Disqualifications Relating to Succession

Read the section carefully, because it does the opposite of what its name suggests.

The convert himself is NOT disqualified. Nothing in the Act disqualifies a person for having converted. A Hindu who becomes a Christian still inherits from his Hindu relatives. That is a deliberate change from the classical law, and it is the first thing to say.

It is the convert's children born AFTER the conversion, and their descendants, who are disqualified. Children born before the conversion are unaffected.

And even they are saved if they are Hindus when the succession opens. A grandchild of a convert who is himself a Hindu at the date of the death inherits normally.

So the section disqualifies a narrow class: descendants of a convert, born after the conversion, who are not themselves Hindus at the relevant time.

"When the succession opens" means at the death of the person whose property is in question, and that is the date at which the religion is tested.

Section 27: the effect of a disqualification

If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate.

This is short and it decides problems. The disqualified person is treated as pre-deceased, which has two consequences.

He takes nothing. Obviously.

And the estate is redistributed as though he had died first, which means the other heirs' shares are recalculated on that footing.

Whether his own children take in his place depends on the ordinary rules. If he is treated as a pre-deceased son, then the entries in Class I dealing with the children of a pre-deceased son become relevant, and the branch may take. So a disqualification does not necessarily strip the disqualified person's whole line.

Section 28: no other disqualification

No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or, save as provided in this Act, on any other ground whatsoever.

This is the section that swept the classical disabilities away, and it does two separate things.

It abolishes disqualification for disease, defect or deformity. The classical law had excluded persons who were congenitally blind, deaf, dumb, lunatic or idiot, among others. Section 28 ends all of it by name.

It closes the list. The words "save as provided in this Act, on any other ground whatsoever" mean that the Act's own disqualifications are exhaustive. A court cannot invent a new one, and a custom cannot supply one.

That makes section 28 the section to cite whenever a problem suggests some other reason for excluding an heir: unchastity, desertion, ingratitude, a quarrel, any of them. The answer is that section 28 permits no disqualification except those the Act provides.

The disqualification outside this Act

An answer that names only sections 25 and 26 is complete for this Act, but there is one more in the subject and it earns credit.

Section 18 of the Commission of Sati (Prevention) Act 1987 provides that a person convicted of an offence under section 4(1) of that Act, that is, of abetting a sati that was actually committed, is disqualified from inheriting the property of the person in respect of whom the sati was committed, and the property of any other person which he would have been entitled to inherit on that person's death.

Notice how closely it is modelled on section 25 of the Hindu Succession Act: the same two limbs, the property of the deceased and any other property that the crime advanced the succession to. It is set out in [Sati, and the Commission of Sati (Prevention) Act 1987].

The disqualifications, before and now

A worked example

Ramesh murders his uncle U to hasten a succession. Ramesh's brother Suresh converted to Christianity in 1990; Suresh has two children born in 1995, one of whom has since become a Hindu. Their aunt was convicted of abetting a sati in 1990. U dies intestate.

Can Ramesh inherit from U? No. Section 25: a person who commits murder or abets its commission is disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he committed or abetted the murder.

Is Suresh disqualified because he converted? No. Section 26 does not disqualify the convert.

And his children? They are. Section 26 disqualifies the children born to the convert after the conversion, and their descendants, from inheriting from any of their Hindu relatives, unless they are Hindus at the time the succession opens. So the child who has become a Hindu takes; the other does not.

What happens to a disqualified person's share? Section 27: the property devolves as if such person had died before the intestate. Ramesh is treated as predeceased, and so is the disqualified child.

Do the disqualified persons' own children take through them? That follows from section 27: since the disqualified person is treated as having died before the intestate, the ordinary rules of representation apply to whoever comes next.

Is Ramesh disqualified because he has a physical disability as well? No. Section 28 provides that no person shall be disqualified on the ground of any disease, defect or deformity, or, save as provided in the Act, on any other ground whatsoever.

And the aunt? Her disqualification comes from outside this Act: section 18 of the Commission of Sati (Prevention) Act 1987 disqualifies a person convicted under section 4 from inheriting the property of the person in respect of whom the sati was committed.

What of a widow who has remarried? Nothing. Section 24 was omitted in 2005.

What it does NOT mean

Section 25 is not confined to the victim's own property. It also disqualifies from any other property in furtherance of the succession to which the murder was committed.

Abetment is enough. The section reaches a person who commits murder or abets its commission.

Section 26 does not disqualify the convert. It disqualifies the children born to him or her after the conversion, and their descendants.

And not even them, always. They are disqualified unless they are Hindus at the time the succession opens.

A disqualified heir is not simply skipped. By section 27 he is treated as if he had died before the intestate, which is why the property passes as it would have done had he never existed.

Section 28 is not a list. It abolishes disqualification for disease, defect or deformity, and shuts out any ground the Act does not itself provide.

Section 24 is gone. The widow's remarriage disqualification was omitted in 2005, and a textbook that still prints it is out of date.

The Act is not the only source of disqualification. Section 18 of the Commission of Sati (Prevention) Act 1987 adds one from outside this statute.

Quick revision

• s.24 was omitted in 2005. It had disqualified certain widows who had remarried before the succession opened.
• s.25: a person who commits murder or abets its commission is disqualified from inheriting the victim's property, and any other property in furtherance of the succession to which the murder was committed.
• s.26: where a Hindu converts, the children born to him or her after the conversion, and their descendants, are disqualified, unless they are Hindus when the succession opens. The convert himself is not disqualified by this section.
• s.27: a disqualified person is treated as though he had died before the intestate.
• s.28: no person is disqualified on the ground of disease, defect or deformity, or on any other ground whatsoever, except as provided in the Act.
• From outside the Act: section 18 of the Commission of Sati (Prevention) Act 1987.

Test yourself

1. State two disqualifications to succession under the Hindu Succession Act. A person who commits murder or abets its commission is disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he committed or abetted the murder, under section 25. And the children born to a convert after the conversion, and their descendants, are disqualified from inheriting from any of their Hindu relatives, unless they are Hindus at the time the succession opens, under section 26.

2. Is a convert disqualified from inheriting? Not by section 26, which disqualifies only the children born to the convert after the conversion, and their descendants. The convert also loses a maintenance claim under section 24 of the Hindu Adoptions and Maintenance Act, and ceases to be a natural guardian under the proviso to section 6 of the Hindu Minority and Guardianship Act.

3. What is the effect of a disqualification? By section 27, if any person is disqualified from inheriting any property under the Act, it devolves as if such person had died before the intestate.

4. Can a person be disqualified for a physical defect? No. Section 28 provides that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or, save as provided in the Act, on any other ground whatsoever.