As you are aware that the amendment in Hindu Succession Act, 1956 in year 2005 is a revolutionary amendment, which has changed the whole criteria of holding of properties in Hindu Families. First time the constitution acknowledged the equal rights of daughter on equal footings with the son. The amendment act has also taken care of widows of Hindu Families. Through this amendment a daughter even after her marriage became Coparcener in the family of her father and gained right to claim at par as son in the ancestral as well as self-acquired properties of family. Thanks to the Apex Court of India, which ruled that a daughter can claimed her right in the ancestral or family property before implementation of HS(Amendment) Act, 2005 and even before independence of India i.e., before 1947. But there is rider in this process, if father make a will and transfer his /ancestral property to his son or any other person, then in this case daughter do not claim anything out of such properties.

India's present general set of laws, individuals from various religions are represented by their laws in inheritance, marriage, detachment, guardianship, etc. In such a manner, the succession in Hindus is represented by the Hindu Succession Act (HAS), 1956 .

A critical component of this Act is that it separates the intestate succession of females and males. The female intestate succession is further subject to the source from which the deceased female obtained the property. It is essential to note the convenience and reasoning behind this differentiation at two levels, one given the basis of the property and other in the light of orientation. It explains how it is nonsensical and contrary to uniformity on different grounds. It also discusses a new case that tries to acquire a dynamic change in the law connected with succession of Hindus.

Hindu Succession Act, 1956, For Female Intestates The HSA, 1956, was instituted nine years after India gained independence, and around then, the legislature did not ponder that in times to come, women in India would get properties voluntarily. Throughout the long term, women have taken steps in diverse circles. The circumstance in India has changed significantly from that point forward as women are becoming forerunners in different fieldsand, in this manner, own properties as in their right. Nonetheless, the Act, which additionally covers non-testamentary succession of Hindus, yet additionally of Buddhists, Jains, and Sikhs, actually contains a cavity concerning self-obtained properties of women.

Procedure of succession of properties of hindu female intestate under Hindu Succession Act, 1956

The Hindu Succession (Amendment) Act of 2005 made the daughter, similar to the son, a coparcener in a joint family. The amendment guaranteed that women and men became equivalent beneficiaries of ancestral property. The general rule for all kinds of property is that it will pass on to the children and the husband. The first kind of property, however, will be inherited by the heirs of her father and the remainder by her husband's heirs if no one is alive from the predeceased at the time when succession begins. Perhaps, the legislature intended that the property should revert to the source from which it was received.

The subject of inquiry herein is the succession procedure of the third kind of property, which includes the self-acquired property or property obtained in any other manner or from another source, provided she has absolute right in the property.

With an end goal to follow the development of the law connecting with intestate succession from Shastric law to statutory intercessions, an endeavour has been made to feature the hidden social circumstances that empowered the continuous change of Hindu law, with each change logically scratching itsevil character. It is essential to seek to take on a viewpoint that analyses the premises hidden in the resolutely inconsistent nature of the laws covering intestate succession to a Hindu Female.

WHAT IS INTESTATE?

INVESTOPEDIA - Intestate refers to dying without a legal will. When a person dies intestate, deciding how their assets will be distributed becomes the responsibility of a state probate court. An intestate estate can also be one in which the will presented to the court was deemed to be invalid.

KEY TAKEAWAYS

  • When a person dies intestate, it means they left no legal will.
  • If there is no will to go by, a state probate court will determine how the person's estate will be distributed.
  • Courts generally establish a hierarchy, with spouses and other close relatives being first in line to receive the assets.

BRITANICA DICTIONARY - intestate succession

In the law of inheritance, succession to property that has not been disposed of by a valid last will or testament. Although laws governing intestate succession vary widely in different jurisdictions, they share the common principle that the estate should devolve upon persons standing in some kinship relation with the decedent. Modern laws of intestacy have tended not to emphasize the traditional concern that property be kept within the bloodline through which it came to the decedent. Modern practice also tends to favour the rights of the surviving spouse, whether or not he or she is regarded as kin, and (in most jurisdictions) to ease restrictions on inheritance by illegitimate children.

Section 15 Of The HSA, 1956 Section 15 of the Act conceives a positive and uniform plan of property progression of a Hindu female who dies intestate.

SECTION 15 IN THE HINDU SUCCESSION ACT, 1956

General rules of succession in the case of female Hindus.-

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
(b) secondly, upon the heirs of the husband.
(c) thirdly, upon the mother and father.
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1),-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

SECTION 16 OF THE ACT sets out the request for the succession of the beneficiaries of the Hindu female and is to be perused alongside Section 15 of the Act, setting out the standard guidelines of succession. Notwithstanding, Section 15 of the Act has neglected to consider the value of the destiny of oneself obtained property of a Hindu female dying intestate. The lawmakers, while outlining the regulation, did not think about, around then, that Hindy females would hold-self occupied property.

SECTION 16 IN THE HINDU SUCCESSION ACT, 1956

Order of succession and manner of distribution among heirs of a female Hindu.- The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely:-

 

Rule 1.- Among the heirs specified in sub-section.
(1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.

Rule 2.- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.

Rule 3.- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death.

PLEASE NOTE THAT: The Hindu Succession Act 1956 deals with the succession to the property of a Hindu female intestate. Pre 1956, there were varied rules under the uncodified Hindu laws. Section 15 and Section 16 of Hindu Succession Act applies to the absolute property of a female 'including an undivided interest in a Mitakshara coparcenary property in which a female was a coparcener' (2005 Amendment to the Act). Only the property which can be inherited and over which a woman had full powers of disposal will be subject to the application of these sections. Thus, the scheme of succession does not apply to any property held by a Hindu woman in the form of a limited owner according to Section 14(2) or to which the Act does not apply.

GENERAL PROPERTY (SECTION 15(1))

This section includes all those properties other than which were inherited by a Hindu female from her parents, husband, or father-in-law. That means a property received by the Hindu female from her husband, parents or father-in-law not be in way of inheritance but instead should be received through any other way like a gift, will, settlement, prescription, a transfer for consideration i.e. purchase will be covered under Section 15(1).

The property which has been gifted to the Hindu female even from her father will not be equal to inherited property, so Section 15(2) instead of Section 15(1) will be applied here as held in the case Meyappa v. Kannappa AIR 1976 Mad. 184.
Self-acquisitions are further covered under Section 15(1) which are made by a female. A female has the right to receive property from any other source including a property inherited from any other relation in the family, such as property inherited from her brother in the capacity of his sister or her husband's brother as his brother's widow. This property would be considered as her 'general property' which has been covered in Section 15(1). The heirs mentioned are divided into five different categories by the name of 'entries', as long as a single heir is present in the earlier entry till then the property will not go to the next entry as per Section 16. The property will be confiscated by the government by escheat if there are no heirs in any of the five entries mentioned.

ENTRY (A)- SONS AND DAUGHTERS, SONS AND DAUGHTERS OF A PREDECEASED SON OR DAUGHTER IE. GRANDCHILDREN, AND THE HUSBAND

These heirs shall succeed simultaneously by sharing equally to the exclusion of other heirs as per Section 16. However, the children of a predeceased son/daughter will not be taking per capita with the son or daughter or husband of the intestate but will be taken between them the share which their father or mother would have taken if were alive at the time of the death of the intestate i.e., they will take per stripe. In other words, such children will divide the share falling under the share of their predeceased father or mother.

In a case, a Hindu Woman A dies, leaving behind a son S1 and a granddaughter D from her second son S2. S2 married W2 and later got to discover that his consent had been obtained by fraud. S2 filed a petition in court for obtaining a decree of nullity. D conceived before the discovery of fraud by S2. The marriage was declared null and void. S2 died and D was brought up by her grandmother A. Now an also dies. D could not inherit A's property as children born of annulled voidable marriages do not inherit the property of any relative of their parents. It may be noted that children of a predeceased son/daughter will also be disqualified from inheriting the property of the intestate if, before their birth, their parents had ceased to be Hindu by conversion.

In Ugre Gowda v. NageGowda, the Apex Court observed that an adoptive mother cannot be deprived of her right to dispose of her separate property by transfer or will that she possesses if she has adopted a son. Thus, such relief the widow or the adoptive mother of the suit property which vested in her by succession on the death of her husband.

ENTRY (B)- HEIR OF HUSBAND

On the failure of heirs in entry (a), the property will be passed upon the heirs of the husband. Since the property is deemed to be that of her husband, the inheritance will be determined by the law regarding succession to the property of a Hindu male as per Section 8. Thus, the husband shall be deemed to have died immediately after the female Hindu died as per Section 16. Heirs of the husband do not mean 'all persons who could have been the heirs of such husband'.

It may be noted that the date of the opening of the succession is not the date of the death of the husband, but that of the deceased i.e. female Hindu (Seethalakshmi Ammal v. M. Iyengar AIR 1998 SC 1692). Thus, it has to be presumed that on the death of the intestate, it was her husband who had died, and the property also belonged to him. In such a situation, the 'stepson of a female' who is a qualified heir can succeed as the 'son of the husband' who was born to him from a previous marriage. Thus, where a Hindu woman, W, dies intestate, leaving behind her stepson and her brother since brother is an heir in the later entry, the step-son will succeed to her property.

The widow of a predeceased son, widow of the deceased brother of the husband, sister of the husband, or even a remote cousin of the husband would fall in the category 'heirs of the husband'.

It is to be noted that the 'heir of husband' is considered 'near in relation' to a childless widow, in comparison to her parents and brothers and sister which are placed in the later entry. Thus, a woman's blood relations are relegated to an inferior placement in comparison to the category of 'heirs of husband' (relations by marriage). No other succession law, including Muslim law, gives statutory preference to the in-laws over a woman's blood relatives. This is so when a Hindu male dies, none of the wife's relatives can ever inherit his property.

ENTRY (C)- FATHER AND MOTHER OF THE DECEASED FEMALE (PROPOSITA)

Father/Mother does not include a stepfather/mother, but adoptive mother/father is included. However, stepfather/mother could succeed as 'heir of mother' and the latter as 'heir of a father'.
Where the marriage of the parents was a void marriage or an annulled voidable marriage, the parents inherit from such children. Even if the deceased female (proposita) was an illegitimate daughter of the mother, a mother will inherit, however, a putative father will not inherit.

ENTRY (D)- HEIR OF THE FATHER

Since the property is deemed to be that of her father, the inheritance will be determined by the law regarding 'succession to the property of a Hindu male' as per Section 8. Thus, the father shall be deemed to have died immediately after the female Hindu died as per Section 16. Heirs of the father do not mean 'all persons who could have been the heirs of such father.'

The category will include brothers and sisters including half-blood brothers/sisters and their descendants, grandparents, and other natal relations.

ENTRY (E)- HEIR OF THE MOTHER

Since the property is deemed to be that of her father, the inheritance will be determined by the law regarding 'succession to the property of a Hindu female' under Section 15 and Section 16. Thus, the mother shall be deemed to have died immediately after the female Hindu died as per Section 16. Heirs of the mother do not mean 'all persons who could have been the heirs of such mother.' The category will include the uterine brother/sister and their descendants.

PROPERTY INHERITED FROM MOTHER OR FATHER (SECTION 15(2)(A))

This section provides notwithstanding anything contained in Sub-section(1). Any property inherited by a female Hindu from her father or mother shall descend, if there is no son or daughter of the deceased present including the children of any predeceased son or daughter not upon the heirs cited in subsection(1) in the order described but on the father's heirs. Thus, Section 15(2)(a) is an exception to Section 15(1).

SECTION 15(2) governs only that property which was acquired by the intestate by 'inheritance' as an heir and not received from parents through gift or will. It may be taken into consideration that a gifted property is not equal to the inherited property. Any property gifted at the time of marriage is her Stridhan and succession to it is governed by Section 15(1) (Meyappa v. Kannappa AIR 1976 Mad. 184). Similarly. If she has converted the property she inherited from her parents into some other property, succession will not be governed under Section 15 (2) (Emana v. Gudiseva AIR 1976 A.P. 337).

Likewise, the inherited property should be available at the time of her death. If the identity of the property is changed or it is substantially altered and improved or if it is substituted, then Section 15(2) has no application. Thus, if she inherits property from father then sells it and out of sale proceeds, purchases another property, this property again would be her general property and Section Section 15(1) will apply as held in Veera Raghavamma v. G Subbarao (AIR 1976 A.P. 377).

IF A HINDU FEMALE HAD INHERITED PROPERTY FROM 'FATHER OR MOTHER' NOT FROM THE FATHER'S OR MOTHER'S SIDE THE HEIRS FALL UNDER THE TWO CATEGORIES:
CATEGORY (1): SONS, DAUGHTERS, SONS AND DAUGHTERS OF PREDECEASED SON OR DAUGHTER

In the time of non-existence of any of the preferential heirs like sons, daughters, etc, the property passes upon the heirs of the next category intestate's father. In other words, the property inherited by a female from her parents, in the absence of her children, will revert to her father's heirs. The 'husband' is excluded here.

Thus, where a Hindu female died leaving behind her daughter from a previous marriage and the second husband and property that she had inherited from her father, it was held that since the deceased had inherited the property from her parent, her daughter alone will be entitled to succeed and the husband here cannot succeed as said in case Radhika v. Anguram (1994) 5 SCC 761.

A 'step-son' is not an issue and cannot inherit the property of a woman that she inherited from her parents as held in case Lachman Singh v. Kirpa Singh AIR 1987 SC 1616.

CATEGORY (2): HEIRS OF THE FATHER

Thus, the father shall be deemed to have died immediately after the female Hindu died under Section 16. Here it seems to be a defect in the drafting of the Act. Even if a father is still alive, his property will not go to him but to his heirs. The clause should be read, 'upon the father and in default of the father, upon his heirs'.

There is another anomaly i.e., whether the property is inherited from the father or mother, in both the cases, the devolution will be upon the 'heirs of the father'. Thus, even if she inherits from her mother, the 'heirs of mother' cannot succeed. However, if the intestate (female) dies survived by her mother, she would count as an heir along with the other heirs of the father.

In a case, A dies leaving behind her husband H, her full brother B, and her uterine sister S (her mother having remarried after the death of her father). A had inherited property from her mother. The property will not devolve upon H but upon B (heir of A's father). S is not entitled to succeed as she is not an heir of A's father but A's mother.

PROPERTY INHERITED FROM HUSBAND OR FATHER-IN-LAW (SECTION 15(2)(B))

Section 15(2)(b) provides that the husband shall be deemed to have died immediately after the female Hindu died. It may be noted that a woman inherits the property of her husband on his demise, as his widow. She also inherits from her father-in-law as the widow of his predeceased son (provided she does not remain before the date of the opening of the succession).

Here, if the female had been married more than once, the properties inherited by her from her respective husbands and their fathers should go to heirs of respective husbands. However, if she remarried after inheriting property from her deceased husband and died leaving behind issues from her second husband, she has not died issueless and her children and second husband will succeed to the property. But if she dies issueless, the second husband will not succeed and the property will revert to the first husband's heirs. Likewise, where a woman inherited property from her second husband and died leaving behind a son from the first husband, a son would take the property (Chintaram v. Rushibai, 2000 AIHC 1308 M.P.).

 

In a recent case, a woman died leaving behind a son and a daughter, born to her from the husband whose property she had inherited. From her previous marriage, she already had a son. The Gauhati High Court held that the son born of the previous marriage was not entitled to get the property, as it was the property that was inherited by the woman from her second husband, and he was not the heir of that husband. The expression 'son and daughter' would mean the son and daughter of that husband from whom or from whose father, she had inherited the property. The court reasoned that if such property is allowed to be drifted away from the source through which the deceased female had inherited the property, the object of Section 15(2) would be defeated. The purpose of Section 15(2) is to ensure that the property left by a Hindu female does not lose the real source from which the deceased female had inherited the property as held in case Dhanistha Kalita v Ramakanta Kalita AIR 2001 Gau 92.
It is submitted that the expression that the legislature has used in Section 15(2)(b) is in absence of 'any son or daughter of the deceased'. The expression is without any qualification and the words 'any son or daughter' means any son or daughter and not the son/daughters- legitimate, illegitimate, etc. these are the only relations that are described concerning her and not regarding her father/husband/mother. All children have equal rights over the property of their mother.

It has been held that where the 'heirs of husband' are not present and a female Hindu dies issueless, leaving behind property 'inherited by husband/father-in-law', the property would be treated as the general property and devolve as per Section 15(1) if any of heirs (her brother's grandson, in the present case) is present. In other words, this would not be treated as a case of 'failure of heirs' and the property would not go to the government under the application of the doctrine of escheat. The intention behind Section 15(2) was not to eliminate the other heirs specified in Section 15(1) but to give an order of preference (State of Punjab v. Balwant Singh AIR 1991 SC 2301). It was held that it is important to remember that a female Hindu being the full owner of the property becomes a new heritage of descent. If she leaves behind any heir as per sub-section(1) or sub-section(2) of Section 15, her property cannot be escheated.

COPARCENARY INTEREST ACQUIRED BY FEMALE AS PER SECTION 15(1) AND NOT BY SECTION 15(2)

After the 2005 Amendment to the Hindu Succession Act (1956), a daughter (married or unmarried) has become a coparcener like a son with occasions of coparcenary ownership. As noted earlier, a coparcenary interest is acquired by a daughter by birth and though it comes from the family of her father it is not an interest that she has 'inherited' from her parents. under such a situation, her heirs would be her husband, her children, and children of predeceased children. These heirs would succeed to her property whether she dies without seeking partition or she dies after partition.

Thus, in case of a female dying intestate, her interest as determined under Section 6(3) will be succeeded to her heirs following Section 15(1). Section 15(2) cannot apply here because the interest calculated under Section 6(3) is not a share which she inherits from her father.

PROGRESSION IN THE LAW ABOUT FEMALE INTESTATE SUCCESSION

In The case of Mamta D. Vakil v. Bansi S. Wadhwais a decisive judgment towards presenting changes in the female intestate succession laws among Hindus. The case is a standard female intestate succession issue but one of only a handful of exceptions to challenge the legality of the law the way things are today. It challenges the constitutionality of Section 8 and Section 15 of the HSA. Fortunately, the judiciary, this time, maintained the constitutional principles of equality as cherished in Article 15. To comprehend the judgment's premise, one should understand the standards for certifiable discrimination in the law.

It is law and order and a laid-out rule in Article 15 of our Constitution that discrimination cannot be made against any resident based on religion, race, caste, sex, place of birth, or any of them. This being the situation, discrimination based "only" concerning the above grounds is illegal, however not the one which depends on the above factors combined with a few different rules like social and instructive backwardness. This is the verymotivation behind why governmental policy regarding minorities in society, like reservations given caste, is not violative of Article 15. It was argued, expanding on this suggestion, and relying on the HSA sections, that the inequality in Section 15(1) of the Act did not depend solely on orientation but also on family ties. Further, it was stated that "the woman, upon marriage, stays with her husband's family; the opposite is incorrect.

A woman surrenders her maternal or paternal ties to her marriage and expects conjugal ties. Subsequently, intestate succession for Hindus considers this ground reality." Considering this reality, the legislature has accommodated the main successors to the husband in the woman's property.

IN THE CASE OF SONUBAI YESHWANT JADHAV V. BALA GOVINDA YADAV, the court held that "the object of the legislation was to hold property with the joint family upon marriage which united males and females forming them into one institution. It, this way, acknowledged that in recognition of that position when the wife's succession opened, the class known as beneficiaries of the husband were allowed to prevail because of the beginning solidarity in marriage after which the female converged in the husband's family."

SUCCESSION TO PROPERTY OF A FEMALE HINDU IN THE CASE OF BHAGAT RAM V. TEJA SINGH,a Hindu woman, and her sister were given the property by theirmother when she passed away. In the wake of acquiring the property, one sister died issueless. The other sister accepted the property as her 'father'sheir' under Section 15(2)(a) and consented to sell the property to an individual A. The expired sister's husband's brother challenged the legitimacy of this deal and asserted the property as an heir under Section 15(1)(b).

The question arose whether the said property would be given to the legitimate beneficiaries of the father or on to the successor to predeceased husband(husband's sibling). It was held by the court that under Section 15(1)(b) of the HSA, assuming a female Hindu dies issueless and without making the will, the devolution of the property must be founded on the source from which females acquired property. Considering the property held by a female was obtained from her father or mother in the nonexistence of any child of the deceased, it would just devolve upon the father's heirs. Also, in this situation, her sister, who was the principal legitimate heir of the father of the expired, unquestionably acquired the property becausethe aim of the legislature is specific that the property, whenever it had a place with the parents of the deceased female initially ought to go to the father's lawful beneficiaries. In this way, an offer of such property by the sister of the female Hindu is substantial.

The learned counsel for the respondents, i.e., beneficiaries of the husband, fought that the deceased female procured the property from her mother. Moreover, the deceased female had just restricted freedoms over this property. Still, by Section 14(1) of the HSA, she turned into the complete proprietor of the property. As a result, in the event of her demise, the property she had retained would be transferred to her lawful beneficiaries following Section 15(1). He additionally faced that Section 15 of the HSA will have just inevitable activity as per the words utilized in Section 15 (1).

He additionally faced that Section 15 of the HSA will have just inevitable activity as per the words utilized in Section 15 (2)(a) that is, 'any acquired by a female Hindu is to be considered as property acquired by her after the commencement of the Act.

However, the court recognized that such a legacy does not need to have occurred after the Act's inception. The legislature's aim is evident that the property, whenever it had a place with the parents of the deceased female, initially ought to go to the father's lawful beneficiaries.
So additionally, under Section 15(2)(b), the property acquired by a female Hindu from her husband, or her father-in-law will likewise revert upon the husband's heirs under comparable conditions. It is the source from which the female acquired property, which is more fundamental for the devolution of her property. We do not think that a female Hindu initially had restricted freedoms and later obtained the full right in any capacity would turn the standards of succession given in Section 15(2).

The source is significant, from which the female acquires the property and controls what is happening. In any case, people who are not even somewhat connected with the individual who held the property initially would procure privileges to acquire that property. That would overcome the plan and reason for Section 15(2), which gives a unique example of progression. Properties acquired by her father were returned to the father's family without any issue. Similar to how she receives property from her husband or father-in-law, it goes back to the husband's heirs completely unnoticed. Such a provision would request you not to give.

CONCLUSION

HSA's section 15 is the first statutory enactment dealing with succession to a Hindu female intestate property. Because women were less likely than men to be absolute property owners and more likely to be economically dependent, the initial legislative efforts, such as the Hindu Law of Inheritance (Amendment) Act of 1929 and the Hindu Women's Right to Property Act of 1937, were primarily focused on securing her maintenance and property rights rather than providing a plan for succession to her property.

The Act accommodates three distinct states of primary beneficiaries relying on the source of obtaining the property of a female that is accessible for succession. Extensively, her property is separated into three classes:

i) property that a female Hindu has acquired from her parents,
ii) property that a female Hindu has acquired from her husband or
iii) her father-in-law, and some other property ("general property").

It is essential to highlight that the HSA's inheritance laws have been declared to follow the principles of proximity, closeness, love, and affectionand are no longer based on the necessity for the intestate's spiritual or religious benefit. Given this, it is absurd to suggest, as done by Section 15(1), that the entire group of husband's heirs are "near" concerning a childless widow compared to her parents, brothers, and sisters.

It is worth noting that Hindu succession law is the only succession law in the country that provides separate succession schemes for male and female intestates. Due to the importance given by Hindu law to the preservation and protection of property in the family of a male Hindu, there is no universal structure in place. A deeper look at Sections 15 and 16 forces one to concede that the fundamental, incredibly patriarchal assumptions of strident are still present.

Section 15(2), which stipulates the reversion of a woman's estate in case of property inherited from her parents or husband, demonstrates that a woman only has limited estate over non-stridhana property and is not allowed to manage any property that she has inherited. Furthermore, has been highlighted, her husband's heirs are given preference over her blood relatives even though the Act aims to uphold the idea of nearness.

A legal framework that gives women equal rights in succession must be present to build an equal society. Not only do the current provisions engender inconsistent law principles in certain areas, but they are also severe impediments to gender equality. It can only be hoped that in the next phaseof incremental reform to succession laws, Section 15 and Section 16 do not remain unamended.

THE CURRENT POSITION IN LAW FOR SELF-ACQUIRED PROPERTY OF HINDU FEMALE DYING INTESTATE

THE SUCCESSION ACT AND THE AMENDMENT

The Hindu Succession Act 1956 also applies to Jains, Buddhists, and Sikhs, which have provided women of India with conditional inheritance rights of the property. Dayabhaga and Mitakshara are the two schools under which patrilineal Hindu Law is divided across India. According to Mitakshara school, there is a clear distinction made between a man's personal property and property belonging to ancestors. He has full discretion and right over his personal property to will away and automatically has his sons acting as coparceners under the Succession Act. Daughters only had the rights to claim in the personal property of their father's and in the father's share of the ancestral property. Women were not given the status of coparceners. Women could only ask for a right to sustenance from a joint Hindu family in India, and nothing more.

There was an amendment in 2005 which tried correcting this but struggled with confusions over it due to the conflicting judgements of the court. There was a lack of clarity in the judgements provided. Bombay High Court ruled that benefits of the new provisions do not extend to the daughters born after the law was amended. Later in the other case, High Courts in Delhi, Karnataka, and Orissa passed a contradictory ruling that the amendment will be applied to the daughters alive in 2005. The Supreme Court of India in 2015 also said that the daughter would not get property rights if the father died before the amendment came into force. So, the very latest judgment passed clarifies that the law is applicable to all the disputes regarding property filed before 2005 and pending when the law was enacted. The children of the daughter will be the coparceners if the daughter had died before 2005.

WOMEN BORN BEFORE 1956 GETS ACT'S BENEFITS

The Supreme Court in a case came out with the recent judgement challenging the women's right to inherit property on two grounds. The Man named Amar claimed that her aunt was born before 1956, so consequently, she was not eligible for rights that had been provided by the Succession Act, nor was the amendment of 2005 was applicable on her. The lower court and the high court upheld the opinion that: However, the Supreme Court cited previous judgements to rule that two women were eligible to inherit the property as per the Act as well as the amendment of 2005 as it stood before the Act.

INHERITANCE OF AGRICULTURAL LAND

The inheritance of agricultural land is another issue which has inclined in the favour of men. Succession of agricultural land is under the governance of state laws and in many cases, daughters are not provided with the inheritance rights of the property under a reason that it will result in the fragmentation of the holdings. Across India, only 13% of farmland is owned by women according to the census data. This is because of the increasing migration of men to cities and agricultural land is left to women. Not having ownership of the land means that they cannot have access to institutional credits or take advantage of government schemes and offers of subsidised seeds, fertilisers etc.

Through Section 4(2), the Succession Act 1956 kept agricultural land out of its extent. In 2014, while the Section was repealed by 2005 amendment, the Allahabad High Court ruled that the agricultural land lies under absolute governance of the State Legislature and Parliament has no land power to enact any law for the same.

The Supreme Court in its latest judgement does not mention agricultural land. It has also been found in the reports that despite existing laws, women are often made to sign away their inheritance rights of property under family pressure. The latest judgement hopefully will result in providing a boost to women's fight for equality.

SPECIAL RULES FOR FEMALES GOVERNED BY MATRILINEAL SYSTEM

The Marumakkatayam system practised among the Nairs of Kerala, the Aliyasantana observed by the Bunts in Karnataka, and the Marumakkal Vazhi followed by the Pillai's of Tamil Nadu are some of the eminent matrilineal systems of inheriting property in India. Although, the Hindu Succession Act (1956) applies to all Hindus, Section 17 of the Act makes some exceptions for these practices.

Thus, when a woman who follows the matrilineal customs dies intestate, her 'general property' would first devolve upon the children and the mother and not the children as well as the husband. Then it would devolve upon father and husband in the same category. 'Heirs of the mother' gain precedence over the heirs of the husband, an order that is inverted in the case of other Hindus.

On 2 February, the Supreme Court ruled that under the Hindu Succession Act, daughters were legally entitled to hold the equal share of the property in her ancestral property, irrespective of the year they were born in. It was a judgement that attempted to mend decades of imbalance in Hindu inheritance rights over the property. In this case, a man had contended that his aunt has no legal entitlement to rights in his grandfather's property.

The Apex Court held that the Hindu Succession Act, 1956 holds that a daughter would be a coparcener (holding an equal share in the undivided property) in the family's ancestral property since birth, having the same rights and liabilities as of a son as amended in 2005 amendment.

SUCCESSION TO A PROPERTY BY A HINDU FEMALE (EXAMPLE)

  • A Hindu joint family consisting of.
  • Father(F),
  • his Wife(W),
  • his son(S) having two children i.e.,
  • grandchildren S1 and D1,
  • his daughter(D) having a daughter, i.e.
  • granddaughter D4 and
  • a predeceased Daughter D3 having a son(S2) and a daughter(D2).

In the aforesaid example, the succession to the property of predeceased daughter D3 survived by her husband(H) and son(S2) and a daughter(D2) will be as follows:

Total Claus A members = F + W+ S+ D+ D3= 5 and hence coparcenary property will be divided as 1/5 to each. Since D3 has died and her share of 1/5 will be divided between S2( Son) + D2( Daughter).
D3's share in the coparcenary property was 1/5th. This share of hers is 'coparcenary property' even against her son and daughter because Section 6(2) provides that any property to which a female Hindu becomes entitled by Section 6(1) shall be held by her with the incidents of coparcenary ownership. Thus, her interest in coparcenary property will be divided as per notional partition between her and her son S2 and her daughter D2. Thus, D3, S2 and D2 each will get 1/15th.
This 1/15th will go by intestate succession to her heirs under Section 15(1), as provided in Section 6(3) that 'his interest in the property of a joint Hindu family governed by the Mitakshara, shall devolve by testamentary or intestate succession and not by survivorship'.

Here, a portion of Section 6(1) which provides 'any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener' becomes important.

Thus, the expression 'his' applies to 'her' too. Therefore, this 1/15th is treated at par with her 'separate property' which thus, her 'absolute property'. According to Section 15(1), this 1/15th will be divided into three parts equally between her husband H, her son S2 and her daughter D2, each getting 1/45th share.

The shares will be as follows:
F- ⅕
W-⅕
S-⅕
D- ⅕
D2- 1/15 + 1/45
S2- 1/15 + 1/45
H- 1/45

SOME IMPORTANT DECISIONS

1. In the Om Prakash v. Radhacharan case, A woman's self-acquired property covered by Section 15(1) and not by Section 15(2)

In this case, a Hindu girl Narayani Devi, aged 15 years, became a widow within three months of her marriage. She was driven out of her matrimonial home immediately after her husband's death. She never returned there and also her in-laws did not bother to inquire about her. She came to her parent's house and was educated by them. She then took a job. She died without making a valid will 42 years later, leaving behind huge sums in various bank accounts besides provident fund and substantial property.

There is no doubt or dispute that the properties of the deceased were 'self-acquired' ones and were not inherited from her parents.

The deceased's property was claimed by her mother and brother (appellants) on the one side and by the heirs (brothers) of the husband (respondents) on the other side. The appellants affirmed that in a case of this nature where the husband of the deceased or her in-laws had made no contribution towards her education or had lent any support during her lifetime, Section 15(2)(a) of the Hindu Succession Act should be held to be applicable. It was negatived by the Supreme Court in the favour of her husband's heirs on the ground that as per the provisions of the Hindu Succession Act (1956), it is the heirs of the husband who have a legal right to inherit the property of an issueless married Hindu woman and her parents of heirs of parents cannot inherit in their presence. The Apex Court observed that Section 15(1) lays down the ordinary rules of succession. Section 15(2) providing for an obstante clause, which however carves out an exception that when the property is passed upon the deceased from her father or mother on her deathbed without any children, that property will relate to her parent's family and not to her husband's family under Section 15(2)(b).

The law is silent on the self-acquired property of a Hindu female. Section 15(1) only deals with 'general property', however apart from the exceptions specified in sub-section (2) and does not make any distinction between a self-acquired property and the property which she inherited from any other relation. The property which has been vested in the deceased absolutely or which is of her own is referred to here. The 'self-acquired property' of a Hindu female would be her absolute property and not the property which she has inherited from her parents.

The basis of the inheritance of a female Hindu's property who dies intestate would thus be the source from which such a female Hindu came into possession of the property and the manner of inheritance which would further decide the manner of devolution. In the case of 'self-acquired property', Section 15(1) will apply and not Section 15(2). The Hindu Succession Act does not put an embargo on a female to execute a will. Section 15(1) would apply only in a case where a female Hindu dies intestate i.e., without making a will. In such a situation normal rule of succession as provided for in the statute will apply.

The court further observed that it is now an ingrained principle of law that sentiments or sympathy alone would not be a guiding force in determining the rights of the parties which are otherwise clear and obvious under the Hindu Succession Act. This court cannot issue a direction only on sympathy or sentiments. If the contention of the appellants is to be accepted, we will have to interpret Section 15(1) in a manner which was not contemplated by the Parliament. The Parliament has bestowed equality for married and unmarried Hindu women in the matter of property. The golden rule of interpretation must be applied.

The court finally held that only because a case appears to be hard would not lead us to invoke different apprehensions of statutory provisions which are otherwise impermissible. In that view of the matter, we believe that Section 15(1) of the Act would apply instead of Section 15(2). Accordingly, the appeal was dismissed.

2. In this Bhagat Ram v. Teja Singh case, Succession to property of a Female Hindu (originally Inherited from her mother)

In this case, a female Hindu along with her sister inherited property from their mother on her death. After inheriting the property one sister died issueless. The other sister took the property as her 'father's heir' under Section 15(2)(a) and agreed to sell the same to person A. The deceased sister's husband's brother challenged the validity of this sale and claimed the property as an heir under Section 15(1)(b).

The question emerged whether the said property would pass on to the legal heirs of the father (her sister) or on to the heirs of predeceased husband (husband's brother). The court held that under Section 15(1)(b) of the Hindu Succession Act, if a female Hindu dies without making the will and issueless, the devolution of the property has to be based on the source from which property was inherited by females. If the property held by a female was inherited from her father or mother in nonexistence of any children of the deceased and it would only devolve upon the heirs of the father. And in this case, her sister who was the only legal heir of the father of the deceased certainly inherited the property because the intent of the legislature is clear that the property if belonged to the parents of the deceased female originally should go to the father's legal heirs. Thus, a sale of such property by the sister of the female Hindu is valid.

The learned counsel for the respondents i.e., heirs of the husband contended that the deceased female acquired the property from her mother who died. And at that time the deceased female had only limited rights over this property but by Section 14(1) of the Hindu Succession Act, she became the full owner of the property. Therefore, on her death, the property kept by her would be inherited by her legal heirs as per the rules mentioned in Section 15(1). He also confronted that Section 15 of the Hindu Succession Act will have only eventual operation according to the words used in the Section15(2)(a) that is 'any property inherited by a female Hindu is to be considered as property inherited by her after the commencement of the Act.

The court, however, observed that it is not necessary that such inheritance should have been after the commencement of the Act. The intent of the legislature is clear that the property if belonged to the parents of the deceased female originally should go to the father's legal heirs. So also, under Section 15(2)(b), the property inherited by a female Hindu from her husband or her father-in-law, shall also devolve upon the heirs of the husband under similar circumstances. It is the source from which the property was inherited by the female, which is more essential for devolution of her property. We do not think the fact that a female Hindu originally had limited rights and later acquired the full right in any way would turn the rules of succession given in Section 15(2).

The source is always important from which the female inherits the property, and which would further control the situation. Otherwise, persons who are not even slightly related to the person who held the property originally would acquire rights to inherit that property. That would defeat the intent and purpose of Section 15(2), which gives a special pattern of succession. Properties inherited by her father revert to the family of the father in the absence of issue. Property inherited from her husband or father-in-law reverts to heirs of the husband in the absence of issue similarly. Such a provision would restrict the properties passing into the hands of persons to whom justice would demand not to pass.

DISCLAIMER: The entire contents of this article have been prepared only for sharing information and knowledge with the readers . The article has been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness, and reliability of the information provided. The views are personal ,shall not be considered as a professionals advice. In case of necessity do consult with professionals for more clarity and understanding on subject matter.

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Published by

FCS Deepak Pratap Singh
(Manager Compliance -SBI General Insurance Co. Ltd.)
Category LAW   Report

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