Sections 21 and 22: Simultaneous Deaths and Preferential Right to Acquire Property
Sections 21 and 22 of the Hindu Succession Act, 1956 address two distinct succession issues: uncertainty about which of two deceased persons survived the other, and the preferential right of certain Class I heirs when another Class I heir proposes to transfer an inherited interest in immovable property or a business.
- Section 21: where the order of death is uncertain, the younger person is presumed to have survived the elder, unless the contrary is proved.
- Section 22: where the statutory conditions are met, other Class I heirs have a preferential right to acquire the interest proposed to be transferred.
Section 21 - Presumption in cases of simultaneous deaths
Section 21 applies where two persons have died in circumstances making it uncertain whether either survived the other and, if so, which one survived. The rule matters where the order of death affects succession to property.
Statutory rule: for all purposes affecting succession to property, it is presumed, until the contrary is proved, that the younger survived the elder.
Meaning and effect of Section 21
The presumption is rebuttable. It operates only while the actual order of death remains uncertain. Evidence proving that the elder survived the younger, or otherwise establishing the sequence of deaths, can displace the statutory presumption.
In practical succession disputes, Section 21 provides a default rule so that devolution of property can be determined even when the precise sequence of deaths cannot otherwise be established.
Section 22 - Preferential right to acquire property in certain cases
Section 22 applies when, after commencement of the Act, an interest in an intestate's immovable property or in a business carried on by the intestate, solely or with others, devolves upon two or more heirs specified in Class I of the Schedule and one of those heirs proposes to transfer his or her interest.
Sub-section (1): the other Class I heirs have a preferential right to acquire the interest proposed to be transferred.
Sub-section (2): if the parties do not agree on the consideration, the court may determine it on an application. A person who proposed to acquire the interest but is unwilling to do so for the court-determined consideration is liable for the costs of, or incidental to, the application.
Sub-section (3): if two or more Class I heirs seek to acquire the interest, the heir offering the highest consideration is preferred.
Which court is referred to in Section 22?
For Section 22, the expression court means the court within whose jurisdiction the immovable property is situated or the business is carried on. It also includes any other court that the State Government may specify by notification in the Official Gazette.
Key conditions for the preferential right
The provision is tied to the statutory conditions in Section 22: there must be an intestate's relevant immovable-property or business interest; it must devolve upon two or more Class I heirs; and one such heir must propose to transfer his or her interest. The preferential right is therefore not a general right over every transfer of property by a Hindu.
This article explains the statutory provisions in general terms. Application to a particular succession or transfer dispute depends on the facts, the nature of the interest, the heirs involved and applicable judicial decisions.