Legal Question in Civil Rights Law in India

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11.03.2014

Dear Sir,

There are two systems of inheritance amongst the Hindus in India, namely, the Mitakshara system and the Dayabhaga system. The Mitakshara system prevails in whole of India except in Bengal and its adjoining parts.

Both the systems are based upon the text of Manu which reads: �to the nearest Sapinda the inheritance next belongs, after them, the Sakulyas, the preceptor of the Vedas, or a pupil.� The difference between the two systems arises from the fact that, while the doctrine of religious efficacy is the governing principle of inheritance under the Dayabhaga School, the rule of consanguinity has been regarded as the guiding principle under the Mitakshara system.

The basic difference between the two schools arose on their different modes of interpretation of the term �sapinda�. To Mitakshara it meant the nearest in blood, the rule of consanguinity or proximity of blood relationship became the basis of determining the line of succession. The characteristic feature of Mitakshara law of succession is the principle of propinquity with this most important qualification that no cognate excepting a daughter�s son can succeed in preference to an agnate.

This system does not mention the rule of religious or spiritual efficacy as the basis of succession, although the Virmitrodaya formulates and makes use of it in finding a position for the great grandson among the direct mail descendants of the deceased on whom the property devolves before the widow and the rest can claim succession.

According to Mitakashara the preferential right to inherit is determined by family relationship or community of corporeal particles, while in the Dayabhag it is determined by the capacity of a person to perform funeral rites. It may happen that in some instances the same person would be preferential heir, whichever test is applied, but in others the two tests do not point to the same person.

But in Mitakshara, while holding that the right to inherit does not spring from the right to offer oblation does not exclude it from consideration as a test of propinquity or nearness of blood when a question of preference arises in doubtful cases.

It also did not lay down any rules to govern the inheritance of the separate property of male who died an undivided member of joint family without leaving male issue of his own. The Privy Council observed that in Katitma Nachiar v. Raja of Shivaganga, that the rule of inheritance stated in the Mitakshara, should, on principle, be extended to the separate property of a man when he died an undivided member of a joint family but without leaving male issue.

Accordingly, in the Mitakshara areas the law of succession followed the nature of .property; where the property was coparcenary property it followed the rules laid down by the law of partition and where the property was separate property it followed the rules laid down by the law of inheritance strictly so called. Thus, in the case of a male Hindu governed by the Mitakshara there was no unity of succession; and there could be two courses of devolution of his property.

The Mitakshara system recognises two modes of devolution of property, namely

(a) Devolution by survivorship,

(b) Devolution by succession,

The rule of survivorship applies with respect to joint family property or coparcenary property whereas the rules of succession apply with respect to property held in absolute severality by the last owner.

Whenever a Hindu dies, his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It cannot under any circumstances remain in abeyance in expectation of the birth of a preferable heir.

Where on the death of a Hindu, his property vests in a person who is his nearest heir, it cannot be divested except either by the birth of a preferable heir such as son or daughter who was conceived at the time of his death, or by adoption in certain cases of a son to the deceased.

Regards,