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Difference In Succession Of Hindu Male Dying Intestate And Hindu Female Dying Intestate

The Hindu Succession Act, 1956 marked a new era in the history of social legislation in India. A vigorous attempt has been made by this act to bring in some reforms of far-reaching consequences in the system of inheritance and succession. The law in this respect needed some revolutionizing changes as to recognize the long felt right of inheritance of Hindu females at par with males.

The above-mentioned act has been passed to meet the needs of the progressive society. It removes inequalities between men and women with respect to rights in property and it evolves a list of heirs entitled to succeed on intestacy based on natural love and affection rather than on religious efficacy. This law has been passed to codify and amend the Hindu Law regarding succession.

The Hindu Succession (Amendment) Act, 2005 has effected a change of far-reaching importance in the concept of Mitakshara coparcenary. By this amending act, daughter of a Mitakshara coparcener has made a coparcener in Mitakshara joint family with same rights and obligations that a male coparcener has and she is now entitled to dispose of her interest in Mitakshara coparcenary property by will.

The devolution of interest of a Mitakshara coparcener in the joint Hindu family property has been done away with this amending act. Moreover, Sections 4(2), 23 and 24 of the Hindu Succession Act, 1956 have been omitted by the Amending Act.

Succession to the property of a male dying intestate
  • Class-I-heirs:
    1. Mother
    2. Widow
    3. Daughter
    4. Son
    5. Widow of predeceased son
    6. Son of predeceased son
    7. Daughter of predeceased son
    8. Widow of predeceased son of a predeceased son
    9. Daughter of a predeceased son of a predeceased son
    10. Son of a predeceased son of a predeceased son
    11. Daughter of a predeceased daughter
    12. Son of a predeceased daughter
    13. Son of a predeceased daughter of a predeceased daughter
    14. Daughter of a predeceased daughter of a predeceased daughter
    15. Daughter of a predeceased son of a predeceased daughter
    16. Daughter of a predeceased daughter of a predeceased son

      Son, Son's Son and Son's Son's Son:-Son means a legitimate son which could be an aurasa[1] or dattaka[2]. The dattaka takes an equal share with the aurasa. An illegitimate child is not entitled to inherit.[3]

      A posthumous son under section 20 also has the same right of inheritance as if he was already born when the male died. Under the Act, the sons born after the partition and the divided sons inherit with the other sons.

      A stepson is not included.
      A son born out of a voidable marriage is legitimate and has right to inherit but a son born out of void marriage or annulled voidable marriage has rights of inheritance only from the father.[4]

      Daughter, Son's Daughter, Son's Son's Daughter:-Just as the son, daughter also means legitimate and natural or adopted. Natural and adopted daughters inherit equally. An illegitimate daughter cannot inherit.[5]

      A daughter also includes a posthumous daughter but not a stepdaughter. The position of the stepdaughters under void and voidable marriage is same as that of sons.

      Daughter's son and Daughter's daughter:-Both natural born and adopted children of a predeceased daughter are included. Section 3(j) says illegitimate children shall be deemed to be related to their mother and one another which means that illegitimate daughters and sons are also included.

      Merely because the daughter was given a gift at the time of the marriage, her claim to her father's estate cannot be defeated.[6]

      Widow, Son's Widow, Son's Son's Widow:-If a male dies leaving behind only his widow after coming into force of the act, she would be the sole heir and would inherit absolutely.[7]
      If the marriage was void, then the said wife won't be considered as the deceased husband's widow and hence, won't have the right of inheritance. Same goes to an annulled voidable marriage. A divorce wife will also not be a widow.

      An unchaste widow can inherit[8]. However, if she remarries, she will not have the right to inherit from the deceased. A son's son's widow who has remarried also cannot inherit.
      Mother:-Mother will always have the right to inherit even if she has been divorced, unchaste or remarried[9]. It is also immaterial if the mother's marriage was void or voidable. Stepmother is not included in the definition of mother.[10]

Class-II-Heirs:
Class II heirs are divided into 9 categories and the heir in an earlier category excludes the heirs in latter categories.
Category-I:
  1. Father:
    Father is the only nearest heir who has found a place in Category I.
Category-II:
  1. Son's daughter's son
  2. Son's daughter's daughter
  3. Brother
  4. Sister
Brother and sister include full-blood and half-blood. The rule is that when there are any siblings by full-blood, the siblings by half-blood are excluded and when there are no siblings by full-blood, then half-blood inherits.[11]

Siblings related by uterine-blood are excluded.[12] If the deceased and his siblings are illegitimate children of their mother, such siblings are heirs to him.[13] All heirs in this category inherit per capita.[14]

Category-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
All heirs in this category inherit per capita.

Category-IV:
  1. Brother's son
  2. Brother's daughter
  3. Sister's son
  4. Sister's daughter
Under this category, the children of siblings can be full-blood or half-blood however, uterine-blood is excluded. Children of siblings by full-blood are preferred over half-blood.

Category-V:
  1. Father's father
  2. Father's mother
These do not include step-grandfather or step-grandmother. If they are adoptive parents of father they will be included.

Category-VI:
  1. Father's widow
  2. Brother's widow
Father's widow means stepmother. She is the only step relation included among the heirs. Even if she remarried, she will still inherit. However, a brother's widow cannot succeed if she had remarried.

Category-VII:
  1. Father's brother
  2. Father's sister
Father's brother and father's sister may be full-blood or half-blood, but, full-blood is given the preference over half-blood. Uterine-blood is excluded and adoption is included.

Category-VIII:
  1. Mother's father
  2. Mother's mother
Here, both the parties take per capita.

Category-IX:
  1. Mother's brother
  2. Mother's sister
    They can be by natural birth or by adoption and both take per capita.
     
  3. Agnates:
    Descendent agnates:-S,SS,SSS,SSSD,SSSS of a person are descendent agnates. S, SS and SSS are in class I and rest are in class II
    Ascendent agnates:-FFM and FFF are the nearest agnate descendants after F and FF.
    Collateral agnates:-Collaterals are descendants in parallel lines, either on maternal or paternal sides.
     
  4. Cognates:
    They are classified similarly as agnates as descendant cognates, ascendant cognates and collateral cognates. The uterine brother and uterine sister are nearest collateral cognates.
     
  5. Government:
    The government takes the property if male dies without any relation.
Succession to the property of a Hindu female dying intestate
Entry(a): In entry a there are the following heirs:
  1. Son
  2. Daughter
  3. Husband
  4. Son and daughter of a predeceased son
  5. Son and daughter of a predeceased daughter
Sons and daughters:
These include sons and daughters by natural birth, legitimate or illegitimate,[15] as well as adopted children. Children of void and voidable marriages are also included. However, stepchildren[16] are not included in entry (a).

Grandchildren:
These include legitimate grandchildren only, either natural born or adopted. Children of a son whose marriage is void or annulled are not included. This is because Section 16(3) of the Hindu Marriage act provides that these children can inherit property of their parents alone.

Husband:
Husband means the husband who was lawfully wedded at the time of the female's death. Thus, a divorced husband is not included. A husband of a void or voidable annulled marriage is also not included.

Shares of heirs in entry(a):
The heirs of Entry (a) inherit the property simultaneously. From Section 16, Rule I and Rule II we may deduce the following:
  1. Son, daughter and husband each take one share.
  2. Among the heirs of branches of predeceased son and predeceased daughter, the doctrine of representation applies, i.e., the children of predeceased daughter and predeceased son take the same share which the daughter or son would have taken had she or he been alive.
  3. Among heirs of a branch, they take per capita.

Entry (b):
On the failures in entry (a), the property will devolve on the heirs of entry (b) which runs as under Upon the heirs of husband, this means that the property will devolve as if it is the property of the husband. Since the property is deemed to be that of her husband, the inheritance will be determined by the scheme laid down in the Act relating to succession to the property of a Hindu male.[17]

In simple words, the order of succession will be first to Class-I heirs--- Class-II heirs---agnates---cognates[18]---entry(c); in that order.

Entry (c):
In this entry there are only two heirs, i.e., father and mother. This includes natural or adopted parents but not stepfather or stepmother. Both take per capita.

Entry (d):
The devolution of property here will take place assuming that the property is of the father.

Entry (e):
The devolution of property here will take place assuming that the property is of the mother.

Property Inherited from parents:
Category-I:
Sons, Daughters, children of predeceased children.

In this category, the husband is not an heir.[19]

Category-II:-Upon heirs of father.[20] In this, the property devolves upon the heirs of the father. Where property was inherited by the deceased female Hindu from her mother in the absence of her own children, it would devolve on her sister and not brother of her predeceased husband.[21]

Property inherited from husband or father in law:-In this case, property falls into two categories.[22]

Category-I:
Sons, daughters, children of predeceased children.

Cateogry-II:
Upon the heirs of husband, i.e., Hindu male

Government:
Just as in case of a Hindu male, if the female dies leaving no relation, the government takes her property. It is essential that she should not have any heir under both sub-sections of Section 15.[23]

Conclusion
The Hindu Succession Act, 1956 was enacted when woman hardly went out to work and the society was more patriarchal than what it is today. But, in the past few years there has been a vast change and women have made progress in various spheres of life. While enacting the act, the legislators probably did not foresee the fact that one day women might earn their own property with their own skill.

Accordingly, section 15(1) of the act should be modified to ensure that the general order of succession does not place a woman's husband's heir above those who belong to her natal family, like her father, mother, siblings, etc. When a man dies, his wife's family is not even in the order of succession despite the manner in which he may have acquired property. Hence, I believe that the rules of succession for the female should be same as the men and furthermore it would create less confusion also will be easier to understand.

Finally, I would just like to conclude by saying that the laws and rules of succession and inheritance for both male and female should be equal and similar to both and keeping different laws would also violate article 14 and 15 as there cannot be any reasonable classification amongst a man and a woman in today's world. This is a progressive society and transformative constitutionalism should be applied in this aspect and some of the provisions of the Hindu Succession Act, 1956 should be amended in such a way that it brings about equality, equity and justice amongst all classes of men and women in the society.

End-Notes:
  1. Natural born.
  2. Adopted.
  3. Daddo v. Raghunath-AIR-1979-Bom-176.
  4. Section 16 of Hindu-Marriage-Act-1955, Laxmibai v. Limbabai-AIR-1983-Bom-222; Rameshwari Devi v. State of Bihar-AIR-2000-SC-735; Smt. Nagarathaurai v. Venkatalasshmamman-AIR-2000-Kant-181.
  5. Vithal Bhai v. Bhana Bai-AIR-1994-SC-481
  6. Meenakshamma v. M.C. Nandjunappa-AIR-1993-Kant-12.
  7. Sadhu Singh v. Gurudwara Sahib Narike-AIR-2006-SC-3282
  8. Jayalakshmi v. Ganevesa-(1972)-2-MLJ-50.
  9. Gurudul Singh v. Darshan Singh-AIR-1973-P&H-362
  10. Satyanarain v. Rameshwar-AIR-1982-Pat-44.
  11. Waman Govind v. Gopal Baburao-AIR-1984-Bom-208-(FB)
  12. K. Raj v. Muthumma-AIR-2001-SC-1720
  13. Kumara v. Kunjulakshmi-AIR-1972-Ker-66
  14. T. Naicker v. Kappamma-AIR-1973-Mad-274
  15. Gurbachan v. Khichar Singh-AIR-1971-Punj-240; Narayani v. Govinda-AIR-1975-Mad-275
  16. Malappa v. Shivappa-AIR-1962-Mys-122; Namdeo v. State of Maharashtra-1981-Mah LJ-25
  17. Amer Kaur v. Raman Kumari-AIR-1985-P&H-86; Roshan Lal v. Dalipa AIR 1985 HP 8
  18. Krishna v, Nisamani AIR-1987-Ori-105
  19. Raghuwan v. Janki Prasad-AIR-1987-MP-39
  20. Mahadevappa v. Gauraman-AIR-1973-Mys-142
  21. Bhagat Ram v. Teja Singh-AIR-2002-SC-1
  22. Baiya v. Gopikabai-AIR-1978-SC-793
  23. State of Punjab v. Balwant Singh-AIR-1991-SC-1581
Written By: Sumedh Patil - Student of MITWPU Faculty of Law

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