CA VINOD JAIN Chairman, INMACS Global 9811040004 | [email protected] Succession Planning India...

CA VINOD JAINChairman, INMACS Global9811040004 | [email protected]

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OUR FOCUSHindu Succession

Act,1956

Intestate Succession

GeneralSpecial provisions

relating to succession

Escheat

Testamentary Succession

General rules of succession in the case of males: The property of a male Hindu dying intestate shall devolve

according to the provisions of this Chapter- firstly, upon the heirs, being the relatives specified in class I

of the Schedule; secondly, if there is no heir of class I, then upon the heirs,

being the relatives specified in class II of the Schedule; thirdly, if there is no heir of any of the two classes, then

upon the agnates of the deceased; and lastly, if there is no agnate, then upon the cognates of the

deceased.Contd…. 3

HINDU SUCCESSION ACT, 1956

Distribution of property among heirs in class I of the Schedule

The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:

Rule 1-The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.

Rule 2-The surviving sons and daughters and the mother of the intestate shall each take one share.

Rule 3-The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.

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Rule 4-The distribution of the share referred to in Rule 3- among the heirs in the branch of the pre-deceased son

shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his predeceased sons gets the same portion;

among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

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Distribution of property among heirs in class II of the Schedule

The property of an intestate shall be divided between the heirs specified

In the order in which each category is listed in any one entry in class II of the Schedule so that

they share equally.

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Order of Succession among agnates and cognates: Rule 1- Of two heirs, the one who has fewer or no

degrees of ascent is preferred. Rule2- Where the number of degrees of ascent is

the same or none, that heir is preferred who has fewer or no degrees of descent

Rule 3-Whether neither heirs is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously .

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DEFINITIONS CLASS I Heirs are:-

Son Daughter Widow Mother son of a pre-deceased son daughter of a pre-deceased son son of a pre-deceased daughter daughter of a pre-deceased daughter

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Widow of a pre-deceased son Son of a, pre-deceased son of a predeceased son Daughter of a pre-deceased son of a predeceased son Widow of a pre-deceased son of a predeceased son.

Note:- If there is more than one widow, multiple surviving

sons and daughters, or multiples of any of the other heirs listed above, each shall be granted one share of the deceased’s property. Also if the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled to receive the inheritance.

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CLASS II Heirs are:- Class II heirs are categorized as follows and are given the property of the deceased in the following order:

Father Son's daughter's son , Son's daughter's daughter , Brother , Sister Daughter's son's son, Daughter's son's daughter, Daughter's daughter's

son, Daughter's daughter's daughter. Brother's son, Sister's son, Brother's daughter, sister’s daughter Father’s father, Father’s mother Father’s widow, Brother’s widow Father’s Brother, father’s sister Mother’s father, Mother’s mother Mother’s brother, Mother’s sister

*Brother /sister does not include brother or sister by uterine blood

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"Agnate"- one person is said to be an "agnate" of another if the two are related by blood or adoption wholly through males.

"Cognate"- one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males

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General rules of succession in the case of female Hindus: (Section 15(1))

The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 : firstly, upon the sons and daughters (including the children of

any pre-deceased son or daughter) and the husband; secondly, upon the heirs of the husband; thirdly, upon the mother and father; fourthly, upon the heirs of the father; and lastly, upon the heirs of the mother.

Contd…. 12


General rules of succession in the case of female Hindus(Section15(2))

Notwithstanding anything contained in sub-section (1)- any property inherited by a female Hindu from her father or

mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

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General rules of succession in the case of female Hindus(Section15(2))

Notwithstanding anything contained in sub-section (1)- any property inherited by a female Hindu from her husband or

from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

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Order of Succession and manner of distribution among heirs of a female hindu:

In the order in which each category is listed in any one entry in class II of the Schedule so that they

share equally. If any son or daughter of the intestate had pre-deceased

the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death

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Order of Succession and manner of distribution among heirs of a female hindu:

The devolution of the property of the intestate on the heirs of husband, father , mother and sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death

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Special Provisions relating to succession: Full blood heirs of intestate to be preferred to half blood. If two or more heirs succeed together they shall take

properly per capita(and not per stirpes) and as tenants is common(and not as joint tenants)

A child in womb at the time of interstate’s death and subsequently born alive shall have same right to inherit as if born before interstate’s death

Simultaneous deaths- When 2 persons have died in circumstances rendering it difficult to identify who survived the other, then it shall be presumed that the younger survived the elder.

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Special Provisions relating to succession: If an interest in any immovable property devolves upon 2 or

more heirs specified in Class I of the schedule, and any one of such heirs proposes to transfer his/her interest, then other heirs shall have a preferential right to acquire the interest proposed to be transferred

A person who commits murder or abet the commission of murder shall be disqualified from inheriting property of the murdered person

When a hindu ceases after conversion to another religion, children born to him or her after conversion and their descendants shall be disqualified from inheriting property

No person shall be disqualified from succeeding any property on ground of disease, defect or deformity. 18


Escheat If intestate left no qualified heir, such

property shall devolve on the government and it shall take such property with all obligations

Testamentary Succession Any hindu may dispose of by will or

other testamentary disposition any property in accordance with the provisions of Indian Succession Act or any other law in force and applicable to hindus 19


HINDU SUCCESSION (Amendment) ACT, 2005

The Hindu Succession (Amendment) Act, 2005 is to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters:

The daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son;

The daughter has the same rights in the coparcenary property as she would have had if she had been a son;

The daughter shall be subject to the same liability in the said coparcenary property as that of a son;

Contd…

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The daughter is allotted the same share as is allotted to a son;

The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;

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After 20th December 2004 Female Property part of HUF ( Joint Hindu Family ) Held by her As a Co – Parcener Capable of being disposed of by testamentary

disposition

HUF Property – Succession – MITAKSHARA LAW Where a Hindu dies After 20th December , 2004 Interest in Joint Hindu Family Property shall devolve

• By testamentary or• Intestate succession

Not by survivorship As if the full partition has taken place immediately before

death and Daughter is allotted same share as to a son Shares of predeceased son or predeceased daughter allotted to

surviving son and daughter of such predeceased : and so on 22


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CA VINOD JAIN Chairman, INMACS Global 9811040004 | [email protected] Succession Planning India...

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