HINDU LAW
CHAPTER-12
- SUCCESSION 3
Heirs, HUF business, etc.
(i) Disqualification of Heirs-Hindu law and H.S. Act.
(ii) HUF business and p. firm
(iii) Changes under H.S. Act
SUCCESSION 3
Heirs, HUF business, etc.
(i) Disqualifications & exclusion from Inheritance:
(1) Under old Hindu Law Persons under some disabilities or defects were exclude from inheritance.
The disabilities were:
1 Unchastity.
2. Remarriage.
3. Change of religion or loss of caste
4. Taking sanyasa.
5. Heirs with physical and mental defects: i.e. leper, lunatic. Idiot, deaf and dumb.
6. Murderer of propositus.
(2) Origin:
The origin to disqualify heirs is in “smrutis” Vishnu: Considers outcaste, enuchs,blincl, deaf, dumb, insane persons, lepers-as disqualified, to inherit. However, he says that those who take share should maintain such persons. Mithakshara also mentioned these grounds, to exclude from inheritance. Rudra deva’s Saraswati vilas excluded impotent persons, outcasts, those who were born blind, born deaf, madmen, idiots and dumb from inheritance.
The leading case is krishna v. Swami (Madras)
(3) Removal of disqualifications:
1. Physical: deafness,dumbness
2. Mental: Lunacy, Idiocy.
3. Moral: unchastity
(4) Religion : loss of caste, religion etc. These have been removed under Hindu Inheritance (Removal of disabilities) Act 1928.
Changes under Hindu Succession Act:
Sns : 24,25,26,& 28, deal with disqualifications :
(i) Sn, 28:
This section specifically states that disease, defect or deformity-are no grounds to disqualify. No disqualification is recognized except what is provided in the Hindu succession Act.
(ii) Sn. 25 : murderer :
On principles of equjty & Justice and public policy, a murderer or a person who abets the commission of murder is disqualified to inherit the person murdered or attempted at.
Law considers the murderer as non existent. In Radheshyam V Deputy Director (1969) the wife Devaki murdered her husband Bissu & the court held that she would be non-existent and hence, could not claim or inherit.
(iii) Sn.26: Conversion:
If a Hindu converts to any other religion and ceases to be a Hindu , he & his descendants are barred from inheriting the Hindu relative.
One exception, is provided. At the time of succession if the children or claimant is a Hindu, he may inherit.
(iv) Sn : 24. Remarriage:
Remarriage is a diqualification. Hence, on the date of succession, if the widow specially motioned-in this section has remarried, she cannot inherit.
widow who cannot inherit is the widow of a predeceased son, or widow of the predeeaseaTsoh of a predeceased son, or widow of brother.
Hindu widows Remarriage Act 1856 had stated that the widow could not inherit to her husband’s property on remarriage. It was held that in respect of limited estate this rule applied. A woman cannot be a widow, and also a spouse of another. But property already vested in her.[mayne’sHindu Law] will not divest on her remarriage.
(ii) Joint Family business & Partnership distinguished.
Partnership
1. There is a contract among partners. There is no status by birth.
2. Each partner is the agent of the other partner in dealings with third parties.
3. Death of a partner may dissolve a firm(unless agreed otherwise)
4. Partners should account for expenses;each partner can ask for accounts of profit & loss.
5. Partners may borrow in the course of business to bind other partners. Coparceners are joint owners; Karta may borrow survivorship
6. Minors have some advantages There are no special advantages under sn.30 of partnership Act. to minors Minor not liable for losses.
7. There is contract & implied The karta alone has implied authority to partners as per authority; He may pledge the Deed. Joint Family property to bind coparceners.
8. Registration may be made as No registration, per sn.69 of the partnership Act.
9. Female can be a partner Female cannot be a coparceners.
10. In case of insolvency of a Insolvency does not affect Joint partner, he ceases to be a status.
11. Firm may be dissolved by Coparceners may sue for partners or by the court. severance of status & file for partition.
(iii) Change under Hindu Succession Act.
The Hindu Succession Act 1956 has brought about sweeping changes in Hindu Law.
The following is an outline of the changes. ,
1. The spiritual benefit theory is replaced by “Equality” Hence equality prevails. Hence, in succession, the order of succession is decided on the basis of Equality.
2. The doctrine of woman’s limited estate, which was the root cause of ruinous litigation is abolished. The woman becomes absolute owner under Sn.14 of the Hindu Succession Act.
This is given restropective operation. Stridhana of whatever nature is made uniform.
3. There is the objective to have uniformity in the law of succession to both Mithakshara & Daya bhaya Schools.
4. “Stridhana” or woman’s property has heirs stated in Sn.15
5. For purposes of succession sons & daughters as heirs are treated equally.
6. Unchastity of woman is not a ground for exclusion from succession:
various other grounds of disqualifications have been removed. Only those stated in Sns; 24,25,26, & 28 are recognized.
7. A coparcener may make a will in respect of his share in Mithakshara coparcenery.
8. Right by birth of son continues. A female has no such right.
9. Testamentary disposition is given, which is a drastic change in mithakshara coparcenery. A coparcener may make a will in respect of his share in the coparcenery. No such privilege existed before.
10. In respect of dwelling houses, right of pre-emption is recognized.
11. An illegitimate child may succeed to its mother’s property but not to its father’s property.
12. In some circumstances, undivided interest of a coparcener in Mithakshara may devolve by succession and not by survivorship.
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