What are the General Rules of Succession un­der the Hindu Succession Act?

Mode of Succession of Two or More Heirs (S. 19):

It is provided by S. 19 that if two or more heirs succeed together to the property of an intestate, they will take the property—

(a) Per capita, and not per stirpes (unless otherwise expressly provided in the Act); and

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(b) As tenants-in-common, and not as joint tenants.

The terms per capita and per stirpes can be explained thus: Suppose A dies, leaving B, his son, and C and D, who are the sons of another son of A, X, who has died before A. If the distribution of A’s property is to take place per capita, the estate will have to be divided into three shares, and each heir will get one share. In this illustration, therefore, B, C and D will each get one-third of the estate.

On the other hand, in a distribution per stirpes, a claimant gets a share as representing some other person. In this illustration, the property would be divided into two shares, and B would get one share. The other share (representing that of the deceased son, X) would be divided between C and D. In other words, B, C and D would not get equal shares. B would get one-half, and C and D, one-fourth each.

Again, when property is jointly held, it may be held by the owners, either as tenants-in-common or as joint tenants. In the case of tenants-in-common, on the death of one of them, his share would go to his heirs, whereas in the case of joint tenants, the heirs of the deceased get nothing, and his share devolves upon the remaining joint owner or owners.

Right of a Child in Womb (S. 20):

Section 20 enunciates a view which is adopted by most advanced legal systems of the world. It lays down that a child who was in the womb (at the time of the death of the intestate) and who is subsequently born alive, has the same right to inherit the property of the intestate, as if he (or she) had been born before the death of the intestate.

This section expounds a legal fiction that the rights of a child born in justa matrimonio are regarded with reference to the moment of conception in the womb, and not of actual birth. Such an unborn child in the womb, if later born alive, is treated as if it had been born at the time of the death of the intestate.

Presumptions in Cases of Simultaneous Death (S. 21):

There may be cases where two persons, as for instance, a hus­band and a wife, die in the same air-crash or the same shipwreck. In such cases, the question may arise as to who died later in time, as this would be important for the purposes of succession.

Section 21, therefore, provides that if two persons die in circumstances rendering it uncertain whether either of them, and if so which one, survived the other, then a presumption arises (unless the contrary is proved), that the younger of the two survived the elder.

Section 21 is intended to apply to catastrophes such as shipwrecks, earthquakes, explosions, bombing, air or rail accidents and the like. In such cases, death may or may not have been simultaneous; nevertheless, the section lays down an artificial rule of presumption such cases.

This presumption can, of course, be rebutted by leading evidence, to show that the elder of the two had in fact survived the younger. It is only in the absence of such evidence that the Court will presume that the younger survived the elder.

The English Law on the point is the same, and a similar rule is to be found in Section 184 of the Law of Property Act, 1925.

Preferential Right to Acquire Property in Certain Cases (S. 22):

Section 22 confers on the heirs a preferential right to acquire property, a right which is analogous to the right of pre-emption. As a result of this Section, if an intestate’s immovable property (or an interest in a business) has devolved upon two or more heirs of Class I of the Schedule, if any such heir desires to dispose of his interest, the other heirs have a preferential right to purchase such interest. In other words, he cannot sell his interest to any other person, without first offering to sell it to the other heirs of Class I.

It is further provided that if the parties are unable to agree upon the price payable for such a preferential sale, the price will be determined by the Court, on an application made to it for this purpose. However, the intending purchaser is not bound to pay the price fixed by the Court. But, if he chooses not to pay such price, he will be liable to pay the costs of making the application to the Court.

Further, it is also provided that if two or more heirs of Class I wish to purchase such an interest, he who offers the highest price is to be preferred.

Special Provisions Regarding Dwelling Houses (Now deleted):

Prior to its deletion by the 2005 Amendment, S. 23 had made a special provision for cases where a dwelling-house was included in the property of a Hindu dying intestate. It was provided that if a Hindu dying intestate had left surviving him (or her), both male and female heirs specified in Class I of the Schedule, and if such intestate’s property included a dwelling-house, wholly occupied by members of his (or her) family, such a female heir could not claim partition of the dwelling-house, until the male heirs chose to divide their respective shares therein. However, such a female heir was entitled to a right of residence in such a house. If such a female heir was a daughter, she was entitled to this right of residence only if she was unmarried, and if she was married, only if she was deserted by, or separated from, her husband, or if she was a widow.

The rule enacted in this Section (before its deletion) has aptly been called “a statutory novelty”, and it is regrettable that the Section was not as lucidly worded as one would have liked it to have been. For instance, the term “dwelling-house” was not defined in the Act. Similarly, the expression “members of his (or her) family” raised several debatable points.

Further, the restriction of Section 23 was strictly confined to the right of such female heir (of Class I) to ask for partition of the family dwelling-house, and operated only –

(a) If such dwelling-house was occupied by members of the family; and

(b) Until the male heirs chose to divide their shares in it.

As stated above, S. 23 has now been deleted by the 2005 Amendment of the Hindu Succession Act.

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