Law on Intestate Succession for Indian females- Rules and order of Succession

 

Synopsis

1. Introduction
2. General rules and order of Succession

III. Other provisions for Succession

1. Introduction

In India, people of different religions are governed by their own personal laws in matters of inheritance, marriage, succession etc. In case of Hindus, intestate succession was governed by Hindu customs and usages before enactment of the Hindu Succession Act, 1956 (hereinafter referred as the “Act“). The Act prescribes the law for intestate succession in case of Hindus. If the person has died intestate i.e. without making a will, the succession of his/her property shall take effect in accordance with the provisions of the Act. The Act clarifies that all Hindu customs or usages governing the subject of intestate succession, before the commencement of the Act, would cease to have effect after coming into force of the Act.

This article discusses the provisions for intestate succession among Hindu females as provided under the Act including the general rules for succession and the order of heirs in which succession has to take effect.

1. General Rules and Order of Succession

Section 3(g) of the Act defines the term “intestate” to mean that a person has died without making any testamentary disposition i.e. a will, in respect of their property, which is capable of taking effect. Section 3(f) defines “heir” as any person entitled to succeed to the property of an intestate as per provisions of the Act.

Sections 14 to 16 of the Act provide the general rules for succession among Hindu females who have died intestate and the order of succession.

Section 14(1) states that any property held by a female Hindu, which had been acquired either before or after commencement of the Act, would be deemed to be held by her as an absolute/full owner and not a limited owner. The explanation to section 14(1) clarifies that the word “property”, used in section 14(1), would include both movable and immovable property acquired by inheritance, partition, in lieu of maintenance, by gift, by own skill or exertion, by purchase or by prescription and would also include Stridhan held by the female. Stridhan denotes the property given to a woman by her family, friends or well-wishers at the time of her marriage as gifts or as a token of love and affection.

Section 15(1) of the Act states that the property of a female Hindu dying intestate would devolve as per the provisions of section 16 in the following order of preference-

• firstly, upon her sons, daughters and husband including the children of any pre-deceased son or daughter;
• secondly, upon her husband’s heirs;
• thirdly, upon her mother and father;
• fourthly, upon her father’s heirs; and,
• lastly, upon her mother’s heirs.

 

In Bhagwan Dass vs. Prabhati Ram and Others, AIR 2004 Del 137, the Delhi High Court held that a step-son of a deceased Hindu female cannot succeed to her estate in preference to the deceased’s husband who would have the right to inherit the entire property if no child (who is not a step child) of the deceased was alive.

 

While section 15(1) specifies the general order of succession of property without considering the source from which it had been acquired, section 15(2) of the Act makes a specific provision for succession of such property which has been inherited by a female Hindu from her mother/father/husband/father-in-law and who has died intestate without leaving any child. It states that if a Hindu female has died intestate without leaving any child, including child of a pre-deceased son or daughter, in that case-

• property inherited by her from her father or mother would devolve upon her father’s heirs and not the other heirs specified under section 15(1) (Section 15(2)(a));
• property inherited by her from her husband or father-in-law would devolve upon her husband’s heirs and not the other heirs specified under section 15(1) (Section 15(2)(b)).

 

Thus, section 15(2) acts as an exception to the general order of succession specified under section 15(1) and comes into play only if the female Hindu has died without leaving any children. The source of the property becomes immaterial if the deceased is succeeded by her children.

 

Section 16 of the Act specifies the order of succession and manner of distribution of property among the heirs specified under section 15(1). It provides the following 3 rules of succession-

 

• Rule 1- among the heirs specified in section 15(1), heirs specified in one entry would be preferred over heirs specified in any succeeding entry and the heirs specified in one entry would take simultaneously.

 

For instance, the first entry of section 15(1) specifies children and husband of the deceased Hindu female while the second entry specifies her husband’s heirs. Thus, under rule 1, if the children of the deceased are alive at time of death, the deceased’s property would not devolve upon the husband’s heirs. Taking simultaneously means getting an equal share so if there is one son, one daughter and the husband living at the time of the intestate’s death, they shall each take 1/3rd share of the property.

 

• Rule 2- If any child of the deceased Hindu female had pre-deceased the intestate leaving behind his or her children at the time of the intestate’s death, the children of such child would be entitled to get the share which their parent/the deceased child would have gotten if he/she had been living at the time of the intestate’s death. In other words, the grandchild is entitled to the share which his/her dead parent would have gotten.

 

• Rule 3- devolution of the property on the heirs referred to in clauses (b), (d) and (e) of section 15(1) and in section 15(2) would be in the same order and according to the same rules which would have applied had the property belonged to the deceased’s father or mother or husband and such person had died intestate, in respect of such property, immediately after the intestate’s death.

III. Other provisions for Succession

While sections 15 and 16 of the Act specify the fundamental rules and order of succession among Hindu female intestates, the other key provisions of the Act which regulate succession are as follows:

• Section 18 states that heirs related by full blood would be preferred over heirs related to the intestate by half blood provided the relationship is same in every other respect.

 

• Section 19 states that two or more heirs succeeding to a particular property would take it on per capita basis and not per stripes. They would inherit it as tenants in common and not as joint tenants.

 

• Section 20 states that a child, who was in the womb, at the time of the intestate’s death would inherit as if he/she had been born before the intestate’s death and the inheritance would be deemed to take effect on the date of death of the intestate.

 

• Section 21 states that for the purpose of succession, a younger person would be deemed to have survived an elder person if both died in such circumstances which make it difficult to ascertain as to who survived whom.

 

In Re: Mahabir Singh, AIR 1963 Punj 66, the Punjab High Court applied section 21 of the Act even to a case of testamentary succession. It held that the testator’s wife, who was younger to him, would be deemed to have outlived the testator by virtue of the presumption given under section 21.

 

• Section 22 deals with preferential right to acquire property. Section 22(1) states that if an heir, specified in class I of the Schedule to the Act, who acquired some interest in any immovable property or business carried on by an intestate, later proposes to transfer such interest in the concerned property or business, the other heirs of the intestate, which are specified in class I of the Schedule, would have a preferential right to acquire the interest proposed to be transferred.

 

The consideration for the proposed transfer is to be decided by the court within whose jurisdiction the concerned immovable property is located or the concerned business is being carried on, as the case maybe (Section 22(2)).

 

In case two or more heirs are willing to acquire the transferred interest, the heir offering the highest consideration for the transfer has to be preferred over other heirs (Section 22(3)).

 

• Section 25 states that a murderer stands disqualified from inheriting the property of any person whom he/she murdered or whose murder he/she abetted and the murderer shall also not inherit any property in furtherance of such succession to which the murder relates.

 

• Section 26 states that children born to a Hindu, who got converted to other religion, after the date of such conversion and the descendants of such children would be disentitled to inherit property of their Hindu relatives unless such children or descendants are Hindus (by re-conversion to Hindu) at the time when the succession opens.

 

• Section 27 states that in a case where a person has been disqualified from inheriting property under the Act, the property would devolve as if such person died before the intestate’s death.

 

• Section 28 states that no person would stand disqualified from inheriting any property under the Act by virtue of any disease, defect or deformity unless prohibited from inheriting by some other provision of the Act.

 

• Section 29 states that if a Hindu intestate has left no heir entitled to succeed to their property, the property would devolve on the government which would inherit it subject to the same rights and obligations which would have applied on a succeeding heir.

 

The aforesaid provisions contained under sections 18 to 29 of the Act uniformly apply to succession in case of both Hindu males and females dying intestate and not only to the case of Hindu females.