JAMMU AND
KASHMIR HINDU SUCCESSION ACT, 1956 [REPEALED] THE JAMMU AND KASHMIR HINDU SUCCESSION ACT, 1956 [REPEALED][1] [Act No. 38 of 1956] [28th December, 1956] An Act to amend and codify the law relating to in testate
succession among Hindus. Be it enacted by the Jammu
and Kashmir State Legislature in the Seventh Year of the Republic of India as
follows: - (1)
This act may be called the Jammu and Kashmir Hindu Succession Act,
1956. (2)
It extends to the whole of the State of Jammu and Kashmir. (1)
This Act applies ? (a)
to any person, who is a Hindu by religion in any of its forms or
developments, including a Virasaiva, a Lingayat or a follower of the Brahmo,
Prarthana or Arya Samaj; (b)
to any person who is a Buddhist, Jaina or Sikh by religion; and (c)
to any other person who is not a Musilm, Christian, Parsi or Jew
by religion unless it is proved that any such person would not have been
governed by the Hindu Law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been
passed. Explanation. - The
following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the
case may be:- (d)
any child, legitimate or illegitimate, both of whose parents are
Hindus, Buddhists, Jainas or Sikhs by religion; (e)
any child, legitimate or illegitimate, one of whose parents is a
Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of
the tribe, community, group or family to which such parent belongs or belonged; (f)
any person who is a convert or reconvert to the Hindu, Buddhist,
Jaina or Sikh religion. (2)
The expression "Hindu" in any portion of this Act shall
be construed as if it included a person who, though not a Hindu by religion,
is, nevertheless, a person to whom this Act applies by virtue of the provisions
contained in this section. (1)
In this Act, unless the context otherwise requires, - (a)
"agnate" one person is said to be an "agnate"
of another if the two are related by blood or adoption wholly through males; (b)
"cognate" one person is said to be a cognate of another
if the two are related by blood or adoption but not wholly through males; (c)
the expressions "customs" and "usage" signify
any rule which, having been continuously and uniformly observed for a long time,
has obtained the force of law among Hindus in any local area, tribe, community,
group or family: Provided that the rule is
certain and not unreasonable or opposed to public policy; and Provided further that in
the case of a rule applicable only to a family it has not been discontinued by
the family; (d)
"full blood", "half blood" and "uterine
blood" ? (e)
two persons are said to be related to each other by full blood
when they are descended from a common ancestor by the same wife, and by half
blood when they are descended
from a common ancestor but by different wives; (f)
two persons are said to be related to each other by uterine blood
when they are descended from a common ancestress but by different husbands; Explanation, - In this
clause "ancestor" includes the father and "ancestress" the
mother; (g)
"heir" means any person, male or female, who is entitled
to succeed to the property of an intestate under this Act; (h)
"intestate" a person is deemed to die intestate in
respect of property of which he or she has not made a testamentary disposition
capable of taking effect; (i)
"related" means related by legitimate kinship: Provided that illegitimate
children shall be deemed to be related to their mother and to one another, and
their legitimate descendants shall be deemed to be related to them and to one
another; and any word expressing relationship or denoting a relative shall be
construed accordingly. (2) In this
Act, unless the context otherwise requires, words importing the masculine
gender shall not be taken to include females. (1)
Save as otherwise expressly provided in this Act, - (a)
any text, rule or interpretation of Hindu law or any custom or
usage as part of that law in force immediately before the commencement of this
Act shall cease to have effect with respect to any matter for which provision
is made in this Act; (b)
any other law in force immediately before the commencement of this
Act shall cease to apply to Hindus in so far as it is inconsistent with any of
the provisions contained in this Act. (2)
For the removal of doubts it is hereby declared that nothing
contained in this Act shall be deemed to affect the provisions of any law for
the time being in force providing for the prevention of fragmentation of
agricultural holdings or for the fixation of ceilings or for the devolution of
tenancy rights in respect of such holdings. When a male Hindu dies
after the commencement of this Act, having at the time of his death an interest
in a Mitakshara coparcenary property, his interest in the property shall
devolve by survivorship upon the surviving members of the coparcenary and not
in accordance with this Act: Provided that, if the
deceased had left him surviving a female relative specified in Class I of the
Schedule or a male relative specified in that class who claims through such
female relative, the interest of the deceased in the Mitakshara coparcenary
property shall devolve by testamentary or intestate succession, as the case may
be, under this Act and not by survivorship. Explanation 1. - For the
purposes of this section the interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have been allotted to him if
a partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not. Explanation 2. - Nothing
contained in the proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the
deceased or any of his heirs to claim on intestacy a share in the interest
referred to therein. The property of a male
Hindu dying intestate shall devolve according to the provisions of this Chapter
- (a)
Firstly, upon the heirs, being the relatives specified in Class I
of the Schedule; (b)
Secondly, if there is no heir of Class I, then upon the heirs,
being the relatives specified in Class II of the Schedule; (c)
Thirdly, if there is no heir of any of the two classes, then upon
the agnates of the deceased; and (d)
Lastly, if there is no agnate, then upon the cognates of the
deceased. Among the heirs specified
in the Schedule, those in Class I shall take simultaneously and to the
exclusion of all other heirs; those in the first entry in Class II shall be
preferred to those in the second entry; those in the second entry shall be
preferred to those in the third entry; and so on in succession. The property of an
intestate shall be divided among the heirs in Class I of the Schedule in
accordance with the following rules: - (1)
The intestate's widow, or if there are more widows than one, all
the widows together, shall take one share. (2)
?The surviving sons and
daughters and the mother of the intestate shall each take one share. (3)
?The heirs in the branch of
each pre-deceased son or each pre-deceased daughter of the intestate shall take
between them one share. (4)
?The distribution of the
share referred to in Rule 3 ? (5)
among the heirs in the branch of the pre-deceased son shall be so
made that his widow (or widows together) and the surviving sons and daughters
get equal portions; and the branch of his pre-deceased sons gets the same
portion; (6)
among the heirs in the branch of the pre-deceased daughter shall
be so made that the surviving sons and daughters get equal portions. The property of an
intestate shall be divided between the heirs specified in any one entry in
Class II of the Schedule so that they share equally. The order of succession
among agnates or cognates, as the case may be, shall be, determined in
accordance with the rules of preference laid down hereunder: - (1)
Of two heirs, the one who has fewer or no degrees of ascent is
preferred. (2)
?Where the number of degrees
of ascent is the same or none, that heir is preferred who has fewer or no degrees
of descent. (3)
Where neither heir is entitled to be preferred to the other under
Rule 1 or Rule 2 they take simultaneously. (1)
For the purposes of determining the order of succession among
agnates or cognates, relationship shall be reckoned from the intestate to the
heir in terms of degrees of ascent or degrees of descent or both, as the case
may be. (2)
Degrees of ascent and degrees of descent shall be computed
inclusive of the intestate. (3)
Every generation constitutes a degree either ascending or
descending. (1) Any
property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as
a limited owner. Explanation. - In this
sub-section, "property" includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at a partition, or in
lieu of maintenance or arrears of maintenance, or by gift from any person,
whether a relative or not, before, at or after her marriage, or by her own
skill or exertion, or by purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as Stridhana immediately
before the commencement of this Act. (2)
Nothing contained in sub-section (1) shall apply to any property
acquired by way of gift or under a will or any other instrument or under a
decree or order of a Civil Court or under an award where the terms of the gift, will
or other instrument or the decree, order or award prescribed a restricted
estate in such property. (1)
The property of a female Hindu dying intestate shall devolve
according to the rules set out in section 14 ? (a)
firstly, upon the sons and daughters (including the children of
any pre-deceased son or daughter) and the husband; (b)
secondly, upon the heirs of the husband; (c)
thirdly, upon the mother and father; (d)
fourthly, upon the heirs of the father; and (e)
lastly, upon the heirs of the mother. (2)
Notwithstanding anything contained in sub-section (1): - (a)
any property inherited by a female Hindu from her father or mother
shall devolve, in the absence of any son or daughter of the deceased (including
the children of any pre-deceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified therein, but upon the
heirs of the father; and (b)
any property inherited by a female Hindu from her husband or from
her father-in-law shall devolve, in the absence of any son or daughter of the
deceased (including the children of any pre-deceased son or daughter) not upon
the other heirs referred to in sub-section (1) in the order specified therein,
but upon the heirs of the husband. The order of succession
among the heirs referred to in section 13 shall be, and the distribution of the
intestate's property among those heirs shall take place according to the
following rules, namely: - (1)
Among the heirs specified in sub-section (1) of section 13, those
is one entry shall be preferred to those in any succeeding entry, and those
including in the same entry shall take simultaneously. (2)
If any son or daughter of the intestate had pre-deceased the
intestate leaving his or her own children alive at the time of the intestate's death,
the children of such son or daughter shall take between them the share which
such son or daughter would have taken if living at the intestate's death. (3)
The devolution of the property of the intestate on the heirs
referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section
(2) of section 13 shall be in the same order and according to the same rules as
would have applied if the property had been the father's or the mother's or the
husband's, as the case may be, and such person had died intestate in respect
thereof immediately after the intestate's death. Heirs related to an
intestate by full blood shall be preferred to heirs related by half blood, if
the nature of the relationship is the same in every other respect. If two or more heirs
succeed together to the property of an intestate they shall take the property,
- (a)
save as otherwise expressly provided in this Act, per capita and
not per stirpes; and (b)
as tenants-in-common and not as joint tenants. A child who in the womb at
the time of death of an intestate and who is subsequentaly born alive shall
have the same right to inherit to the intestate as if he or she had been born
before the death of the intestate, and the inheritance shall be deemed to vest
in such a case with effect from the date of the death of the intestate. Where two persons have died
in circumstances rendering it uncertain whether either of them, and if so
which, survived the orther, then, for all purposes affecting succession to
property, it shall be presumed, until the contrary is proved, that the younger
survived the elder. (1)
Where, after the commencement of this Act, an interest in any
immovable property of an intestate, or in any business carried on by him or
her, whether solely or in conjunction with others, devolves upon two or more
heirs specified in class I of the Schedule, and any one of such heirs proposes
to transfer his or her interest in the property or business, the other heirs
shall have a preferential right to acquire the interest proposed to be
transferred. (2)
The consideration for which any interest in the property of the
deceased may be transferred under this section shall, in the absence of any
agreement between the parties, be determined by the court on application being
made to it in this behalf, and if any person proposing to acquire the interest
is not willing to acquire it for the consideration so determined, such person
shall be liable to pay all costs of or incident to the application. (3)
If there are two or more heirs specified in Class I of the
Schedule proposing to acquire any interest under this section, that heir who
offers the highest consideration for the transfer shall be preferred. Explanation. - In this
section, "Court" means the court within the limits of whose
jurisdiction the immovable property is situate or the business is carried on,
and includes any other Court which the Government may, by notification in the
Government Gazette, specify in this behalf. Where a Hindu intestate has
left surviving him or her both male and female heirs specified in Class I of
the Schedule and his or her property includes a dwelling house wholly occupied
by members of his or her family; then, notwithstanding anything contained in
this Act, the right of any such female heir to claim partition of the dwelling
house shall not arise, until the male heirs choose to divide their respective
shares therein; but the female heir shall be entitled to a right of residence
therein: Provided that where such
female heir is a daughter, she shall be entitled to a right of residence in the
dwelling house only if she is unmarried
or has been deserted by or has separated from her husband or is a widow. Any heir who is related to
an intestate as the widow of a pre-de-ceased son, the widow of a pre-deceased
son of a pre-deceased son or the widow of a brother shall not be entitled to
succeed to the property of the intestate as such widow, if on the date the
succession opens, she has remarried. A person who commits murder
or abets the commission of murder shall be disqualified from inherting 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. Where, before or after the
commencement of this Act, a Hindu has ceased or ceases to be a Hindu by
conversion to another religion, children born to him or her after such
conversion and their descendants shall be disqualified from inheriting the
property of any of their Hindu relatives, unless such children or descendants
are Hindu at the time when the succession opens. If any person is
disqualified from inheriting any property under this Act, it shall devolve as
if such person had died before the intestate. 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. If an intestate has left no
heir qualified to succeed to his or her property in accordance with the
provisions of this Act, such property shall devolve on the Government; and the
Government shall take the property subject to all the obligations and
liabilities to which an heir would have been subject. (1) Any Hindu
may dispose of by will or other testamentary disposition any property, which is
capable of being disposed of by him, in accordance with any law for the time
being in force and applicable to Hindus. Explanation. - The interest
of a male Hindu in a Mitakshara coparcenary property shall, notwithstanding
anything contained in this Act or in any other law for the time being in force,
be deemed to be property capable of being disposed of by him within the meaning
of the sub-section. (2) [2]
Preamble - THE JAMMU AND KASHMIR HINDU SUCCESSION ACT, 1956
[REPEALED]PREAMBLE
Section 28 - Repeal
The Hindu law of
Inheritance Act, 1997, is hereby repealed.
Schedule - THE SCHEDULE
THE SCHEDULE
(See Section 6.)
Heirs in Class I and Class II
CLASS I
Son;
daughter; widow; mother; son of pre-deceased son; daughter of a pre-deceased
son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow
of a pre-deceased son; son of a pre-deceased son of a pre-deceased son;
daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased
son of a pre-deceased son.
CLASS II
(1)
Father.
(2)
Son's daughter's son, (2) Son's daughter's daughter, (3) brother,
(4) sister.
(3)
Daughter's son's son, (2) daughter's son's daughter, (3)
daughter's daughter's son, (4) daughter's daughter's daughter.
(4)
Brother's son, (2) sister's son, (3) brother's daughter, (4)
sister's daughter.
(5)
Father's father; father's mother.
(6)
Father's widow; brother's widow.
(7)
Father's brother; father's sister.
(8)
Mother's father; mother's mother.
(9)
?Mother's brother; mother's
sister.
Explanation. - In this
Schedule, reference to a brother or sister do not include references to a
brother or sister by uterine blood.