Inheritance means the right to succeed to the estate on intestacy - dying without a legally valid will. Succession means the process by which the heirs acquire the property of the deceased. Inheritance refers to the right to succeed but succession refers to the process of succession. Both concepts are inseparably intertwined.
The law of inheritance constitutes the rules based on which the property of a person died intestate devolves upon his descendants. It starts operating immediately on the death of the owner of the property. Even a child in the womb acquires the right to succession to the property when a person dies intestate.
Personal laws were in force
During the pre-independence period personal laws were being followed in regard to succession. The Coparcenery and Marumakkattayam Joint Family Systems were in force for succession to property under the Hindu personal laws then. Customary Hindu laws were different from region to region and caste to caste then. The conflicting matters in Hindu personal law are being settled by judicial decisions and legislative laws since then.
However many of the issues remain unsettled due to deficiencies in laws and conflicting interpretations.
Evolution of Hindu Joint Family
The earliest known unit of Hindu family system was small, patriarchal family. In course of time, the patriarchal family expanded and evolved into a larger Joint Hindu Family. The joint family has been a striking Hindu institution. It originated based on the scriptures in ancient texts and writings.
A Hindu joint family consists of a group of persons lineally descended from a common ancestor. It is a collective body of persons living in one house or under one head or manager. It includes the ancestor’s wife and unmarried daughters. A daughter on marriage ceases to be a member of her father’s family and turns into a member of her husband’s family. A joint family is joint in food, worship and estate. Jointness is the hallmark of joint family.
Mitakshara and Dayabhaga inheritance systems
The patrilineal Hindu family had two distinct systems of inheritance in existence in Kerala - one is Mitakshara system and the other is Dayabhaga system.
In Mitakshara system, the son acquires an interest in property with his father on his birth. But in Dayabhaga system, the son’s right to property crops up on his father’s death. Majority of the people in the State of Kerala have been under the Mitakshara system.
Mitakshara Joint Family of Coparceners
The Mitakshara coparcenery is a smaller group of descendants within a large Hindu joint family. It is a joint family within a joint family. It altogether consists of the three generations of male decedents starting with a common male ancestor who holds the property for the benefit of entire joint family. The descendents are sons, son’s sons, and son’s son’s sons. When the common ancestor is alive his great-great-grandson remains outside the coparcenery. The great-great-great grandson’s right over the coparcenery property is derived by the death of the property holding male ancestor. The coparcenery system of succession is recognized and validated by both legislative laws and judicial decisions.
In coparcenery system a female cannot be a coparcener under Mitakshara system. Even a wife, though she is entitled to maintenance out of her husband's property and has an interest in his property, is not her husband's coparcener. A mother is not a coparcener with her son. There can be no coparcenery relation in between a mother and a daughter. That means the relation between the father and the son is the only relationship recognized for succession in a coparcenery system.
An individual in a joint family could hold property individually acquired by his own effort separately. The survivor has no right on the self acquired property. Whether a property belongs to an individual or to a joint family is important consideration for succession.
How the coparcenery system works
When a son was born to a Hindu holding ancestral property the father and the son became entitled to all the rights over that property. When a son was born to that son, the father, the son and the son’s son became jointly and equally entitled to the rights over that property. The succession in a coparcenery system works in that manner.
The concept of coparcenery was based on the birth right of the son/sons over the ancestral property held by the father. The interest in property of each coparcener in the joint family is enlarged by the coparcener death and diminished by birth of a young coparcener.
On the death of a coparcener, his ancestral property will devolve down to the male survivors. Each coparcener can demand a partition of ancestral property but until partition each member is entitled to joint and equal rights over the ancestral property. Both common ancestor and the youngest member in the coparcenery hold equal right even though the former has the power of management of that property.
Concept of ancestral property
Ancestral property is the property a person inheriting from his three immediate paternal ancestors - father or father’s father, or father’s father’s father - holds it in coparcenery with his sons, son’s sons and son’s son’s sons. Therefore any property, which the Hindu great grandfather acquired, devolves down undivided to the subsequent three generations constitutes ancestral property.
The male descendents take an interest in the property by birth. The property he gets is ancestral property as regards his male issue, but in regard to other relations it is separate property, according to some judgments. However once a division of the ancestral property takes place, the share or portion which each coparcener gets after the division becomes his or her self acquired property ( as per a 2016 Supreme Court judgment in Uttam vs Saubhag Singh[i]). If person has no son, son’s son, or son’s son’s son in existence at the time when he inherits the property, he holds the property as an absolute owner. He can deal with it as he pleases. If he dies without leaving a male issue, his property passes to his other heirs by succession.
The rights in the ancestral property are determined per stirpes, but not per capita. When partition is necessary, the share of each generation is first determined. Then the share of every successive generation is determined based on what has been inherited to that generation.
The properties inherited from mother, grandmother, uncle or even brother do not constitute ancestral property. Similarly the property inherited based on a Will or by gift is not ancestral property. A property which devolves on a person on partition is also considered a separate property.
Self acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common. No coparcener can claim it as a separate property. The property acquired with the aid of ancestral property is ancestral coparcenery property. If a joint family had enough financial strength to acquire property at a specified time, the property acquired then will be treated as joint family property even if the purchase is in the name of a member of the joint family.
The ancestor who manages and controls the joint family property is called Karta. A woman has not been a coparcener and hence could not be a Karta till the amendment of the Hindu Succession Act in 2005. Karta is a representative owner not a trustee. Karta renders accounts, receives debts and do the duties relating to the property.
Inheritance relating to women
The earliest legislation, which brought females into the scheme of inheritance, is the Hindu Law of Inheritance (Amendment) Act, 1929. This law enforced inheritance rights on three female heirs - son’s daughter, daughter’s daughter, and sister - in all areas where the Mitakshara law prevailed.
Another landmark legislation conferring ownership rights on woman was the Hindu Women’s right to Property Act 1937. The law conferred upon the Hindu widows not only the right to an equal share in the joint family property but also a right to demand partition like any male member of the family. But the widow did not become a coparcener though she possesses a right akin to that of a male coparcener.
Marumakkattayam : Matrilineal joint family
In erstwhile Kerala and neighbouring areas, there existed another matrilineal joint family system called Marumakkattayam in which inheritance flows from a common female ancestor and the succession is through female line. In this family system the mother forms the stock of descent. Devolution of property is from, mother to daughter, daughter to her daughter and so on.
The law of Marumakkattayam was set upon customs and usages initially. They were judicially recognized and settled in almost every respect. A number of laws were passed in erstwhile areas of Kerala - Travancore, Cochin and Malabar which was part of Madras province then - regulating the Marumakkattayam. Some of these statutes were applicable to certain specific communities like Nair, Ezhava, Namboothiri etc but some other acts like Maraumakkathayam act 1932 was applicable to all communities. Most of these old laws have been abrogated, reformed or unified into Hindu Succession Act in 1956.
In Marumakkattayam, a group of persons forming a joint family with community property has been called a Tarwad. The eldest male member in the Tarvard, the Karanavar, is in charge of the management of the family properties,. Otherwise senior most female member will be the Karanavar. In such a Tarwad, the group of person comprising a female, her children and all her descendants in the female line is called a Tavazhy. The children of female member continue the membership in the Tarvard but the children of the male members are members of the family of the respective mother.
The marriage of the woman does not change her status as a member of the family of her birth. All members of the Tarvard have equal property rights. Tarvard can be partitioned to end the joitness of ownership of property. Release of rights on receiving consideration for education by any member / members can be treated as partition. Marumakkattayam came to an end on passing of the Hindusuccession Act 1956 and the Kerala Joint Family System (Abolition) Act, 1975.
Personal laws come to an end
Most of the statutes on succession existing before 1956 were on the basis of community and community based personal laws. But those statutes left a number of communities outside the purview of law and displayed discrimination between man and woman. Therefore a Hindu Code was proposed for enactment. A committee headed by B N Rau prepared a draft of the comprehensive Hindu Code Bill. But it was later given up due to resistance from the conservative sections of the Hindus. Instead, four separate statutes were enacted. One of them was the Hindu Succession Act enacted in 1956.
The succession act retained the coparcenery succession system as per its Section 6 in order to satisfy the conservative sections of Hindus. But the act changed the whole law of succession and provided for a uniform system of inheritance to those governed by Hindu personal laws. It unified Dayabhaga and Mitakshara system and codified the laws on property rights existing then.
The concept of Tarvard came to an end by the operation of Section 7 of the act. It declared further devolution of property belonging to Tarvard will have to be based on intestate or testate succession.
Hindu Succession Act, 1956
The Hindu Succession Act was enacted in 1956 in tune with the Indian constitution which aims to treat men and woman with equality.
The act, as per its Section 4, specifically supersedes the customary laws. It states that no customary law is applicable except as expressly provided for in the act. Similarly no other law in force before the commencement of the act shall apply to Hindus in so far as it is inconsistent with any of the provision in the act.
However the Section 6 of the act partially retains customary practice of patrilineal coparcenery succession. It deals with devolution of interest in coparcenery joint family property. It states that when a male Hindu dies after the commencement of the act having at the time of his death an interest in any coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery.
If the deceased had left a female heir specified in class I of the Schedule of the act or a male relative specified in that class who claims through such female relative, the interest of the deceased in the coparcenery property shall devolve by testamentary or intestate succession, but not by survivorship, under this act.
If two or more heirs succeed together to the property of an intestate, as per Section 19 of the act they shall take the property per capita but not per stirpes and as tenants-in-common and not as joint tenants.
Any Hindu may dispose of by will or other testamentary disposition of any property, which is capable of being so disposed of by him, in accordance with Section 30 of the act.
Under the Hindu customary law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenery. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Whenever the father gets a property from any other source, whether it is a separated property or not, his son should have a share in the property. It will become part of the joint family of his son and grandson and other members who form joint Hindu family with him. But the section 8 indicates that in respect of certain property the class I heirs include the sons but not the grandsons. It includes, however, the son of the predeceased son. Under the section, the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his own family.
Marumakkattayam comes to a close
If a member of a Marumakkattayam Tarwad, Tavazhy or Namboothiri illom dies after the enactment of 1956 act, his or her interest will devolve as provided for in the act but not as per the customary laws.
The law provides for some special provision for succession to a male or female following the Marumakkattayam system, under the Sections 8 and 17 of the act.
Absolute power in women’s property
The Hindu Succession Act provides, as per Section 14(1), that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner but not a limited owner.
Kerala Hindu Family System (Abolition) Act
In order to end and refine the joint family system, the State of Kerala enacted the Hindu Family System (Abolition) Act, 1976. Joint ownership then existing in the joint Hindu family has been converted into co-ownership. By this law, all joint family system stands abolished in Kerala since then.
The abolition covers Mitaskhara coparceneray, Marumakkthayam and the Namboothiri system of law. The Alyasanthanam law in Malabar area of Kerala coming under Madras province is also abrogated.
Both matrilineal and patrilineal joint families remain abolished. Abolition of birth right in property, abrogation of pious obligation, and replacement of joint family with tenancy-in-common, are the important outcomes of the abolition.
When a Hindu female dies intestate
The manner in which a property of a Hindu female, who dies intestate, would be inherited is provided for in Section 15, but in accordance with the rules set out in Section 16 of the act.
Her properties may pass on firstly to her children and husband, secondly to the heirs of her husband, thirdly to her mother and father, fourthly to the heirs of her father and lastly to heirs of her mother.
The heirs in the preceding entry in the above categories shall be preferred to those in the succeeding entry. Those in the same entry have to be considered simultaneously.
However, the property she received from her father or mother, and her husband or father-in-law will return to the heirs of the original source from where the property was received. The property inherited from her father or mother will go to the heirs of her father. The property inherited from her husband or father-in-law will go to the heirs of her husband.
Twists and turns in regard to women’s right
Woman’s right in ancestral property is an endless saga of twists and turns due to pronouncement of conflicting judgments by the courts in this regard.
Women, till the year 2005, had no right in the coparcenery property. They, being not coparceners, had no right to partition and claim share in the ancestral property. At the most, at the time of partition, she could ask for reasonable maintenance and marriage expenses. However a widow of a coparcener could take the share of her husband for her life time as per Hindu Women’s right to property Act 1937 and this lifetime interest was made an absolute right since 1956. Patriarchal Mitakshara system recognized inheritance by succession only to the self acquired, individual property. Since 2005 amendment of the Hindu Succession Act, they are coparceners as sons.
The Supreme Court on 16th October 2015 (in Prakash v Phulavati[ii]) declared that the right of a male coparcener is applicable to “living daughters of living parent” as on September 9, 2005, irrespective of when such daughters are born” and that the provisions of the Hindu Succession (Amendment) Act, 2005, are applicable “prospectively” on and from 9th September, 2005, when the act came into force. The court added that all that is required to get equal share of the property for a daughter of a coparcener as that of the son is that daughter should be alive and her father should also be alive on the date of amendment. The court declared that the law is applicable to living daughters irrespective of when they are born. That means if the case is pending before the court when the law was framed in 2005 the daughter will have equal right to property as that of a son.
The Supreme Court again on 1st February 2018 (in Danamma v Amar[iii] ) declared that the law is applicable to living daughters irrespective of when they are born. That means if the case is pending before the court when the law was framed in 2005 the daughter will have equal right to property as that of a son. That means a daughter’s share in ancestral property could not be denied on the ground that she was born before the law was passed. The court added that the law was applicable in all property disputes filed before 2005 and pending when the law was framed. The only question of law considered by the court in the case was whether the daughters could be denied their right as a coparcener and the share of property on the ground that they were born prior to the enactment of the act in 2005. The court held that the daughters will become coparceners by birth and they will get coparcenery right since birth as sons. So they cannot be denied rights over coparcenery property even thought they were born before the 2005 amendment.
Hindu Succession Act codified and modified the succession among Hindus in an egalitarian manner. The substitution of customary practices with legislative laws to address the problems of Hindu succession was a right step, despite there are unsettled problems.