SUCCESSION 2 HINDU LAW

HINDU LAW 

CHAPTER-11

• SUCCESSION 2

(i) General rules of succession common to males or females

SUCCESSION 2

(i) General Rules of Succession common to Males & Females. 

The general provisions relating to succession common to male and female under the Hindu Succession Act 1956 are stated in Sections 18 to 23. 

       i) Full blood and Half-blood: 

Sec. 18 provides that other thing being equal full blood is to be preferred to half-blood in determining the order of succession. Two persons are said to be related to each other by full blood when they are the descendants of a common ancestor by the same wife. They are related by half-blood when they are descendants of a common ancestor by different wives. 

      ii) Per Capita, Not per stirpes: 

Sn. 19 provides that the general rule governing the distribution of an inheritance among several equal heirs shall be per capita, i.e., per head and not per stirps (i.e., not according to stock or branch). The Act has provided in some specified circumstances for per stirpes distribution. 

     iii) Tenants in common and not joint tenants: 

Several heirs who succeed together to an inheritance after the commencement of the Act will take the inheritance as tenants in common i.e., with their share defined and ascertained. They do not take as joint tenants. 

     iv) Child in the womb: 

One principle of Hindu law is that a son in the mother’s womb at the time of partition or death of the owner (father) is considered as ‘En Vetre sa Mere’ (i.e., a child in existence). But the child must be subsequently born alive. As a child in existence, the Act gives vested interest in such inheritance. 

v) Simultaneous Deaths: 

When two persons, an intestate and his next heir, happen to die simultaneously, it becomes important to judge who died first. The Act provides that the elder of the two persons shall be presumed to have died first. This is a rebuttable presumption. 

vi) Pre emption: 

The right of sons and daughters to equal shares effected by the Act may ,cause great practical difficulties without provisions for pre-emption. Sn. 22 provides for that. If a daughter is entitled to a share and after her marriage disposes of her share in the immovable property to a stranger, it may make the matter worse. Hence, a provision for pre-emption was made. 

The right to pre-emption is the right to fore-stall a sale to a stranger (Aud Bihari v. Gajadhar SC. 1954). Where any co-her wishes to sell or transfer his share or interest therein he should not transfer to a stranger, when the other co-heir is willing to acquire the share. For the fixation of the price the Act provides that in disputed cases the Court may determine. This means that Civil court is empowered to , ‘ fix the price. In case of cr mpetition among co-heirs the co-heirs who offer the highest amount will have the right to pre-emption. 

    vii) Dwelling House: 

S.23 intends at curtailing the right of the preferential female heir of Class I over the family dwelling house when that is wholly occupied by the member of the family and the intestate. No female heir in Class I e.g. (daughter) would be entitled to claim a partition. Such female heirs are given only the right of residence in the family dwelling house.