Report No. 204
3. Over-Lapping In Class-I And Class-II Heirs, Need For Reconciliation
As per 2005 amendment in the aforesaid Act following relations viz:-
1. Son of a predeceased daughter of a predeceased daughter (i.e. daughter's daughter's son);
2. Daughter of a predeceased daughter of a predeceased daughter (i.e. daughter's daughter's daughter).
3. Daughter of a predeceased son of a predeceased daughter (i.e. daughter's son's daughter);
4. Daughter of a predeceased daughter of a predeceased son (i.e. son's daughter's daughter)
are added in the list of legal heirs under Class-I of the schedule provided under the said Act. The above four now added in Class I are already in Class II prior to the amendment and though they have been elevated to Class I, they have not been deleted from Class II. However, the said relations were required to be omitted from their entries present prior to 2005 viz. under 2nd and 3rd Entry under Class-II heirs which are still present under the aforesaid provisions only in different words as:-
|Class-II,Entry II||(2) son's daughter's daughter (Check S.No.4 above u/cl-I)|
|Class-II,Entry III||(2) daughter's son's daughter (Check S.No.3 u/cl-I)|
|(3) daughter's daughter's son (Check S.No.1 u/cl-I)|
|(4) daughter's daughter's daughter (Check S.No.2 above u/cl-I)|
Though both the above entries in Class-II prima-facie seem to be different due to the use of the word "pre-deceased" in Class-I for the same, actually meaning wise, both relations are same and will only come into picture if their legal ascendants died prior to the opening of succession i.e. before the death of the Hindu Male dying intestate, with respect of whom all the above relations are derived. Hence, in our opinion, a definite correction is required in Class-II of the schedule and the relations provided under the same, which are already covered in Class-I, must be deleted.
As already stated, the four of the descendants included as Class I heirs are listed as Class II heirs as well. The confusion caused by this repetition requires correction. The repetition is perceptibly obvious and requires elimination to restore clarity and to avoid unnecessary litigation.
Two of the male descendants in the daughter's line are not listed as Class I heirs while their female counterparts are so listed. There is no basis or justification for this omission.
The omission is not based on principle, but creates a reverse discrimination against the male descendants and this has to be rectified.
Thus "son of predeceased son of a predeceased daughter" as well as "son of a predeceased daughter of a predeceased son" of the intestate are not added under Class-I by the said amendment of 2005. The said relations are also derived through daughter and granddaughter of the intestate. On the basis of the same logic used for remaining insertions made in Class-I u/2005's amendment, the said relations too should have been included in class I heirs.
Daughter of a predeceased daughter of a predeceased son who is i.e. number 2 of Entry 2 in Class II has been elevated as a Class I heir under the amendment. However, son's daughter's son i.e. son of a predeceased daughter of a predeceased son is retained in Class II though both of them are in the same degree of relationship to the intestate.
Daughter's son's daughter who was formerly in Class-II has been elevated in Class-I as daughter of a predeceased son of a predeceased daughter. While daughter's son's son namely Entry 3 in item 2 is retained in Class II though both of them are in the same degree of relationship to the intestate, and, therefore, in our opinion above said 2 relations, which are mentioned as "daughter's son's son" and "son's daughter's son", under Class II - 2nd and 3rd items (Entry) respectively, be omitted from there and be added in Class-I.
In our opinion, the mistake we have noticed while scanning through the Hindu Succession (Amendment) Act, 2005 is definitely the result of a legislative inadvertence. We therefore suggest that son's daughter's son as well as daughter's son's son may be added in Class-I, deleting them from Class-II, based on the same logic used for remaining insertions in Class I under the 2005 amended provisions. We therefore request the Law Department to take appropriate steps to rectify the defect pointed out by us as above.