Inheritance and Survivorship:-
‘Mulla’ in his book Hindu Law (22nd Edition),
while discussing the law prior to the Hindu Succession Act, 1956 says that
there are two systems of inheritance amongst the Hindus in India, namely,
Mitakshara system and Dayabhaga system. The Dayabhaga system prevails in
Bengal, while the Mitakshara system is applicable to other parts of India. The
difference between the two systems arises from the fact that, while the
doctrine of religious efficacy is the guiding principle under Dayabhaga School,
there is no such definite guiding principle under the Mitakshara School.
Sometimes consanguinity, and at the other times, religious efficacy has been
regarded as the guiding principle. According to ‘Mulla’, Mitakshara recognises
two modes of devolution of property, namely, survivorship and succession. The
rules of survivorship apply to joint family property, and the rules of
succession apply to property held in absolute severalty by the last owner.
Right
of a widow or daughter to inherit the self-acquired property or share received
in partition of a coparcenary property of a Hindu male dying intestate is well
recognized not only under the old customary Hindu Law but also by various
judicial pronouncements and thus, our answer to the question Nos. 1 and 2 are
as under:—
“If a property of a male Hindu dying
intestate is a self-acquired property or obtained in partition of a coparcenery
or a family property, the same would devolve by inheritance and not by
survivorship, and a daughter of such a male Hindu would be entitled to inherit
such property in preference to other collaterals.” Means if a hindu husband dies,then his legal heirs will be eligible for that property.
If a female Hindu dies intestate without
leaving any issue, then the property inherited by her from her father or mother
would go to the heirs of her father whereas the property inherited from her
husband or father-in-law would go to the heirs of the husband. In case, a
female Hindu dies leaving behind her husband or any issue, then Section
15(1)(a) comes into operation and the properties left behind including the
properties which she inherited from her parents would devolve simultaneously
upon her husband and her issues as provided in Section 15(1)(a) of the Act.
Vertical
& Horizontal Reservation:-
Social reservations in favour of SC, ST
and OBC under Article 16(4) are “vertical reservations”. Special reservations
in favour of physically handicapped, women, etc. under Articles 16(1) or 15(3)
are “horizontal reservations”. Where a vertical reservation is made in favour
of a Backward Class under Article 16(4), the candidates belonging to such
Backward Class, may compete for non-reserved posts and if they are appointed to
the non-reserved posts on their own merit, their number will not be counted
against the quota reserved for respective Backward Class. Therefore, if the
number of SC candidates, who by their own merit, get selected to open
competition vacancies, equals or even exceeds the percentage of posts reserved
for SC candidates, it cannot be said that the reservation quota for SCs has
been filled. The entire reservation quota will be intact and available in
addition to those selected under open competition category.
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