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JURISPRUDENCE

PROJECT
IMPACT OF NATURAL LAW ON THE
CONSTITUTION OF INDIA

Submitted By: Gaurav Gandas


Roll No. 15LLB025
Submitted To: Proff. Subhradipta Sarkar

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Mr. Subhradipta


Sarkar who gave me the opportunity to do this wonderful project on the topic Impact of
Natural Law on the Constitution of India, which also helped me in doing a lot of
research and I came to know so many new things I am really thankful.
Secondly, I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

Gaurav Gandas

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INDEX

1.) INTRODUCTION:
OLD HINDU LAW
MODERN HINDU LAW
2.) LAWS OF DISQUALIFICATION:
SECTION 24:
PURPOSE OF THE SECTION
AMBIT OF THE SECTION
APPLICABILITY OF THE SECTION
REASON OF THE OMISSION
SECTION 25:
PURPOSE
APPLICATION
SECTION 26:
SCOPE
CEASING TO BE A HINDU
APPLICABILITY
POSPECTIVE OR RETROSPECTIVE
SECTION 27:
AMBIT OF THE SECTION
CONSEQUENCE OF DISQUALIFICATION
SECTION 28:
APPLICABILITY
3.) CONCLUSION
4.) REFERENCE

DISQUALIFICATION TO SUCCESSION UNDER HINDU SUCCESSION ACT 1956


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Introduction
Laws are social digester's and seldom are they neutral. They have Masculine flavor
especially with reference to family laws. Making of laws, administering the laws or
resolution of disputes arising out of implementation of laws are totally considered of
male bastion and equitable gestures, if any, towards women came out of mens
sympathies for womens problems. The principle of equality is equated with
sameness treatment in an inherently unequal society.
The Hindu succession act 1956 came with the objective of providing a
comprehensive and uniform scheme of intestate succession for Hindus.
As I have researched on the Disqualification under this topic, According to Hindu law,
the inheritance rights of person were not absolute. Despite the nearness of relationship,
a person could still be disqualified from inheriting property on account
of his certain physical or mental infirmities, or a specific conduct .this exclusion from
inheritance was not merely on religious grounds , an incapability to perform religious
rites, but depended upon social and moral grounds and bodily defects as well. As heir
under the classical law, could be excluded from inheritance on the following grounds.
1. Mental infirmities
2. Physical defects
3. Diseases
4. Conduct

OLD HINDU LAW:


Under old Hindu Law the inheritance rights of a person were not absolute and there
were several disqualifications based on mental infirmities, physical defects, diseases
and conduct. Despite the nearness of relationship, a person could still be disqualified
from inheriting property on account any of the above mentioned disqualifications. This
exclusion from inheritance was not mere on religious grounds, viz, an incapability to
perform religious rites, but depended upon social nd moral grounds and bodily effects
as well.

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MODERN HINDU LAW:


The law relating to succession for Hindus is governed by Hindu Succession Act,
1956. Under this Act Sections 24 to 28 deal with disqualifications of heirs. Section 28
lays down that no person shall be disqualified from succeeding to any property on
any ground except those expressly mentioned in the Act and they are as follows:
1. In case of remarriage by certain widows mentioned under S.24
2. In case of murder falling under S.25
3. In case of conversion to another religion as per S.26

LAWS OF DISQUALIFICATIONS

SECTION 24: CERTAIN WIDOWS REMARRYING MAY NOT INHERIT AS WIDOWS:


Any heir who is related to an intestate as the widow of a predeceased son, the widow of
a predeceased son of a predeceased 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.
PURPOSE OF THE SECTION:
In the objects and reasons appended to Hindu Succession Bill 13 of 1954(S. 28 of these
bill corresponds to S.24 of the said Act) it was stated the principle underlying this
clause is that the widow is the surviving half of her husband, and therefore, when she
remarries, she ceases to continue to be such (Section 2 of the Hindu Widow
Remarriage Act, 1856), on this basis divested the inheritance already vested in the
widow on her remarriage. As the law stands, remarriage disables a widow of a gotraja
sapinda from succeeding to the property of a male Hindu when on the date succession
opens, she has ceased to be the widow of a gotraja sapinda by reason of remarriage.
AMBIT OF THE SECTION:

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Under the hold Hindu law, certain familys heirs if they had married before succession
opened were disqualified from inheriting the property of the deceased
intestate. Under the widow remarriage act 1956, if a Hindu widow remarried, she was
divested of the property of her husband which had vested in her as heir.
Under this section only three female heirs are disqualified from inheriting the property of
the intestate if they remarried before his death. These females are:
(i)
Sons widow,
(ii)
Sons sons widow
(iii)
Brothers widow.
No other widow except these three is disqualified from inheritance even if she had
remarried before the intestate died. Even fathers widow including stepmother also is
not disqualified from inheritance even if she remarried before the succession opened.
Also ones own widow will not be divested of the property already vested in her, on her
remarriage. If any of these three widows have remarried before the death of the
intestate they incur disqualification.
In these section intestates widow is also not disqualified because intestates widows remarriage before succession opens does not arise, as even if she had, married a
second time her marriage would be void, and a void marriage is no marriage. In other
words she remains to be a member of the intestates family even is she has married
before intestates death because she is already married and second marriage cannot
subsist and so it is void. Since there is no second marriage she remains to be the
member of the family and hence she is entitled to inherit the property.

APPLICABILITY OF THE SECTION:


The section applies only to intestate succession. The testamentary succession is
beyond the scope of this section, since a testator has power to lay down in his will
any conditions on which a legatee will take the legacy. The section applies only to Class
I and Class II heirs of a Hindu male. It is submitted that the question of its application
in other cases does not arise, as cognates and agnates are all blood relations. In fact,
even among Class I and Class II heirs only five heirs are relations by affinity. These are:
(1) intestates own widow, (2) sons widow (3) sons sons widow (4) fathers widow (5)
brothers widow. The first three are in Class I and last two are in Class, category
(6). Of these the question of intestates widows remarriage before succession opens
does not arise and its reason

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is already been explained above. Only fathers widow is allowed to inherit even if she
had married. The other three widows are disqualified under this section.
Reason for omission of this section:
Section 24 was simply superfluous and redundant. Hence its omission did not create
any significant loss and this section was no longer of any use which finally resulted
into the omission by the Amendment Act of 2005.

SECTION 25: MURDERER DISQUALIFIED:


A person who commits murder or abets the commission of murder shall be 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.
PURPOSE:
The doctrinaire theory that provisions of a statute of distribution are paramount and
forbid the consideration of any disqualification not contained in the
statute itself, was discountenanced by the Judicial Committee of the Privy.
The section has the effect of laying down that a person who commits Murder or abets
the commission of murder is disqualified from inheriting :
(1) The property of the person murdered; or
(2) Any other property he may become entitled to succeed by reason Of furtherance of
succession resulting from the murder. It is not necessary for the application of this
section that the person Disqualified should have been convicted of murder or abetment
of murder. The disqualification will apply if it is established in any subsequent
proceeding That the person to be disqualified had committed or abetted the murder.
Thus if the case was one of suicide and there was no case of abatement, Such a
person would not be disqualified. It stands to reason that a person Prosecuted
for murder but acquitted of the charge would not be disqualified.
APPLICATION:
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The section applies to both intestate and testamentary succession. The section
definitely applies in the cases where the property is to be inherited as per the Act but it
also applies where the testator has left behind the will. The principle of this section
applies also to testamentary succession. The High court of Madras has held in
Sarvanabhaba V. Sellammal that there was no distinction between inheritance and
testamentary succession to the property of the person murdered and the murderer of
the testator is not entitled to the property bequeathed to him under the will. The
following passage from Mantha Ramamurthys, Law of Wills also suggest the same
It is settled law that a murder is not entitled to succeed to the estate of his victim. A
man cannot slay his benefactor and sustain his bounty. It is equally clear that no title to
the estate of the person murdered can be claimed through the murder, that the
murderer cannot be regarded as a fresh stock of descent. A murderer who is guilty of
murdering the testator cannot take any benefit under his will.
The section applies to succession under the Act. It does not apply to
succession under any other enactments or provision governed under any other statute,
for example the U.P Zamindari Abolition and Land Reforms Act.

SECTION 26: CONVERTS DESCENDANTS DISQUALIFIED:


SCOPE:
Under the old Hindu law conversion by a Hindu to another religion was a disqualification
which was removed by the Caste disabilities Removal Act, 1850. Even under this Act,
when a Hindu becomes a convert to another religion he continues to have a right to inh
erit from his Hindu relative but descendants of a convert are disqualified from inheriting
the intestate. It is laid down under this section that where a Hindu ceased to be a Hindu
by converting to any religion whether before or after the commencement of this Act, the
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 children or
descendants are Hindus when the succession opens.
CEASING TO BE A HINDU:
This section is not concerned with the right of succession of the convert, i.e., of the
person who had ceased to be a Hindu. It merely disqualifies his descendants from
inheriting the property of the intestate. A Hindu convert to another religion is not
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disqualified from inheritance even if he is a Non-Hindu when succession opens.


Similarly, his children born to him before his conversion are also not disqualified. This
disqualification also does not apply to descendants of the child born before the
conversion of hi or her parent, though descendants may be born after conversion. Thus,
an heir who converts to a Non-Hindu religion either before or after the
commencement of the Act is not disqualified and will be heir of the deceased Hindu.
In Subramanian V. Vijayarani Madras High court has held that the careful reading of
S.26 of the Hindu Succession Act would establish that a Hindu ceased to
be a Hindu by conversion to another religion and the children born to him or her after
such conversion shall be disqualified from inheriting the properties of their Hindu
relatives. In case of E. Ramesh V. P. Rajini it was held by the court that the claim for
share by the daughter in the properties of her parents could not be resisted by her
brothers on the ground that she had married a Muslim and would not be entitled to
any share.
DESCENDANTS OF THE CONVERT:
The disqualification of descendants of a convert requires two conditions to be fulfilled:
The children are those who are born to him after his conversion.
They or their descendants are not Hindus when succession opens.
The section lays down that converts children born to him after conversion, and the
descendants of such children are disqualified as heirs of the Hindu intestate only if they
are nonHindu when succession opens. If they are Hindus (obviously by conversion)
when succession opens they are not disqualified. If they convert to
Hinduism after the succession has opened, they continue to be disqualified.
Under this section the descendants of Hindu convert to Non-Hindu religion cannot
inherit the property of a Hindu relative; conversely Hindu relations cannot succeed to
their property.
APPLICABILITY:
This section has no application to testamentary succession where the terms of the
testament govern the rules of succession but it is only applicable to intestate
succession.
PROSPECTIVE OR RETROSPECTIVE:
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Section 26 is partly prospective and partly retrospective. It is prospective in the sense


that the disqualification under the section will arise only if succession opens after the
commencement of this Act. If the succession opened earlier and the intestate died
before the Act came into force, the law prevailing at the time will operate. The section is
retrospective in one aspect in that the section will apply also to a case where the
conversion had taken place prior to the commencement of this Act.

SECTION 27: SUCCESSION WHEN HEIR DISQUALIFIED:


If any person is disqualified from inheriting any property under this Act, it shall devolve
as if such person had died before the intestate.
The section lays down the general relating to the effect of disability disqualification
resulting from any of the causes mentioned in the group of section 24 to 28 and is in
accordance with the rule of Hindu law that where heir is disqualified, the next heir of the
deceased succeeds as if the disqualified person had died before the intestate. A
disqualified person transmits no interest to his or her own heir. It may be noted that as a
general rule disqualification from inheritance is purely personal and does not extends to
issue of the disqualified heir unless there is any provision of law to the
contraries the provision relating to the decedents of convert of Hinduism.
AMBIT OF THE SECTION:
This section provides for consequences of disqualifications incurred by an heir from
inheriting under any provision of the Act. This section lays down that even though the
disqualified heir is alive, he will be deemed to be not in existence. The property of the
intestate shall devolve as if such person had died before the intestate.
CONSEQUENCE OF DISQUALIFICATION:
Under this section a disqualified heir is deemed to have died before the intestate,
it follows that no person can claim the right of inheritance to the property of the intestate
through him or her. The word before used in the section makes it abundantly clear that
the property does not vest in the disqualified heir, and if it does not vest in him, he
cannot be the medium of passing property to others. In other, words a disqualified heir
cannot be a fresh stock of descent and a person claiming through the disqualified heir

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cannot succeed. But it makes no difference to the application of the rule whether the
convert ceased to be a Hindu before or after the commencement of this Act.

SECTION 28: DISEASE, DEFECT ETC NOT TO DISQUALIFY:


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.
Certain defects, deformities and diseases see notes on excluded an heir from
inheritance. This was substantially remedied by the Hindu Inheritance (Removal of
Disabilities) Act 1928, which ruled that no person, 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 present section discards almost all the ground, which, exclusion
from inheritance. It rules out disqualification on any ground whatsoever accepting those
expressly recognized by any provisions of Act. Unchastity of a widow is not a
disqualification under the norm is conversion of an heir to any other religion a
disqualification under the Hindu Succession Act.
The section is not retrospective. The section comes into operation only in cases where
succession opens after the commencement of this Act. Where succession opened prior
to the commencement of the Act, it was held that the section not being retrospective, an
unchaste was not entitled to take shelter under this section. Similarly in one another
case of Anhia V. Bajnath a stepmother of the deceased intestate female remarried prior
to the commencement of this Act, though the intestate woman died after the
commencement of this Act, it was held that the step mother was not entitled to inherit as
she was disqualified.
APPLICABILITY:
The section applies to both testamentary and intestate succession.

CONCLUSION

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In the Old Hindu Law the heir was disqualified to succession because of causes like
Mental Infirmities, Physical Defects, Diseases and Conduct which were not absolute.
But after the Hindu Succession Act 1956, the causes of disqualification to succession
were narrowed down to:
1.) Section 24 - Certain widows remarrying may not inherit as widows
2.) Section 25 - In case of murder.
3.) Section 26 - In case of conversion to another religion.
And now the person cant be disqualified from succession because of any Disease or
Physical Defect as the Section 28 of the Hindu Succession Act states that a legal heir
cant be disqualified from succession because of any disease or physical defect.

REFERENCES

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STATUTES REFERRED:
THE HINDU SUCCESSION ACT 1956

BOOKS REFERRED:
MODERN HINDU LAW (2005) BY DR. PARAS DIWAN
SITES REFERED:
www.indiankanoon.com
www.manupatra.com
www.ssrn.com

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