Female Intestate Succession – The Tide Turns (Sometimes)

There are separate rules for succession in the case of intestate Hindu males and Hindu females. Through this Article, let us examine the usual succession pattern of a female Hindu and certain special circumstances when this usual pattern changes.

Usual Succession Pattern Before analysing the special circumstances, one must understand the usual succession pattern of a Hindu female dying intestate.

All property, whether movable or immovable and by whatever means acquired, belonging to a female Hindu is held by her as a full owner. A female Hindu has absolute power to deal with her property and she can dispose off her property by way of a Will, gift, etc.

The property of an intestate Hindu female devolves on the following heirs in the order specified below:

(a) Firstly, upon her sons and daughters (including the children of any pre-deceased children) and husband; (b) Secondly, upon the heirs of her husband; (c) Thirdly, upon her parents (d) Fourthly, upon the heirs of her father (e) Fifthly, upon the heirs of her mother

The order of succession is in the order specified above. Thus, if she has children and/or husband then they take the entire property simultaneously and in preference to all other heirs.

Need for a Change? What is interesting to note is that in a case where she does not have any children or husband or grandchildren of predeceased children, then her property goes to her husband’s heirs and not to her heirs. Thus, if the mother of her husband is alive, then her whole property would devolve on her mother-in-law. If the mother-in-law is also not alive, it would devolve as per the rules laid down in case of a male Hindu dying intestate i.e., if the father of her deceased husband is alive, her father-in-law will inherit her property and if the father-in-law is also not alive, then her property would devolve on the brother and sister of the deceased husband.

This position has been a bone of contention when it comes to women’s equal rights. The 207th Report dated June 2008 of the Law Commission of India makes a case for amending the Hindu Succession Act to provide that in cases where an intestate Hindu widow dies issueless, then equal rights must be given to her parental heirs along with her husband’s heirs to inherit her property. Thus, both her parent’s heirs and her husband’s heirs must equally inherit her estate.

The Order Changes – Property from Parents The above succession pattern undergoes a drastic change in two cases. These are the notable exceptions to the general law.

In a case where a female Hindu dies intestate without leaving behind any children or grandchildren of predeceased children, then only in respect of the property which she had inherited from her parents the succession position is altered. The Act provides that such property which she had inherited from her parents would go to her father’s heirs and shall neither go to her husband nor her husband’s heirs. Thus, three conditions must be satisfied for this provision to apply and these are as follows:

a) A female Hindu must die intestate; b) She must have inherited property from either of her parents; and c) She must not have any son, daughter or grandchildren from a predeceased son or daughter.

If all of the above are met, then the property inherited from her father or mother would go to her father’s heirs. Interestingly, this is so even if her husband is alive. However, if she leaves behind a child then the normal succession pattern would apply and even property inherited from her parents would go to her children and husband. It must be noted that irrespective of whether the property is inherited by her from her father or mother, it would go only to the heirs of her father and not to heirs of her mother.

The exception is only qua property inherited by a lady from her parents and cannot extend to property inherited from her husband – Reshma G. Bhandari vs. Yeshubai H. Koli, 2008(2) Bom. C.R. 294. Similarly, the words “father” and “mother” do not in any way lead to a conclusion to include property inherited from relatives from her father’s side or her mother’s side”, as including such additional terms would be inconsistent with the purposes of the Legislature – Balasaheb Anandrao Ghatge vs. Jaimala Shahaji Raje, 1977 Mh. L.J.777.

Further, the exception only deals with inherited property. Property received by way of a gift from parents or by Will or any other mode would not be covered by the exception and would continue to be governed by the normal succession pattern.

The Madras High Court while interpreting the essence of the above exception in Ayi Ammal vs. Subramania Asari, 1966 (1) M.L.J. 411, has held that the word “inherit” is a word of known import and ordinarily cannot give any difficulty in understanding its content. To inherit is to receive property as heir that is succession by descent. It referred to a dictionary definition and held that it meant to receive property as heir. Inherit meant, succession by descent. To take by inheritance meant to take, or to have; to become possessed of; to take as heir at law by descent or distribution; to descend. The words inherit and heir in a technical sense, related to right of succession to the real estate of a person dying intestate”. The word “inherited” in the above exception had not been used in a loose way and would not include within its purview receipt of property from the father or mother during their lifetime.

Similarly, the Andhra Pradesh High Court in Babballapati Kameswararao vs. Kavuri Vesudevarao 1972 AIR(A.P.) 189, has held that the exception only covers the acquisition of the property by succession and not by way of a gift or under a will. The word inherit thus can in the context only mean to receive property as heir succession by descent. The view of the Gujarat High Court in Jayantilal Mansukhlal vs. Mehta Chhanalal Ambalal, 1968 (9) G.L.R. 129 is also similar.

The only persons covered by the exception are the father’s heirs. If there are no heirs of the father then the normal succession pattern would resume.

A very interesting question which arises is that what if the father of the Hindu female is alive? In such an event, would the property go to him or to his heirs, i.e., would the heirs of the father get the property in exclusion of the father? A Single Judge of the Andhra Pradesh High Court in Bhimadas vs. P. K. Kanthamma, ILR 1977 AP 418 held that the father was entitled to the estate during his lifetime. It is only if the father is no more that his heirs would be entitled to the estate of the female Hindu intestate. However, this decision of the Single Judge was overturned by the Division Bench of the Andhra Pradesh in Pinkana Pasamma vs. Bhimadas, 1993(1) KLT

174.    According to the latter decision, the law was very clear and the father’s heirs would get the estate as if the father was no longer alive (even though he was actually alive)!The law created a deeming fiction whereby the father was deemed to have died intestate immediately after the death of the female Hindu. A similar decision was taken by the Kerala High Court in Sindhu Ajayan vs. Damodaran Pillai, 2011(3) ILR (Ker) 12.Property from Father-in-law

A second exception in the Act is in respect of property inherited by a female intestate from her husband or her father-in-law. If she dies without leaving behind any children or children of pre-deceased children then the property would devolve not as per the normal succession order but would devolve upon her husband’s heirs. Thus, three conditions must be satisfied for this provision to apply and these are as follows:

d)    A female Hindu must die intestate;

e)    She must have inherited property from either her father-in-law or her husband; andf)    She must not have any son, daughter or grandchildren from a predeceased son or daughter.

At first blush, it appears that this is a case of redundant drafting. Would not property inherited by a lady from her deceased husband or from her father-in-law in a case where her husband has predeceased her always devolve upon her husband’s heirs since that is the normal succession order under the Act? Her parents would come into the picture only under the 3rd list. Her husband’s heirs take precedence since they are in the 2nd list in the normal order. Why then was this exception inserted? However, consider a case of a female who has inherited property from her late husband or her late father-in-law and then she remarries. If she dies intestate and issueless, her second husband would claim a right to all her property, including the property which she inherited from her first husband or first husband’s father. To prevent this from happening, this exception has been enacted.

What if she has no children from the first marriage but has children from the second marriage then would this exception fail and these children and her second husband would get all her property including what she inherited from her first husband or first husband’s father? Alternatively, would the exception continue to apply since she does not have any children from the first marriage? This is a matter on which there is no express clarity.

Consider a third scenario where she has children from her first marriage but has also remarried. In such a case, this exception would surely fail and these children and her second husband would get all her property including that which she inherited from her first husband or first husband’s father.

Similarly, as in the first exception, the property must have been inherited by her and not received by will or gift or any other mode.

Conclusion

The succession law in the case of females has always been vexed and biased. While there have been some improvements over the years, there are miles yet to be covered. Should not all property received by her from her parents, by way of gift, will, succession, etc., go back only to her parents in the absence of children/husband? Should not the recommendations of the Law Commission be enacted? One often feels that instead of carrying out only amendments such as having a women director on the board (which in several cases is only symbolic), the personal succession law relating to women needs an urgent overhaul! Let us hope that one day the tide would turn for the good (instead of only sometimes as is the case today).