General Rules of Succession of a Hindu Female

This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi. This article focuses on the general rules of succession of a Hindu Female.

INTRODUCTION

There are mainly two schools of Hindu Law: Mitakshara and Dayabhaga. Both schools have different basis of ‘Law of Succession”.

Mitakshara School based its ‘Law of Succession’ on “Principle of Propinquity” means nearer to blood relationship i.e.

Class I Heir,
if there is no member in Class I Heir then Class II Heir,
if no member exists in Class I Heir or Class II Heir then agnate,
if no member found of Class I Heir or Class II Heir or no agnate available then cognates, and
if all of the class are not existing then Government.

In Dayabhaga School, the ‘Law of Succession’ based on the “Principle of spiritual benefit and religious efficiency” means that one who conferred more religious benefits descendant entitled to inheritance in the preference to other who confers a less spiritual benefit.

Now, a question arises whether everyone does succession of their property?

Yes, all people whether male or female does succession of their property. But there is a difference between a person who make a will and who do not make a will. Let’s discuss the meaning of succession. Succession refers to the rules of devolution of property in case a person dies without making a will. Will means a legal declaration of the intention of the testator w.r.t his property which he desires to be carried into effect after his death.

Types of Succession

There are two types of law of succession:

Testamentary Succession- A person who dies after making a will is called a testator. The law of testamentary succession is concerned about how best the effect could be given to the wishes of the testator. Testamentary succession is to devolve one’s property through a will. Section 30, The Hindu Succession Act, 1956 defines testamentary succession, “ any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provision of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.
Intestate Succession- A person who dies intestate i.e. who dies without making a will.

Section 3(g), The Hindu Succession Act, 1956 defines intestate, “a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect”.

Hindu Succession Act, 1956 (‘HSA, 1956’, ‘the Act’) lays down a uniform law of succession for all the Hindus. It only deals with intestate succession among the Hindus. But there are some exceptions when HSA, 1956 is not applicable. The following exceptions are:

When Hindu marries under the Special Marriage Act to a non- Hindu.
When Hindu converts into another Non- Hindu religion.

Now, a question arises that who has the right over a woman’s property after she dies?

The right over a woman’s property after she dies intestate depends on the condition whether the woman is married or not, whether the property is inherited or self -acquired. To get a clear explanation of the above-stated question, let’s first discuss section 14, 15 and 16 of the Hindu Succession Act, 1956.

Section 14 in The Hindu Succession Act, 1956

14. Property of a female Hindu to be her absolute property-

Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation– In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by a gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever and also any such property held by her as stridhana immediately before the commencement of this Act.

Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

As you all know that Hindu Succession Act, 1956 commenced from 17 June, 1956. This section 14(1) clearly explains that any property whether movable or immovable, if any Hindu female, having the physical control over that property, whether she acquired that property before or after the commencement i.e. before or after the 17 June, 1956. Then, according to this section, the female is considered as full owner of the property not recognized as a limited owner.

The essentials of Section 14, Act,1956:

The female must be Hindu;
The property must be movable or immovable property;
The female must have their physical control over the property;
She must acquire the property before or after the commencement of the Act;
She is considered a full owner of the property, not a limited owner.

The main objective of the section is to protect the interest of a woman and it does not matter when she has acquired that property, it may be before or after the commencement of the Act. She is considered as a full owner not the limited owner of the property. She enjoyed all the rights and liabilities over that property.

Section 15 in The Hindu Succession Act, 1956

15. 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

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.

This section mainly explains the devolution of a woman’s property as per the priority:

If a female dies intestate in 2018, then property pass to her son and daughter (son or daughter also includes the children of pre-deceased son or daughter), and husband.

If son or daughter (including son or daughter of pre-deceased son or daughter) and Husband are not present?

If a situation arises that intestate neither having their son or daughter nor children of pre-deceased son or daughter or husband, then property passed to the heirs of husband.

If the heirs of the husband are not present?

And even if all above stated are not present, then property devolves upon the mother and father of the female.

If the mother and father of the husband are not present?

Then property passed upon the heirs of the father.

And if none of the above are present?

Then property will pass to the heirs of the mother.

If the female inherited any of the property from her father or mother, and there is an absence of any son or daughter of the deceased including the children of pre-deceased son or daughter then devolution of property takes in a specific manner discussed below not according to the sub- section 15(1).

If any female died intestate and inherited their property from her father or mother, no existence of the person mentioned in sec 15(1)(a), then property devolves upon the heirs of the father.

If the female inherited any of the property from her husband or father-in-law, and there is an absence of any son or daughter of the deceased including the children of pre-deceased son or daughter then devolution of property takes in a specific manner discussed below not according to the subsection 15(1).

If any female died intestate and inherited their property from her husband or father-in-law, no existence of the person mentioned in sec 15(1)(a), then property devolves upon the heirs of the husband.

The main objective 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.

The intention 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. So, under section 15(2)(b), the property inherited by a female Hindu from her husband or 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, in any way, would not alter the rules of succession given in section 15(2); Bhagat Ram (D) by L.Rs. v Teja Singh (D) by L.Rs., AIR 2002 SC

Now, a question arises: what is the manner of distribution of the intestate property among heirs of a female Hindu?

To get a clarification of the above-stated question firstly, we have to discuss section 16, Hindu Succession Act, 1956.

Section 16 in The Hindu Succession Act, 1956

16. 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 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.

It is clear that section 15 and 16 are closely related. That section 15 of the Hindu Succession Act, 1956 specifies the order of succession whereas section 16 describes the manner of the distribution of the intestate property among those heirs.

Rule 1 explicitly declares that among the heirs enumerated in entries section 15(a) to (e), those heirs referred to in prior entry are to be preferred to those in any subsequent entry and those included in the same entry are to succeed simultaneously.

Rule 2 states in that in case of the children of the pre- deceased son or daughter, they shall not take per capita with the son and daughter of the intestate but shall take according to per stirpes i.e. the children and the pre- deceased son or daughter shall succeed to the property of the intestate as if the predeceased son or daughter was alive at the time of inheritance.

Rule 3 is applicable only when succession is in terms of entry of section 15 (b), (d) or (e). this rule is invoked when under rule 1, the heir of the husband or the father or the mother are to be ascertained for the purpose of distribution of property.

CONCLUSION

There are two schools of Hindu Law i.e. Mitakshara and Dayabhaga. Both schools are based on different rules of succession, former based on “Law of propinquity” and latter based on “Law of spiritual benefit and religious efficiency”. Both male and female under The Hindu Succession Act, 1956 has a right to succession. There are two types of succession: Testamentary and Intestate Succession. Testamentary succession is to devolve one’s property through will. Testator is a person who dies after making a will whereas an intestate is a person who dies without making a will or other binding declaration. The Hindu Succession Act, 1956 deals only with intestate succession. The Hindu Succession Act, 1956 is not applicable in the following situations: when Hindu converts into non-Hindu religion or when Hindu marries under Special Marriage Act to a non-Hindu.

Latest Posts

Archives