Female Hindu Dying Intestate (1)

Intestate Succession to the Property of a Female Hindu Dying Intestate ADVAITH GOVIND, Roll No: 829 VI Semester NUALS.

Contents Acknowledgement.......................................................................2 Introduction..................................................................................3 Heirs of the intestate under general circumstances......................5 Heirs of the intestate under special circumstances (S.15 (2))......9 Order of succession....................................................................10 Law commission recommendations...........................................11 Conclusion.................................................................................15

Acknowledgement

I express deep sense of gratitude to my teacher, Asst. Professor Mrs. Namitha.K.L Mam for giving me an opportunity to work upon this topic. I also thank my parents and friends who were always in constant support and guidance. I am always indebted to Lord Almighty for his blessings to bring out my best.

RULES OF INTESTATE SUCCESSION TO THE PROPERTY OF A FEMALE HINDU Introduction The great ancient lawgivers Manu and Baudhyana had described the good woman as a profoundly non-autonomous self, ruled by father in childhood, by husband in youth, by son in old age. In the 19th century debates, on the contrary, she came to be re-envisaged as a person with a core of inviolate autonomy, possessing a cluster of entitlements and immunities, even when the family, the community or religion refused to accept them. The demand for the new laws stemmed from an understanding about Indian a necessary, autonomous core of female personhood that the state must underwrite.

Under the Hindu law in operation prior to the coming into force of the Act, a woman’s ownership of property was hedged in by certain delimitations on her right of disposal and also on her testamentary power in respect of that property. Doctrinal diversity existed on that subject. Divergent authorities only added to the difficulties surrounding the meaning of a term to which it sought to give technical significance. Women were supposed to, it was held and believed, not have power of absolute alienation of property. The restrictions imposed by the Hindu law on the proprietary rights of women depended upon her status as a maiden, as a married woman and as a widow. They also depended upon the source and nature of property. Thought there were some fragmented legislation upon the subject (regard being made to the Hindu Woman’s Right to Property Act, 1937), the settled law was still short of granting a status to woman where she could acquire, retain and dispose of the property as similar to a Hindu male.

The Hindu Succession Act, 1956, 1956 is a part of the Hindu Code which includes the Hindu Marriage Act, 1955 Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956. These Acts brought revolutionary changes in the law relating to Hindus by codifying the law relating to marriage, succession, adoption etc. The Hindu Succession Act, 1956 made a revolutionary change in the law relating to succession especially for female Hindus. For the first time, a Hindu female could become an absolute owner of property1. She could inherit equally with a male counter-part and a widow was also given importance regarding succession of her husband’s property as also to her father’s property.2 The Hindu Succession Act, 1 S.14, Hindu Succession Act, 1956

2 207th Report of the Law Commission of India, as seen in http://lawcommissionofindia.nic.in/reports/report207.pdf

1956 and particularly Section 14 brought substantial change, thus, upon the aspect of a right of a Hindu female over her property and thereby settled the conflict. An “intestate”, according to s.3 (g) of Hindu Succession Act, 1956, is a person who is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. Section 15 of the Hindu Succession Act, 1956 propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Hindu Succession Act, 1956 which have to be read along with Section 15 of the Act.3

3 Ibid

Heirs of the intestate under general circumstances

Sub-section (1) of Section 15 divides heirs of a Hindu female into five categories (Entries). The general rule is that heirs in an earlier entry exclude heirs in latter entries. If there are no heirs in any of these entries, property of the deceased Hindu female goes to the government by escheat4. (1) Heirs in the first entry: (a) Sons. (b) Daughters. (c) Children of pre-deceased son. (d) Children of pre-deceased daughter. (e) Husband.

4

S.27, Hindu Succession Act, 1956

Sons & Daughters—under this entry sons and daughters are used in a very wide sense. They include son and daughter by natural birth, legitimate or illegitimate 5; posthumous children, and adopted children. Legitimate children may be by one husband or more than one husband. Children of void and voidable marriages are also included. However, step-children are not included in the expressions, son and daughter, though it is possible for a stepson or daughter to succeed to her property in the second entry as an heir of her husband.

Grand-children. The sons and daughters of a predeceased son will include only legitimate children by natural birth or by adoption. Illegitimate children are excluded. The term “children’ does not include children of children, I or step—children of the son. Children of a son whose marriage is void, whether declared void or not are not included. Similarly children of a son whose marriage is voidable will not be included if the marriage has been annulled. It is because S. 16(3), Hindu Marriage Act provides that such children can inherit the property of their parents alone.…………………………

5

Gurbachan v. Khichar Singh, AIR 1971 Punj 240.

. This applies to the children of the predeceased daughter also, with this exception that her illegitimate children will be entitled to inherit as under Section 3(j)6 of the Hindu Succession Act, 1956, illegitimate children are related to the mother i.e. they are the children of the mother. Under this entry sons and daughters of a predeceased daughter and predeceased son inherit as the representative of their mother or father as the case may be.

Husband —Husband means the husband who was a lawfully wedded husband of the Female at the time of her death. Thus, a divorced husband is not included. Similarly, the husband of a void marriage or of an annulled voidable marriage is also not included.

(2) Heirs in the Second entry: Heirs of the husband of the female dying intestate come under second entry. The heirs of the husband are7:

6

S.3 (j), Hindu Succession Act, 1956-“related” means related by legitimate kinship: Provided that illegitimate children shall be deemed to be related to their mothers and to one another, and their legitimate descendants shall be deemed to be related to them and to one another, and any word expressing relationship or denoting a relative shall be construed accordingly.

(a) Heirs of the husband specified in Class I of the Schedule: This includes Son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, son of a pre-deceased daughter, duaghter of a pre-deceased daughter, widow of a pre-deceased son, son of pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, widow of a predeceased son of a pre-deceased son. References to a brother or sister do not include references to a brother or sister by uterine blood.

(b) Heirs of the husband specified in Class II of the Schedule. This includes: I. II.

Father Son’s daughter’s son (2) son’s daughter’s daughter, (3) brother,(4) sister.

7

S.8, Hindu Succession Act, 1956

III.

(1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.

IV. V. VI.

Brother’s son (2) Sister’s son, (3) brother’s daughter (4) Sister’s daughter. Father’s father. Father’s mother. Father’s widow, brother’s widow.

VII.

Father’s brother, father’s sister.

VIII.

Mother’s father, mother’s sister.

IX.

Mother’s brother, mother’s sister.

References to a brother or sister do not include references to a brother or sister by uterine blood.

(c) Agnates of the husband: i.e. a person who is related to another, by blood or adoption wholly through males8.

(d) Cognates of the husband: i.e. a person who is related to another, by blood or adoption not wholly through males9.

In this Entry Husband means the husband who was a lawfully wedded husband of the Female at the time of her death.

(3) Heirs in the third entry: Mother & Father—it does not include step-mother but includes natural as well as adoptive mother, similarly ,Father does not include step-father or putative father, but it includes natural or adoptive father.

8

S.3(a), Hindu Succession Act, 1956

(4) Heirs in the fourth entry: Heirs of the father of the female dying intestate comes under fourth entry. The heirs of the father are10: (a) Heirs of the husband specified in Class I of the Schedule:

(b) Heirs of the husband specified in Class II of the Schedule.

(c) Agnates of the father

(d) Cognates of the father.

(5) Heirs in the fifth entry: Heirs of the mother of the female dying intestate comes under fifth entry. 9

S.3(c), Hindu Succession Act, 1956

10

S.8, Hindu Succession Act, 1956

Heirs of the intestate under special circumstances (S.15 (2))

In certain extra-ordinary circumstances that has been mentioned in s.15(2) of the Hindu Succession Act, 1956, the preference of heirs as laid down in s.15(1) would undergo a minor change. This being: (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. The Hindu Succession Bill, 1954 as originally introduced in the Rajya Sabha did not contain any clause corresponding to sub-section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The reason given by the Joint Committee is found in Clause 17 of the Bill, which reads as follows:“While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided, properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion of the Joint Committee such a provision would prevent properties passing into

the hands of persons to whom justice would demand they should not pass.” 11 The intent of the Legislature is clear that the property, if originally belonged to the parents of the deceased female, should go to the legal heirs of the father. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property.12 The object of section 15(2) is to ensure that the property left by a Hindu female does not lose the real source from where the deceased female had inherited the property If such property is allowed to be drifted away from the source through which the deceased female has actually inherited the property, the object of section 15(2) will be defeated. 13 So also under clause (b) of sub-section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law, shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. The fact that a female Hindu originally had a limited right and later, acquired the full right, would not, in any way, alter the rules of succession14.

11

207th Report of the Law Commission of India, Page 16 para 3.3 as seen in http://lawcommissionofindia.nic.in/reports/report207.pdf

Order of succession

The order of succession among the heirs referred to in section 15 is to take place according to the following rules laid down in section 16 of the Hindu Succession Act, 1956, namely:-

12

Bhagat Ram v. Teja Singh, AIR 2002 SC 1.

13

Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.

a.

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 including in the same entry shall take simultaneously.

b.

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’ 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.

c. 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.

14

Bhagat Ram v. Teja Singh, AIR 2002 SC 1

Moreover, by virtue of S.18 of the Hindu Succession Act, 1956, Heirs related to the intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect. According to section 25, a person who commits murder or abets the commission of murder shall be disqualified from inheriting the properties of the deceased.

Law commission recommendations The 174th Report of the Law Commission of India had also examined the subject of “Property Rights of Women: Proposed Reforms under the Hindu Law” and after eliciting views from the public had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions. The 174th Report had explained the position thus:“Again the patrilineal assumptions of a dominant male ideology are clearly reflected in the laws governing a Hindu female who dies intestate. The law in her case is markedly different from those governing Hindu males. The property is to devolve first to her children and husband; secondly, to her husband’s heirs; thirdly to her father’s heirs, and lastly to her mother’s heirs. The provision of section 15(2) of HAS is indicative again of a tilt towards the male as it provides that any property she inherited from her father or mother should devolve, in the absence of any children, to her father’s heirs and similarly, any property she inherited from her husband or father-in-law, to her husband’s heirs. These provisions depict that property continues to be inherited through the male line from which it came either back to her father’s family or to her husband’s family15. 15

The case of a female dying intestate leaving her self-acquired property with no heirs was taken up for consideration by the law Commission suo motu in its 207 th report in view of vast changes in the social scene over the years. The law commission in its 207th report considered this situation as a grey area in the Hindu Succession Act, 1956. According to the Law commission, the Section (S.15 Hindu Succession Act, 1956) does not differentiate between the property inherited and selfacquired property of a Hindu female it only prescribes that if a property is inherited from husband or father-in-law, it would go to her husband’s heirs and if the property is inherited from her father or mother, in that case, the property would not go to her husband’s but to the heirs of the father and mother16.

174th Report of the Law Commission of India, Page 32 para 2.5 as seen in http://www.lawcommissionofindia.nic.in/kerala.htm

16

207th Report of the Law Commission of India, Page 16 para 4.1 as seen in http://lawcommissionofindia.nic.in/reports/report207.pdf

The commission also pointed out that the Section (s.15 Hindu Succession Act, 1956), has not clearly enumerated and considered about succession of a female Hindu property where it is selfacquired. Or to put it this way, the Legislators did not contemplate that Hindu females would be in later years would be having self-acquired property and in certain cases where her heirs in the first category fail, the property would devolve totally upon her husband’s heirs who may be very remotely related as the compared to her own father’s heirs 17. As a result, in case of the selfacquired property of a Hindu married female dying intestate, her property devolves on her husband’s heirs. Her paternal and maternal heirs do not inherit but the distant relations of her husband would inherit as her husband’s heirs18.

17

207th Report of the Law Commission of India, Page 16 para 4.2 as seen in http://lawcommissionofindia.nic.in/reports/report207.pdf

The report goes on to point out that the subdivision of the schemes of succession in case of female intestate is outdated and irrational. The heirs are not described as brother, sister, her brother-in-law etc., but as heirs of her parents and heirs of her husband. She is perceived as having no identity of her own.19 It was rightly pointed out by the commission that most married women would prefer that their parents should be the more preferred heirs to inherit her property if her children etc. and husband are not alive. She would also prefer that her sister and brother have a better right to inherit her property than her brother-in-law and sister-in-law20. Considering the various aspects associated with the rules of succession to the property of female Hindu dying intestate, the law commission in its 207 th report was of the opinion that it will be quite justified if equal right is given to her parental heirs along with her husband’s heirs to inherit her property21. A proposal was put forward by the law commission demanding that Section 15 should be amended so that in case a female Hindu dies intestate leaving her self-acquired property with no 18

207th Report of the Law Commission of India, Page 16 para 4.4 as seen in http://lawcommissionofindia.nic.in/reports/report207.pdf

heirs, as mentioned in clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side. The proposed amendment is as follows: In Section 15 of Hindu Succession Act, 1956, 1956, 15 (2) (c) be added.

“(c) if a female Hindu leaves any self-acquired 19

207th Report of the Law Commission of India, Page 16 para 5.5 as seen in http://lawcommissionofindia.nic.in/reports/report207.pdf

20

207th Report of the Law Commission of India, Page 16 para 5.6 as seen in http://lawcommissionofindia.nic.in/reports/report207.pdf

property, in the absence of husband and any son or daughter of the deceased (including the children of any pre-deceased son or daughter), the said property would devolve not upon heirs as mentioned in sub Section (1) in the chronology, but the heirs in category (b)+(c) would inherit simultaneously. If she has no heirs in category (c), then heirs in category (b) + (d) would inherit simultaneously.”22 Thereby bringing about a scheme wherein equal right is given to the parental heirs of the female intestate along with her husband’s heirs to inherit her property.

21

207th Report of the Law Commission of India, Page 16 para 6.1 as seen in http://lawcommissionofindia.nic.in/reports/report207.pdf

Conclusion The general order of succession under the Hindu Succession Act, 1956 reflects gender bias. The provisions of the Hindu Succession Act, 1956 provide for two entirely different schemes of succession on grounds of the sex of the intestate create a distinction between the male and female intestates. There is a further divergence in case of female intestates linked with the source of the property that is the subject matter of inheritance. Under these circumstances, it would be necessary to take note of the issues highlighted by the law commission in its 207 th report to bring about a change in the concept of Hindu Succession to get rid of the grey area associated with the inheritance of the self-acquired properties of a female Hindu dying intestate and also to undertake a study to bring about a sense of equality, bringing out a uniform scheme for succession without racial discrimination under the Hindu Succession Act, 1956.

22

207th Report of the Law Commission of India, Page 16 para 7.1 as seen in http://lawcommissionofindia.nic.in/reports/report207.pdf