Before the passing of the Hindu Succession Act in 1956, certain disabilities and disqualifications attached to Hindus under the uncodified Hindu law of inheritance, which are briefly described in this Chapter.
1. Unchastity:
Prior to the passing of the Hindu Succession Act, 1956, unchastity of a widow disentitled her to inheritance. It was necessary that unchastity should have existed at the time when inheritance opened. A woman’s subsequent unchastity did not divest the estate vested in her when chaste. (Gangadhar v. Yellu, 36 Bom. 138)
ADVERTISEMENTS:
Under the Mitakshara, unchastity was a ground of excluding only the widow, so that a daughter, a mother or a sister could inherit, even though not quite chaste at the time when inheritance opened.
Unchastity was no ground of exclusion in respect of succession to stridhana property. (Advyapa v. Rudrova, 4 Bom. 104). So far as succession to other property was concerned, according to the Mitakshara School, the obligation of chastity was imposed only on the widow; unchastity did not disqualify either the daughter or any other woman who took as heir. (Akoba Laxman v. Sai Ganu, I.L.R. (1941) Bom. 438)
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Chastity was a condition precedent to the taking by the widow of her husband’s estate, unless the unchastity was condoned by him. (Gangadhar v. Yellu, 36 Bom. 138). But once she inherited the property, she was not liable to forfeit it by subsequent unchastity. (Parvati v. Bhiku, 4 Bom. H.C. (A.C.J.) 25)
The disqualification on the ground of unchastity was not removed by the Hindu Woman’s Right to Property Act. (Ramaiya Konar v. Mottaya Mudaliar, (1951) 2 M.L.J.)
ADVERTISEMENTS:
Now, under the Hindu Succession Act, 1956, unchastity is not a ground for exclusion from inheritance, and the said Act specifically provides that no person shall be disqualified from succession to any property on the ground of any disease, defect or deformity, and save as provided in the Act, on any other ground whatsoever. Unchastity is not a ground provided in the said Act as a ground disqualifying from inheritance, and hence, unchastity does not now exclude a person from inheritance.
2. Change of religion and loss of caste:
Change of religion and loss of caste were, at one time, grounds for forfeiture of property and of exclusion from inheritance. By the Caste Disabilities Removal Act, 1950, these disabilities were removed, but now under the Hindu Succession Act, 1956, conversion is a ground of exclusion from inheritance for a Hindu and his descendants, unless such children or descendants of the convert were Hindus at the time when the succession opened. (See S. 26 of the Hindu Succession Act.)
3. Remarriage:
Formerly, by remarriage, a widow forfeited the interest taken by her in her husband’s property, and it passed on to his next heirs as if she were dead. Now, under the Hindu Succession Act, 1956, the widow of a predeceased son, the widow of the predeceased son of a predeceased son or the widow of a brother are not entitled to succeed to the property of the intestate, if on the date of death of the intestate, such a widow has remarried. But if they are unmarried until the time of death of the intestate, the share vests in them, and a subsequent marriage does not divest the property that has already been vested in them.
4. Illegitimacy:
Illegitimate children had no right of inheritance, except in the case of their mother’s stridhana and in the case of a dasiputra in the Shudra caste. Now, under section 3 of the Hindu Succession Act, illegitimate children are deemed to be related to their mother and to one another and their legitimate descendants are deemed to be related to them and to one another by legitimate kinship, and hence, they can succeed to one another. But legitimate children are not related to illegitimate children of the same father or mother, and they cannot inherit from each other.
5. Congenital physical and mental defects:
ADVERTISEMENTS:
Prior to Hindu Succession Act, 1956, the only defects which disqualified a person from inheritance of taking a share on partition were congenital lunacy or idiocy.
S. 2 of the Hindu Inheritance (Removal of Disabilities) Act provides as follows : “Notwithstanding any rule of Hindu law or custom to the contrary, no person governed by the Hindu law, other than a person who is and has been from birth 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 Hindu Inheritance (Removal of Disabilities) Act came into force on 20th September, 1928, and it applies to all Hindus, except those governed by the Dayabhaga school. Under the pure Hindu law, there were many defects and deformities which excluded a person from inheritance, e.g., blindness, deafness, dumbness if both congenital and incurable, idiocy, leprosy and other incurable disease. Under this Act, the only defects which disqualify an heir from inheritance or from a share on partition are congenital lunacy and congenital idiocy.
Prior to the passing of this Act, a person afflicted with blindness, deafness and dumbness, idiocy, loss of a limb or organ—all these being congenital—or with insanity, or hideous and loathsome diseases of an incurable type, was excluded from inheritance or from claiming a share on the partition. But the said Act declares that no physical or mental affliction excepting (1) congenital lunacy, or (2) congenital idiocy, shall operate as a bar to such a claim.
But now, under section 28 of the Hindu Succession Act, 1956, any disease, defect or deformity no longer disqualifies a person from inheritance, and such a person can inherit the property of his intestate relation. Congenital lunacy or idiocy is thus no longer a ground of disqualification.
6. Murder:
Prior to the Hindu Succession Act, 1956, no heirship to a murdered person could be claimed by or through a person who had been privy to his murder. (Kenchava v. Girimalapa, 51 I. A. 368). This line of thought was based on the principles of justice, equity and good conscience. Not only the murderer, but persons claiming through him, was also excluded.
A murderer was treated as non-existent when the succession opened on the death of his victim. He was not regarded even as a fresh stock of descent.
But now, under the Hindu Succession Act, 1956, only the murderer himself or herself and any person abetting the murder are 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. (S, 25 of the Hindu Succession Act, 1956)
Effects of disqualification:
If any person is disqualified from inheriting any property, the property devolves as if such person had died before the intestate. (Section 27 of Hindu Succession Act, 1956)
Exclusion from Partition:
It may be noted that all the above disabilities which exclude a person from inheritance also exclude him from a share of the joint family on partition.