Lawwatch

Laws on Hindu Inheritance & Succession in Kerala

Introduction

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
). 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 16^th^ October 2015 (in Prakash v
Phulavati
) 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 9^th^
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 1^st^ February 2018 (in Danamma v
Amar
) 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.

Conclusion

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.