Mitakshara recognised two modes of devolution of property, namely, (a) devolution by survivorship, and (b) devolution by succession. In determining the modes in which the property of a male Hindu devolved on his death the foremost consideration was as to whether the property of the deceased male Hindu was at the time of his death constituted his undivided interest in the coparcenary property and whether he was a member of coparcenary.
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If he was a member of Mitakshara coparcenary and he had an undivided interest in the coparcenary property it devolved on other coparceners by survivorship, subject to the provisions of the Hindu Women’s Right to Property Act, 1937. Coparcenary property is synonymous with ancestral property, i.e., property inherited by a male Hindu from his father, father’s father and father’s father’s father.
ADVERTISEMENTS:
It also consisted of (a) separate property of the coparceners thrown into the common coparcenary stock, (b) property jointly acquired by the members of a joint family, and (c) property acquired by the members of joint family with the aid of ancestral property.
The main incidents of coparcenary property were:
(i) It devolved by survivorship not by succession,
(ii) It is a property in which the male issues of the coparcener’s upto three degrees acquire an interest by birth.
Illustrations:
ADVERTISEMENTS:
(1) A inherited certain property from his father. A has got two sons В and C, one daughter, D. В and С acquire an interest by birth in the property inherited by A. So В and С can claim partition in such property and would be entitled to one third share each along with A. D would get nothing.
(2) A and В are two brothers. A dies leaving his widow and two daughters. A’s undivided share in the coparcenary property shall devolve on В as per the rule of survivorship.
All property other than coparcenary will be termed separate property or self acquired property of a male Hindu with respect to which rule of succession will apply on his death. The following propositions are to be noted with respect to separate property of a male Hindu—
(1) Where the deceased male Hindu is a member of joint Hindu family at the time of his death, and he has left his separate or self acquired property. Such property devolved on his heirs by successions and not by survivorship to other coparceners.
ADVERTISEMENTS:
(2) Where the deceased was at the time of his death the sole surviving member of coparcenary, the whole of his property devolved on his heirs by successions.
(3) Where the deceased was separate at the time of his death from his coparcenary, the whole of his property, however acquired, passed on his heirs by succession.
Order of succession of heirs:
The heirs of the deceased Hindu can be classified in the following order:—
1) Sapinda
2) Samanodakas
3) Bandhus
4) Spiritual Preceptor
5) Pupil, and Lastly
6) The Government.
The State is the ultimate heir to the estate of a person where he has left no known heirs according to law by which, he was governed in the matter of succession and inheritance. The estate thus coming to the State is said to escheat to the Government.