General Principles of

Inheritance

Inheritance is one of the complicated topics under Hindu

Law. This is mainly because of the Shastric Hindu Law
system where most of the rules of inheritance are not
codified. Although a small number of rules are codified, most
of the rules of inheritance have remained in the domain of
Shastric Hindu Law. The rules of inheritance under Hindu
Law are mostly based on the customs, usages, and other
ancient sources of Hindu Law. Some Shastric rules of
inheritance have been modified by the legislation but most
of the rules remained unchanged. There are broadly twelve
principles of inheritance which will be discussed in this
chapter.

1. Joint and Undivided Family

System
Historically, the general condition in a Hindu family system is
joint and undivided. The joint family system is rooted in
the Vedic period and the custom of ancient times. The
custom and usages of the ancient period that governed
the Hindu society as a de-facto law were not codified.
During the ancient period, Hindu societies were dominated by
their joint family system and their deep- rooted customs and
usages. The joint family system may also be found in today's
modern Hindu society as well. There is a popular
proposition in the Hindu Law that "a Hindu family is
not only joint in estate but also in foods and
worships."
Both Schools of Hindu Law recognize the concept of the joint
family but with different connotations. The Mitakshara
School emphasizes the joint family system. The
Dayabhaga School recognizes the joint family but the
joint family property is almost quasi-severalty (almost
separate). It is clear that both Schools allow joint family
system but their rules (in joint family) are a bit different.
Thus, while understanding the general principles of
inheritance one needs to keep in mind the special features
of the Hindu joint family system.

2. Two Guiding Principles of Inheritance under Two Schools There

are two schools followed by Hindus all over the world. The
198 Mohamad Ataul Karim

Schools are namely

Dayabhaga and
Mitakshara. Dayabhaga
School is mostly followed by
the Hindus of Bangladesh,
Bengal or other parts where the
language is predominantly
Bangla. In this School, the
guiding principles of
inheritance are 'religious officacy.
The term religious efficacy means a person
will be entitled to get an inheritance
based on the issues that will confer
religious benefits to the deceased
person. It means the person who can
confer the most religious benefits to the
deceased will get the priority in
inheritance. Let's illustrate the issue in
the following
diagram:

A (died)
B (son)
C (brother)

In the above illustration, 'A' dies leaving behind a son and a brother,
here son 'B' will inherit the entire property of 'A' by excluding
brother 'C' according to the Dayabhaga School under the guiding
principles of religious efficacy. It is believed under this school that
son can confer the most spiritual benefits to the father, thus, he
should inherit in the order of precedent because of the
'religious efficacy' principle. In other words, it can be
mentioned that the Dayabhaga law of Succession is based on the
"Doctrine of Spiritual Benefit" and on "Consanguinity/
Propinquity".2
On the other hand, the guiding principles of inheritance
under the Mitakshara School are consanguinity or blood
relationship. Thus, the Mitakshara School believes that a
person should inherit from the deceased based on the nearer
relation of blood with that person. The blood relationship of the
deceased person and the person who inherits would guide always in
case of the distribution of the property under the
Mitakshara School. Let's illustrate the issue in the following
diagram:

25 BLR 15; 15 Cal 780 26 285, 35 CWN 726, 35 CWN 726 58 Cal 1392
Hindu Law in Bangladesh O 199
B (son)
A (died)

C(brother)

In the above illustration, 'A'

dies leaving behind a son
and a brother, here the son
'B' will inherit the property of
'A' by excluding brother 'C'
according to the guiding
principle of blood relation
under the Mitakshara School.
The blood relation of son and
father (A and B) is nearer thair the
two brothers (A and C). Therefore,
the son should inherit under the
guiding principle of inheritance
according to the Mitakshara School.
From the above discussion, the difference
in the guiding principle of inheritance
between the two Hindu Schools is visible.
The Dayabhaga School's guiding principle of
inheritance gives priority to religious efficacy;
on the other hand, the Mitakshara
School's guiding principle of inheritance gives
priority to blood relation or consanguinity.

3. Different Rules of Inheritance for Male and Female

Under Hindu Law, there are different rules of inheritance for male and
female. A Hindu male, when inherits, takes the property
absolutely, whereas a Hindu female generally inherits a limited
interest in the property which is also known as the life interest.
However, in an exceptional situation (like in the case of stridhan)
a Hindu female inherits the property as an absolute owner like
any male owner. Generally, when a woman inherits property she
gets only a limited interest in such property, unlike a male who
inherits absolutely. In the case of death of a male, the property
devolves upon his nearest heirs, while in the case of a female, it
reverts to the next heirs of the person from whom she inherited the
property.

B (widow)

200 O Mohamad Ataul Karim

A (died)

C (brother)

In this illustration, 'A' Hindu male died

leaving behind 'B' a widow and 'C' a
brother. First, widow 'B' will inherit
the property of 'A'. Since she is a woman, she
cannot take the property absolutely rather she
inherits it as a limited owner or takes the life
interests. If 'B' then dies while 'C' is still alive then 'C'
being a male and heir of 'A' will inherit the property
absolutely. Upon his death, the property will be inherited by
C's heirs.

4. Different Modes of Devolution of Property under Two

Schools

There are different modes of devolution of a property under the two

Schools. The modes of devolution of a property for each School are
discussed separately in the following ways:

Mitakshara School
The Mitakshara School follows two modes of devolution of the property, namely a)
Succession and b) Survivorship. The rule of Survivorship applies to
a joint family property. On the other hand, the rule of Succession
applies to a separate property. Therefore, the Mitakshara School
adopted two modes of devolution of the property for the two types
of property. In Mitakshara School the properties are predominantly
joint; however, there might be a situation, when the separate property
may be held by a member of a joint family.

A (died leaving Joint and Separate Properties)

B (son)
C (brother)

'A' is a Hindu male, who dies leaving behind two types of property, a)
joint property and b) separate property. 'A' left two heirs 'B', a son, and
'C, a brother. Here, son 'B' will inherit A's separate property following
the rules of 'Succession' and brother 'C' will inherit the joint family
property of 'A' according to the rules of 'Survivorship'. Therefore, it may
be concluded that two modes of devolution of property are followed in
Mitakshara
Hindu Law in Bangladesh O 201
School for the two types of property.

Dayabhaga School
The Dayabhaga School
follows only one mode of
devolution of the property
which is 'Succession'. This
School adopted only one
mode of devolution of property
for all kinds of properties, either
joint or separate. It does not
recognize the rules of
survivorship
a

even in the case of a joint family property. The reason is

that memberof the Dayabhaga joint
family holds his estate almost
separately which is also known as
quasi-severalty. The 'quasi-
severalty' indicates something that is not
totally separate but
any

deemed to be almost separate. Thus, upon the death of person, his

property will go to his heirs by following the rules of
'Succession' as if he was the separate owner of the
property and not the surviving coparcener as under the
Mitakshara School.

A (member of joint family who died)

B (brother)
C (widow)

'A' and 'B', are the two Hindu brothers governed by Dayabhaga School.
They are members of a joint and undivided family. 'A' dies leaving
behind brother 'B' and a widow, 'C'. A's share in the joint family property
will pass to the widow 'C' by succession as if 'A' and 'B' were
separate. A's separate property shall also be devolved to 'C' by
following the rules of succession.
There are three (3) types of heirs under the Dayabhaga
school:3
Sapindas:
1.
It indicates the persons by whom and to whom pindas
(entire cake) are offered. So, Sapinda under the Dayabhaga
School implies a person who is connected by pindas or
undivided oblations. Sapindas include both

3 Md. Azizul Haque, Hindu Law in Bangladesh: Theory and Practice (1st Edn.,
March 2014) p.177
Sree Mridulkanti Rakshit, The Principles of Hindu Law: Personal Law of Hindus In
Bangladesh And Pakistan: Containing, Law of Socio-economic
Relations of the Members of
202 O Mohamad Ataul Karim

Agnates and Cognates related

by the common oblation.5
2. Sakulyas:

Firstly, the 4th, 5th, 6th paternal

male ancestors of the owner;
Secondly, the 4th, 5th, 6th male
descendants in the male line; Thirdly, the six
male descendants in the male line of the 4th, 5th and
6th paternal male ancestors and the 4th 5th and 6th
descendants in the male line of his father,
grandfather, and great-grandfather."

3.
Samonodakas:

The male relations of a Hindu by whom and to whom he offers

oblations of water while performing shradha ceremony are
the Samonodakas.7
Under the Dayabhaga School, a Hindu is samonodakas of those:
a) "To whom he is bound to offer libations of water; b)
Who on his death are bound to offer libations of water to him;
Who on his death are bound to offer libations; and all of them are his
Sapindas
samondakas."8 It has been observed in different cases that the
exclude Sakulyas and Sakulyas exclude Samandakas.9
It was observed by Mr. Golak Chandra Sarkar Shastric in his
Hindu law that "In Bengal School the order of Succession is
worked out mainly by application of two principles
namely- (i) Perpinquity (ii) Capacity for conferring
spiritual benefit". So, the spiritual benefit is not always the
guiding principle of inheritance under the Dayabhaga school
of Hindu Law.10 It has been rightly pointed out by Sarkar
Shastri that spiritual benefit is not the

the Hindu Society As Well As the Socio-engineering Law of Property

of Hindus As Modified by Various Legislative Enactments With
Upto Date Judicial Precedents (3rd Edn., Chittagong, Bangladesh
1985) p.219
516 Cal 256
6

Supra note 3, p. 180

7 Supra note 4, p.220
Supra note 3, p.182
915 Cal 780; 9 Cal 563
10 Akshoy Chandra vs. Hari Das 35 Cal 721
R
foundation of the
right of inheritance,
nor it is the only
criterion of
the Order of Succession in
Dayabhaga system."
5. Female Heirs Who Can Inherit

Under Hindu Law, only few

female heirs are entitled
to inherit as per the rules of
inheritance. There are five
female heirs who can
inherit from male under the Shastric
Hindu Law.
(i) Widow;
(ii) Daughter; (iii) Mother;
(iv) Grandmother;
(v) True Great Grandmother.

The Hindu Women's Right to Property

Act, 1937 has brought some remarkable
changes in the right of women to inherit.
Along with other changes, it has
increased two more female heirs, they
are-

(i) Widow of a predeceased

son;
(ii) Widow of a predeceased son of a predeceased son
(widow of predeceased grandson)
From the above discussion, it can be logically concluded that
under the Shastric Hindu Law there are only five females who
can inherit. And two more female heirs were increased by the Hindu
Women's Right to Property Act 1937.
It was observed from various case decisions that widow of predeceased
son or predeceased son's son has the same right as those of
sons with the limitation preserved by section 3(3) of the Hindu
Women's Right to Property Act 1937.12

6. Limited or Life Interests of Female Heirs

As this has been already discussed earlier, generally females inherit

only a limited interest in the property. Male heirs, who
inherit, whether from a female or a male, take it absolutely. In
contrast, females succeeding as heirs, whether from a male or a female,
take a limited interest in the property inherited by them.

11 Supra note 3, p.167

12 1946 Cal 450; 29 DLR 138 SC

204 O Mohamad Ataul Karim

Female heirs are entitled to use and

enjoy the income from the
property but cannot alienate
them except in some
exceptional
circumstances.
A (died)

B (widow)
C (brother)

'A' a Hindu male, dies leaving 'B' a widow and 'C' a

brother, the widow succeeds as an heir. Being a
female, she cannot take the property absolutely. She
cannot alienate the property through gift or sale.
She can only hold the life interests in the property and is
only entitled to enjoy the income from the property. Upon her
death, the property will pass not to her heirs but to the next heir of
her husband, here it is A's brother 'C'. It should be mentioned here that,
under the Dayabhaga school, "the capacity to produce sapinda the
sole cause of the daughter's succession."13 For this reason, a barren
daughter or one who is not likely to have male child or who is already
a childless widow, cannot succeed under the Dayabhaga School.14

7. The Last Full Owner and Fresh Stock of Descent

Absolute ownership of the person is a very significant point. It is
important to understand who can be the last full owner and create a
fresh stock of descent. On death, the person who holds the property
absolutely is the last full owner. The full owner of the property, not any
other persons, can only transfer the property to the heirs in case of
inheritance. Creating a fresh stock of descent means the person who
can devolve the property to his own heirs (not to the heirs of another
person).
It is only a last full owner who can become a fresh stock of
descent. Generally, a female cannot be the last full
owner (except in the case of Stridhan) she cannot become
a fresh stock of descent. If the property of a male
descends to a female, she does not

13 19 CWN 472; 43 All 450

14 19 CWN 472; 48 Cal 300
Hindu Law in Bangladesh 205

become a fresh stock of

descent, because upon
her death the property
passes not to her own
heirs but to the heirs
of the last male
person who held that
property. If that heir is
also a female, it reverts
again to the heir of the
same male until it
ultimately falls upon a male
who then holds the property as
an absolute owner.
A

C (widow)
M (mother)
B (brother)
D (uncle)

'A' dies leaving behind 'C' widow, 'M'

mother, 'B' brother, 'D' paternal uncle. On
the death of 'A', the widow succeeds as his
heir. Being a female, she takes limited ownership,
and she cannot become a fresh stock of descent. Upon
the death of the widow, the property goes to the
next heir of 'A', the mother who again is a female,
does not take the property absolutely and cannot become
the fresh stock of descent. Upon the death of the mother, the
property will not go to her heir but to the next heir of the last full
owner 'A'. That is the property will go to the bother 'B'.
Being a male 'B' takes the property absolutely and creates a
fresh stock of descent. On his death, the property will be passed
to his (B's) own heirs, not to D.
8. Inheritance Never in
Abeyance
One of the cardinal principles of the transfer of property is
that once a property is vested it cannot be divested. Therefore, before
vesting the property to someone it is imperative that the
property must be vested with due process of law and to the
proper owners who is legally entitled to hold it. The
transfer of property by inheritance is an automatic
transfer or transfer by an operation of law. Thus, there
are specific rules to confer the property to an appropriate
owner and when such property can be withheld for a certain
period.
Generally, inheritance cannot remain in abeyance for the
expectation of the birth of a preferential heir where such
heir has not been conceived at the time of the owner's death.
The rule is
206 O Mohamad Ataul Karim

future heirs. On the death of

a Hindu, the person who is
then his very simple which
means the property
cannot be withheld for
nearest heir becomes entitled,
at once, to the property left
by him. And once the estate of a
Hindu has legally been vested to
a person, who is his nearest
heir at the time of his death, it
cannot be
divested.

However, the inheritance or

distribution of property may be held
in abeyance in the following
exceptional situations.
✓ To distribute the property to a preferential
heir such as a son or a daughter who was
conceived before or at the time of the death of the father.
✓ To give the property to an adopted son whose
power of adoption has been duly authorized by the
husband to his wife before his death.
A
C(widow)
D (insane son)
B (Nephew)

'A' dies leaving behind a son 'D' (who is insane from his birth), 'C' a
widow and a nephew, 'B'. On A's death, the property goes to his
widow 'C' because the son is excluded due to his insanity (under
Shastric Hindu Law). If widow then dies and the nephew (B)
succeeds the estate as A's next heir. Then, son 'D' marries and has
a son, 'E'. 'E' claims the estate from the nephew 'B'. 'E' is not
entitled to succeed because the property has already been vested and
cannot be divested. But before the vesting to 'B' if 'E' was conceived
and then widow 'C' died, 'E' would get the property.

9. Doctrine of Spes
Succession
It

means a mere chance of inheritance does not confer any right to the
property. Therefore, any agreement by prospective
heirs is not valid under Hindu Law. It is understandable that if
someone has not received ownership of the property but
has a chance to get it, would not be able to confer any
right to him or other persons. The right of a person to
succeed as an heir on the death of a particular
Hindu Law in Bangladesh 207
Hindu is a mere or bare
chance of succession.
This mere chance of
inheritance or getting
certain property is
called 'Spes
successions'. A person
who holds a mere chance of
inheritance is not allowed
to deal with the property
in a manner that an
owner of such property
may legally be
allowed. This mere
chance is not a vested
right either and he cannot
make a valid transfer of
it and any agreement
entered into by him will not
bind a person who
actually inherits when the
succession opens. This
doctrine is adopted for the
sake of the public interests and to
protect the interests of the third
party who may be affected in
the long run. We may understand
this doctrine from the following
illustration.
Illustration

'A' has a brother 'B' and an uncle 'C'. It is

true that if 'A' dies, 'B' would succeed as his
nearest heir. But in the lifetime of 'A', 'B' does not
take any interest in A's property. All that he is entitled
to be a bare chance of succession. For the same reason a
sale or mortgage by 'B' of the Spes Succession is a null and
void.

10. Doctrine of Representation

The doctrine of representation is a very significant legal
innovation that addresses a situation which is in its ordinary
senses an injustice. Under the rule of inheritance, succession
opens after the death of the person who holds the ownership of the
property. Therefore, the rule is that if the succession does not open, no one
can take the property by the way of inheritance. If that is the
case, then a grandson (whose father is dead before his grandfather)
and a great-grandson (whose father and grandfather are
dead) cannot inherit because the succession did not open
when their fathers died.
However, what will be the fate of the grandson and the
great- grandson? It is understandable that they would be
left deserted, and they would not have any property at all.
To address this situation, there is a rule of inheritance which is
called the doctrine of representation. The doctrine of
representation means the grandson or great-grandson
whose fathers died before the succession started, they will
represent their ancestors. The
208 Mohamad Ataul Karim

grandson will represent his

father and great-grandson
will represent his father and
grandfather, as if they are
alive when the succession
opens. Thus, a son, a grandson
(whose father is dead) and a
great-grandson (whose father
and grandfather are dead) all
succeed
simultaneously
as one heir to the separate and self-

acquired property of their

paternal ancestors. This is the
only case under Hindu law where
the doctrine of representation
applies.
It should be remembered that this rule is not
applicable to any other cases, such as daughters
and nephews. Furthermore, this rule is only applicable
to four degrees from the person whose property is
distributed.

B (son)
X
(Grandson) C
A

X1
X3

X2
X4

X5
(Great Grandson) D

(Great Great Grandson) E

'A', a male Hindu, dies leaving behind a son 'B', a grandson 'C', a
great-grandson 'D' and a great-great-grandson, 'E'. On A's death, the
property or estate passed to B, C, and 'D' as coparceners. If
they continue jointly and if anyone of them dies without
leaving a male issue, his share will be passed to the survivors.
Sons, grandsons, and great-grandsons inheriting together
succeed to the estate of the deceased per stirpes as
coparceners and not per capita. If they want to divide the
estate, there will be three parts or portions each taking one part.
That is, 'B' will take the share of his Father 'A', 'C' will take the
share of his father 'X', and 'D' will take the share of his
grandfather 'X1'. 'E' is not entitled to succeed because he
is above the four degrees remote from 'A' and the doctrine of
representation does not extend beyond four degrees.

11. Rules Regarding

Co-heirs
When two or more persons inherit property together, they are
called co-heirs and they take either as tenant-in-common or joint

H. L. I. B. 14
-

Hindu Law in Bangladesh O 209

4

tenants. A
tenant-in-common
means a kind of
tenant who has a
defined share in the joint
property, which
devolves upon his death
to his own personal
heirs. On the other hand,
the joint tenants have a
unity of ownership in the
joint property. This unity
is not disturbed by the
death of any one of them.
As a result, his interest
merges into the interest of the
other joint
descend to the heirs of the deceased.
owners. It does not

12. Succession 'Per Stirpes' and 'Succession

two or more heirs
Per Capita' When
succeed in the property of a
deceased Hindu, there are basically
two rules that govern their property.
✓ Per Stirpes
✓ Per Capita

Generally, persons related to the deceased

take Per Capita which means that the
property is divided into as many
shares as equal to the number of heirs,
and each receives one portion. Thus, when the
property is divided among all the claimants
entitled to it in equal shares it is called Per Capita
succession. There are two exceptional situations
when the heirs take Per Stirpes. Per Stirpes
succession is applied when the number of heirs differs in
different branches. In Per Stirpes succession the several
heirs belonging to different branches get a share from the
property which is available to the branch to which they belong.
The heirs will take the property according to Per Stirpes and then
they will distribute the property as Per Capita among
themselves. The Per Stirpes succession rule applies in the
following cases:
✔A male Hindu dies leaving a son, grandson, and a great-grandson (The
Doctrine of Representation)
✔In the case of Stridhan, son's son, daughter's son, and
daughter's daughter take Per Stirpes.
Exclusion from Inheritance
In Bangladesh, the Hindu community has been governed by the
Shastric Hindu Law. However, there are developments that modified Hindu
personal law to a limited some legislative extent. Although major rules
of exclusion from inheritance have
210 O Mohamad Ataul Karim

been changed by the Disable

Person's Right and Protection
Act, 2013, of Bangladesh, however,
we need to discuss the rules of
inheritance under the Shastric Hindu
Law for our better understanding of the
existing rules and the changes.
According to the Shastric Hindu Law,
there are certain grounds for which a
Hindu is precluded from inheritance.
These grounds of exclusion
can be broadly categorized into following three
divisions:15
✓ Moral and religious grounds;
✓ Physical grounds; and
✓ Mental defects.

1. Exclusion on Moral and Religious Grounds

A Hindu would be excluded from the right of inheritance under some
religious or moral grounds. The moral or religious grounds are
based on philosophies. As some heirs may lack some moral and
religious issues, therefore, it is justified to exclude them from inheritance.
It is to be remembered that when any person is excluded from
inheritance s/he is entitled to get maintenance from the legally bound
persons. For example, if a member of a joint family is excluded from
inheritance, he or she would get maintenance from the joint family
property. Within the moral and religious grounds, there are some
specific grounds upon which a person is excluded from inheritance.

Irreligion or Renunciation of Religion

Under the Hindu Shastric Law, a person is deprived of the right
of inheritance on conversion to another religion or being an
outcast. However, currently, the renunciation of the
Hindu religion and consequent excommunication is no longer
grounds for exclusion from inheritance because of The Caste Disabilities
Removal Act of 1850. The Act only operates to protect the
actual person who renounces or has been excommunicated from Hinduism. The
provisions of this Law are applicable to those persons who was born as
Hindu and later converted to another religion or become

15 Mofizul Islam, Principles of Hindu Law (In Bangla) Mollica Publishing Housing, Dhaka
(2014) p. 70
Hindu Law in Bangladesh O 211
outcast.

It is not applicable to
persons whose parents
were not but
Hindus
converted to Hinduism
before his/her birth.16
For example, 'A', is a
Hindu by birth whose parents
were not Hindu by birth; in
this case, the law will not
affect any rights and
interests of 'A'. For
example, 'A 'and 'B' are
members of a joint Hindu
family. 'A' becomes Muslim.
He does not by conversion
forfeit his interest in the family
property. The only effect is that
he will be deemed to be
separated from his family.

Exclusion of Murderer

The murderer is excluded from inheriting

on the grounds of justice, equity, and
good conscience. A murderer is
treated as non- existent and therefore,
cannot inherit and does not form a fresh stock of
descent.17 It is based on the principle that a murderer
should not be allowed to take advantage of his own
crime. 18 In the case of murderers, their descendants
or persons claiming through them are also disqualified.
Neither the murderer himself nor anyone claiming through him
can claim the right to inheritance in the property of the murdered
person.
In the case, where the male descendant of the murderer has an interest by
birth in the estate of the deceased (murdered) person, he
would not be qualified to inherit. Moreover, a question that might
be raised is: what will happen when someone has murdered a
person from whom he is not inheriting? It is true that in that case he
will not be excluded from inheritance because he is not getting
benefits by his misdeeds. Thus, logically if someone murders a
person other than those from whom he inherits, then he would
not be excluded from inheritance.

Un-chastity
Under Hindu Law, a widow is respected and thus allowed to hold the
property. However, it is pertinent question: if a widow

16 Ibid,
17 B.M. Gandhi, Hindu Law (3rd Edn., Eastern Book Company
2008) p. 238
18 Ibid,

212 O Mohamad Ataul Karim

becomes unchaste then will

she be allowed to inherit?
The issue of un-chastity is a
good ground to exclude
a widow from inheritance.
Only under the Mitakshara
School, a widow is excluded
from inheritance but under the
Dayabhaga School, the condition
of un- chastity applies to all female
heirs. However, un-chastity does
not exclude a female from Stridhan
property.
The unchastity of a widow is a ground
to render her incapable of conferring
spiritual benefits to her husband and, thus,
she is excluded from the right of inheritance.
19 There is a logical question about the other
women, whose remaining chaste is not the main issue to
maintain their relation with others. For example, a daughter
is a daughter who holds relation with father whether she
remains chaste or not. Therefore, it is a logical argument that women
inheritance on the
other than widow should not be excluded from
ground of un-chastity. However, it can be mentioned that once
husband's state has vested in the wife, it will not be divested on the
ground of her unchastity which occurred after the husband's death,20

Adoption of Religious Order

"Entrance to a religious order is tantamount to civil death as
to cause a complete severance of his connection with his relations as
well as his property."21 Thus, when a Hindu enters into a
religious order renouncing all worldly affairs and becomes
a Sanyasi, his action is tantamount to civil death, and he is excluded
from inheritance.

2. Exclusion Due to Physical

Defects
Under the principles of traditional Hindu law,
physical defect or inabilities, such as (a) blindness,
(b) deafness, and (c) dumbness, are the grounds for
excluding someone from inheritance. In order to exclude an
heir from inheritance on these grounds, it is

Shahnaz Huda, Combating Gender Justice: Hindu Law in

Bangladesh, The South Asian Institute of Advanced Legal and Human
Rights Studies (SAILS)Dhaka, Bangladesh, 2011, p.26
20 5 Cal 776, 34 CWN 648; 1954 Cal 588; 1951 Mad 954; 29 DLR 138 SC, 36
Bom 138 21 Sarkar Gopal Chandra, A treaties on Hindu Law, p. 544
Hindu Law in Bangladesh 213

necessary to show that these

defects are incurable and
congenital. The
disqualification, such as
Lameness, and
deprivation of the use of any
limb must not be only congenital but
also absolute to disqualify any
person from inheritance.
Leprosy or such other virulent
nature disease that renders the
sufferer unfit for social interaction is
also a ground for exclusion from
inheritance. Any other incurable
diseases can equally exclude
any person from the
right of inheritance.

But new legislation in Bangladesh, i.e. the

Disable Person's Rights and Protections
Act, 2013 came into force on
October 9, 2013. It provides the rules that the
physically disable persons shall not be excluded from
his right to inheritance as per its section 16(1)(c).

3. Exclusion due to Mental Defects

Lunacy or insanity or any other mental defects that need not be

congenital or incurable are good grounds to exclude someone
from inheritance. It is to be remembered that the heirs must have such
mental defects at the time of the opening of inheritance. Idiocy is
sufficient to exclude an heir if the person has been and is of
such an unsound mind and an imbecile as to be incapable of
distinguishing between right and wrong or of instruction. Idiocy
must be complete, incurable, and congenital. The Hindu
Inheritance (Disabilities Removal) Act of 1928 has laid down that no
person other than one who is and has been from birth a lunatic or idiot
shall be excluded from inheritance, however, this Act only applies to
the Mitakshara School.
As it is already mentioned that the Disable Person's Rights and
Protections Act, 2013 of Bangladesh states the rules that the
physically disable persons will not be excluded from his right
to inheritance. It is also applicable to the persons with mental
incapacity. Hence, as per the provisions of this Act,
mentally disable persons will not be excluded from their
rights of inheritance,22

22 Section 16(1)(c)
214 O Mohamad Ataul Karim

Rules of Exclusion under

Statutory Laws of
Bangladesh We have seen
that there are certain
grounds upon which a
Hindu person is excluded
from inheritance under the
Shastric Hindu Law. Currently,
in Bangladesh, there is a
groundbreaking law that has been
enacted by the government to
address the issues related to
disabilities of certain persons in many areas
including the right of
inheritance. The
Disable Person's Right Protection Act,
2013 has removed all the mental and
physical bars due to which one was
traditionally been deprived of the right of
inheritance. This legislation is applicable to all the
citizens of Bangladesh irrespective of their religions. The
concept of disability has been defined under section 2(9) and
section 3 of the said Act. It accommodates mental, physical,
psychological, and any kind of disabilities. Therefore, it is understandable
under this law all kinds of human disabilities are included.

Since this law is applicable to all the citizens of Bangladesh,

therefore, the Hindu communities are also covered by this Act. Thus, no
person irrespective of their religion can be excluded from
inheritance on any mental, physical, or any other grounds of
disabilities. Section 16(3) of the Act prescribes that no one will
be excluded from inheritance because of any disabilities.
According to the currently applicable rules in Bangladesh, the
law is very simple that none would be excluded from inheritance
because of any disabilities. However, the issues related to un-chastity or
moral turpitude of women has remained unclear. Our law has
not touched those issues. Thus, we may need to follow the Shastric
Hindu Law in this regard.
Furthermore, the remarriage of a widow disentitles her
from inheriting the property of her late husband. The
Hindu Widow's Remarriage Act, of 1856 provides that
upon the remarriage of a widow, she will lose all the rights
and interests that she obtained from her deceased
husband,23 Thus, a widow would be excluded from
inheriting the property of her deceased husband if she
remarries to any other person. This rule is applicable in a
broader sense as it applies whether the remarriage of a widow is

2 Section 2, The Hindu Widow's Remarriage Act, 1856

Hindu Law in Bangladesh 215
conducted as per the legal provisions
or
by custom.24 A
different

view was observed in the

case of Jaynal Abedin
Khandaker vs.
Badiazzaman Mondal25
where remarriage was
conducted by custom I
was to be determined. It was
decided by the court that if and
the issue of forfeiture from
the former husband's
property remarriage is
permitted by customs,
forfeiture from the former
husband's property to the
widow will only be permitted if
there is an existing provision in the
relevant custom about such
forfeiture. India reformed the issues of
disabilities and rules of exclusion from
inheritance through the Hindu
Succession Act of 1955. It is to
be noted that this law is only applicable to the
Hindu citizens of India. Section 28 of the said Act
prescribes that no person shall be disqualified from
inheritance on the ground of any disease, defect,
deformity, or on any grounds except as provided in the
said Act. The Act provides that murderers, non-Hindu
children born after conversion and their descendants and certain
widows married before the opening of the succession are disqualified
from succeeding.26
24 Matungini v. Ram, 19 Cal
289
25 19 DLR 935
26 See, Section 24, 25 and 26, The Hindu Succession Act of
1955
216 Mohamad Ataul Karim