family law.docx

8/19/2019 family law.docx

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FAMILY LAW II

FINAL SUBMISSION

Succession To The Property Of Hindu Fem!e "yin#

Intestte

Su$mitted $y

Ayushi %upt

"i&ision B P'N No( )*+)+,,-+.+ /!ss ,+)*0,+). of

Sym$iosis L1 Schoo!2 NOI"A

Sym$iosis Interntion! Uni&ersity2 PUN3

In

Mrch2 ,+)4

Under the inspirin# #uidnce of

Ms( Sdiy

Assistnt Professor


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/3'TIFI/AT3

The Project entitled “Succession to the property of Hindu female dying intestate” submittedto the Symbiosis Law School, N!"# for the course $amily Law !! as part of internal

assessment is based on my original wor% carried out under the guidance of &s' Saadiya' The

research wor% has not been submitted elsewhere for award of any degree'

The material borrowed from other sources and incorporated in the project has been duly

ac%nowledged'

! understand that ! myself could be held responsible and accountable for plagiarism, if any,

detected later on'

Signature of the candidate(

"ate( )*'+'-+).


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A/5NOWL3"%3M3NT

! would li%e to than% my faculty/in/charge, Prof' Saadiya, who ga0e me the opportunity

to study, analyse and learn from the topic “Succession to the property of Hindu female

dying intestate”' !t helped me in enhancing my learning capability through researching

rigorously and applying the right concept at the right place'

#ayushi 1upta


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TABL3 OF /AS3S

B

Bhagat Ram vs. Teja Singh

%

Gurnam Singh vs. Smt. Asa Kaur

Gurbachan Singh vs. Khicher Singh

L

Lachman Singh vs. Kirpa Singh

O

O.M. Meyappa Chettiar vs. Kanappa Chettiar

'

R. A. Pati vs. A. B. Re!e"ar

Ram Sunehi v . #istrict $u!ge

Raghubir v% $an"i Prasa!

S

State &' Punjab vs. Ba(ant Singh


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)*#+,

C-APT+RS PAG+ *O'

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!!' P2P:2T; $ # H!N"3 $:L:''''''''''''''''''''''''''''''''''''''''''''''


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Successi&n t& the pr&perty &' -in!u 'emae !ying intestate

). )ntr&!ucti&n -ist&rica Bac"gr&un!

6efore )< @une )A.9 the succession of Hindus was regulated by classic Hindu law' ) The

Hindu Succession #ct- is a codification of the Hindu law of intestate succession and came

into operation on )< @une )A.9' !t introduced %ey changes to classic Hindu law of intestate

succession' The Hindu Succession #ct is, to a large eBtent, is a codification of the Hindu law

of succession' !t ma%es pro0ision for certain changes to the classic Hindu law of succession,

and although it is in essence a codification of essentially the Mita"shara a( of succession,it is uniformly applicable to all the schools of Hindu law in !ndia' * There were two schools in

old Hindu Law namely iC &ita%shara and "ayabhaga go0erning the Hindu succession'

Howe0er, the Hindu Succession #ct, )A.9 brings all the schools into a uniform system'

!n the old law there was a distinction between male and female heirs, but the Hindu

Succession #ct, )A.9 ma%es no distinction between male and female heirs' 3nder the

&ita%shara law the rule of preference is based on the right to offer /pin!a0 or /pr&pin1uity0

of blood, but the order of succession pro0ided by the #ct is based on the concept of male

chau0inism thus ma%ing males the absolute owners of the property whereas the females used

to get only a limited ownership right'

4lassic Hindu law allows two modes of de0olution, namely sur0i0orship of coparcenary

property, and succession of separate property' !n terms of classic Hindu law, if a female

inherited property from a male or stridhana from another female, she recei0ed only a limited

womanDs estate which meant that she was the owner of the property for as long as she li0ed,

but although she had full and eBclusi0e ownership of the property during that time, her

1 &ullaDs principles of Hindu law 0ol ! E)Aed -++.C )+)F9'

2 #ct + of )A.9'

3 4 2autenbach GHindu law of successionDE-ed -++9C -9AF-=<

4 "esai &ullaDs principles of Hindu law 0ol !! E)Aed -++.C -=F-=*'


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ownership was restricted in all other respects'. Howe0er, the Hindu Succession #ct, )A.9

abolishes this classification and pro0ides for only one uniform scheme of succession of

stridhana'9

# uniue feature of the Hindu Succession #ct, )A.9 is that it pro0ides for different schemes

for intestate succession in the case of male and female, respecti0ely' Ihereas, no other

succession law in !ndia such as the &uslim Law, the Parsi Law and the 4hristian Law

pro0ides for such a distinction between male and female intestates' Section ). and )9 of the

#ct deal with intestate succession of Hindu females and it only applies to the properties of

which she is a full owner'

)). Pr&perty &' a -in!u 2emae

A. Stri!han

:arlier, under the &ita%shara law the absolute property belonging to a woman was called

Stridhan' >ijnaneshwar, the author of &itas%hara, in his commentary says(

“That which was gi0en by the father, by the mother, by the husband or by the brotherJ and

that which was presented by the maternal uncles and the rest at the time of wedding before

the nuptial fireJ and a gift on a second marriage or gratuity on account of supersessionJ and,

as indicated by the word adya Eand the restC property obtained by'”

The rule laid down in sub/section E)C of Section )* o0errides the old law on the subject of

stridhana in respect of all property possessed by a female, whether acuired by her before or

after the commencement of the #ct and this section declares that all such property shall be

held by her as full owner'

B. Limite! +state

:arlier in &ita%shara law, females ta%es only limited estate whereas males ta%es absolute

interest in estate' &ales succeeding as heirs, whether to a male or to a female, too%

5 $amily Law Lectures $amily Law !!, Poonam Pradhan SaBena, -++* at p' *-A'

6 14> Subba 2ao, $amily law in !ndia( Hindu law and &ohammedan law E)AA.C )*'


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absolutely' $emales succeeding as heirs to a male too% a limited estate in the property

inherited by them, eBcept in certain cases' !f a separated Hindu under &ita%shara died lea0ing

a widow, and brother the widow succeeded to the property as his heir but she being a female

did not ta%e the property absolutely' She was entitled to the income of the property' She could

not ma%e a gift of the property nor could she sell it unless there was some legal necessity' n

her death, the property would pass not to her heirs, but to the neBt heir of her husband, ieJ his

brother'<

3nder Section )*E)C of The Hindu Succession #ct, )A.9, the #ct has abolished the Hindu

womenDs limited estate and confers on the women the absolute ownership o0er all her

property acuired by her as per Section )* of the act'

C. Abs&ute O(nership

The eBpression GpropertyD in case of females means property of the deceased heritable under

the Hindu Succession #ct' !t includes both mo0able and immo0able property owned by a

female Hindu and acuired by her by inheritanceJ= or by de0iseJ or at a partitionJ or by gift

from any person whether her relati0e or not Ebefore, at or after her marriageCJ or her own s%ill

or eBertionJ or by purchaseJ or by prescriptionJ or in any other manner whatsoe0er' !t also

includes all property, which was held and possessed by her at the date of the commencementof the #ct and of which she is declared to be the full owner by Section )* of the #ct'A

))). Genera Rues &' successi&n in the case &' 'emaes !ying

intestate

3nder the law, prior to the #ct, succession to a femaleDs property 0aried according as the

property was technically her Stri!han, or was acuired by her by inheritance or by partition,

etc' !f it was the former, it went to her heirs and if it was the latter, it went to the heirs of a

7 Sabzwari,, Hindu Law (Ancient & codied! 2nd "d# 2$$7, %# 1$7#

'aa)abeb *)# +inwaa A- 1..1 1.7 'o/ 44 (in0erited ro/ brot0er!#

. ua, Hindu Law 2$t0 "d# 2$$7, o P# 42526#


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person from whom she had inherited it from whose share it was ta%en out on partition, etc' !t

also 0aried according as she was married or unmarried, and according as she was married in

an appro0ed or in an unappro0ed form' The rules of descent again were different in different

schools' This #ct ignores all such distinction for the succession to femaleDs property and

pro0ides a uniform law for all female Hindus, married or unmarried, belonging to one school

or another'

The act by Secti&n 34 confers absolute ownership on all females in respect of all properties in

their possession, whether acuired before or after the commencement of the #ct' Section ).

of the #ct prescribes the 1eneral 2ules of Succession of the property of a female dying

intestate, and Section )9 lays down the rder of Succession' Section ). runs as follows( )+

KSection ).E)C, the property of a female Hindu dying intestate shall de0lo0e according to the

rules set out in Section )9/

EaC $irstly, upon the sons and daughters Eincluding the children of any pre/ deceased son or

daughterC and the husbandJ

EbC Secondly, upon the heirs of the husbandJ

EcC Thirdly, upon the mother and fatherJ

EdC $ourthly, upon the heirs of the fatherJ and

EeC Lastly, upon the heirs of the mother'

Section ).E-C, Notwithstanding anything contained in sub/section E)C(

EaC #ny property inherited by a female Hindu from her father or mother shall de0ol0e, in the

absence of any son or daughter of the deceased Eincluding the children of any pre/deceased

son or daughterC not upon the other heirs referred to in sub/section E!C in the order specified

therein, but upon the heirs of the fatherJ and

EbC #ny property inherited by a female Hindu from her husband or from her father/in/law

shall de0ol0e, in the absence of any person or daughter of the deceased Eincluding the

children of any pre/deceased son or daughterC not upon the other heirs referred to in sub/

section E!C in the order specified therein' but upon the heirs of the husband'K

1$ -## Aggarwa Hindu Law 22nd "dition, 2$$7 % 2.


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Section ). does not apply to that property which is held by a Hindu female with restricted

rights at the time of her death')) The words son and daughter of the deceased in Section

).E-CEbC of the #ct can only mean a son or daughter of the female, dying intestate, born to her

of any husband, former or later' The definition includes e0en illegitimate children' )- 6ut does

not include step/children,) who will not be able to inherit their step mother'

!n Keshri L&!hi vs. -arprasa!34 the 4ourt laid down that from the language of sub/sections

E!C and E-C of Section )., it is clear that the intention of the Legislature was to allow the

succession of the property of the Hindu female to her sons and daughters' nly in the absence

of such heirs the property would go to husbands heirs' 4onseuently, the females property

would de0ol0e on her sons and daughters e0en where the sons and daughters are born of the

first husband and the property left by the female was inherited by her from the second

husband').

!n Gurnam Singh vs. Smt. Asa Kaur35 the Punjab High 4ourt held that the plain and natural

implication of the words Kson or daughter of the deceasedK in sub/section E-C of Section )., is

that the son or the daughter should be heirs, e0en though she might ha0e married once or

more than once and may ha0e, thus gi0en birth to children from these marriages, because

these off/springs are capable of establishing their blood relation to the female Hindu as son or

a daughter'

!n Lachman Singh vs. Kirpa Singh,)


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#mong the heirs of clause EbC will come the step son of the Hindu female as her husbands

heir' !t is ob0ious that in presence of a son, step/son cannot inherit'

The word son includes natural and adopted children of a woman, those born to her after her

re/marriage and e0en her illegitimate children' Ihereas succession to the property of a

female Hindu generally is gi0en under Section ).E!C, an eBception has been engrafted under

sub/section E-C recognising a different mode of de0olution in respect of property which the

woman acuired by inheritance, in a way to a 0ery limited eBtent recognising the old Hindu

Law in the matter, which restricted a womans estate in inherited property and pro0ided for its

de0olution as from the last full owner' Prima facie, the eBception engrafted see%s to retain in

her fathers family property inherited by the deceased lady from her parents and similarly

see%s to retain in the husbands family property inherited from her husband or father/in/law'

The word inherit means to recei0e as heir, i'e' succession by descent')=

!n Bhagat Ram vs. Teja Singh,)A the Supreme 4ourt held that if property held by a female

was inherited from her father or mother, in the absence of any son or daughter of the

deceased including the children of any pre/deceased son or daughter, it would only de0ol0e

upon the heirs of the father, son or daughter, who was the only legal heir of herMhis father' The

intent 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' 3nder clause EbC of sub/section E-C

of Section )., the property inherited by a female Hindu from her husband or father in/law

shall also under similar circumstances, de0ol0e upon the heirs of the husband'-+ !t is the

source from which the property was inherited by the female which is more important for the

purpose of de0olution of property' The fact that a female Hindu originally had a limited right

and later, acuired the full right, in any way, would not alter the rules of succession gi0en in

sub/section E-C of Section ).J :0en if the female Hindu who is ha0ing a limited ownership

becomes full owner by 0irtue of Section )* E!C of the #ct, the rules of succession gi0en under

sub/section E-C of Section ). can be applied'

1 1urbachan Singh 0s' 7hicher Singh, #!2 )A


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!n Ayi Amma vs. Asari,-) 7 died intestate in @uly )A9+' She was childless widow of P' 7s

father had gifted away some property to 7' She sold jewels and lent amount for interest'

3pon her death there were some outstanding dues on some promissory notes and in the

proceedings for succession certificate, 7s sister claimed that 7 got the property from her

father by way of gift and that she was entitled to the same under Section ).E-C EaC'

Held, that the property could not be said to ha0e been KinheritedK by 7 and the eBemption

could not be a0ailed of' The rules of de0olution pro0ided under Section ).E)C would,

therefore apply and the heirs of 7s husband would ta%e the property' The sister of 7 could

not claim the property as the fathers heir to 7'

!n O.M. Meyappa Chettiar vs. Kanappa Chettiar,-- the &adras High 4ourt has said that

where a female Hindu, after obtaining money decree in respect of the amount which was

gifted to her by father at the time of her marriage Eand therefore represented her Stridhan

propertyC, dies intestate lea0ing behind her husband and brothers, the property represented by

the decree would de0ol0e not upon her brother according to rule of succession laid down in

Section ).E-C but upon her husband according to the rule contained in Section ).E)C'

!n Raghubir v% $an"i Prasa!,- the court held that the husband will not inherit in the

property left behind his wife, where she acuired that property in inheritance from her parents' Such property re0erts bac% to parents only or in their absence to the heirs of the

parent' !n this case the wife brought a suit for claiming the property which she was entitled to

get by way of inheritance from her father' "uring the pendency of the suit she died and her

husband applied for the substitution of his name' The application by the husband was rejected

on the ground that he had no right to get the property in inheritance from his deceased wife as

the property in the absence of her children would re0ert bac% to the parents or in their

absence to the heirs of parent'

!n order that properties which may ha0e been inherited by a female Hindu and which on her

death may not got to be in families who should not reasonably ha0e any eBpectations in

21 #!2 )A99 &ad' 9A

22 #!2 )A


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respect thereof, sub/section E-C ma%es a 0ery important eBception in respect of such

property'-* !t pro0ides that where a female Hindu had inherited property from her father or

mother and she died lea0ing behind neither children nor grand children, though she might

ha0e left behind her husband the property would not go to her husband but re0ert to the heirs

of the father' Similarly, any property inherited by a female Hindu from her husband or from

her father/in/ law would de0ol0e in the absence of any children or grandchildren of the

deceased, upon the heirs of the husband' #s to who will be the heirs in such cases, will be

determined in accordance with 2ule -. laid down in section )9, which pro0ides that the

property would de0ol0e in the same order and according to the same rules as would ha0e

applied if the property had been the fatherDs or the husbandDs as the case may be, and such

person had died intestate in respect thereof immediately after intestateDs death' -9

!n 0iew of the pro0ision to the definition of “related” in section EjC' !t appears that the heirs

of a female Hindu will include her illegitimate children born from another husband also'

Thus, it appears that in case a female Hindu, who had inherited property from her husband,

dies intestate and lea0es behind children from her pre0ious husband, such children along with

the children of the second husband will succeed simultaneously to her' 2eference may also be

made to the general pro0isions relating to order of succession and manner of distribution

among heirs of a female pro0ided for in section )9'-<

6esides the abo0e order of de0olution,other rules of succession are that all the heirs of any one of the abo0e classes will ta%e the

property simultaneously-=, per stripes and as tenant/in/common and where an intestate lea0es

the children from a predeceased son or daughter of her, the children of each predeceased son

of a daughter will ta%e between them such share which they said predeceased son or daughter

would ha0e inherited had he or she been ali0e at the time of the intestateDs death' -A

24 #!2 -++* "el )<

25 &ulla, Hindu Law -+th :di' E-++


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!n the case of a property held by the intestate by inheritance it will de0ol0e on the heirs of a

person from whom she had inherited that property in such a manner as if the de0olution is to

ta%e place of the property of that person and that person had died immediately on the death of

the intestate'+ The same principle will apply to the cases where property other than inherited

property is to de0ol0e and the heirs are of classes EbC, EdC and EeC mentioned abo0e, that is

they are the heirs of the husband, the father or the mother' !n these cases the property will

de0ol0e upon the heirs of the husband, the father or the mother in the same manner, as if

property de0ol0ing is the property of the said husband, the father or the mother, as the case

may be, and the husband, the father or the mother had died immediately after the death of the

intestate')

This principle of property inherited by a female de0ol0ing on her death on the heirs of the

person from whom she had inherited is go0erned by the de0olution of inherited property of a

female under the original Hindu Law also' Thus, while the #ct see%s to change the law of

de0olution in respect of all property passed by a female it maintains that with regard to

property acuired by her by inheritance' #nother important point worth noting is that unli%e

the teBtual law in the absence of the son or daughters and the husband, the heirs of the

husband ha0e been gi0en preference to the mother, the father and their heirsJ and therefore,

the chances of a property possessed by a female, being lost to the family to which she comesto belong after her marriage, ha0e been remo0ed'

)6. Amen!ments7 A 8uest '&r Change

The Hindu Succession #ct, )A.9 has been amended by way of the Hindu SuccessionE#mendmentC #ct, -++.' Howe0er, no amendment was made in the pro0isions for intestate

succession of property of Hindu females' Though as per 2eport -+< of the Law 4ommission

of !ndia a proposal was made in order to amend Section ). of the Hindu Succession #ct,

)A.9 in case a female dies intestate'

3$ 6'&' 1andhi, Hindu Law )AAA P )

31 Sec' )9, rule '


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!n the present scenario women are entitled to inherit property from her parental side as well

as from her husbandDs side, therefore eual right should be gi0en to her parental heirs and her

husbandDs heirs to inherit her property' !f this amendment is brought about, the effect will be

as under -(

i'Suppose a married Hindu female dies intestate lea0ing her self/acuired property at the time

of her death, the only sur0i0ing relati0es are her mother in law ELC and her mother E&C '

#s per the present a(, her property would de0ol0e entirely on GLD and G&D will not get

anything from her property' 6y pr&p&se! amen!ment, her mother/in/law and mother should

eually inherit to her self/acuired property'*

ii'Suppose a married Hindu female dies intestate lea0ing self acuired property and she has

no heirs as per clause GaD of the Schedule, the only sur0i0ing relati0es are her husbandDs

brother E6LC and her own brother E6C'.

#s per the present a(, her property would normally de0ol0e upon G6LD' G6D will not inherit

anything from her in this property' 6y the pr&p&se! amen!ment, her own brother should

eually inherit along with her brother/in/law'9

The abo0e stated proposal of the )=

th

Law 4ommission is howe0er pending since )+

th

@une,-++='

6. C&ncusi&n

32 Law 4ommission of !ndia, -+


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6efore )< @une )A.9 the classic Hindu law of succession applied to the estates of deceased

Hindus' Since then the classic rules ha0e been modified and codified to a large eBtent' &ajor

changes to the classic rules ha0e been introduced by means of legislation' The most important

legislation regarding the Hindu law of succession is the Hindu Succession #ct that came into

operation on )< @une )A.9' #lthough the Hindu Succession #ct is a clear brea% with the

classic Hindu law of succession, it is not free of discrimination'

!n !ndia, the pro0isions for the succession to the property of Hindu females dying intestate are

different from the pro0isions for the succession to the property of Hindu males dying

intestate' The reason for this is that in Hindus the females are 0isualised to ha0e no permanent

family of their own' # Hindu female is born in her fatherDs familyJ later she gets married and

becomes a part of her husbandDs familyJ if she gets di0orced and remarries she becomes a part

of her second husbandDs family' Howe0er, the husbandDs family does not change as he li0es inthe same family his entire life' !t is important to note that though all the other systems follow

the patriarchal system of family yet only the Hindu succession laws pro0ide for such

di0ersification'

Section ). and )9 of the #ct deal with intestate succession of Hindu females and it only

applies to the properties of which she is a full owner' #part from some discrimination in the

Hindu law of succession, the law as it is applied in !ndia today shows a positi0e reform with

regard to the position of females' !t clearly shows that rules of personal law based on religion

are not abo0e reform in order to bring them into conformity with social and legal change' The

women in !ndia are not properly informed of their rights in terms of the Hindu Succession#ct' There is an urgent need for the proper propagation and populariation of their rights so

that they can be eBercised effecti0ely'

!t is further recommended that the Hindu Succession #ct be amended in order to bring about

a balance, so that in case a female Hindu dies intestate lea0ing her self/acuired property with

no heirs, the property should de0ol0e on her husbandDs heirs and also on the heirs of her

paternal side eually'

6). Bibi&graphy


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6oo%s

)' $la0ia #gnes, “Iomen 5 Law in !ndia”, Bford 3ni0ersity Press, New "elhi E-+++C

-' 2'7'#garwala, “Hindu Law”, -+th :d' 4entral Law #gency, #llahabad E-++-C

' "as, P'7'( Handboo% on Hindu Succession( 3ni0ersal Law Publishing, E-+)-C

*' Professor 7usum( $amily Law Lectures/ $amily Law !!' Nagpur(

LeBisNeBis

6utterworths Iadhwa E-+)C

.' #garwala, 2' 7'( Hindu Law'#llahabad( 4entral Law #gency E-+)C

9' "iwan, Paras ( $amily Law' $aridabad( #llahabad Law #gency, E-+)-C

#rticles

)' #mrito "as, “Notional Partition F # 4ritiue”, #!2 -++* @ournal )*A

-' !ndira @aising, “#n 3neual 2eform”, 4ommunalism 4ombat, No')+* E@anuary -++.C'

' 6ina #garwal, “#6ill of her own”, Times News Networ% E"ecember -, -++*C'

*' “Hindu Succession 6ill”, utloo% !ndia, New "elhi "ecember -+, -++*'

Statutes

)' Hindu Succession #ct, )A.9

-' Hindu Succession E#mendmentC 6ill, -++*

2eports

)' )


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Iebsites

)' www'manupatra'com

-' www'lawmin'nic'in

' www'infochangenews'org

*' www'thehinduonline'com

.' http(MMwww'mightylaws'inM=


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