LAW RELATING TO SUCCESSION.

Intestacy, succession, adoption, wills are come under concurrent list and governed by central and state Govt. subject to their personal laws 5 of concurrent list. 1) INDIAN CONSTITUTION:-

Art. 294 & 295:- All properties and assets shall vested in the state from the commencement of the constitution.

Art. 296:- State or Central Govt. succeeds property in escheat, laps and Bona vacanina.

2) THE HINDU SUCCESSION ACT, 1956:-

Sec. 2 (1) :- This act applies to Buddhist, Jains or Sikh by religion and to Muslim, Chirstian, Parsi or Jew by religion, if they had been governed by Hindu Law before this act came into force.

Sec. 2 (2) : This act is not applies to S.T.s, who are come under clause 25 of Article 366 of Constitution unless Central Govt. by notification in the official Gazette, otherwise directs.

Sec. 6 : From 09-09-2005, by birth every male or female members becomes coparceners.

If coparcener either male or female dies intestate, the property of the coparcener devolves on the remaining coparceners equally as provided in the schedule in order of priority. If heirs in class I is not available, the property can devolves to class II heir subject to order.

Sec. 15: If female dies intestate, the property devolves firstly upon the sons and daughters, husband. Secondly upon the heirs of the husband. Thirdly upon the mother and father. Fourthly upon heirs of father. Lastly upon the heirs of mother.

Sec. 20 : Right of child in womb: a child who was in womb at the time of the death of an intestate gets equal share as if he/ she alive.

Sec. 25: Murderer and abettor disqualified from inheritance of the property of deceased.

Sec. 26 : If Hindu as ceased to a Hindu by conversion to another religion, shall be disqualified to inheritance.

sec. 29 A : Female becomes coparcener from 05-09-1985 in A.P. Only.

Ancestral property is also dealt by Sec. 6 of The Hindu Succession Act, 1956.

For example: Coparcener dies intestate having ancestral property leaving one male and two females. Notional partition between deceased and son two equal shares, again the deceased share (becomes intestate) divides among three children, then females would get one sixth of the total property, male gets two third of share.

Anar Devi & others Vs Parameshwari Devi & others, 2006 (6) ALT 38 (SC). Hindu female becomes coparcener and gets equal shares along with male partners from 09-09-2005 in India as per Sec. 6 of the said act.

Sec. 6 and 29 A : Deceased leaving behind him one son, two daughters and ancestral property. Heirs in Class I and Class II Notional partition; each one gets th share including deceased. Again son and two daughters gets equal shares in deceased 1/4th share i.e. 1/12th share. Altogether son and two daughters (three persons) gets each 1/3rd share from the ancestral property. Sundari Dharmanna Vs Narsubai 1997 (4) ALT, 803.

Class I: Son; Daughter; Widow; Mother; Son of a predeceased Son; Daughter of a pre-deceased Son; Son of a predeceased Daughter; Daughter of a pre-deceased Daughter; Widow of a pre-deceased Son; Son of a pre-deceased Son; (Son of a pre-deceased daughter of a pre-deceased daughter; Daughter of a pre-deceased Daughter of a pre-deceased daughter; Daughter of pre-deceased son of a pre-deceased

daughter; Daughter of a pre-deceased daughter of a predeceased son) Of a predeceased son daughter of a predeceased son of a pre-deceased son; Widow of pre-deceased son of a pre-deceased son. Class II: I) II) III) Father (1) Sons daughters son, (2) Sons daughters daughter, (3) Brother, (4) Sister. (1) Daughters sons son, (2) Daughters sons daughter, (3) Daughters daughters son, (4) Daughters daughters daughter. (1) Bothers son, (2) Sisters son, (3) Bothers daughter, (4) Sisters daughter. Fathers father; Fathers mother. Fathers widow; Brothers widow. Fathers brother; Fathers mother. Mothers father; Mothers sister. Mothers brother; Mothers sister.

IV) V) VI) VII) VIII) IX)

3) SUCCESSION TO MUSLIMS.

THE SHARIAT ACT, 1937. 1) Doctrine of Aul (Increase) and Radd (Return):

Generally the property of deceased equals with the total of the shares of the heirs. Sometimes the total shares of the sharers has to be proportionately reduced so as equal to property. This is known as Doctrine of Aul.

Sometimes the total shares of the sharers may be less than the entire property, then shares may be increased proportionately. This is known as the Doctrine of Radd.

For example: After calculations all the shares like 1/4 1/6 + 2/2 = 13/12.

Since the total number of shares is 13, the denominator is increased to 12 to 13 as follows:13/12 becomes 13/13 1/4 share becomes 3/13, 1/6 becomes 2/13, 2/3 becomes 8/13 altogether 3/13 + 2/13 + 8/13 = 13/13 this is Aul. __________________________

The legal heirs in Muslims (Sunny Hanafi) are divided into three categories: (1) Shares, (2) Residuaries, (3) Distant Kindred.

I)

SHARERS: Are 12 in number.

1) Husband: If wife dies intestate, husband becomes sharer. In the presence of a child are sons child, his share is . In the absence of a child are sons child, his share is .

2) Wife: If husband dies intestate, the wife becomes a sharer. In the presence of child or sons child, her share is 1/6. In the absence of child or sons child, her share is .

3) Father: In the presence of child or sons child, his share is 1/6. In the absence of child or sons child, he becomes a residuary.

4) Mother: In the presence of child or sons child, her share is 1/6. In the absence of child or sons child, but in the presence of two brothers or two sisters or one brother and one sister, her share is 1/6.

5) Daughter: In the presence of son, she becomes a residuary. In the absence of son, her share becomes .

6) Full brother (only in the absence of son) : He is excluded in the presence of child, sons child, father or true grand father (both maternal and paternal). In the absence of above persons his share is 1/6. If there are two or more brothers then their share is 1/3 rd divided equally among themselves. In the presence of sister she becomes a residuary and his share in ratio of 2:1.

7) Full Sister: She is excluded in the presence of child, sons child, father or true grand father. In the absence of the above persons and brother, her share is . If there are two or more sisters, then their share is 2/3 rd divided equally among themselves. In the presence of brother she becomes residuary and she takes the property with the brother in the ratio 1:2.

8) Half brother: He is excluded in the presence of full brother and full sister. In the absence of above person, he gets all the rights of full brother.

9) Half sister: She is excluded in the presence of full brother and full sister. In the absence of the above persons, she gets all the rights of full sister.

10) True Grand Father (Fathers father): He is excluded in the presence of father or nearer true grand father in the absence of the above persons he occupies the position of the father.

11) True Grand Mother: a) Maternal Grand Mother: She is excluded in the presence of mother, nearer true grand mother and father. In the absence of the above persons her share is 1/6.

b) Paternal Grand Mother: She is excluded in the presence of mother, nearer true grand mother and father. In the absence of the above persons her share is 1/6.

12) Sons daughter: She is excluded in the presence of son. In the presence of sons son, she becomes a residuary. In the presence of the daughter, or nearer sons daughter her share is 1/6. If there are two or more daughters, she is excluded. In the absence of the above persons her share is . If there are two or more sons daughters, then their share is 1/3, divided equally among themselves.

When father and mother are alone left, their share is 1/6 mother, 5/6 father.

II)

Residuaries:- Son, daughter and father are residuaries.

(1) Son: Son is always a residuary. In the presence of daughter he takes the share in the ratio of 2:1. The sons son in the absence of son takes his place among the sharers.

(2) Daughter: In the presence of son, daughter becomes a residuary. She takes the property in the ratio of 1:2.

(3) Father: In the absence of child or sons child, the father becomes the residuary and he takes the remaining property left up, after the shares have taken their shares.

III)

Distant Kindred: Distant Kindred are the relations by blood who are neither sharers not residuaries. They succeed either in the absence of both the shares and the residuaries or when there are no residuaries and the only sharer is the husband or wife. Similarly, if the surviving relations belong to the classes of distant kindred, the nearer relation will exclude the more remote.

They are divided into four classes for determining their order of succession:Descendants of the deceased, Ascendants of the deceased, Descendants of the parents, and Descendants of immediate grand parents (true or false).

THE LEGAL HEIRS UNDER SHIA LAW: Two types

First type:a) Class I: (1) Parents, (2) Children. b) Class II: (1) Grand Parents (true and false), (2) Brothers and sisters and their descendants. c) class III: (1) Paternal and (2) Maternal uncles and aunts of the deceased, and of his parents and grand parents and their descendants.

The first class heirs excludes the second from inheritance and the second excludes the third. The nearer relation in each section exclude the more remote in that section.

Second type:- Heirs are divided into two types i.e. Sharers and residuaries.

(A)

Sharers:(1) Husband: Husband takes one fourth if there is a lineal descendants of the deceased. If there is no lineal descendants he takes . (2) Wife: Wife takes 1/8 th if there is a lineal descendants. If there is no lineal descendant she takes . (3) Father: if there is a lineal descendant, his share is one six (1/6). If there is not lineal descendant, he inherits as a residuary. (4) Mother: if there is no lineal descendant or two or more full or consanguine brother or one such brother and two such sisters, or four such sisters with the father her share is one sixth (1/6). In other cases it is .

(5) Daughter: if there is son her share is . If there are two or more daughters, they take 2/3. If there is son, she inherits as residuary. (6) Uterine brother: Only if there is no parent or lineal descendant of the deceased they inherit. If there is only one uterine brother he will take 1/6 th . if there are more than one uterine brother, they will take and divide equally between them. (7) Uterine sisters: Only if there is no parent or lineal descendant of the deceased, they inherit. If there is only one uterine sister she will take 1/6th. If there are more than one uterine sister, they will take and divide equally between them. (8) Full sister: If there is no parent, lineal descendant, full brother or fathers father, she inherits as a sharer and her share is and if more than one sister, she collectively takes 2/3 rd. the full sister inherits as a residuary if there is a full brother or fathers father. (9) Consanguine sister: She is a sharer in the absence of a parent, lineal descendant, full brother, full sister, consanguine brother of fathers father. If there is a one consanguine sister, her share is and if there are more than one, collective share as 3/8th divided equally. If there is a consanguine brother or fathers father, she takes as residuary.

(B) RESIDUARIES: All the heirs who are not sharers are residuaries, and their descendants are also residuaries.

4) SUCCESSION TO INDIAN CHRISTIANS:-

There is no special Act relating to Christian succession. And there is no difference of self acquired property and ancestral property to Christians.

Section 29 to 49 of Indian Succession Act, 1925 deals with the matters relating to succession among Christians. Sec. 32: The property of an intestate devolves on the wife or husband or upon those who are of the kindred of the deceased. Sec. 33: Where intestate has left widow and lineal descendants, or widow and Kindred only, or widow and no Kindred. Where the intestate has left a widow (a) if he has left any lineal descendant, 1/3 rd of his property shall belong to his widow, and the remaining 2/3rd shall go to his lineal descendants. (b) If he has left lineal descendant but has left persons who are Kindred to him 1 of his property shall belongs to his widow and other shall go to those who are of Kindred to him. (c) If he has left none who are of Kindred to him the whole of his property shall belong to his widow.

SEC. 33 A DEALS WITH CHRISTIANS.

Sec. 34: Where intestate has left no widow or Kindred the property goes to the Govt. Sec. 35: A husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husbands property, if he dies intestate.

Sec. 36: The rules for the distribution of the intestates property (after deducting the widows share, if he has left a widow) amongst his lineal descendants shall be those contained in Sec. 37 to 40. Sec. 37: Where the intestate has left surviving him a child or children, but no remote lineal descendant through a deceased child, the property shall belong to his survival child, if there is only one, or shall be equally divided among all his surviving children. Sec. 38: Where the intestate has not left surviving him any child, but has left a grand child or grand children and no more remote descendant through a deceased grand child, the property shall belong to his surviving grand child if there is only one, or shall be equally among all his surviving grand children. Sec. 39: Where intestate has left any great grand children or remote lineal descendant: In like manner the property shall go to the surviving lineal descendant who are nearest in degree to the intestate, where they are all in the degree of great grand children to him, or are all in a more remote degree. Sec. 40: Where intestate leaves remote Kindred. according to degree of nearest relation. Sec. 41: Where intestate has left no lineal descendants: shall be distributed after deducting widows share and contained in sections 42 to 48. Sec. 42: If the intestates father is living, he shall succeeds to the property. Sec. 43: Where a intestate father dead, mother, brothers, sisters living equal distribution among them. Sec. 44: Where a intestate father dead and his mother, brother or sister and children of deceased brother or sister living equal distribution, - children gets their deceased parents share.

Sec. 45: Where intestate father dead and his mother and children of any deceased brother or sister living; equal shares to mother and deceased shares go to children. Sec. 46: Where intestate lefts only mother whole property goes to mother. Sec. 47: Where intestate lefts only brother and sister and children of deceased brother and sister equal shares shares of deceased brother and sister goes to children. Sec. 48: Where intestate has left neither lineal descendant nor parent, nor brother nor sister property goes to nearest relatives. sec. 49: Where intestate spent some money on children heir prior to death while distribution of the property that amount spent by the intestate shall not be counted to shares.

5) SUCCESSION TO PARSIS:-

Sections 50 to 56 of Indian Succession Act deals with the succession among the Parsis. Sec. 50: General Principles relating to intestate succession.

(a) There is no distinction between those who were actually born in the life time of deceased and those who at the date of his death were only conceived in the womb, but who have been subsequently born alive. (b) Lineal descendants died in the life time of intestate shall not be taken into account in devolution. (c) Widow or widower if marries again shall not be entitled to share in intestate property.

Sec. 51 (1) (a) : Where such Parsi dies leaving a widow or widower and children, amongst the widow or widower, and children so that the widow or widower and each child receive equal shares.

(b) : Where such Parsi dies leaving children, but no widow or widower, among the children in equal shares.

(2) : Where a Parsi dies leaving one or both parents in addition to children or widow or widower and children, the property of which such Parsi dies intestate shall be so divided that the parent or each of the parents shall receive a share equal to half of the share of each child.

Sec. 52: Repealed.

Sec. 53: In all cases where a Parsi dies leaving any lineal descendant, if any child of such intestate has died in the lifetime of the intestate, the division of the share of the property of which the intestate has died intestate which such child would have taken if living at the intestates death shall be in accordance with the following rules, namely (a) if such deceased child was a son, his widow and children shall take shares in accordance with the provisions of this chapter as if he had died immediately after the intestates death;

Provided that where such deceased son has left a widow or a widow of a lineal descendants but no lineal descendant, the residue of his share after such distribution has been made shall be divided in accordance with the provisions of this chapter as property of which the intestate has died intestate, and in making the division of such residue the

said deceased son of the intestate shall not be taken into account.

(b) If such deceased child was a daughter, her share shall be divided equally among her children.

(c) If any child of such deceased child has also died during the lifetime of the intestate, the share which he or she would have taken if living at the intestates death, shall be divided in like manner in accordance with clause (a) or clause (b) as the case may be.

(d) Where a remoter linear descendant of the intestate has died during the lifetime of the intestate, the provisions of clause (c) shall apply mutatis mutandis to the division of any share to which he or she would have been entitled if living at the intestates death by reason of the pre-deceased of all the intestates lineal descendants directly between him or her and the intestate.

Sec. 54: Where a Parsi dies without leaving any lineal descendant but leaving a widow or widower or a widow or widower of a lineal descendant, the property of which the intestate dies intestate shall be divided in accordance with the following rules, namely (a) if the intestate leaves a widow or widower but no widow or widower of a lineal descendant, the widow or widower shall take half the said property. (b) If the intestate leaves widow or widower and also a widow or widower of any lineal descendant, is widow or her widower shall receive one-third of the said property and the widow or widower of any lineal descendants shall receive another 1/3rd or if there is more than one such widow or widower of lineal descendants, the last mentioned 1/3 rd shall be divided equally among them. (c) if the intestate leaves no

widow or widower, but one widow or widower of a lineal descendant, such widow or widower of the lineal descendant shall receive 1/3rd of the said property or, if the intestate leaves no widow or widower but more than one widow or widower of lineal descendants, 2/3 rd of the said property shall be divided among such widows or widowers of the lineal descendants in equal shares. (d) the residue after the division specified in clause a or Clause b or clause c has been made shall be distributed among the relatives of the intestate in the order specified in part 1 of the schedule II; and the next of kin standing first in part 1 of that schedule shall be preferred to those, standing second, the second to the third and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal share. (e) if there are no relatives entitled to the residue under clause d, the whole of the residue shall be distributed in proportion to the shares specified among the persons entitled to receive shares under this section.

Sec. 55: When a Parsi dies leaving neither lineal descendants nor a widow or widower nor a widow or widower of any lineal descendants, his or her next-of-kin, in the order said fourth in part II of Schedule II, shall be entitled to succeed to the whole of the property of which he or she dies intestate. The next-ofkin standing first in part II of that schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal shares.

Sec. 56: When there is no relative entitled to succeed under the other provisions of this chapter to the property of which a Parsi has dies intestate, the said property shall be divided in equally among those of the intestates relatives who are in the nearest degree of Kindred to him.

SCHEDULE II PART I

1) Father and mother, 2) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate. 3) Parental and maternal grand parents. 4) Children of paternal and maternal grand parents and lineal, descendants of such of them as have predeceased the intestate. 5) Paternal and maternal grand parents parents. 6) Paternal and maternal grand parents parents children and the lineal descendants of such of them as have predeceased the intestate.

PART II

1) Father and mother, 2) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate. 3) Parental and maternal grand parents. 4) Children of paternal and maternal grand parents and lineal, descendants of such of them as have predeceased the intestate. 5) Paternal and maternal grand parents parents. 6) Paternal and maternal grand parents parents children and the lineal descendants of such of them as have predeceased the intestate.

7) Half brothers and sisters and the lineal descendants of such of them has have predeceased the intestate. 8) Widows of brothers or half brothers and widowers of sisters or half sisters. 9) Paternal or maternal grand parents childrens widows or widowers. 10) Widows or widowers of deceased lineal descendants of the intestate who have not married again before the death of the intestate.

6)

THE LIMITATION ACT, 1963:-

Sec. 27: At the determination of the period provided in this act for instituting a suit for possession or any property of his right to such property shall be extinguished.

For Ex: Art. 64: For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Limitation is 12 years from the date of dispossession.

Adverse possession for a period exceeding 12 years is a right and provision to succeed the property.

7) THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988:-

Sec. 4: Persons held benami transactions property are not liable to return the said property to the real owners.

8) THE S.T. AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNIZATION OF FOREST RIGHTS) ACT, 2006:-

Sec. 3 (g): Provides Rights for conversion of pattas or lease or grants issued by any Local authority or state Govt. on forest lands to titles.

9) THE INDIAN SUCCESSION ACT, 1925:-

Sec. 52: Every person of sound mind not being a minor may dispose of his property by will. Sec. 372: Provides application to succession certificate.

10)

THE LAND ACQUISITION ACT, 1894:-

Sec. 16: The Govt. take possession of property of the public after made an award. Sec. 17: In urgency the Govt. may take possession of the property of the public.

11)

THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956:-

Sec. 12: Adopted child succeeds the property of adopted parents as if the child born to them.

12)

THE (INDIAN) TREASURE TROVE ACT, 1878:-

Sec. 11: Finder of treasure (owner also) entitled to inherit the treasure.

13)

THE POLICE ACT, 1861:-

14)

Sec. 25: Police officers shall take charge of unclaimed property and produce before Magistrate of the District.

THE TRANSFER OF PROPERTY ACT, 1882:-

Sec. 122: Gift is a transfer of certain existing movable or immovable property made voluntarily and without consideration.

15)

THE A.P. ESCHEATS AND BONA VACANTINA ACT, 1974:-

Sec. 3: All properties situated in the state, which is vested in the state by escheat or lapse or as Bona Vacantina for want of rightful owner shall belong to Govt.

16) THE A.P. LAND REFORMS (CEALING ON AGRICULTURAL HOLDINGS) ACT, 1973:-

Sec. 10: Surrender of excess land to Govt. Sec. 14: Govt. provides free house sites, agricultural lands to weaker sections.

17) THE URBAN LAND (CEALING AND REGULATION) ACT, 1976:-

Sec. 10: Provides acquisition of vacant land.

18)

LAND ASSIGNMENT TO POOR AND WEAKER SECTIONS.

G.O.M.S. No. 1406 Revenue, 25th July, 1958.