

For interpreting the provision of section 6, it is necessary to ponder how

coparcenary is formed. The basic concept of coparcenary is based upon
common ownership by coparceners. When it remains undivided, the share of the
coparcener is not certain. Nobody can claim with precision the extent of his
right in the undivided property. Coparcener cannot claim any precise share as
the interest in coparcenary is fluctuating. It increases and diminishes by death
and birth in the family.

It would appear that a Hindu coparcenary has six essential characteristics,

namely,

Hindu Law 75
 (1) that the lineal male descendants up to the third generation acquire an
independent right of ownership by birth and not as representing their ancestors;
(2) that the members of the coparcenary have the right to work out their rights
by demanding partition;
(3) that until partition, each member has got ownership extending over the entire
property conjointly with the rest and so long as no partition takes place, it is
difficult for any coparcener to predicate the share which he might receive;
(4) that as a result of such co-ownership the possession and enjoyment of the
property is common;
(5) that there can be no alienation of the property without the concurrence of the
other coparceners unless it be for legal necessity; and
(6) that the interest of a deceased member lapses on his death and merges in the
coparcenary property.

The amended provisions of section 6(1) provide that on and from the
commencement of the Amendment Act, the daughter is conferred the right. Section
6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same
manner as the son." Section 6(1)(a) contains the concept of the unobstructed heritage
of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the
same rights in the coparcenary property "as she would have had if she had been a
son". The conferral of right is by birth, and the rights are given in the same manner
with incidents of coparcenary as that of a son and she is treated as a coparcener in
the same manner with the same rights as if she had been a son at the time of birth.
Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive
application; they confer benefits based on the antecedent event, and the Mitakshara
coparcenary law shall be deemed to include a reference to a daughter as a
coparcener.

Coparcener right is by birth. Thus, it is not at all necessary that the father of the
daughter should be living as on the date of the amendment, as she has not been
conferred the rights of a coparcener by obstructed heritage.

According to the Mitakshara coparcenary Hindu law, as administered which is

recognised in section 6(1), it is not necessary that there should be a living,
coparcener or father as on the date of the amendment to whom the daughter would
succeed. The daughter would step into the coparcenary as that of a son by taking

Hindu Law 76
 birth before or after the Act. However, daughter born before can claim these rights
only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past
transactions as provided in the proviso to section 6(1) read with section 6(5)

The effect of the amendment is that a daughter is made coparcener, with effect from
the date of amendment and she can claim partition also, which is a necessary
concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family
governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the
daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and
not by dint of inheritance, it is irrelevant that a coparcener whose daughter is
conferred with the rights is alive or not. Conferral is not based on the death of a
father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance
is not by survivorship but by intestate or testamentary succession as provided in
substituted section 6(3)

The fiction of notional partition was meant for an aforesaid specific purpose. It was
not to bring about the real partition. Neither did it affect the severance of interest nor
demarcated the interest of surviving coparceners or of the other family members, if
any, entitled to a share in the event of partition but could not have claimed it. The
entire partition of the coparcenary is not provided by deemed fiction; otherwise,
coparcenary could not have continued which is by birth, and the death of one
coparcener would have brought an end to it.
Hence, we have no hesitation to reject the effect of statutory fiction of proviso
to section 6 as discussed in Prakash v. Phulavati (supra) and Danamma (supra). If a
daughter is alive on the date of enforcement of the Amendment Act, she becomes a
coparcener with effect from the date of the Amendment Act, irrespective of the date
of birth earlier in point of time.

Conclusion — Resultantly, we answer the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act,
1956 confer status of coparcener on the daughter born before or after amendment in
the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005
with savings as provided in Section 6(1) as to the disposition or alienation, partition
or testamentary disposition which had taken place before 20th day of December,
2004.

Hindu Law 77
 (iii) Since the right in coparcenary is by birth, it is not necessary that father
coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu
Succession Act, 1956 as originally enacted did not bring about the actual partition or
disruption of coparcenary. The fiction was only for the purpose of ascertaining share
of deceased coparcener when he was survived by a female heir, of ClassI as
specified in the Schedule to the Act of 1956 or male relative of such female. The
provisions of the substituted Section 6 are required to be given full effect.
Notwithstanding that a preliminary decree has been passed the daughters are to be
given share in coparcenary equal to that of a son in pending proceedings for final
decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of
1956, a plea of oral partition cannot be accepted as the statutory recognised mode of
partition effected by a deed of partition duly registered under the provisions of
the Registration Act, 1908 or effected by a decree of a court. However, in
exceptional cases where plea of oral partition is supported by public documents and
partition is finally evinced in the same manner as if it had been affected by a decree
of a court, it may be accepted. A plea of partition based on oral evidence alone
cannot be accepted and to be rejected outrightly.

If a partition happens bw 20 Dec 2005 and Sep 2005, the daughter can reopen that
partition and claim her right (because warna toh everyone would try to quickly partition
so as to not give her property)

Hindu Law 78
 Khasi and Mizo Tribal Customary
Law

Khasi Customary Inheritance Laws

Mostly from Meghalaya

Matrilineal tribe (not matriarchal)

Iing Khadduh — Ancestral property

Iing Khadduh is the house of the youngest daughter

Succession to the iing khadduh is in the following order

Mother’s youngest daughter

Youngest daughter’s youngest daughter hls

On the failure of the youngest daughter’s stock, the next youngest daughter of
the mother

Rap iing is to protect Khasi families from passing into oblivion. Rap iing mein basically
u adopt a girl to make her the youngest daughter. For inheritance of ancestral property, it
is v imp for them to have youngest daughters

Youngest daughter also has a lot of duties

Her home is supposed to be open to all relatives who are not able to take care of
themselves

All religious ceremonies must be taken care of by her. She also has to pay for them

She is not even an owner of the propery, she is a custodian

The woman’s brother (maternal uncle) is more imp than her husband (father of youngest
daughter)

Self acquired property

Of a female, acquired before marriage — Her mother and in her absence, nearest
female relation

Khasi and Mizo Tribal Customary Law 1

 Of a female, acquired after marriage — Same as ancestral property

Of a male, acquired before marriage — Mother and in her absence, nearest female
relation

Of a male, acquired after marriage — If there are children, wife succeeds. If no

children, then female relation has right to succeed to half and his wife succeeds to
the other half

Meghalaya Succession to self-acquired property (Khasi and Janti Special Provision) Act
1986

The only codified legislation on inheritance among Khasis but it deals only w self
acquired property.

Defines ‘self acquired property’ as ‘any property whether movable or immovable, or

any right, title or interest on any such property, which is vested… not inherited as
ancestral property’

Provides that it shall be lawful for a Khasi who has attained age of majority and who
is of sound mind to dispose of his self acquired property by will.

Mizo Customary Inheritance Laws

Opposite of Khasi, this is a patrilineal society

Traditional Mizo customary laws did not have any inheritance rights for women apart
from what they give you as dowry - nothing else. Even if there is one woman descendant
and the father brings in an absolute stranger from a clan, they have a higher right to
claim property.

1956 — The only major change was they gave the Mixo father the ability to write a will
so he could choose to leave the property for her daughter. Only way for daughter to get
property - depends on goodwill of the father.

1957 — attempt made to write down the laws. Customary law committee compiled these
laws for the benefit of the public. No changes being made, just writing down what was
unwritten.

2014 — Divorces are v easy in Mizo society ( u dont need a ground for divorce u can
just walk out) - destitute women had no rights in such cases. The NGO MHIP led this

Khasi and Mizo Tribal Customary Law 2

 movement — codify unwritten divorced laws + bring changes as to how the mizo
customary laws were.

Who Inherits Finally?

Khasi and Mizo Tribal Customary Law 3

 Why the youngest child? They would live the longest and be around parents for a longer
time and take care of the family.

All daughters do not get shares, only unmarried + main earning member of the family —
else nothing to daughter.

Illegitimate children have also been recognised (although ofc not treated at par)

A little better than early Mizo laws — pehle women had zero rights but ab kam se kam
scope hai.

Khasi and Mizo Tribal Customary Law 4

 Male always given preference

Sumchhuah divorce is when the woman leaves her husband

Khasi and Mizo Tribal Customary Law 5

 Problem with this — invariably have to go courts.

Khasi and Mizo Tribal Customary Law 6

Khasi and Mizo Tribal Customary Law 7
 you can make wills only for self-acquired property

Khasi and Mizo Tribal Customary Law 8

 Christian law does not apply to them because they are recognised Scheduled Tribes so
they are governed by their customary law

Fundamental Rights v Customary Laws

If personal laws are also ‘laws’ for the purpose of A-13?

The question is whether customary laws should be declared void or not. Should they be
interpreted as ‘law’?

We don’t have a clear answer

Some courts have decided that personal laws were not contrary to FRs

Another strand of decisions have not said that personal laws are laws under Art 13
so even if violative of FR, courts can do nothing

Khasi and Mizo Tribal Customary Law 9

 Narasu Appa Mali

Both judges said personal law is not law

It is the legislature which has to decide whether the personal law should be changed

Gajendragadkar said the fact that ‘personal law’ was not explicitly written in Art 13
means that it was meant to be excluded

Khasi and Mizo Tribal Customary Law 10

 In Nagaland, women still have basically no inheritance rights

Introducing 30% reservation for women in some states in the Northeast faced a lot of
backlash and violence

Khasi and Mizo Tribal Customary Law 11

 Goa’s Succession Laws
Equally applicable across religions and genders

Matrimonial Property Law

Matrimonial Property Regime

Communion of Assets

Default Regime

Takes affect from marriage

Applies for all property, be it inherited, gifted, willed (where will had been
effected), debts, liabilities, self-acquired property

All forms of property — bank accounts, land, paintings, shares in companies

All property is pooled together as if the couple is one unit

Simple Communion of Assets

Can only take effect w a pre-nuptial contract (Ante-nuptial contract) that has to
be executed at the time of marriage. It cannot be executed after marriage

The properties acquired after marriage will be part of the common pool. This is
specified in the pre-nuptial contract

They can’t sell the property without the signature of the spouse

The management of these properties though is the prerogative of the male

spouse.

Separation of Assets

Takes effect w pre-nuptial contract

Total or partial separation of assets

In the simple communion of assets, all assets acquired after marriage are part of
the common pool, and everything before marriage is separate. Here, it is a
choice about which assets will be separate (not dependent on whether acquired
before or after marriage). They will specify in the contract

Goa’s Succession Laws 1

 Dotal Regime

Almost like dowry

Inheritance given through an ante-nuptual agreement at the time of marriage

Cannot be disposed off or alienated in any manner except w the consent of the
other spouse

A form of simple communion of assets but involves the parents’ consent

Features:

Can apply to all property, ancestral and other

Ante-nuptial (pre-nuptial contract)

Holding based on residence

New forms of property, new forms of holding (stuff like partnership in a firm,
Bitcoin, etc) — We don’t know whether these laws will apply to those

Criticisms

The law sounds equal but it is operating in an inherently unequal society. Eg, if
women ask about the husband’s assets, the husband and in-laws look at her w
suspicion. So it does not translate into substantive equality irl

It is an equal law in an unequal society. The wife will routinely not know the survey
numbers of the property. If she tries to ask, she will be suspected.

The other Indian laws applicable to Goa - for instance partnership and companies
law - have not taken into account the Goa law. This is especially true for new forms
of property and new forms of holding such as shares, cyber currency etc. The wife
can file a claim but all that will be post-facto.

Blandly equal, not substantively equal/equitable

Lack of contextualisation, social conditioning

Laws relating to certain forms of holdings or newer forms of holdings are not
synchronised

Inheritance and Succession Law

Marriages in Goa have to be necessarily registered, it is compulsory

Goa’s Succession Laws 2

 Types of succession

Testamentary — a spouse cannot will away more than 50% of the property if they
have forced heirs

Intestate

Legitime (ascendants/descendants)/ Forced heirs

Order of Succession

Descendants

Ascendants

Surviving spouse

Brothers, sisters, and their descendants

Collaterals not comprised in (ii) up to the 6th degree [cousins etc]

State in the absence of testamentary or intestate heir of a beneficial owner or of an

Emphyteusis

Usufructuary right

The husband can will the house to his children. So a usufructuary right for his wife
ensures that she can stay there acche se during her lifetime

Renunciation

Relinquishment of all inheritance — basically relinquish everything or nothing

Relinquishment in favour of the inheritance — when you give up your right, it goes
to the remaining heirs in equal shares, you can’t say ki mera share mere ek sibling
ko dedo

Through a deed of renunciation drawn in a book before the special notary or

recorded in a register in the Court before whom inventory proceedings conducted

Partition

By deed of succession plus deed of partition

By inventory

Goa’s Succession Laws 3

 🛗
Wills
It is the legal declaration of the intention of a testator with respect to his property which he
desires to be carried into effect after his death.

Distinguishing features of will from other dispositions of property by its owners are —

Takes into effect after the death of the testator

Revocability - Any number of times before his death. He can amend it also

Essentials of a will —

Must be a legal declaration

Declaration must be w.r.t. property of the testator

Declaration must be to the effect that it is to operate after the death of the testatator.

Revocable during life of testator.

Codicil is called an amendment to the will - but if the reading of the will is contrary to the
will then ambiguity.

Law on Testamentary Succession

It depends on religion and domicile of a person

General Law is ISA,1925

Act also applies to the undivided interest of a Hindu in Mitakshara coparcenary property
(S.30 of HSA)

The Act is not applicable to Muslims (They have a rule of bequeathable 1/3 rem reading this
in Muslim law), Indians domiciled in Goa and Daman&Diu and Renocants of the UT of
Puducherry

Muslims

Governed by Quranic Law — Muslim Personal Law (Shariat) Application Act 1937

Wills 1
 Procedural rules of ISA w some reservations do apply

Muslim married under SMA will be governed by provisions under ISA.

The general limit imposed on testamentary powers of a Muslim is to the extent of 1/3 of
their property.

Rationale of 1/3 rule is that it prevents the person from interfering and defeating
claim of lawful heirs.

By allowing for 1/3 he is empowered to settle claims of people at his pleasure who
might not figure in the heirs category.

All Indians in Goa and Daman+Diu irrespective of their religion are governed by Portuguese
Civil Code

All Indians in Puducherry are following French law.

Under HSA 1956, a person has a power to make a will of the totality of his separate and also
of his undivided interest in coparcenary property. [Notional Partition karke u will get a
definite number] - so no bar here also

Under ISA, there is no restriction on the power to make a will of their property.

X can will away his 1/3 according to S.30 of Hindu Succession Act

Wills 2
 S.59 (Who can make a Will) — married women explicitly given because earlier had some
resitrctions.

Executor may be appointed by person making the will - he derives his title from the till and
all property of the testator vests in him from the date of the testators death

Section 61 (Will obtained by fraud, coercion and undue influence) —

Wills 3
 Section 62 — Will may be revoked of altered

Execution of the unprivielged will [Section 63]

Wills 4
 Attestation by atleast 2 persons. Attestation means of signing a document for particular
purpose, the pupose being to testify to the signature of he executant.

Optional to register a will.

Section 67 — Gift to Attesting Witness — Null and Void

Section 69 — Revocation upon Marriage [Not applicable to Muslims or Hindus - why?

ma’am says commentary idk]

Section 74-111 (Construction of Wills) - Most Important Sections

A testamentary document requires no special form of words

A will may be made in any form and in any language

If technical words are used, they may be considered as having been used in their
technical sense

The primary duty of the court is to ascertain intention of testator.

In construing a will, court should determine facts and circumstances

Court shall inquire into every material fact relating to the persons who claim to be
interested under such will, subject matter of disposition, circumstances of testator and
family (Section 75)

Wills 5
 Mere error in name or description can be corrected.

Section 76 — cannot invalidate a will just bc error in description

Section 77 — When words may be supplied.

Words cannot be supplied to prevent vesting.

Wills 6
 Section 78 — Rejected of Erroneous Particulars in description of subject

Section 79 — When part of description may not be rejected as erroneous

Wills 7
 Section 80 — Extrinsic evidence (patent ambiguity)

Examples

Jahnavi bequeaths an iPod to Tushar described as ‘my third cousin’ but she has only one
cousin

Answer - apparent error in description so Tushar will still get the legacy [Using
S.76]

R bequeaths an ipod to V, described as my third cousin V. The testator has only one
cousin named Mohit.

There is an error in name. Mohit will get it

Wills 8
 Deathbed Bequests
Gift = Hiba [ but the person who gets the property has to accept the donation]

Who can make death bed bequests — when person is in apprehension that they are about to
die. There has to be some pre-existing illness of such kind that this apprehension arises.

If a Muslim gifts his property, he can gift it all. If he wills it, he can only do 1/3. In deathbed
bequests, he can will away 1/3 of his property.

If he does not die, it will still go to the receiver and will be considered a gift.

If he has willed away 2/3 of his property by deathbed bequests and does not die, then it will
be treated as a gift and would be a valid transaction. But if he dies, it would be an invalid
will.

Wills 9
 Conversion
X, a Muslim, converts to Hinduism. Then he will be governed by Hindu law. After
conversion, is X entitled to his father’s property?

Earlier, the moment a person converted, they would be disentitled to inherit property from
their parents

Legislation passed — Caste Disabilities Removal Act.

Just conversion does not inherit the person from the property that they was entitled to

Act Repealed. So now, the q is whether the position under personal law prevails or
whether the Act’s position continues

Most jurists believe that we will not go back to the personal law prior to the CDRA. Its
position should still be applicable

If X converts to Islam. The moment he converts, he is governed by Muslim law. However, in

Muslim law, Hindus cannot inherit a Muslim’s property. So X’s legal heirs (like sisters,
parents, etc) cannot inherit because they are still Hindus. CDRA also does not protect the
legal heirs of the convert.

We think that in Hindu law, if X converts to Hinduism, then his Muslim heirs probably can
still inherit under Hindu law, because HSA does not talk about the religion of X’s heirs

X was a Hindu, he had wife and two sons. He becomes Muslim and marries another woman
and has children w him. Now, only the second family is entitled to X’s property

If, in this situation, X converted only for the purpose of marriage, Sarla Mudgal would
say that the second marriage is void. However, it has not said anything else about
everyone’s status

Conversion 1
 s26 of HSA

CDRA only applies to the convert himself, not to the convert’s descendants

After getting married under SMA, succession is governed by ISA (the general part, which
applies to Christians). The exception is if two Hindus marry under SMA, then they continue
to be governed by Hindu law

Illustrations

Conversion 2
Conversion 3
Conversion 4
 Normative Arguments

Normative Arguments
Transgender Persons
How does one determine a ‘proper’ heir where there are no bonds of blood or ties of
marriage?

What are the terms by which one establishes one’s self as a legitimate heir to hijra
property?

What are the obligations of a younger hijra, a chela to her elder, or guru?

Need for gender neutral laws because of difficulty in freezing gender identity

Intestate Succession of Hindu Women

Section 15(2) of the HSA dictates how the property she inherits from her husband
and parents devolves. Under Section 15(2) of the HSA, if a widow dies childless,
any property she inherits from her parents devolves to the heirs of her parents (viz
her siblings). Any property she inherits from her husband devolves to her husband's
heirs. Again, there is no reciprocal provision in the scheme of devolution for men's
property. After his children and the wife, a man's natal family has a claim over all the
property which belongs to him. The woman's family is not mentioned at all.

The injustice of these provisions is showcased perfectly in a 2009 case heard by the
Supreme Court of India - Omprakash v. Radhacharan and Ors. [(2009) 15 SCC
66]. The dispute was between the brothers-in-law and parents of one Narayani
Devi. Narayani Devi's husband died within three months of their marriage in 1955.
Her in-laws promptly threw her out of her marital home. Narayani Devi went back to
live with her parents, who provided her with an education. She then got a job and
eventually amassed a significant amount of property in the form of savings in a bank
account and a provident fund. Narayani Devi died in 1976, without creating a living
will. Her mother then sought to claim her property, but her brothers-in-law opposed
her claim. The dispute eventually ended up in the Supreme Court. The Supreme
Court ruled that since Narayani Devi did not have children and did not inherit the

Normative Arguments 1
 property in dispute from her parents, its devolution would be governed by Section
15(1). Under Section 15(1) the husband's heirs - i.e. her brothers-in-law - had a
stronger claim than her parents. So it came to pass that the same marital family
which had thrown Narayani Devi out after her husband died, ended up with the
property she acquired through her effort and skill.

The 174th Report of the Law Commission of India recognised that the scheme of
devolution fails to account for the possibility that a woman might be capable of
acquiring property on her own, through her own effort and skill. The 207th Report
of the Law Commission also noted that the HSA does a disservice to women by
not recognising their self-acquired property. It also recommended an amendment to
govern women's self-acquired property.

A recent writ petition filed in the Supreme Court, in the case of Khopkar v. Union
Of India & Ors. , where the petitioner challenged the rules of devolution that
applied differently to men and women, has rekindkled the discussion of gender
discrimination under the Hindu Succession Act (HSA), 1956.

Law Commission Consultation Paper on Family Reforms (2018)

Hindu Law: The paper advocates for abolition of coparcenary at the central level
and suggests that the right in a property by birth be extinguished, by opting for
‘tenancy-in-common’, instead of ‘joint tenancy’. Hindu Undivided Family (HUF) has
also been suggested to be abolished, noting that the institution of HUF was being
used for tax avoidance.

Muslim law: The paper suggests formulation of a complete code, i.e., Muslim Code
of Inheritance and Succession, applicable to both the sects – the Sunnis and the
Shias, along all the schools falling under either, “in order to eliminate the
obfuscation and to demystify the currently esoteric inheritance law followed among
Muslims”. It further advocates for succession to be based on proximity to the
deceased rather than preference to male agnates heirs. Further, it has been
recommended that a widow, childless or not, would be a Class I heir, and would,
therefore, inherit the property of the deceased as a Class I heir, taking one share.

Christian Law: The paper recommends that amendment be introduced to keep

some portion of the property (to be fixed by law) outside the power of disposition by
will of the testator (belonging to all religions). This restricted portion may be used for

Normative Arguments 2
 the welfare and maintenance of the testator‘s widow, unmarried daughter, minor son
or elderly dependant parents.

Parsi Law: It suggests that a Parsi woman should be allowed to retain her identity
and status of a Parsi even if she marries outside the community. Consequently, it
suggests that the children born of such marriage should be allowed to inherit if they
choose to profess Zoroastrian religion and not to adopt their father‘s religion.

Inheritance rights of illegitimate children: The paper notes that while Courts are
trying to afford inheritance rights to children born out of wedlock as much as
possible by interpreting the law liberally, the lack of a secular Central law in this
regard is conspicuous by its absence.

Normative Arguments 3