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Sources and Evolution of Hindu
Law
Sources of Hindu Law
Ancient Sources
The various ancient sources of Hindu law can be classified as follows:
Sruti/Religious Texts : Sruti means "that which was heard" and refers to the Vedas and Upanishads, which were believed to be of divine origin. The Vedas (Rig Veda, Yajur Veda, Sama Veda, and Atharva Veda) and the Upanishads contain religious rites and principles for attaining true knowledge and salvation, but do not directly address legal provisions.
However, the Vedas and Upanishads are considered sources of Hindu Dharma (law) due to the positive and negative injunctions (Vidhis and Nishedhas) they provide, such as "Tell the truth," "Never hurt anyone," and "Perform only acts that are not forbidden."
Dharmasastras : a. Dharma Sutras :
These are the earliest works of the Hindu legal system, written in the form of aphorisms or short phrases (Sutras). The Dharma Sutras are divided into three classes: Srauta Sutras (regulating rituals), Grihya Sutras (regulating family life), and Dharma Sutras (dealing with civil and criminal law). The important Dharma Sutras include those of Gautama, Baudhayana, Apastamba, Harita, Vasista, and Vishnu. b. Smritis : Smritis are the recollections and proclamations of the ancient sages (Rishis) and are considered the most important authoritative source of Hindu legal literature. Smritis are found in two forms: prose or prose and verse mixed, and wholly in verse. The Smritis systematically compiled and arranged the legal principles scattered in the Vedas, Dharma Sutras, and accepted customs and usages. The important Smritis include Manu, Yajnavalkya, Narada, Parashara, Brihaspati, and Katyayana.
Commentaries and Digests (Nibhandas) :
As the Vedas, Dharma Sutras, and Smritis were difficult to understand due to their cryptic nature and apparent conflicts, the art of Mimamsa (interpretation) became essential.
Eminent jurists contributed to the development of law by reconciling conflicting principles, modifying, and supplementing the rules of the Smritis through their commentaries and digests.
Some important commentaries and digests include Mitakshara, Dayabhaga, Smritichandrika, and Vivada Ratnakara.
Custom (Sadachara) :
Customs and usages that were approved by society and had the force of law were recognized as a source of Hindu law. For a custom to be valid, it must be ancient, certain, reasonable, and not opposed to public policy. Customs can be classified as local, class (caste or sect), or family customs.
Modern Sources
After the law-making process was started by the Indian legislatures, the validity of customary law was further restricted to not being opposed to any statute.
Schools of Hindu Law
Mitakshara School of Hindu Law
The Yagnavalka Smriti is commented upon by Vijnaneswara, which has later become the Mitakshara School of Hindu law. Mitakshara School is followed all over India except in Bengal and Assam.
The title "Mitakshara" etymologically means "limited letter" and indicates that it is a brief and precise commentary. The author of Mitakshara hailed from South India and flourished around the 11th century.
Mitakshara is considered the most meritorious commentary on the law of the Smritis. The commentary deals with almost all the important topics of law and synthesizes the several Smriti texts. The great virtue and intrinsic merit of the commentary was soon established, and it was accepted as of paramount authority throughout the country, except in Bengal where the Dayabhaga system propounded by Jimutavahana was accepted.
Even at present, in respect of matters not altered by legislation, the Mitakshara continues to be the personal law applicable to the majority of Hindus and is enforceable in the courts of law as it constitutes the "existing law" saved by Article 372 of the Constitution.
The Mitakshara School is considered the orthodox school and is followed all over India except in Bengal and Assam.
Dharma in Hindu Jurisprudence
The Hindu jurisprudence or legal system (Vyavahara Dharmasastra) is embedded in Dharma as propounded in the Vedas, Puranas, Smritis, and other works. A key distinction between the concept of law in Western jurisprudence and Hindu jurisprudence is that in the latter, the law is seen as a command even to the king and is held as superior to the king, as expressed by the phrase "Law is the king of kings" in the Brihadaranyakopanishat.
Origin of Dharma
Dharma was founded as a solution to the eternal problems confronting the human race, originating from natural human instincts such as desire for sexual and emotional enjoyment (kama), material pleasure (artha), and the other impulses like anger, passion, greed, infatuation, and enmity (arishadvarga). Dharma laid down a code of conduct covering every aspect of human behavior, including spiritual, moral, personal, civil, criminal, and constitutional law, the observance of which was considered essential for the peace and happiness of individuals and society.
Basic Aspects of Dharma
The essence of Dharma is declared by various works as Ahimsa (non- violence), Satya (truthfulness), Asteya (not coveting the property of others), Shoucham (purity), and Indriyanigraha (control of senses), which are common for all the varnas (social classes). Dharma regulates the mutual obligations of the individual and society, and its protection is in the interest of both. Manu warns, "Do not destroy Dharma, so that you may not be destroyed."
Vyavahar Dharma and Rajadharma
With the creation of kingship and the system of legal proceedings, the positive civil and criminal law, as well as the law regulating the constitution and organization of the State (Rajya), were laid down as part of Dharma and came to be called Vyavaharadharma and Rajadharma, respectively.
Varna Dharma and Ashrama Dharma
Varna Dharma: Varna is a fundamental concept underlying the Hindu society, representing the different classes or kinds of people based on their functions and temperaments.
The four varnas are Brahmana, Kshatriya, Vaisya, and Sudra, and the Smritis outline the Dharma for each varna, their duties, and their role in society.
Ashrama Dharma:
Ashrama Dharma divides a person's life into four stages and specifies what one should do in each stage: Brahmacharya Dharma (stage of learning and celibacy) Grhastha Dharma (stage of family life and fulfillment) Vanaprastha Dharma (stage of seclusion and penance) Sanyasa Dharma (stage of renunciation and detachment from the world)
Rights of a Coparcener and Characteristics of
a Coparcenary
Community of Interest and Unity of Possession
No coparcener is entitled to any special interest in the coparcenary property or exclusive possession of any part of it. There is a community of interest and unity of possession between all members of the family. A coparcener's interest is a fluctuating one, capable of being enlarged by deaths in the family and liable to be diminished by births in the family. It is only on a partition that a coparcener becomes entitled to a definite share.
Share of Income
The whole income of the joint family property must be brought to the common chest or purse and dealt with according to the modes of enjoyment of the members of an undivided family. If a coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. Unauthorized acts by a coparcener, such as erecting a building on joint family land, can be restrained by an injunction. If a company is formed with the consent of all adult coparceners to hold the family property, the transaction is binding on all coparceners.
Exclusion from Joint Family Property
If a coparcener is excluded by an act of other coparceners from the use and enjoyment of joint family property, and the act amounts to an ouster, the excluded coparcener can restrain the others by an injunction.
Maintenance
A coparcener, his wife, and children of an undivided family are entitled to be maintained out of the coparcenary funds.
Powers and Duties of the Karta
Power over Income and Expenditure : The karta has control over the income and expenditure of the joint family and is the custodian of any surplus. As long as the karta spends the income for the purposes of maintenance, education, marriage, Shraddha, and other religious ceremonies of the coparceners and their families, he is not under an obligation to economize or save. In case of misappropriation of income or expenditure for purposes other than those the joint family was interested in, the karta is liable to make good the same to the joint family.
Liability to Account : In the absence of proof of misappropriation or fraudulent and improper conversion by the karta, he is liable to render accounts on partition only for assets which he has received and not for what he ought/might have received if the family money had been profitably dealt with. However, in Bengal, any coparcener may, without bringing a suit for partition, require the karta to render accounts for his dealings with coparcenary property and the income thereof.
Power to Contract Debts : The karta has implied authority to borrow money for the joint family business, and where the joint Hindu family has no business at all, the karta may contract debts for a joint family purpose. If the karta borrows money on a promissory note for a joint family business or to meet a joint family necessity, the other members of the joint family may be sued on the note, though they are not parties to the note, and their liability is limited to their share in the joint family property, unless it is shown that they are contracting parties.
General Powers over Joint Family Business : Besides the power to contract debts for the family business, the karta has the power of making contracts, giving receipts, and compromising or discharging claims ordinarily incidental to the business.
Alienation for Legal Necessity : The karta has the power to alienate the joint family property for legal necessities, which include payment of government revenue and debts payable out of the family property, maintenance of coparceners and their families, marriage expenses of coparceners, performance of necessary funeral or family ceremonies, costs of necessary litigation, costs of defending the head of the joint family or any other member against a serious criminal charge, payment of debts incurred for family business or other necessary purpose, selling of joint property to fulfill tax obligations incurred by a family business, and selling of joint property for the purpose of migrating to a new place for a better living. The karta has wide discretion in arriving at a conclusion as to legal necessity and how to fulfill it, and an aggrieved coparcener can pray for partition and recovery of possession of his share.
Power to Refer to Arbitration : The karta or a father has the power to refer to arbitration disputes relating to the joint family, provided such reference is for the benefit of the family. The other members of the
family, including minors, are bound by the reference and the award made upon it.
Power to Compromise : The karta has the power to compromise for the benefit of the family, and the compromise binds the other members of the family, including minors.
Power to Give Valid Discharge for Debts : The karta has the power to give a valid discharge for a debt due to the joint family, and if one of the members is a minor, he cannot claim the benefit of Section 7 of the Limitation Act.
Family Arrangement or Family Settlement : A family arrangement or settlement occupies a different position from a commercial one. Members of a joint Hindu family may enter into such an arrangement to maintain peace or bring about harmony in the family. A family arrangement must be entered into by all parties thereto, and if not signed by all parties, it will not be construed as a family arrangement.
Power to Acknowledge and Part Payment of Debt : The karta is competent to acknowledge a debt, pay interest on a debt, or make a part payment of a debt to extend the period of limitation, but has no power to revive a time-barred debt by passing a promissory note.
Relinquishment of Debt : The karta has no power to give up a debt due to the joint family.
Parties to Suits : If the karta mortgages the entire interest of the family, it must be deemed that he has acted on behalf of the family, and in such a case, other coparceners are not necessary parties to the suit and are bound by the decree.
Partition
Partition: Definition and Characteristics
Partition is the severance of joint status. It refers to the division of the joint family property and status. Under the Mitakshara law, partition is defined as the crystallization of the fluctuating interest of a coparcener into a specific share in the joint family estate. The subject matter of partition is the coparcenary property, while the separate property of an individual is not liable to partition as it belongs absolutely to the owner.
Certain properties, such as animals or furniture, may be indivisible in nature. In such cases, their value is determined and distributed among the coparceners, and some of the property may be enjoyed jointly by them or by turns.
A partition requires a definite and unequivocal indication of the intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Provision should also be made for the discharge of joint family debts, personal debts not incurred for illegal or immoral purposes,
mortgage, such a coparcener is entitled to compensation out of the shares of the other coparceners, and the partition may be reopened if necessary.
Exclusion of Joint Property : If a joint family property was excluded during partition, it must be divided amongst the persons who took under the partition. It is not necessary in such a case to reopen the original partition.
At the Instance of a Minor : If a partition is proved to be unjust and unfair and is detrimental to the interest of the minors, the partition can be reopened at any time.
Reunion
When partition takes place in a Hindu joint family, the coparcenary is dissolved, and the coparceners have to live separately and individually. After partition, if any two or more members of such a joint family/coparcenary reunite together and combine their estates, it is called a reunion.
According to Mitakshara, Dayabhaga, and Smriti Chandrika, a member of a joint family once separated can reunite only with his father, brother, or paternal uncle, but not with any other relation, such as a paternal grandfather or paternal uncle's son, even if they were parties to the original partition.
The reunion has the effect of remitting the reunited members to their former status as members of a joint Hindu family.
Pious Obligation
Origin and Principles
The Doctrine of Pious Obligation has its origin in the Smriti, which regard non-payment of debt as a positive sin. The obligation is imposed upon the sons to pay their father's debts to rescue the father from his torments in the next world.
According to Brihaspati, if the father is no longer alive, the debt must be paid by his sons. The father's debt must be paid first, followed by the son's own debt. The grandfather's debt must be paid by his son's son without interest, but the son of a grandson need not pay it at all.
Modifications and Exceptions
The doctrine has been modified by judicial decisions. The obligation of the son is now confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead.
However, the son is not liable for debts contracted by the father that are Avyavaharika, i.e., illegal, dishonest, or immoral. The son is liable only for debts that are Vyavaharika, i.e., lawful.
Abrogation of the Doctrine
The Amendment Act of 2005, which came into effect from 9-9-2005, has abrogated the archaic Doctrine of Pious Obligation under Section 6(4). However, this provision is not applicable if the debt was contracted before the commencement of the Act. As a general rule, this amendment is not applicable in cases where the partition was effected before 20-12-2004.
Mahant
Definition and Characteristics
Math/Akhara means an abode or residence of ascetics. In its legal connotation, it is a monastic institution presided over by its head, known as the Mahant, the spiritual head of the Math.
Ordinarily, a Mahant should be a Sanyasi and must observe celibacy, but there are certain Maths where marriage is also allowed. A female can also be a Mahant, but she can perform only secular duties and not spiritual or religious duties.
Succession and Termination
The general rule of the devolution of the property or the office of the Mahant is that it will devolve in accordance with the rules of devolution laid down by the founder of the endowment, if they are not violative of any provisions of any law. If no such rules are laid down by the founder, then the factor that determines succession is the Math's custom, usage, or practice.
Termination of the Mahant's office may be due to relinquishment during his lifetime, removal due to mental infirmity, bodily disease, mismanagement, waste, or leading an immoral life or acting contrary to the tenets or usage of the Math.
Legal Position and Rights of the Mahant
The Mahant is neither a trustee nor a corporation sole. He is the manager of the Math with wider powers than those possessed by a manager, trustee, or Dharmkarta of a temple. He acts as the custodian of the idol and the institution, managing the properties and temporal affairs, with the whole assets vested in him as the owner thereof in trust for the institution itself.
The Mahant has the right to maintain himself in accordance with the dignity of his office and the usages of the Math. He has the right to institute a suit on behalf of the Math and the duty to defend one brought against it, as he represents the Math in all its dealings with the outside world. The Mahant also has the power to borrow money for purposes connected with the Math,
Essential Conditions for a Valid Marriage
The essentials of a valid marriage between any two Hindus are:
Neither party has a spouse living at the time of marriage : Any contravention of this clause makes the marriage void ab initio per Section 11 of the Act. Such a marriage can be punished under Section 17 of the Act, which deals with punishment of bigamy.
Mental Capacity : At the time of marriage, neither party must be suffering from unsoundness of mind, mental disorder, or insanity. A marriage where one party lacks mental capacity is voidable under Section 12(1)(b).
Age of Parties : The bridegroom must have completed the age of 21 years, and the bride must have completed the age of 18 years at the time of marriage. A marriage solemnised in violation of the age requirement is not void or voidable, but the contravention is punishable as an offence under Section 18 of the Act.
Degrees of Prohibited Relationship : No marriage is valid if it is made between persons related to each other within the prohibited degrees, unless such a marriage is sanctioned by the custom or usage governing both the parties. Contravention of this clause is punishable as an offence under Section 18 of the Act.
Sapinda Relationship : No marriage is valid if it is made between parties who are related to each other as sapindas, unless such marriage is sanctioned by usage or custom governing both the parties. Contravention of this clause is also punishable as an offence under Section 18 of the Act.
Ceremonies for a Hindu Marriage
A Hindu marriage under the Act must be solemnised in accordance with the customary rites and ceremonies of at least one of the two parties thereto and must fulfill the conditions prescribed by Section 5 of the Act. The essential customary rites include:
Invocation before the sacred fire. Saptapadi (taking of 7 steps by the bridegroom and the bride jointly before the sacred fire).
The absence of these customary rites and ceremonies may render the marriage void, as observed in the case of Deivain Achi vs. Chidambara Chettiar.
Divorce and Judicial Separation under the
Hindu Marriage Act, 1955
Divorce
Section 13 of the Hindu Marriage Act, 1955 deals with divorce. A divorce decree has the effect of dissolving the marriage by putting an end to the marriage ties, and the separation is absolute and final.
Judicial Separation
Section 10 of the Hindu Marriage Act, 1955 deals with Judicial Separation. Parties may separate from each other under a decree of the court known as judicial separation. Separation of parties means separation from bed and board. During the continuation of separation, parties are entitled to live separate from each other, and all basic marital obligations remain suspended.
Grounds for Dissolution of Marriage
Either party to a marriage can present a petition in a District Court for divorce or judicial separation on any of the following grounds:
Grounds available to either party : Adultery (Section 13(1)(i)) Cruelty (Section 13(1)(ia)) Desertion (Section 13(1)(ib)) Ceased to be a Hindu by conversion (Section 13(1)(ii)) Unsoundness of mind, mental disorder (Section 13(1)(iii)) Leprosy (Section 13(1)(iv)) Venereal disease (Section 13(1)(v)) Adoption of religious order (Section 13(1)(vi))
Not heard of for 7 years or more (Section 13(1)(vii))
Grounds additionally available to the wife :
Bigamy (Section 13(2)(i)) Guilty of rape, sodomy, or bestiality (Section 13(2)(ii)) Decree or order of awarding maintenance (Section 13(2)(iii)) Repudiation of marriage (Section 13(2)(iv))
The courts have provided further elaboration on the interpretation and application of these grounds, such as the legal conception of cruelty, the requirement of condonation for adultery, and the various instances that have been held to constitute cruelty.
3. Award of Maintenance
Where in a suit under Section 18 of the Hindu Adoptions and Maintenance Act or in a proceeding under Section 125 of the Code of Criminal Procedure, a decree or an order is passed against the husband awarding maintenance to the wife, and since then the parties have not cohabited for a period of one year or more, the wife is entitled to present a petition for divorce.
4. Marriage with a girl below 15 years of age
Where a marriage is solemnized with a girl before she attained the age of 15 years, and she has repudiated the marriage after attaining that age but before attaining the age of 18 years, the wife will have the right to present a petition for divorce. In the case of Bathula Ilahi vs. Bathula Devamma, the wife had repudiated the marriage before attaining the age of 15 years because, after living with her husband for some time, she realized that it would be difficult and dangerous to live with him anymore, and she filed a petition before the court. The court held that even though the petition has been presented after passing the age of 18 years, it would be allowed in the wake of a reasonable explanation for the delay.
Restitution of Conjugal Rights
Explanation of Restitution of Conjugal Rights
Restitution of conjugal rights is a relief available to spouses under the Hindu Marriage Act, 1955. After marriage, the husband is entitled to the society of his wife and the wife to the society of her husband. The foundation of the right is the fundamental rule of matrimonial law that one spouse is entitled to society and comfort-consortium-of the other spouse. Section 9 of the Hindu Marriage Act, 1955, deals with the subject of the restitution of conjugal rights. Restitution of conjugal rights is defined as the compelling of a husband or wife, who has withdrawn and lives separate without cause, to live with the other. The aggrieved party can file a petition for restitution of conjugal rights in the District Court. The idea of providing for restitution by a court decree is to preserve the marriage tie as far as possible, by enabling the court to intervene and enjoin upon the withdrawing party to join the other.
Constitutional Validity of Restitution of Conjugal Rights
In T. Sareeta vs. T. Venkata Subbaiah, the question arises whether Section 9 of the Hindu Marriage Act, 1955 is violative of Articles 14 (Right to Equality) and 21 (Right to Liberty) of the Constitution. The Andhra Pradesh High Court held that the right to liberty, which includes the right to privacy, confers on women a right to freedom of choice, and that Section 9 violates this right. However, the decision of the Andhra Pradesh High Court was
dissented and Section 9 of the Hindu Marriage Act was upheld by the Delhi High Court in the case of Harvinder Kour vs. Harmandar Singh. Finally, the Constitutional validity of Section 9 of the Hindu Marriage Act, 1955 was put to rest in the case of Saroj Rani vs. Sudarshan Kumar, where the Supreme Court upheld the constitutionality of the provision.
Notable Examples and Evidence
In Gaya Prasad vs. Bhagwati, the Madhya Pradesh High Court held that if a wife accepts any employment without her husband's consent at a place different from her husband's home and refuses to live with him, it can be said that she has withdrawn from her husband's society without reasonable cause.
In Jagadish Lal vs. Shyama, the husband filed a suit for restitution of conjugal rights. The wife took the defense of the husband's impotency at the time of marriage. Though it was not proved that he continued to be impotent until the presentation of the petition, the court took it as a reasonable excuse for withdrawing from the society.
In Ranjana Kejriwal vs. Vinod Kumar Kejriwal, the wife in her own petition for restitution alleged that the husband had suppressed his earlier marriage, which was subsisting. In these circumstances, the Court held that the petitioner's marriage being illegal, her application for restitution of conjugal rights was not maintainable.
Void and Voidable Marriages
Marriage under the Hindu Marriage Act
Marriage under the Act is the voluntary union of one man with one woman to the exclusion of all others, satisfied by the solemnisation of the marriage. A marriage may be solemnised in the sense that the parties to it have gone through the customary rites and ceremonies of either party thereto.
Void Marriages
A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is an issue as never having taken place and can be treated as void by both parties to it without the necessity of any decree annulling it. The present section, i.e., Section 11 of the Hindu Marriage Act, 1955, in terms lays down that non-fulfillment of any one of the conditions specified in Section 5 read with Section 7 of the Act renders a marriage solemnised after the commencement of the Act null and void from its inception, and either party to such a marriage can obtain a decree of nullity from the court.
Voidable Marriages
A voidable marriage remains valid and binding and continues to subsist for all purposes unless a decree is passed by the court annulling the same on
fine the cognizance for which is taken u/s. 198-A, IPC on a police report or with the leave of the Court.
S. 304-B(1), IPC adopts the meaning of dowry as defined in S. (2) of the Dowry Prohibition Act and S. 304-B(2) prescribes minimum punishment of 7 years and maximum of life imprisonment for the offence of dowry death.
S. 113-A of the Indian Evidence Act provides that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she committed suicide within a period of 7 years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume having regard to the circumstances of case that such suicide had been abetted by her husband or such relative of her husband. This section adopts the meaning of cruelty as that of S. 498-A, IPC.
S. 113-B of the Indian Evidence Act provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with any demand for dowry, the court shall presume that such person had caused the dowry death. This section adopts the meaning of dowry death as in S. 304-B, IPC.
From the above, it is clear that where death of a woman is caused by any burns/bodily injury/occurs otherwise than under normal circumstances within 7 years of her marriage and it is also shown that before he death she was subjected to cruelty or harassment by her husband or any relative of the husband for securing any property or valuable security from her or her relative, it would come within the meaning of dowry death provided it is in connection with any demand for dowry as defined under the Dowry Prohibition Act.
The prosecution case does not rely upon the independentness of offence. The demand for dowry and harassment do not constitute the basis for conviction because the main part of the charge under S. 304-B was not established. Hence, it is not possible to convict the accused under Ss. 3 & 4 of Dowry Prohibition Act.
Succession of a Male Dying Intestate
Definition of Intestate
S. 2(g) of Hindu Succession Act defines intestate as:- 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.
Rules of Succession
According to S. 8 of the Act, the property shall devolve according to the following provisions:
Firstly, upon the heirs being the relatives specified in Class I of the Schedule Secondly, if there is no heir of Class I, then upon the heirs being the relatives specified in Class II of the Schedule Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased Lastly, if there is no agnate, then upon the cognates of the deceased.
Class I Heirs
According to S. 9, heirs in Class I of the Schedule are to succeed simultaneously. Class I heirs are also described as simultaneous heirs or preferential heirs. In other words, heirs mentioned in Class II are excluded so long as there is even a single heir in Class I. The expression son used in Class I of the Schedule includes both a natural son and a son adopted.
The distribution of property among Class I heirs is to be in accordance with the four rules laid down in S. 10 which regulates how the shares which the heirs in Class I of the Schedule shall get even though they take simultaneously. It is pertinent to note that male and female heirs are treated as equal and without distinction.
Rules for Distribution
S. 10 lays down four rules regarding the distribution of property:
According to Rule 1, the intestate's widow is entitled to one share and where there are more than one widow then all widows together are entitled to one share. According to Rule 2, each of the surviving sons, each of the surviving daughters and the mother is entitled to take one share. Rule 3 expressly provides for the exception that heirs of the deceased in the branches of predeceased sons and predeceased daughters take not per capita but per stirpes. To apply Rule 4, the predeceased son or the predeceased daughter is to be treated as the propositus. The heirs of predeceased son together shall get only one share as a branch. In Rule 4, treating the predeceased daughter as the propositus, her heirs become her sons and daughters who will get equal portions.
Class II Heirs
Class II heirs succeed in case there is not even a single heir in Class I. Close relations of the deceased Hindu male selected on the principle of natural love and justice are also included in this class of heirs. S. 9 lays down that heir in the first entry in this class is preferred to those in the second entry,
