Partition is the process of division of property. The Hindu Succession Act, 1956 ("Act") regulates the partition of property under Hindu Law.
There are two types of partitions under the Hindu Succession Act.
Property obtained by someone in their lifetime and not inherited from their ancestors is Self-Acquired Property. On the other hand, Ancestral property is property inherited from one's forefathers. Further, Succession itself is of two types: Testamentary Succession and Intestate Succession.
Types of Succession
As noted, Succession can either be Testamentary or Intestate. Testamentary Succession occurs if there is a will. As long as the will is valid and enforceable, the will has to be executed, and the inheritance provisions do not apply. Part VI of the Indian Succession Act, 1925, further elaborates on provisions related to wills. The will should be clear, reduced to writing, signed by the testator and two independent witnesses.
By contract, Intestate Succession is primarily covered by the laws of inheritance. For Hindus, these are governed by the Hindu Succession Act, 1956.
Rules of Succession under Hindu Law
Succession itself depends on whether the property is a self-acquired property or an intestate property.
Succession of Self-Acquired Property
Self-acquired property is also known as coparcenary property. Individuals only have an "interest" in such property, and they receive a share in the property if they have an interest in it. Thus, the "devolution of interest" is an important concept.
People Also Read This: Supreme Court Judgments On Ancestral Property
Section 6 of the Act comprehensively discusses the devolution of interest in cases of the death of a Hindu male. The property will devolve to all coparceners within the dictates of Mitakshara law. However, the Act is progressive and has included women and female heirs within the coparcenary.
The succession of Ancestral Property
The rules of property division are given under Chapter II of the Hindu Succession Act, 1956.
A Hindu male's basic rules of Succession are codified under Sections 8 and 9 of the Act. Under these provisions, the order of Succession is as follows:
Relatives specified in Class 1 > Relatives specified in Class 2 > Agnates of the deceased > Cognates of the deceased.
The Succession is exclusive. This means that if there are any Class 1 heirs, they will all receive a share in property and exclude heirs from other categories. If there is no class 1 heir, then all members of Class II will exclusively receive an a of the property, and so on. This is the order of Succession clarified in Section 9 of the Act.
The list of relatives under Class I & II are mentioned under the Schedule to the Act. Class I heirs primarily include the son, daughter, mother, etc. – Usually, the deceased's closest relatives. Class II heirs are more distant but somewhat related: they include the father, son's daughter's son, son's daughter's daughter, and so on. Sections 10 and 11 state the rules of Succession for Class I and II heirs.
The property of an intestate shall be divided among the heirs in class I of the schedule by the following rules-
Rule 1: The intestate of window (s) shall take one share each.
Rule 2: The surviving sons and daughters and the mother shall take one share each
Rule 3: The heir in the branch of each pre-deceased son or daughter shall take one share between them.
This is also applicable to Class-II heirs.
People Also Read This: How to Inherit Property in India?
Finally, property devolves to cognates and agnates. A cognate is any blood relative from the mother's side, while an agnate is any blood relative from the father's side. While both Class I and II heirs receive equal shares, Section 12 of the Act mentions the hierarchy in Succession among the cognates and agnates.
For females, similar rules are followed. These can be found under Sections 15 and 16 of the Hindu Succession Act.