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Analysis Of Rules Of Hindu Male And Female Dying Intestate

The law of succession defines the rules of devolution of property in case a person dies without making a will; these rules provide category of persons and percentage of property that will devolve on each of such persons. Section 8 to 14 and Section 15 to 17 deals with the rules of succession when a male Hindu and female Hindu dies intestate, however even after these rules being there for females, since a very long time the rights of a woman have been curtailed in almost all aspects of her life, from the very basic right which is to possess a property was not enjoyed by a woman in the past. This article tries to explain how the succession laws gave women some rights in the aspects by diluting the existing Hindu laws in the country and also will look after the rules of male Hindu succession.

Category of Hindu Succession

  1. Hindu male dying intestate:

    1. Section 8
      • Sec. 8 groups the legal heirs of male and guides through how a property devolves in absence of a will.
      • The property of a male Hindu dying intestate shall devolve according to the provisions of the Chapter II-firstly Class I heir, if not Class I heir then to Class II heir, if not Class II heir then Agnates, if not Agnates, then Cognates.
         
    2. Section 9
      • Sec. 9 points out the order of succession of the Class I and the Class II heirs.
      • All the Class I heirs succeed simultaneously and there is no question of any preference or any priority among them. However, when there is no Class I heir, the property devolves upon the Class II heirs enumerated in the Schedule in the nine Entries.
      • In Class II heirs those in the first entry shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry and so on.
         
    3. Section 10
      • Sec. 10 mentions the heirs specified under Class I heirs.
      • Rules for the property of an intestate to be divided among the heirs under Class I heir are as follows:
        Rule 1- The intestate's widow or widows all together shall only receive one share.
        Rule2- The surviving son and daughters and the mother of the intestate shall get one share each.
        Rule3- The heirs in the branch of each pre-deceased son which are the widow or widows, surviving sons and daughters gets the share in equal proportion and in the branch of pre-deceased daughter, her sons and daughters shall get the share in equal proportion.
         
    4. Section 11
      • Sec. 11 specifies about the distribution of property among the Class II heirs of the Schedule.
      • The property of an intestate shall be divided between the heirs specified in the first entry of the Class II heirs and then the succeeding ones mentioned after the first entry.
         
    5. Section 12
      • Sec. 12 specifies about the order of succession among Agnates and Cognates.
      • Agnates and Cognates shall be determined in accordance with the rules of preference laid down hereunder:
        Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.
        Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.
        Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously. Thus, Where the heirs are equal in the descent in the same line they take simultaneously.
         
    6. Section 13
      • Sec. 13 lays down the rules for computation of relationship between the intestate and his agnate and cognate heirs.
      • This relationship is traced from the intestate to the heir in terms of degrees of relationship with the intestate as the starting point. There is no discrimination or preference between male and female heirs.
         
    7. Section 14
      • Sec. 14 specifies about the property of a female Hindu to be her absolute property (full owner of the property) and not a limited owner of the property.
         
  2. Hindu female dying Intestate:

    1. Section 15 (1)
      • Sec. 15 specifies about the general rules of succession in case of female Hindus.
        The property of a female Hindu dying intestate shall devolve according to the rules:
        1. Upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
        2. Upon the heirs of the husband;
        3. Upon the mother and father;
        4. Upon the heirs of the father; and
        5. Upon the heirs of the mother.
           
    2. Section 15 (2)
      • The general order of succession laid down in entries (a) to (e) in sub-Section applies to all property of a female intestate however acquired except in case of property inherited by her from her father, mother, husband or father-in-law.
      • In case of a female intestate leaving a son or a daughter or a child of a predeceased son or of a predeceased daughter, that is leaving any issue, all her property, howsoever acquired, devolves on such issue regardless of the source of acquisition of the property and such issue takes the property simultaneously; and if the husband of the intestate is alive they take simultaneously with him in accordance with entry (a). In such a case, sub-Section (2) does not apply.
      • In case of a female intestate dying without issue but leaving her husband, the husband will take her property, except property inherited by her from her father or mother which will revert to the heirs of the father in existence at the time of her death.
      • In case of female intestate dying without issue property inherited by her from her husband or father-in-law (the husband being dead), will go the heirs of the husband and not in accordance with the general order of succession laid in sub-Section (1).
      • In case of a female intestate dying without issue property inherited by her from her father or mother will revert to the heirs of the father in existence at the time of her death and not in accordance with the general order of succession laid down in sub-Section (1).
         
    3. Section 16.
      • Sec. 16 specifies about the 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's 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 including in the same entry shall take simultaneously.

        Rule 2- If any son or daughter of the intestate had predeceased 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 would have been the father's, the mother's or the husband's as the case maybe, and such person had died intestate in respect thereof immediately after the intestate's death.
         
    4. Section 17
      Clauses (a) to (e) of sub-section (1) under section 15, the following had been substituted:
      1. Upon the sons and daughters (including the children of any predeceased son or daughter) and the mother;
      2. Upon the father and the husband;
      3. Upon the heirs of the mother;
      4. Upon the heirs of the father; and
      5. Upon the heirs of the husband.
        • Rule 1-Explicitly declares that among the heirs enumerated in entries (a) to (e) of Section 15, 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 that in case of the children of a predeceased son or daughter, they shall not take per capita with the son and daughter of the intestate but shall take per stripes i.e. the children and the predeceased 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 (b), (d) or (e) of Section 15(1). This rule 3 is to be invoked when under rule 1 the heirs of the husband or the father or the mother are to be ascertained for purpose of distribution of property.
           
        • Disqualification of heirs
          No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever. However there are some conditions under which the heirs are disqualified from inheriting any property which are hereunder:
          1. Murder
          2. Conversion
Conclusion
Socioeconomic changes warrant corresponding legislative changes by laying down uniform rules of succession for both Hindu males and females dying intestate. The rules applying for succession from males could be made to apply to females also. There is no reason to continue the different schemes of succession for males and females dying intestate.

As the Personal Laws (Amendment) Act 2010 amends Hindu Adoption and Maintenance Act 1956 by making uniform rules for both male and female Hindus with respect to their capacity for adoption, similarly amendments could be brought to lay down uniform rules of succession for both males and females, thereby complying with the mandate of the Constitution.

Laying down uniform rules of succession for both males and females would remove the discrimination faced by women in regard to the devolution of their property and also the source of its acquisition. Under the HSA 1956, a father inherits as Class II heir to the separate property of a male dying intestate.

As independent India relies heavily on legislation to bring in social reform and ensure removal of inequality and discrimination, the necessity is to review the present succession laws and to bring the position of women at par with men.

Citations:
  1. https://www.ijalr.in/2020/11/an-analysis-of-succession-to-property.html
  2. https://www.academia.edu/22956159/Devolution_of_Property_of_the_Hindu_Female_Autonomy_Relationality_and_the_Law
  3. https://www.jlsrjournal.in/analysis-of-intestate-succession-to-a-female-u-s-15-of-hindu-succession-act-from-a-gender-perspective-by-savio-p-xavier-lenna-joshy/
  4. https://www.legalserviceindia.com/article/l258-Intestate-Succession.html
  5. https://egazette.nic.in/WriteReadData/1956/E-2173-1956-0038-99150.pdf

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