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Electronic copy available at: http://ssrn.com/abstract=1113248
Contact Information
AUTHOR'S NAME : SHARAD JOSHI
AUTHOR'S ADDRESS
College address: GUJARAT NATIONAL LAW UNIVERSITY
E-4,GIDC Electronics Estate,
Sector 26, Gandhinagar - 382 028 Gujarat, India.
ABOUT THE AUTHOR:
Phone number: +919427359120
Email address:[email protected],
Date of birth : 06 JUNE 1988
Education: III year student
B.A LL.B (Hons.)
Gujarat National Law University, Gandhinagar.
ARTICLE TITLE:-
“DISQUALIFICATION TO SUCESSION UNDER HINDU SUCEESION ACT”
(FAMILY LAW)
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Electronic copy available at: http://ssrn.com/abstract=1113248
ABSTRACT
Family law is an area of the law that deals with family related issues and domestic relations including, but not limited to:
• the nature of marriage , civil unions and domestic partnership
• issues arising during marriage, including spouse abuse, legitimacy, adoption,surrogacy, child abuse, and child abduction
• the termination of the relationship and ancillary matters including divorce, annulment, property settlements, alimony, and parental responsiblity orders.
Family law is the broad term . The scope of family law is subjective in nature. There are different branches of family law The most important part under family law is Hindu Succession Act 1956 .In this article I mainly focused on laws related to disqualification Under Hindu Succession Act 1956 , what old Hindu law and Modern Hindu laws says about disqualification this, There are certain laws related to disqualification law like Certain widows remarrying may not inherit as widows:, murderer disqualified, converts decedents disqualified, succession when heir disqualified. There is one exception to disqualification in which person shall not be disqualified when Disease, defect, etc. not to disqualify this article I have discussed scope, applicability of all the section related to disqualification to succession. I went through various case laws, legislative acts which helped me throughout. After completion of my research work I have given some suggestions for disqualification to succession like step mother should be disqualified under section 24 of Hindu Succession Act,1956. Unsuccessful attempt to murder should also be included in the ambit of S.25,Unchastity of a widow should also be a ground of disqualification,Offenses like rape & torture should also be a ground for disqualification by this I have concluded my research work. In this Research work I have tried to fulfill all the loopholes of disqualification to succession.
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“DISQUALIFICATION TO SUCCESSION UNDER HINDU SUCCESSION
ACT 1956”
Introduction
Laws are social digester's and seldom are they neutral. They have Masculine flavor especially with reference to family laws. Making of laws, administering the laws or resolution of disputes arising out of implementation of laws are totally considered of male bastion and equitable gestures, if any, towards women came out of men’s sympathies for women’s problems. The principle of equality is equated with “sameness treatment “in an inherently unequal society.
The Hindu succession act 1956 came with the objective of providing a comprehensive and uniform scheme of intestate succession for Hindus.
As I have researched on the “Disqualification” under this topic, According to Hindu law, the inheritance rights of person were not absolute. Despite the nearness of relationship, a person could still be disqualified from inheriting property on account of his certain physical or mental infirmities, or a specific conduct .this exclusion from inheritance was not merely on religious grounds , an incapability to perform religious rites, but depended upon social and moral grounds and bodily defects as well. As heir under the classical law, could be excluded from inheritance on the following grounds.
1. Mental infirmities
2. Physical defects
3. Diseases
4. Conduct
My research is mainly focused on the law enforcement of Hindu succession act, 2005, laws related to Murderer in context of disqualification, Consequence of disqualification and under which circumstances person shall not be be disqualified from succeeding to any property.
Old Hindu Law 1
Under old Hindu Law the inheritance rights of a person were not absolute and there were several disqualifications based on mental infirmities, physical defects, diseases and conduct. Despite the nearness of relationship, a person could still be
1 Dr. Diwan Paras, Modern Hindu Law, (2005), Ed. 7th ,Edition.
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disqualified from inheriting property on account any of the above mentioned disqualifications. This exclusion from inheritance was not mere on religious grounds,2 viz, an incapability to perform religious rites, but depended upon social and moral grounds and bodily defects as well.
Modern Hindu Law 3
The law relating to succession for Hindu’s is governed by Hindu Succession Act, 1956. Under this Act Sections 24 to 28 deal with disqualifications of heirs. Section 28 lays down that no person shall be disqualified from succeeding to any property on any ground except those expressly mentioned in the Act and they are as follows:
1. In case of remarriage by certain widows mentioned under S.244
2. In case of murder falling under S.25
3. In case of conversion to another religion as per S.26
Laws of Disqualifications.
Section 24. Certain widows remarrying may not inherit as widows: Any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried.
Purpose of the section:
In the objects and reasons appended to Hindu Succession Bill 13 of 1954(S. 28 of these bill corresponds to S.24 of the said Act) it was stated “the principle underlying this clause is that the widow is the surviving half of her husband, and therefore, when she remarries, she ceases to continue to be such (Section 2 of the Hindu Widow Remarriage Act, 1856), on this basis divested the inheritance already vested in the widow on her remarriage. As the law stands, remarriage disables a widow of a gotraja sapinda from succeeding to the property of a male Hindu when on the date succession opens, she has ceased to be the widow of a gotraja sapinda by reason of remarriage”.
2 Surayya V. Sabbamma (1920) ILR 43 Mad 43 Ibid 34 Now, Section 24, omitted by Act 39 of 2005, Section 5(w.e.f 992005)
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Ambit of the section:
Under the hold Hindu law, certain family’s heirs if they had married before succession opened were disqualified from inheriting the property of the deceased intestate. Under the widow remarriage act 1956, if a Hindu widow remarried, she was divested of the property of her husband which had vested in her as heir.
Under this section only three female heirs are disqualified from inheriting the property of the intestate if they remarried before his death. These females are: (i) son’s widow, (ii) son’s son’s widow and (iii) brother’s widow. No other widow except these three is disqualified from inheritance even if she had remarried before the intestate died. Even father’s widow including stepmother also is not disqualified from inheritance even if she remarried before the succession opened. Also one’s own widow will not be divested of the property already vested in her, on her remarriage. If any of these three widows have remarried before the death of the intestate they incur disqualification
In these section intestates widow is also not disqualified because intestate’s widow’s remarriage before succession opens does not arise, as even if she had, married a second time her marriage would be void, and a void marriage is no marriage. In other words she remains to be a member of the intestate’s family even is she has married before intestate’s death because she is already married and second marriage cannot subsist and so it is void. Since there is no second marriage she remains to be the member of the family and hence she is entitled to inherit the property.
Applicability of the section:
The section applies only to intestate succession. The testamentary succession is beyond the scope of this section, since a testator has power to lay down in his will any conditions on which a legatee will take the legacy.
The section applies only to Class I and Class II heirs of a Hindu male. It is submitted that the question of its application in other cases does not arise, as cognates and agnates are all blood relations. In fact, even among Class I and Class II heir’s only five heirs are relations by affinity. These are: (1) intestate’s own widow, (2) son’s widow (3) son’s son’s widow (4) father’s widow (5) brother’s widow. The first three are in Class I and last two are in Class, category (VI). Of these the question of intestate’s widow’s remarriage before succession opens does not arise and its reason is already been explained above. Only father’s widow is allowed to inherit even if she had married. The other three widows are disqualified under this section.5
5 Dr. Diwan Paras , Law of Intestate and Testamentary Succession, Ed. 2nd , universal Law Publishing Co. Pvt. Ltd.
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Reason for omission of this section:
Section 24 was simply superfluous and redundant. Hence its omission did not create any significant loss and this section was no longer of any use which finally resulted into the omission by the Amendment Act of 2005.
Section 25. Murderer disqualified: A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.
Purpose:
The doctrinaire theory that provisions of a statute of distribution are paramount and forbid the consideration of any disqualification not contained in the statute itself, was discountenanced by the Judicial Committee of the Privy
The section has the effect of laying down that a person who commits Murder or abets the commission of murder is disqualified from inheriting
(1) The property of the person murdered; or
(2) Any other property he may become entitled to succeed by reason Of furtherance of succession resulting from the murder. It is not necessary for the application of this section that the person Disqualified should have been convicted of murder or abetment of murder. The disqualification will apply if it is established in any subsequent proceeding That the person to be disqualified had committed or abetted the murder. Thus if the case was one of suicide and there was no case of abatement, Such a person would not be disqualified. It stands to reason that a person Prosecuted for murder but acquitted of the charge would not be disqualified.
Application:
The section applies to both intestate and testamentary succession.6 The section definitely applies in the cases where the property is to be inherited as per the Act but it also applies where the testator has left behind the will. The principle of this section applies also to testamentary succession. The High court of Madras has held in Sarvanabhaba V. Sellammal that there was no distinction between inheritance and testamentary succession to the property of the person murdered and the murderer of the testator is not entitled to the property bequeathed to him under the will. The following passage from Mantha Ramamurthy’s, Law of Wills also suggest the same
6 supra 7
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“It is settled law that a murder is not entitled to succeed to the estate of his victim. A man cannot slay his benefactor and sustain his bounty. It is equally clear that no title to the estate of the person murdered can be claimed through the murder, that the murderer cannot be regarded as a fresh stock of descent.7 A murderer who is guilty of murdering the testator cannot take any benefit under his will.”
The section applies to succession under the Act. It does not apply to succession under any other enactments or provision governed under any other statute, for example the U.P Zamindari Abolition and Land Reforms Act.
Section 26. Converts descendants disqualified:Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens
Scope :
Under the old Hindu law conversion by a Hindu to another religion was a disqualification which was removed by the Caste disabilities Removal Act, 1850. Even under this Act, when a Hindu becomes a convert to another religion he continues to have a right to inherit from his Hindu relative but descendants of a convert are disqualified from inheriting the intestate. It is laid down under this section that where a Hindu ceased to be a Hindu by converting to any religion whether before or after the commencement of this Act, the children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives unless children or descendants are Hindus when the succession opens.
Ceasing to be a Hindu
This section is not concerned with the right of succession of the convert, i.e., of the person who had ceased to be a Hindu. It merely disqualifies his descendants from inheriting the property of the intestate. A Hindu convert to another religion is not disqualified from inheritance even if he is a nonHindu when succession opens. Similarly, his children born to him before his conversion are also not disqualified. This disqualification also does not apply to descendants of the child born before the conversion of hi or her parent, though descendants may be born after conversion. Thus, an heir who converts to a nonHindu religion either before or after the commencement of the Act is not disqualified and will be heir of the deceased Hindu.8
7 Mani V. Paru ; AIR 1960 ker 195 at 1968 Ibid 17
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In Subramanian V. Vijayarani9 Madras High court has held that the careful reading of S.26 of the Hindu Succession Act would establish that a Hindu ceased to be a Hindu by conversion to another religion and the children born to him or her after such conversion shall be disqualified from inheriting the properties of their hindu relatives. In case of E. Ramesh V. P. Rajini10 it was held by the court that the claim for share by the daughter in the properties of her parents could not be resisted by her brothers on the ground that she had married a Muslim and would not be entitled to any share.
Descendants of the convert:
The disqualification of descendants of a convert requires two conditions to be fulfilled:
The children are those who are born to him after his conversion.
They or their descendants are not Hindus when succession opens.
The section lays down that converts children born to him after conversion, and the descendants of such children are disqualified as heirs of the Hindu intestate only if they are nonHindu when succession opens. If they are Hindus (obviously by conversion) when succession opens they are not disqualified. If they convert to Hinduism after the succession has opened, they continue to be disqualified.
Under this section the descendants of Hindu convert to nonHindu religion cannot inherit the property of a Hindu relative; conversely Hindu relations cannot succeed to their property.
Applicability:
This section has no application to testamentary succession where the terms of the testament govern the rules of succession but it is only applicable to intestate succession.
Prospective or Retrospective:
Section 26 is partly prospective and partly retrospective. It is prospective in the sense that the disqualification under the section will arise only if succession opens after the commencement of this Act. If the succession opened earlier and the intestate died before the Act came into force, the law prevailing at the time will operate. The
9 (2001)2 MLJ 44410(1999)1MPLJ69
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section is retrospective in one aspect in that the section will apply also to a case where the conversion had taken place prior to the commencement of this Act.
Section 27 . Succession when heir disqualified:If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate.
The section lays down the general relating to the effect of disability disqualification resulting from any of the causes mentioned in the group of section 24 to 28 and is in accordance with the rule of Hindu law that where heir is disqualified, the next heir of the deceased succeeds as if the disqualified person had died before the intestate. A disqualified person transmits no interest to his or her own heir. It may be noted that as a general rule disqualification from inheritance is purely personal and does not extends to issue of the disqualified heir unless there is any provision of law to the contraries the provision relating to the decedents of convert of Hinduism.
Ambit of the section:
This section provides for consequences of disqualifications incurred by an heir from inheriting under any provision of the Act. This section lays down that even though the disqualified heir is alive, he will be deemed to be not in existence. The property of the intestate shall devolve as if such person had died before the intestate11.
Consequence of disqualification:
Under this section a disqualified heir is deemed to have died before the intestate, it follows that no person can claim the right of inheritance to the property of the intestate through him or her. The word ‘before’ used in the section makes it abundantly clear that the property does not vest in the disqualified heir, and if it does not vest in him, he cannot be the medium of passing property to others. In other, words a disqualified heir cannot be a fresh stock of descent and a person claiming through the disqualified heir cannot succeed. But it makes no difference to the application of the rule whether the convert ceased to be a Hindu before or after the commencement of this Act.
(e) Section 28. Disease, defect, etc. not to disqualify:No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever.
11 Desai. S.A., Mulla Hindu Law Vol.II , Ed. 19th, LexisNexis, Butterworth’s .
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Certain defects, deformities and diseases see notes on excluded an heir from inheritance. This was substantially remedied by the Hindu Inheritance(Removal of Disabilities) Act 1928, which ruled that 'no person, other than a person who is and has been from bilth a lunatic or idiot, shall be excluded from inheritance or from any right or share in joint family property by reason only of any disease, deformity or physical or mental defect'. The present section discards almost all the grou1, which, exclusion from inheritance. It rules out disqualification on any ground whatsoever accepting those expressly recognized by any provisions of: Act. Unchastity of a widow is not a disqualification under the nor is conversion of an heir to any other religion a disqualification under the Hindu Succession Act.
The section is not retrospective. The section comes into operation only in cases where succession opens after the commencement of this Act. Where succession opened prior to the commencement of the Act, it was held that the section not being retrospective, an unchaste was not entitled to take shelter under this section.12
Similarly in one another case of Anhia V. Bajnath13 a stepmother of the deceased intestate female remarried prior to the commencement of this Act, though the intestate woman died after the commencement of this Act, it was held that the step mother was not entitled to inherit as she was disqualified.
Applicability:The section applies to both testamentary and intestate succession.
SUGGESTIONS :
Sections 24 to 28 of HSA deals with disqualifications to succession and these provisions are explained in great detail in above chapter. From these detailed discussion it can be inferred that under these Act disqualification takes place only in case of remarriage by the widows mentioned in S.24, murder or abetment to murder for furtherance of chance of property (S.25) and by conversion (S.26). It has been expressly provided in S.28 that all other grounds of disqualifications which were prevalent prior to the commencement of this Act have been abolished except those expressly mentioned under this Act. Due to these several grounds such as unchastity, lunacy, idiocy, physical deformity, disease, specific conduct, etc are no more grounds of disqualifications. Under old Hindu law, blindness, deafness, dumbness, want of limb or organ, lunacy, idiocy, leprosy and other incurable disease disqualified a person from inheriting but the Hindu Inheritance (Removal of Disabilities) Act, 1928 declared that no person shall be excluded from inheritance on any of these grounds unless he was from birth lunatic or an idiot but this Act have removed this disqualification provided under Hindu Inheritance (Removal of Disabilities) Act, 1928.
12 Appa Sahib V. Gurubaswa AIR 1960 Mys 79 ; Vedavyas Rao V. Narayana Rao AIR 1962 Mys 1813 AIR 1974 Pat 177
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The following should be included in the disqualification to succession:
a . Stepmother should be disqualified under S.24
In the original Hindu succession Bill 13 of 1954, clause 28 corresponding to S.24 of HSA included “father’s widow”. So if father’s widow remarried then she was disqualified from inheritance. But in the amended Bill and in the Act, “father’s widow” has been deleted and the reason behind this is that father’s widow includes both mother and stepmother and mother is entitled to inherit the property in her own right and not as an widow of father and so her remarriage should have no consequence.
b. Unsuccessful attempt to murder should also be included in the ambit of S.25.
The scope of S.25 is quiet impressive and is very well drafted to include murderer or an abettor of murder of either an intestate or of any person for furtherance of such property. The section disqualifies a murderer or an abettor from inheriting theproperty of the deceased but it in no way includes the person who has tried to murder the intestate or any other person for furtherance of property but has somehow failed to do so which resulted into an unsuccessful attempt.
Thus in order to serve the purpose of the section and on the grounds of justice, equity and good conscience even an unsuccessful attempt to murder should also be included in the ambit of the section.
c. Unchastity of a widow should also be a ground of disqualification
Under old Hindu Law unchastity was a ground for disqualification and it was based on the ground of family prestige, social cohesion and ethics. But S.28 specifically las down that no person shall be disqualified from succeeding to any property on any other ground except those specifically mentioned in the said Act. In HSA unchastity has not been mentioned specifically as a ground of disqualification and so as per S.28 it is no more a ground of disqualification.
d. Offenses like rape & torture should also be a ground for disqualification
In HSA there is no provision for disqualification for a person committing either rape or torture to intestate or to person from whom he has to succeed.
Conclusion
The principle of equality is equated with “sameness treatment “in an intrinsically unequal society. Law of succession under HSA is dealt by Ss. 24 to 28 and with respect to these sections
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a person can be disqualified only in case of remarriage by few widows expressly mentioned in the section, when a person commits murder for furtherance of property and when a person is a descendant of a convert. Under only these three circumstances a person can be disqualified to inherit and rest all disqualifications prevalent under old Hindu Law are abolished.
According to my view the following should be included in the disqualification of succession there is no doubt that these sections enacted by the legislatures are well founded and it has done a great job in providing few specific grounds of disqualifications. But in respect to above discussion it is submitted that few other grounds of disqualifications should be added in addition to those already mentioned and they are as follows:
1. Stepmother should be disqualified on remarriage under S.24
2. Unsuccessful attempt of murder should also be a ground to disqualification to succession under S.25
3. Unchaste women should also be disqualified
4. A person committing rape of person from whom he is going to inherit should also be disqualified.
5. A person torturing another person should also be disqualified to inherit the property of that another person.
Hence it is submitted that the present law of disqualification under HSA is appropriate for Hindu law and as such there is no need for any kind of change or alteration in these law except that some other grounds of disqualifications as mentioned above should also be added in Hindu Succession Act, 1956.
BIBLIOGRAPHY
Books Referred:
1. Dr. Diwan Paras , Law of Intestate and Testamentary Succession, Ed. 2nd , universal Law Publishing Co. Pvt. Ltd.
2. Desai. S.A., Mulla Hindu Law Vol.II , Ed. 19th, LexisNexis, Butterworth’s
3. Dr. Diwan Paras, Modern Hindu Law, (2005), Ed. 7th ,Edition.
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