female hindu dying intestate (1)

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Intestate Succession

to the Property of a

Female Hindu Dying

Intestate

ADVAITH GOVIND,

Roll No: 829

VI SemesterNUALS.



Contents

Acknowledgement.......................................................................2

Introduction..................................................................................3

Heirs of the intestate under general circumstances......................

Heirs of the intestate under special circumstances !S." !2##......$

%rder of succession...................................................................."&

'aw commission recommendations...........................................""

(onclusion................................................................................."



Acknowledgement

I e)press deep sense of gratitude to my teacher* Asst. Professor +rs. ,amitha.-.' +am for

giing 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 inde/ted to 'ord Almighty for his

/lessings to /ring out my /est.



RULES OF INTESTATE

SUCCESSION TO THE PROPERTY

OF A FEMALE HINDU

Introdct!on

0he great ancient lawgiers +anu and 1audhyana had descri/ed the good woman as a

profoundly nonautonomous self* ruled /y father in childhood* /y hus/and in youth* /y son in

old age. In the "$th century de/ates* on the contrary* she came to /e reenisaged as a person

with a core of iniolate autonomy* possessing a cluster of entitlements and immunities* een

when the family* the community or religion refused to accept them. 0he demand for the new

laws stemmed from an understanding a/out Indian a necessary* autonomous core of female

personhood that the state must underwrite.

nder the Hindu law in operation prior to the coming into force of the Act* a woman4s ownership

of property was hedged in /y certain delimitations on her right of disposal and also on her

testamentary power in respect of that property. Doctrinal diersity e)isted on that su/5ect.

Diergent authorities only added to the difficulties surrounding the meaning of a term to which it

sought to gie technical significance. 6omen were supposed to* it was held and /elieed* not

hae power of a/solute alienation of property. 0he restrictions imposed /y the Hindu law on the

proprietary rights of women depended upon her status as a maiden* as a married woman and as a

widow. 0hey also depended upon the source and nature of property. 0hought there were some

fragmented legislation upon the su/5ect !regard /eing made to the Hindu 6oman4s 7ight to

Property Act* "$38#* the settled law was still short of granting a status to woman where she could

ac9uire* retain and dispose of the property as similar to a Hindu male.



0he Hindu Succession Act* "$:* "$: is a part of the Hindu (ode which includes the Hindu

+arriage Act* "$ Hindu Adoptions and +aintenance Act* "$: and the Hindu +inority and

;uardianship Act* "$:. 0hese Acts /rought reolutionary changes in the law relating to Hindus

/y codifying the law relating to marriage* succession* adoption etc. 0he Hindu Succession Act*

"$: made a reolutionary change in the law relating to succession especially for female Hindus.

For the first time* a Hindu female could /ecome an a/solute owner of property". She could

inherit e9ually with a male counterpart and a widow was also gien importance regarding

succession of her hus/and4s property as also to her father4s property.2 0he Hindu Succession Act*

1 S.14, Hin! S!""ession A"t, 19#$

2

2%&t' Re(ort o) t'e L*+ ommission o) Ini*, *s seen in

'tt(:--l*+"ommissiononi*.ni".in-re(orts-re(ort2%&.()

http://lawcommissionofindia.nic.in/reports/report207.pdf




"$: and particularly Section "< /rought su/stantial change* thus* upon the aspect of a right of a

Hindu female oer her property and there/y settled the conflict.

An =intestate>* according to s.3 !g# of Hindu Succession Act* "$:* is a person who is deemed to

die intestate in respect of property of which he or she has not made a testamentary disposition

capa/le of taking effect.

Section " of the Hindu Succession Act* "$: propounds a definite and uniform scheme of

succession to the property of a female Hindu who dies intestate. 0here are also rules set out in

Section ": of the Hindu Succession Act* "$: which hae to /e read along with Section " of the

Act.3

/

Ibid



He!rs o" t#e !ntest$te nder gener$l c!rcmst$nces

Su/section !"# of Section " diides heirs of a Hindu female into fie categories !?ntries#. 0he

general rule is that heirs in an earlier entry e)clude heirs in latter entries. If there are no heirs in

any of these entries* property of the deceased Hindu female goes to the goernment /y escheat<.

!"# Heirs in the first entry@

!a# Sons.

!/# Daughters.

!c# (hildren of predeceased son.

!d# (hildren of predeceased daughter.

!e# Hus/and.

4

S.2&, Hin! S!""ession A"t, 19#$



Sons % D$g#ters under this entry sons and daughters are used in a ery wide

sense. 0hey include son and daughter /y natural /irth* legitimate or illegitimateB

posthumous children* and adopted children. 'egitimate children may /e /y one hus/and

or more than one hus/and. (hildren of oid and oida/le marriages are also included.

Howeer* stepchildren are not included in the e)pressions* son and daughter* though it is

possi/le for a stepson or daughter to succeed to her property in the second entry as an

heir of her hus/and.

&r$nd'c#!ldren( 0he sons and daughters of a predeceased son will include only

legitimate children /y natural /irth or /y adoption. Illegitimate children are e)cluded.

0he term =children4 does not include children of children* I or stepchildren of the son.

(hildren of a son whose marriage is oid* whether declared oid or not are not included.

Similarly children of a son whose marriage is oida/le will not /e included if the

marriage has /een annulled. It is /ecause S. ":!3#* Hindu +arriage Act proides that such

children can inherit the property of their parents alone.CCCCCCCCCC

#

G!r0*"'*n . 'i"'*r Sin3', AIR 19&1 !n5 24%.



.

0his applies to the children of the predeceased daughter also* with this e)ception that her

illegitimate children will /e entitled to inherit as under Section 3!5#: of the Hindu

Succession Act* "$:* illegitimate children are related to the mother i.e. they are the

children of the mother. nder this entry sons and daughters of a predeceased daughter

and predeceased son inherit as the representatie of their mother or father as the case may

/e.

Hs)$nd Hus/and means the hus/and who was a lawfully wedded hus/and of the

Female at the time of her death. 0hus* a diorced hus/and is not included. Similarly* the

hus/and of a oid marriage or of an annulled oida/le marriage is also not included.

!2# Heirs in the Second entry@ Heirs of the hus/and of the female dying intestate come under

second entry. 0he heirs of the hus/and are8@

$

S./ 657, Hin! S!""ession A"t, 19#$rel*te me*ns rel*te 0; le3itim*te <ins'i(:roie t'*t ille3itim*te "'ilren s'*ll 0e eeme to 0e rel*te to t'eir mot'ers *n to one*not'er, *n t'eir le3itim*te es"en*nts s'*ll 0e eeme to 0e rel*te to t'em *n to one*not'er, *n *n; +or e=(ressin3 rel*tions'i( or enotin3 * rel*tie s'*ll 0e "onstr!e*""orin3l;.



!a# Heirs of the hus/and specified in (lass I of the Schedule@

0his includes Son* daughter* widow* mother* son of a predeceased son* daughter

of a predeceased son* son of a predeceased daughter* duaghter of a predeceased

daughter* widow of a predeceased son* son of predeceased son of a predeceased

son* daughter of a predeceased son of a predeceased son* widow of a pre

deceased son of a predeceased son.

7eferences to a /rother or sister do not include references to a /rother or sister /y uterine

/lood.

!/# Heirs of the hus/and specified in (lass II of the Schedule.

0his includes@

I. Father

II. Son4s daughter4s son !2# son4s daughter4s daughter* !3# /rother*!<# sister.

&

S.8, Hin! S!""ession A"t, 19#$



III. !"# Daughter4s son4s son* !2# daughter4s son4s daughter* !3# daughter4s

daughter4s son* !<# daughter4s daughter4s daughter.

I. 1rother4s son !2# Sister4s son* !3# /rother4s daughter !<# Sister4s daughter.

. Father4s father. Father4s mother.

I. Father4s widow* /rother4s widow.

II. Father4s /rother* father4s sister.

III. +other4s father* mother4s sister.

IE. +other4s /rother* mother4s sister.

7eferences to a /rother or sister do not include references to a /rother or sister /y uterine

/lood.



!c# Agnates of the hus/and@ i.e. a person who is related to another* /y /lood or adoption

wholly through males.

!d# (ognates of the hus/and@ i.e. a person who is related to another* /y /lood or adoption

not wholly through males$.

In this ?ntry Hus/and means the hus/and who was a lawfully wedded hus/and of the Female at

the time of her death.

!3# Heirs in the third entry@ +other G Fatherit does not include stepmother /ut includes

natural as well as adoptie mother* similarly *Father does not include stepfather or putatie

father* /ut it includes natural or adoptie father.

8

S./6*7, Hin! S!""ession A"t, 19#$



!<# Heirs in the fourth entry@ Heirs of the father of the female dying intestate comes under

fourth entry. 0he heirs of the father are"&@

!a# Heirs of the hus/and specified in (lass I of the Schedule@

!/# Heirs of the hus/and specified in (lass II of the Schedule.

!c# Agnates of the father

!d# (ognates of the father.

!# Heirs in the fifth entry@ Heirs of the mother of the female dying intestate comes under fifth

entry.

9

S./6"7, Hin! S!""ession A"t, 19#$



1%

S.8, Hin! S!""ession A"t, 19#$



He!rs o" t#e !ntest$te nder s*ec!$l c!rcmst$nces +S(,- +.//

In certain e)traordinary circumstances that has /een mentioned in s."!2# of the Hindu

Succession Act* "$:* the preference of heirs as laid down in s."!"# would undergo a minor

change. 0his /eing@

!a# any property inherited /y a female Hindu from her father or mother shall

deole* in the a/sence 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 su/section !"#

in the order specified therein* /ut upon the heirs of the father* and

!/# Any property inherited /y a female Hindu from her hus/and or from her

fatherinlaw shall deole* in the a/sence 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 su/section !"# in the order specified therein* /ut upon the heirs of the

hus/and.

0he Hindu Succession 1ill* "$< as originally introduced in the 7a5ya Sa/ha did not contain any

clause corresponding to su/section !2# of Section ". It came to /e incorporated on the

recommendations of the oint (ommittee of the two Houses of Parliament. 0he reason gien /y

the oint (ommittee is found in (lause "8 of the 1ill* which reads as follows@

=6hile reising the order of succession among the heirs to a Hindu female* the oint

(ommittee hae proided* properties inherited /y her from her father reerts to the

family of the father in the a/sence of issue and similarly property inherited from her

hus/and or fatherinlaw reerts to the heirs of the hus/and in the a/sence of issue. In the

opinion of the oint (ommittee such a proision would preent properties passing into



the hands of persons to whom 5ustice would demand they should not pass.>""

0he intent of the 'egislature is clear that the property* if originally /elonged 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 /y the female* which is more important for the purpose of deolution of

her property."2 0he o/5ect of section "!2# is to ensure that the property left /y a Hindu female

does not lose the real source from where the deceased female had inherited the property If such

property is allowed to /e drifted away from the source through which the deceased female has

actually inherited the property* the o/5ect of section "!2# will /e defeated."3 So also under clause

!/# of su/section !2# of Section "* the property inherited /y a female Hindu from her hus/and

or her fatherinlaw* shall also under similar circumstances* deole upon the heirs of the

hus/and. It is the source from which the property was inherited /y the female* which is more

important for the purpose of deolution of her property. 0he fact that a female Hindu originally

had a limited right and later* ac9uired the full right* would not* in any way* alter the rules of

succession"<.

11

2%&t' Re(ort o) t'e L*+ ommission o) Ini*, *3e 1$ (*r* /./ *s seen in






Order o" sccess!on

0he order of succession among the heirs referred to in section " is to take place according to the

following rules laid down in section ": of the Hindu Succession Act* "$:* namely@

12

>'*3*t R*m . Te5* Sin3', AIR 2%%2 S 1.

1/

D'*nist'* *lit* . R*m*<*nt* *lit*, AIR 2%%/ G*! 92.



a. Among the heirs specified in su/section !"# of section "* those in one entry shall /e

preferred to those in any succeeding entry and those including in the same entry shall

take simultaneously.

/. If any son or daughter of the intestate had predeceased the intestate leaing his or her

own children alie at the time of the intestate4 death* the children of such son or daughter

shall take /etween them the share which such son or daughter would hae taken if liing

at the intestate4s death.

c. 0he deolution of the property of the intestate on the heirs referred to in clauses !/#* !d#

and !e# of su/section !"# and in su/section !2# to section " shall /e in the same order

and according to the same rules as would hae applied if the property had /een the

father4s or the mother4s or the hus/and4s as the case may /e* and such person had died

intestate in respect thereof immediately after the intestate4s death.

14

>'*3*t R*m . Te5* Sin3', AIR 2%%2 S 1



+oreoer* /y irtue of S." of the Hindu Succession Act* "$:* Heirs related to the intestate /y

full /lood shall /e preferred to heirs related /y half /lood* if the nature of the relationship is the

same in eery other respect.

According to section 2* a person who commits murder or a/ets the commission of murder shall

/e dis9ualified from inheriting the properties of the deceased.

L$w comm!ss!on recommend$t!ons

0he "8<th 7eport of the 'aw (ommission of India had also e)amined the su/5ect of =Property

7ights of 6omen@ Proposed 7eforms under the Hindu 'aw> and after eliciting iews from the

pu/lic had noted that the rules of deolution of the property of a female who dies intestate

reflects patriarchal assumptions. 0he "8<th 7eport had e)plained the position thus@

=Again the patrilineal assumptions of a dominant male ideology are clearly reflected in

the laws goerning a Hindu female who dies intestate. 0he law in her case is markedly

different from those goerning Hindu males. 0he property is to deole first to her

children and hus/andB secondly* to her hus/and4s heirsB thirdly to her father4s heirs* and

lastly to her mother4s heirs. 0he proision of section "!2# of HAS is indicatie again of a

tilt towards the male as it proides that any property she inherited from her father or

mother should deole* in the a/sence of any children* to her father4s heirs and similarly*

any property she inherited from her hus/and or fatherinlaw* to her hus/and4s heirs.

0hese proisions depict that property continues to /e inherited through the male line from

which it came either /ack to her father4s family or to her hus/and4s family".

1#



0he case of a female dying intestate leaing her selfac9uired property with no heirs was taken

up for consideration /y the law (ommission suo motu in its 2&8 th report in iew of ast changes

in the social scene oer the years. 0he law commission in its 2&8th report considered this situation

as a grey area in the Hindu Succession Act* "$:. According to the 'aw commission* the Section

!S." Hindu Succession Act* "$:# does not differentiate /etween the property inherited and self

ac9uired property of a Hindu female it only prescri/es that if a property is inherited from

hus/and or fatherinlaw* it would go to her hus/and4s heirs and if the property is inherited from

her father or mother* in that case* the property would not go to her hus/and4s /ut to the heirs of

the father and mother ":.

1&4t' Re(ort o) t'e L*+ ommission o) Ini*, *3e /2 (*r* 2.# *s seen in'tt(:--+++.l*+"ommissiononi*.ni".in-<er*l*.'tm

1$

2%&t' Re(ort o) t'e L*+ ommission o) Ini*, *3e 1$ (*r* 4.1 *s seen in


http://www.lawcommissionofindia.nic.in/kerala.htm


http://www.lawcommissionofindia.nic.in/kerala.htm




0he commission also pointed out that the Section !s." Hindu Succession Act* "$:#* has not

clearly enumerated and considered a/out succession of a female Hindu property where it is self

ac9uired. %r to put it this way* the 'egislators did not contemplate that Hindu females would /e

in later years would /e haing selfac9uired property and in certain cases where her heirs in the

first category fail* the property would deole totally upon her hus/and4s heirs who may /e ery

remotely related as the compared to her own father4s heirs"8. As a result* in case of the self

ac9uired property of a Hindu married female dying intestate* her property deoles on her

hus/and4s heirs. Her paternal and maternal heirs do not inherit /ut the distant relations of her

hus/and would inherit as her hus/and4s heirs".

1&

2%&t' Re(ort o) t'e L*+ ommission o) Ini*, *3e 1$ (*r* 4.2 *s seen in






0he report goes on to point out that the su/diision of the schemes of succession in case of

female intestate is outdated and irrational. 0he heirs are not descri/ed as /rother* sister* her

/rotherinlaw etc.* /ut as heirs of her parents and heirs of her hus/and. She is perceied as

haing no identity of her own."$

It was rightly pointed out /y the commission that most married women would prefer that their

parents should /e the more preferred heirs to inherit her property if her children etc. and hus/and

are not alie. She would also prefer that her sister and /rother hae a /etter right to inherit her

property than her /rotherinlaw and sisterinlaw2&.

(onsidering the arious aspects associated with the rules of succession to the property of female

Hindu dying intestate* the law commission in its 2&8 th report was of the opinion that it will /e

9uite 5ustified if e9ual right is gien to her parental heirs along with her hus/and4s heirs to inherit

her property2".

A proposal was put forward /y the law commission demanding that Section " should /e

amended so that in case a female Hindu dies intestate leaing her selfac9uired property with no

18

2%&t' Re(ort o) t'e L*+ ommission o) Ini*, *3e 1$ (*r* 4.4 *s seen in'tt(:--l*+"ommissiononi*.ni".in-re(orts-re(ort2%&.()





heirs* as mentioned in clause a4 of Section "* the property should deole on her hus/and4s

heirs and also on the heirs of her paternal side. 0he proposed amendment is as follows@ In

Section " of Hindu Succession Act* "$:* "$:* " !2# !c# /e added.

=!c# if a female Hindu leaes any selfac9uired

19

2%&t' Re(ort o) t'e L*+ ommission o) Ini*, *3e 1$ (*r* #.# *s seen in'tt(:--l*+"ommissiononi*.ni".in-re(orts-re(ort2%&.()

2%

2%&t' Re(ort o) t'e L*+ ommission o) Ini*, *3e 1$ (*r* #.$ *s seen in'tt(:--l*+"ommissiononi*.ni".in-re(orts-re(ort2%&.()







property* in the a/sence of hus/and and any son

or daughter of the deceased !including the

children of any predeceased son or daughter#*

the said property would deole not upon heirs

as mentioned in su/ Section !"# in the

chronology* /ut the heirs in category !/#J!c#

would inherit simultaneously. If she has no

heirs in category !c#* then heirs in category !/# J

!d# would inherit simultaneously.>22

0here/y /ringing a/out a scheme wherein e9ual right is gien to the parental heirs of the female

intestate along with her hus/and4s heirs to inherit her property.

21

2%&t' Re(ort o) t'e L*+ ommission o) Ini*, *3e 1$ (*r* $.1 *s seen in'tt(:--l*+"ommissiononi*.ni".in-re(orts-re(ort2%&.()





Concls!on

0he general order of succession under the Hindu Succession Act* "$: reflects gender /ias. 0he

proisions of the Hindu Succession Act* "$: proide for two entirely different schemes of

succession on grounds of the se) of the intestate create a distinction /etween the male and female

intestates. 0here is a further diergence in case of female intestates linked with the source of the

property that is the su/5ect matter of inheritance. nder these circumstances* it would /e

necessary to take note of the issues highlighted /y the law commission in its 2&8 th report to /ring

a/out a change in the concept of Hindu Succession to get rid of the grey area associated with the

inheritance of the selfac9uired properties of a female Hindu dying intestate and also to

undertake a study to /ring a/out a sense of e9uality* /ringing out a uniform scheme for

succession without racial discrimination under the Hindu Succession Act* "$:.

22

2%&t' Re(ort o) t'e L*+ ommission o) Ini*, *3e 1$ (*r* &.1 *s seen in




female hindu dying intestate (1)

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