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Laws of Family Partition, Wills, Succession Certificate, Probate & Letter of Administration

 

There are two systems of inheritance amongst the Hindus in India namely, the Mitakshara System and the Dayabhaga System. The Dayabhaga System prevails in Bengal; the Mitakshara System in other parts of India.

Succession to Stridhana that is, property held absolutely by a female, is governed by rules different from those which govern inheritance to the property of a male.

The Mitakshara recognizes two modes of devolution of property, namely, Survivorship and Succession. The rule of Survivorship applies to Joint Family Property; the rules of Succession apply to property held in absolute severalty by the last owner. Every member of a Mitakshara Joint Hindu Family has only an undivided interest in the Joint Family property.

In determining the mode in which the property of a Hindu Male governed by the Mitakshara Law devolves on his death, the following propositions are to be noted: -

The Hindu Succession Act, 1956, which came into force on 17th June 1956, has codified the law of Intestate Succession among Hindus. It has brought about fundamental and radical changes in the law of succession, Section 6, 8, 30 & Schedule of which Act are very important in this regard: -

Section 6, The Hindu succession Act, 1956: Devolution of interest of coparcenary property. When a male Hindus dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1. For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before this death, irrespective of whether he was entitled to claim partition or not.
Explanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

Section 8, The Hindu succession Act, 1956: 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

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

Section 30, The Hindu succession Act, 1956: Testamentary succession. Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.

Explanation. The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this[section.]

The Schedule, The Hindu succession Act, 1956:

(See Section 8)

HEIRS IN CLASS I AND CLASS II

Class I

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; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.

Class II

I. Father.

II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.

III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter.

IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.

V. Father's father; father's mother.

VI. Father's widow; brother's widow.

VII. Father's brother; father's sister.

VIII. Mother's father; mother's mother.

IX. Mother's brother; mother's sister.

Explanation. In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.

In respect of Transfer of Properties and disputes involving Transfer of Property, the provisions of law of The Transfer of Property Act, 1882 can be seen.

For Execution of Wills, Succession Certificate, Probate (Letter of Administration) with or without Will kindly see provisions of Indian Succession Act, 1925.

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Last Updated: 15 July 2010