Submitted by Rohini Kamble
Succession to the property of a Hindu male dying intestate and Hindu female dying intestate is distinguished by Hindu Succession Act, 1956. The property of a woman, prior to 1956 was devolved according to the rules of uncodified Hindu Law. Section 15 happens to be the first statutory enactment which deals with the succession to the property of a Hindu female dying intestate. The statutes which enabled a woman to have economic independence are Hindu Law of Inheritence (Amendment) Act, 1929 and the Hindu women's Right to Property Act, 1937. These Acts secure the rights of the woman.
II] SECTION 15 APPLICABLE TO THE ABSOLUTE PROPERTY OF A FEMALE
This section is applicable to;
i) Property that a woman holds as an absolute owner irrespective of the mode of its acquisition. It would include movable or immovable properties, but would not include any property to which the Act does not apply.
ii) The term ' property' would include an undivided interest in a Mitakshara coparcenary in which a female was a coparcenary who dies leaving behind her son, daughter or children of a predeceased son/ daughter.
III] SEPARATE SCHEMES OF SUCCESSION FOR MALE AND FEMALE
Hindu Succession Act, 1956 provides for separate schemes for succession for male and female intestates, yet none of the other succession laws provide for such separate succession. Taking into consideration section 15 and 16 it is observed that lot of importance is attached to the concept of 'Stridhan'. It has also been observed that in patriarchal system a woman does not have a permanent house of her own. She lives in her father's family until she gets married thereafter she lives with her husbands family and that too is not permanent because there might be marital break up due to death of her husband or divorce and due to this she might move out of this family by either remarrying or going back to her father' family. The fact that she can move on with a new family and carry her property therein is taken care of. Taking a closer look at section 15 and 16 we see that the blood relations are given a very inferior placement as compared to the category of heirs of her husband.
IV] SCHEME OF SUCCESSION
Depending upon the source of acquisition of the property of a female the Act provides for three different sets of heirs;
1) Property that a female Hindu had inherited from her parents.
2) Property that a female Hindu had inherited from her husband or her father-in-law.
3) Any other property or general property
V] SUCCESSION TO GENERAL PROPERTY
The property a woman inherits from sources other than her parents, husband or father-in-law is referred to as 'general property'. It includes the property that she might have received by way of gift, will or settlement or even through transfer for consideration. Property that a woman inherits from her brother in capacity of his sister or from her husband's brother as his brother's widow would be her general property and would go under this section.
VI] GENERAL RULES OF SUCCESSION IN THE CASE OF FEMALE HINDU
Section 15 provides;
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 predeceased son or daughter) and the husband.
b) Secondly upon the heirs of her husband
c) Thirdly upon the mother and father
d) Fourthly upon the heirs of the father.
e) Lastly upon the heirs of the mother. These are mutually exclusive; i.e the former excludes the latter.
VII] CLAUSE (a)
This clause specifies 7 heirs; namely
daughters including children of any predeceased son,
daughter and husband.
1) Son and daughter:
The terms ' Son' and 'daughter' would not include a step-son or step-daughter.
It includes a woman's biological or adopted, legitimate or even illegitimate children. When it comes to a Hindu female dying intestate the illegitimate as well as legitimate children would inherit the property together and no difference would be made. As far as her marriage is concerned then it is not questioned at all; it is of no consequence.
For example: 'W' a Hindu woman dies leaving behind a son from her first marriage which ended in divorce. 'W' was in a relationship wit a married man 'H2' and she gave birth to daughter 'D' . In this case 'D ' and 'S' are uterine brother and sister but still they are entitled to succeed equally both will inherit the property in equal share.
2) Children of predeceased son and daughter:
If a son or daughter dies during the lifetime of their mother leaving behind a child, that child is entitled to succeed the property along with the other surviving son or daughter provided that the child of the predeceased must be beget from a valid marriage. Similarly, their deceased parents should also be born from a valid marriage.
Let's consider that a Hindu woman 'W' gets married to an already married man 'H' which is void according to Hindu Marriage Act, 1955. She had begotten two sons S1 and S2. S2 dies during the lifetime of W; leaving behind his daughter S2D. In this case only S1 is entitled to inherit as children born out of a void and voidable marriage are not deemed to be related to any of the relative other than the parents. Hence, S2D will not be related to W.
In Shahaji Kiran Asme v Sitaram Kondi Asme;
a man gets married to W2 while his first marriage was still subsisting. He died leaving behind his three sons and a daughter from the second marriage, his parents, F and M, a brother S2 and both of his wives. In this case only the children, mother and the first wife inherited his property. According to section 16 of Hindu Marriage Act, 1955 the children were entitled to succeed the property. Subsequently, when the mother died, the court held that only S2 and F would inherit the property as the children of her predeceased son were illegitimate and hence, were not entitled to succeed. If the parents before the birth of the child had ceased to be a Hindu and had converted to other religion then the children of a predeceased son or daughter will also be disqualified from inheriting the property of the intestate.
The term 'husband' does not include a divorced husband but includes a husband who was living apart from her under a decree of judicial separation, or the husband who had deserted her or deserted by her. It refers to the spouse of a valid marriage which came to an end with the death of the intestate. The husband's immoral or even criminal conduct does not debar him from succession unless he commits his wife's murder. The husband from a invalid marriage does not inherit from his wife but the husband from a voidable marriage whose decree is pending in the court may get a share, but if it is annulled then no share.
# RULES FOR CALCULATION OF SHARES:
On the death of a female intestate, her property devolves on her primary heirs, in accordance with the following rules;
i) Each surviving son and daughter and the husband takes one share.
ii) Where a son or a daughter had predeceased the intestate but is survived by a child, his/her branch has to be alloted a share.
iii) Such surviving grandchild takes the share of the deceased parent and if there are more than one they will divide the property equally among themselves.
1) Let's assume that 'W' a Hindu female dies leaving behind her husband H, two sons S1 and S2 and a daughter D then the property will be divided into equal parts.
VIII] CLAUSE (b):
Heirs of the husband:
This category includes the entire group of heirs of the husband of an intestate. If none of the heirs of the husband is present, only then can the parents of the intestate inherit the property.
It was held in Devinder Kaur v. Ajit Kumar Sandhu, (1995) 1 HLR 147,
that the heirs of the husband inherit in absence of the children, grandchild and the husband of the deceased. It is generally presumed that the property belonged to the husband and is distributed according to the rules laid down under section 8-13 of the Act.
For example a Hindu female 'W' dies intestate and is survived by her step-son (son born to her husband from a previous marriage). In case if the woman marries more than one time then the expression 'heirs' of the husband means heirs of the last husband.
# CLAUSE IMPRACTICAL: The law is impractical as it assumes that the husband's relations are nearer to the female who dies intestate than her own blood relations.
In Om Prakash v. Radha Charan; wherein a Hindu Female, 15 years of age was abandoned by her in laws out of her matrimonial house just because her husband died of snake bite, just 3 months after their marriage. She then lived with her parents they educated her. Later on she took up a job. Meanwhile, her relations with her in laws were snapped completely. They never asked about her. 42 years later she died intestate leaving behind huge amount in various bank accounts, provident funds and a substantial property. It was held that her brother was not entitled to claim her property and the property went to her husband's heirs i.e the same in laws who kicked her out of the house. According to provision of Hindu Succession Act, 1956 it is the heirs of the husband who have a legal right to inherit the property of an issue less married Hindu woman and her parents cannot inherit in their presence.
IX] CLAUSE (c) Mother snd Father:
In Antua v. Baijnath, AIR 1974;
it was held that the terms 'mother and father' do not include a step-mother or step-father, nevertheless they are to succeed. The parents can inherit from the children even if their marriage was void or voidable. In certain cases, where the child is illegitimate then only the mother can inherit the property and not the putative father. The mother and father are entitled to succeed the property only if none of the primary relations and husband's heirs are present.
X] CLAUSE (d)
If none of the heirs given in the first three clauses is present then the property will go on to the father of the female who died intestate. This will include her brothers and sisters, including half-blood brothers and sisters and the descendants grandparents and other natal relations.
XI] CLAUSE (e) Heirs of the mother:
In this case, the property will go on to the heirs of the mother if none of the above mentioned heirs is present. It is then presumed that the property belonged to the mother and it was she who had died intestate. This category will include the uterine brother or sister of the deceased and their descendants.
XII] PROPERTY INHERITED FROM THE FATHER:
The court held in Bhagat Ram v. Teja Sing,
that the female inheriting from her parents in the absence of her issue of children, will revert to her father's heirs.
Section 15 (2) provides that; notwithstanding anything contained in sub-section (1) 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 predeceased son or daughter) not upon the other heirs referred to in sub section (1) in the order specified therein but upon the heirs of her father There are two important things to be noted here;
# The term 'inherit' means to inherit as an heir. When a female Hindu inherits a property, sells it and buys another property, it will be converted to general property.
# When a Hindu inherits property but dies without children or grandchildren but has husband even then the property will be reverted to father's heirs.
XIII] PROPERTY INHERITED FROM HUSBAND OR FATHER-IN-LAW:
Section 15 (2) (b) provides: 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 predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the other specified therein, but upon the heirs of the husband.
Submitted by Rohini Kamble