Advaith Govind-829-female hindu dying intestate.docx

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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..................................................................................

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

gi/ing 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 inde0ted to (ord Almighty for his

0lessings to 0ring out my 0est.



RULES OF INTESTATE

SUCCESSION TO THE PROPERTY

OF A FEMALE HINDU

Introdct!on

1he great ancient lawgi/ers ,anu and audhyana had descri0ed the good woman as a

profoundly non3autonomous self+ ruled 0y father in childhood+ 0y hus0and in youth+ 0y son in

old age. In the #%th century de0ates+ on the contrary+ she came to 0e re3en/isaged as a person

with a core of in/iolate autonomy+ possessing a cluster of entitlements and immunities+ e/en

when the family+ the community or religion refused to accept them. 1he demand for the new

laws stemmed from an understanding a0out Indian a necessary+ autonomous core of female

personhood that the state must underwrite.

4nder the Hindu law in operation prior to the coming into force of the Act+ a woman5s ownership

of property was hedged in 0y certain delimitations on her right of disposal and also on her

testamentary power in respect of that property. Doctrinal di/ersity e*isted on that su0ject.

Di/ergent authorities only added to the difficulties surrounding the meaning of a term to which it

sought to gi/e technical significance. 6omen were supposed to+ it was held and 0elie/ed+ not

ha/e power of a0solute alienation of property. 1he restrictions imposed 0y the Hindu law on the

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

widow. 1hey also depended upon the source and nature of property. 1hought there were some

fragmented legislation upon the su0ject "regard 0eing made to the Hindu 6oman5s 7ight to

Property Act+ #%8$+ 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.



1he 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+ #%!:. 1hese Acts 0rought re/olutionary changes in the law relating to Hindus

0y codifying the law relating to marriage+ succession+ adoption etc. 1he Hindu Succession Act+

#%!: made a re/olutionary change in the law relating to succession especially for female Hindus.

For the first time+ a Hindu female could 0ecome an a0solute owner of property#. She could

inherit e9ually with a male counter3part and a widow was also gi/en importance regarding

succession of her hus0and5s property as also to her father5s property.2 1he 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 #< 0rought su0stantial change+ thus+ upon the aspect of a right of a

Hindu female o/er her property and there0y settled the conflict.

An =intestate>+ according to s. "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

capa0le 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. 1here are also rules set out in

Section #: of the Hindu Succession Act+ #%!: which ha/e to 0e read along with Section #! of the

Act.

/

Ibid



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

Su03section "#$ of Section #! di/ides heirs of a Hindu female into fi/e categories "?ntries$. 1he

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 go/ernment 0y escheat<.

"#$ Heirs in the first entry@

"a$ Sons.

"0$ Daughters.

"c$ )hildren of pre3deceased son.

"d$ )hildren of pre3deceased daughter.

"e$ Hus0and.

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. 1hey include son and daughter 0y natural 0irth+ legitimate or illegitimate!B

posthumous children+ and adopted children. (egitimate children may 0e 0y one hus0and

or more than one hus0and. )hildren of /oid and /oida0le marriages are also included.

Howe/er+ step3children are not included in the e*pressions+ son and daughter+ though it is

possi0le for a stepson or daughter to succeed to her property in the second entry as an

heir of her hus0and.

&r$ndc#!ldren'1he sons and daughters of a predeceased son will include only

legitimate children 0y natural 0irth or 0y adoption. Illegitimate children are e*cluded.

1he term =children5 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 /oida0le will not 0e included if the

marriage has 0een annulled. It is 0ecause S. #:"$+ Hindu ,arriage Act pro/ides that such

children can inherit the property of their parents alone.CCCCCCCCCC

#

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



.

1his applies to the children of the predeceased daughter also+ with this e*ception that her

illegitimate children will 0e entitled to inherit as under Section "j$: of the Hindu

Succession Act+ #%!:+ illegitimate children are related to the mother i.e. they are the

children of the mother. 4nder this entry sons and daughters of a predeceased daughter

and predeceased son inherit as the representati/e of their mother or father as the case may

0e.

Hs($nd Hus0and means the hus0and who was a lawfully wedded hus0and of the

Female at the time of her death. 1hus+ a di/orced hus0and is not included. Similarly+ the

hus0and of a /oid marriage or of an annulled /oida0le marriage is also not included.

"2$ Heirs in the Second entry@ Heirs of the hus0and of the female dying intestate come under

second entry. 1he heirs of the hus0and 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 hus0and specified in )lass I of the Schedule@

1his includes Son+ daughter+ widow+ mother+ son of a pre3deceased son+ daughter

of a pre3deceased son+ son of a pre3deceased daughter+ duaghter of a pre3deceased

daughter+ widow of a pre3deceased son+ son of pre3deceased son of a pre3deceased

son+ daughter of a pre3deceased son of a pre3deceased son+ widow of a pre3

deceased son of a pre3deceased son.

7eferences to a 0rother or sister do not include references to a 0rother or sister 0y uterine

0lood.

"0$ Heirs of the hus0and specified in )lass II of the Schedule.

1his includes@

I. Father

II. Son5s daughter5s son "2$ son5s daughter5s daughter+ "$ 0rother+"<$ sister.

&

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



III. "#$ Daughter5s son5s son+ "2$ daughter5s son5s daughter+ "$ daughter5s

daughter5s son+ "<$ daughter5s daughter5s daughter.

I. rother5s son "2$ Sister5s son+ "$ 0rother5s daughter "<$ Sister5s daughter.

. Father5s father. Father5s mother.

I. Father5s widow+ 0rother5s widow.

II. Father5s 0rother+ father5s sister.

III. ,other5s father+ mother5s sister.

IE. ,other5s 0rother+ mother5s sister.

7eferences to a 0rother or sister do not include references to a 0rother or sister 0y uterine

0lood.



"c$ Agnates of the hus0and@ i.e. a person who is related to another+ 0y 0lood or adoption

wholly through males.

"d$ )ognates of the hus0and@ i.e. a person who is related to another+ 0y 0lood or adoption

not wholly through males%.

In this ?ntry Hus0and means the hus0and who was a lawfully wedded hus0and of the Female at

the time of her death.

"$ Heirs in the third entry@ ,other G Fatherit does not include step3mother 0ut includes

natural as well as adopti/e mother+ similarly +Father does not include step3father or putati/e

father+ 0ut it includes natural or adopti/e 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. 1he heirs of the father are#'@

"a$ Heirs of the hus0and specified in )lass I of the Schedule@

"0$ Heirs of the hus0and 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*tra3ordinary circumstances that has 0een mentioned in s.#!"2$ of the Hindu

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

change. 1his 0eing@

"a$ any property inherited 0y a female Hindu from her father or mother shall

de/ol/e+ in the a0sence of any son or daughter of the deceased "including the children of

any pre3deceased son or daughter$ not upon the other heirs referred to in su03section "#$

in the order specified therein+ 0ut upon the heirs of the father+ and

"0$ Any property inherited 0y a female Hindu from her hus0and or from her

father3in3law shall de/ol/e+ in the a0sence of any son or daughter of the deceased

"including the children of any pre3deceased son or daughter$ not upon the other heirs

referred to in su03section "#$ in the order specified therein+ 0ut upon the heirs of the

hus0and.

1he Hindu Succession ill+ #%!< as originally introduced in the 7ajya Sa0ha did not contain any

clause corresponding to su03section "2$ of Section #!. It came to 0e incorporated on the

recommendations of the oint )ommittee of the two Houses of Parliament. 1he reason gi/en 0y

the oint )ommittee is found in )lause #8 of the ill+ which reads as follows@3

=6hile re/ising the order of succession among the heirs to a Hindu female+ the oint

)ommittee ha/e pro/ided+ properties inherited 0y her from her father re/erts to the

family of the father in the a0sence of issue and similarly property inherited from her

hus0and or father3in3law re/erts to the heirs of the hus0and in the a0sence of issue. In the

opinion of the oint )ommittee such a pro/ision would pre/ent properties passing into



the hands of persons to whom justice would demand they should not pass.>##

1he intent of the (egislature is clear that the property+ if originally 0elonged 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 0y the female+ which is more important for the purpose of de/olution of

her property.#2 1he o0ject of section #!"2$ is to ensure that the property left 0y a Hindu female

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

property is allowed to 0e drifted away from the source through which the deceased female has

actually inherited the property+ the o0ject of section #!"2$ will 0e defeated.# So also under clause

"0$ of su03section "2$ of Section #!+ the property inherited 0y a female Hindu from her hus0and

or her father3in3law+ shall also under similar circumstances+ de/ol/e upon the heirs of the

hus0and. It is the source from which the property was inherited 0y the female+ which is more

important for the purpose of de/olution of her property. 1he 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

1he 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@3

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 su03section "#$ of section #!+ those in one entry shall 0e

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

take simultaneously.

0. If any son or daughter of the intestate had pre3deceased the intestate lea/ing his or her

own children ali/e at the time of the intestate5 death+ the children of such son or daughter

shall take 0etween them the share which such son or daughter would ha/e taken if li/ing

at the intestate5s death.

c. 1he de/olution of the property of the intestate on the heirs referred to in clauses "0$+ "d$

and "e$ of su03section "#$ and in su03section "2$ to section #! shall 0e in the same order

and according to the same rules as would ha/e applied if the property had 0een the

father5s or the mother5s or the hus0and5s as the case may 0e+ and such person had died

intestate in respect thereof immediately after the intestate5s death.

14

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



,oreo/er+ 0y /irtue of S.# of the Hindu Succession Act+ #%!:+ Heirs related to the intestate 0y

full 0lood shall 0e preferred to heirs related 0y half 0lood+ if the nature of the relationship is the

same in e/ery other respect.

According to section 2!+ a person who commits murder or a0ets the commission of murder shall

0e dis9ualified from inheriting the properties of the deceased.

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

1he #8<th 7eport of the (aw )ommission of India had also e*amined the su0ject of =Property

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

pu0lic had noted that the rules of de/olution of the property of a female who dies intestate

reflects patriarchal assumptions. 1he #8<th 7eport had e*plained the position thus@3

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

the laws go/erning a Hindu female who dies intestate. 1he law in her case is markedly

different from those go/erning Hindu males. 1he property is to de/ol/e first to her

children and hus0andB secondly+ to her hus0and5s heirsB thirdly to her father5s heirs+ and

lastly to her mother5s heirs. 1he pro/ision of section #!"2$ of HAS is indicati/e again of a

tilt towards the male as it pro/ides that any property she inherited from her father or

mother should de/ol/e+ in the a0sence of any children+ to her father5s heirs and similarly+

any property she inherited from her hus0and or father3in3law+ to her hus0and5s heirs.

1hese pro/isions depict that property continues to 0e inherited through the male line from

which it came either 0ack to her father5s family or to her hus0and5s family#!.

1#



1he case of a female dying intestate lea/ing her self3ac9uired property with no heirs was taken

up for consideration 0y the law )ommission suo motu in its 2'8 th report in /iew of /ast changes

in the social scene o/er the years. 1he 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 0etween the property inherited and self3

ac9uired property of a Hindu female it only prescri0es that if a property is inherited from

hus0and or father3in3law+ it would go to her hus0and5s heirs and if the property is inherited from

her father or mother+ in that case+ the property would not go to her hus0and5s 0ut 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




1he commission also pointed out that the Section "s.#! Hindu Succession Act+ #%!:$+ has not

clearly enumerated and considered a0out succession of a female Hindu property where it is self3

ac9uired. &r to put it this way+ the (egislators did not contemplate that Hindu females would 0e

in later years would 0e ha/ing self3ac9uired property and in certain cases where her heirs in the

first category fail+ the property would de/ol/e totally upon her hus0and5s heirs who may 0e /ery

remotely related as the compared to her own father5s heirs#8. As a result+ in case of the self3

ac9uired property of a Hindu married female dying intestate+ her property de/ol/es on her

hus0and5s heirs. Her paternal and maternal heirs do not inherit 0ut the distant relations of her

hus0and would inherit as her hus0and5s heirs#.

1&

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






1he report goes on to point out that the su0di/ision of the schemes of succession in case of

female intestate is outdated and irrational. 1he heirs are not descri0ed as 0rother+ sister+ her

0rother3in3law etc.+ 0ut as heirs of her parents and heirs of her hus0and. She is percei/ed as

ha/ing no identity of her own.#%

It was rightly pointed out 0y the commission that most married women would prefer that their

parents should 0e the more preferred heirs to inherit her property if her children etc. and hus0and

are not ali/e. She would also prefer that her sister and 0rother ha/e a 0etter right to inherit her

property than her 0rother3in3law and sister3in3law2'.

)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 0e

9uite justified if e9ual right is gi/en to her parental heirs along with her hus0and5s heirs to inherit

her property2#.

A proposal was put forward 0y the law commission demanding that Section #! should 0e

amended so that in case a female Hindu dies intestate lea/ing her self3ac9uired 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 a5 of Section #!+ the property should de/ol/e on her hus0and5s

heirs and also on the heirs of her paternal side. 1he proposed amendment is as follows@ In

Section #! of Hindu Succession Act+ #%!:+ #%!:+ #! "2$ "c$ 0e added.

="c$ if a female Hindu lea/es any self3ac9uired

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 a0sence of hus0and and any son

or daughter of the deceased "including the

children of any pre3deceased son or daughter$+

the said property would de/ol/e not upon heirs

as mentioned in su0 Section "#$ in the

chronology+ 0ut the heirs in category "0$J"c$

would inherit simultaneously. If she has no

heirs in category "c$+ then heirs in category "0$ J

"d$ would inherit simultaneously.>22

1here0y 0ringing a0out a scheme wherein e9ual right is gi/en to the parental heirs of the female

intestate along with her hus0and5s 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

1he general order of succession under the Hindu Succession Act+ #%!: reflects gender 0ias. 1he

pro/isions of the Hindu Succession Act+ #%!: pro/ide for two entirely different schemes of

succession on grounds of the se* of the intestate create a distinction 0etween the male and female

intestates. 1here is a further di/ergence in case of female intestates linked with the source of the

property that is the su0ject matter of inheritance. 4nder these circumstances+ it would 0e

necessary to take note of the issues highlighted 0y the law commission in its 2'8 th report to 0ring

a0out a change in the concept of Hindu Succession to get rid of the grey area associated with the

inheritance of the self3ac9uired properties of a female Hindu dying intestate and also to

undertake a study to 0ring a0out a sense of e9uality+ 0ringing 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




Advaith Govind-829-female hindu dying intestate.docx

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