LAKHMI CHAND INSTITUTE OF TECHNOLOGY

DEPARTMENT OF LEGAL STUDIES

ACADEMIC PROJECT 2020-21

SUBJECT- HINDU LAW

TOPIC: INHERITANCE UNDER HINDU LAW

SUBMITTED TO

MR. SHUSHIL JAIN

ASSISTANT PROFESSOR

PREPARED BY

MANJU DHRUV

LL.B (SEMESTER 3rd)

DATE OF SUBMISSION: 23 SEPTEMBER 2019

 INTRODUCTION

Meaning of inheritance – Inheritance is whatever one receives upon the death of a relative due to the laws of succession,
when there is no will and generally by a will. However, inheritance has come to mean anything received from the estate of
a person who has died, whether by the laws of succession or as a beneficiary of a will or trust. It has not been defined under
any statute, though for practical purposes there is no difference between inheritance and succession.

Definition – “The word inheritance in common legal parlance is defined as – “Property received from a decedent, either by
will or through state laws of intestate succession, where the decedent has failed to execute a valid will”.

Law of inheritance is a formula or algorithm that determines who inherits an office upon the death, resignation or removal
of its current occupant.

 The sequence in which one person after another succeeds to a title, throne, dignity, or estate.
 The right of a person or line of persons to so succeed.
 The person or line having such right.
 The act or process of succeeding to the rights or duties of another.
 The act or process of becoming entitled as a legal beneficiary to the property of a deceased person.

What is Inheritance Succession?

Inheritance succession is the order in which a person’s relatives receive their property upon their death, if the deceased fails
to leave a will describing how they wish their property to be distributed. Although most people have strong opinions about
how they’d like their property distributed, not everyone leaves a will.

Inheritance succession is not typically an issue in cases where there is a will. Those who do make wills usually leave their
property to the people you would expect, such as their spouses, children and other close relatives.

Wills can be contested if certain family members are cut out of them, and spouses may petition to receive a share of the
deceased’s estate if they are cut out of the will. In general, though, wills are observed when they exist, and inheritance
succession becomes an issue when there is no will, and a probate court must decide who the property goes to.

How is Inheritance Succession Determined?

When a person dies with a will in place, as described above, it will usually be followed in terms of how property is
distributed to relatives. However, it is not uncommon for a person to die without having written a will. This may be because
their death was sudden, or they simply never got around to writing a will. It is also possible that, though a person attempted
to leave a will, the will is not valid.

When one of these things occurs, we say that the deceased person died “intestate.” This is when we must consider
inheritance succession, which may also be known as intestacy succession. The deceased will likely still have property
which must be distributed. The question of who should receive the property will be determined by intestacy laws.
Such laws are meant to distribute the property in a way that the deceased likely would have chosen, had they recorded their
wishes in a valid will. This is no guarantee, though, that the property will be assigned exactly to whom the deceased would
have wanted, or in the proportions they would have wanted. Having a valid, written will is definitely preferable.

What is the Order of Inheritance Succession?

Inheritance succession varies by state. Each state will have its own laws on the subject of the distribution of property of
people who died without wills. While many states might have a lot of similarities in their laws. Some will vary more. There
is a Uniform Probate Code (UPC), but it has not been adopted in every country, and some states adhere to it more closely
than others.

Under the UPC, close relatives always come first in the succession. Although states differ in their intestacy laws, most
follow the UPC notion that close relatives inherit before anyone else. It is common that a surviving spouse be first in line to
inherit, with children and grandchildren next in line. If the surviving spouse has minor children, they may inherit the whole
estate. If there are adult children, they may receive a share. Grandchildren will typically be next in the order, followed by
the deceased’s parents, then siblings, then nieces and nephews, grandparents, aunts, uncles, and cousins.

Adopted children are the same as biological children for inheritance purposes, while stepchildren and foster children are
not. Biological children of the deceased who were given up for adoption may not inherit, either.

It is unusual that no living relatives can be found, but if this does happen, the property will go to the state, or “escheat.”

How Much will Each Relative Receive through Inheritance Succession?

This depends on the state in which probate is conducted. Although it is the order of succession is somewhat uniform
throughout the states, the laws regarding how the estate is apportioned, percentage-wise, varies more. As stated above, if
there is a surviving spouse and children, they are likely to take the whole estate. If there is not, the property will go to other
relatives. Under the UPC, this is how estates are apportioned:

 Surviving Spouse: The spouse receives the entire estate, or the majority of it. If there are surviving children, the
spouse may receive less. Some estates allow for the deceased’s parents to share with the spouse;
 Surviving Children: The children of the deceased may receive the whole estate if there is no surviving spouse;
 Surviving Parents: If no surviving spouse or children exist, the parents of the deceased may take the whole
estate; and
 Other Relatives: In the event that the deceased has no surviving children, grandchildren, spouse, or parents,
their siblings will take the estate. After this, we follow the line of succession down until we find relatives who can
inherit, or, if there are none, the property escheats to the state.
 INHERITANCE UNDER HINDU LAW

Law of inheritance in respect of Mitakshara:

The Mitakshara School bases its law of inheritance on the principle or propinquity (nearness of blood-relationship or
community of blood). The principle of propinquity means that one who is nearer in blood relationship succeeds. This is,
purely, a secular principle. The principle applied in this form would mean that, for instance, son and daughters would
succeed to property equally and simultaneously as they are equally and simultaneously succeed to the property of
grandparents, but the Mitakshara did not give full effect to the principle, and limited it by two subsidiary rules: (a)
exclusion of females from inheritance, and (b) performance of agnates over cognates. Thus if a Hindu dies leaving behind
son and daughter, by application of first rule, the daughter will be excluded and son will get the entire property. Similarly
if a Hindu dies leaving behind son’s son and daughter’s son then the son’s son will succeed to the entire property and as
per 2nd rule daughter’s son will be excluded.

Law of inheritance in respect of Dayabhaga:

The Dayabhaga school bases its law of succession on the principle of religious efficacy, or spiritual benefit that one who
confers more religious benefit on the deceased is entitled to inheritance in preference to other who confer less spiritual
benefit. The conferment of religious benefit is based on the doctrine of offering of oblations or pindadana to the
deceased.

Inheritance law as per modern aspect:

Today we have one uniform law of succession for all Hindus, This is known as Hindu succession act 1956 with some
new amendments (2005). Old Hindu law and customary law of succession abrogated. This does not mean that we have
made total departure from old laws. The old framework has been retained. The basic classification of inheritance to the
property of Hindu female and Hindu male still exits. The mitakshara bias of preference of male over females and agnates
over cognates has been abolished, but who will inherit woman’s property, still depends upon the source from which the
woman got the property, and thus the concept of reversionary inheritance lurks in the background. The doctrine of
representation has been retained in respect of male heir upto three degree of descent- it has been extended to cognate
descendants also but not fully.

The law of succession classified as under:

1. Testamentary succession, and

2. Intestate succession

Testamentary succession:

Testamentary succession refers to succession resulting from a legally executed testament. Testamentary succession is also
known as the right of inheritance. A testamentary succession is fixed and determined at the moment of a decedent’s death.
The law of testamentary succession is concerned about how best effect could be given to the wishes of the testator.( the
person who made the will); what are the rules relating to making of a will and allied and subsidiary matters. The testator
enjoys full freedom of bequeathing his property.

Intestate succession:

When a person dies without a valid will, his or her estate passes to heirs or certain classes of family members by intestate
succession, as prescribed in individual state laws. The purpose of intestate succession statutes is to distribute the decedent's
property in an organized and methodical way. States have their own laws that determine how the property will be
distributed.

In the case of Males:

The property of a Hindu male without a will or dying intestate would be given to the heirs who belong to class I. If the heirs are
not categorized in class 1, then the property will be given to heirs belonging to class II.

Furthermore, if there are no heirs in class II also, the property will be given to the deceased’s relatives or agnates through the
male lineage. Additionally, if there are no relatives or agnates through the male’s lineage, the property that is passed to the
relatives or cognates through the female lineage.

In the case of Female:

Under the Hindu succession act, 1956, it is clearly stated that females are granted the ownership of the property either after or
before the signing of the act. Thus, this abolishes the ‘limited owner’ status. Also, it was not until 2005 act, that the daughters
were given equal property or receipt as that of the sons.

Escheat:

Escheat refers to the transfer of estate assets or property to the state if an individual dies intestate or without a will and
legal heirs. The concept of escheat maintains that property always has a recognized owner, which would be the state or
government if no other claimants to ownership exist or are readily identified. On failure of heir, it is general rule that
property passes to the government by escheat. According to Mitakshara, “king may take the estate of a kshatriya or other
person inferior tribe, on failure of heirs down to the fellow students. The same is laid down by the Dayabhaga. But both the
Mitakshara and Dayabhaga state that the king has no right to take the property of Brahmin dying heirless otherwise the king
tainted with sin. (This is based on a text on Manu).
 EXCLUSION FROM INHERITANCE

According to Dr. Jolly the person who is incapable of work on account of physical, spiritual or moral defect is excluded
from inheritance. Manu wrote “impotent person and outcaste, persons born blind or deaf, insane, idiots and dumb as well as
those deficient in any organ, receive no share”.

A heir was excluded from inheritance on following grounds :-

1. Physical disability :

Person suffering from physical disabilities like congenital blindness, deafness, dumbness, and lame by birth, or
impotent or suffering from want of any organ or were a victim of incurable disease like leprosy, were excluded but
later on these disabilities were removed by Hindu inheritance (removal of disabilities) act 1928.

2. Mental disability:

Idiocy and lunacy are two mental disabilities in this head weather it is not necessary that the person must be
lunatic by birth but he must be a lunatic at the time of when inheritance opens. But after enactment or Hindu
inheritance (removal of disability) removed such ground except congenital lunacy.

3. Moral disability :

the moral disability included the unchastity of woman and she would be subject to excluded her from inheriting
the property of deceased, but once a property vested in her under law, it cannot be divested by subsequent
unchastity. Provided she remained chaste till the death of her husband.

4. Religious disability:

on conversion to another religious or being declared as an outcaste and to renounce the world and become Sanyasi
were the grounds of exclusion from inheritance of property but the caste disabilities (removal) act, 1850 had done
away with this disabilities based on ground of outcaste and conversion.

5. Disability based on equity:

a murderer is disqualified to inherit the estate of the murdered one. Although he/she is not disqualified under
Hindu law from succeeding the estate of victim yet they are held to be so disqualified on the principle of justice
and equity but they were only deprived from the right to inherit but not from the right of maintenance.
 CONCLUSION
It can be easily concluded that in traditional Hindu law, women had been denied their rights of inheritance as they were not
considered as appropriate successor of the property of their father or husband. In Dayabhaga seemed like inheritance right
of woman has been recognized but Mitakshara is very much biased against the women. Though removing such difficulties
regarding to inheritance rights of women, legislature made law to preserve the interest and rights of women and to provide
them equal status in society as man but still law doesn’t govern some issue regarding to rights of women and still they
governed by Mitakshara and Dayabhaga.

Inheritance by making a will has its own advantages, because one can do virtually whatever one wishes with one’s property
when one dies by making a will. If one does not make a will one’s property could end up in the "wrong hands" as it will be
distributed according to the strict procedural rules of the Inheritance Law. A will enables one to have more control of what
happens to one’s property after one dies and balance the needs of the people one wishes to inherit and make priorities and
conditions. A will gives the testator peace of mind about the fate of his/her property after he/she passes away . Whereas
when there is no will, the distribution of a person’s estate can be tricky. When there is no will in place, it can lead to even
more disputes over property and that can lead such situation where the right successor can be excluded from his/her
property of deceased, so it is very much important to secure such rights of rightful successor by state and supervise whether
the property has been given to a person who is actually entitle to hold the property or not, and it should be immaterial,
weather it is a woman or a man, they both should acquire equal right to get inheritance of the property of the deceased.