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Intestate Succession – Hindu Female’s Property

April 22, 2022
property

By Lucy Rana and Devika Mehra

The Hindu Succession Act, 1955 came into force to make the laws of succession under the Hindu Law, which under the purposes of this law covers Buddhists, Sikhs, Jains, followers of Arya Samaj and Brahmo Samaj, and anyone who is not a Muslim, Christian, Parsi, or Jew by religion. While the laws of succession for a Hindu Male are governed keeping in view his responsibility towards his family, his parents, and then further extended family, the laws of succession for a Hindu Female are a little different.

 

It is a common fact that as a customary practice, a woman, after attaining the age of 18, becomes marriageable and as a matter of custom, upon marrying, she moves into her marital home i.e. where her husband, and in most cases, her in-laws reside. Thereafter, her role and responsibilities begin to apply to two families, her parents i.e. where she was born and brought up, and her husband’s family i.e. where she is married into. Not only that, she even inherits property from both sides of her family i.e. as a daughter as well as a daughter in-law.

Keeping the above in view, the laws of intestate succession of a female hindu[1] define the classes of heirs in a manner which devolves her self-acquired property accordingly. The following kinds of properties would be deemed to be the self-acquired property of a female hindu:

  1. Property earned from her own efforts
  2. Property received as a gift (including from her father, mother, husband, or in-laws)
  3. Property received under a Will (including from her father, mother, husband, or in-laws)
  4. Property inherited from relative other than father, mother, husband, and in-laws.
  5. Purchased property
  6. Property received at the time of Partition of Family property

The property of a Female Hindu dying intestate shall devolve[2] in the following manner and in the order as mentioned herein:

  1. Firstly, upon her sons and daughters (including the children of any pre-decesased son or daughter) and her husband;
  2. Secondly, upon the heirs of her husband;
  3. Thirdly, upon her mother and her father;
  4. Fourthly, upon the heirs of her father; and
  5. Lastly, upon the heirs of her mother.

In the above mentioned categories, those falling under the same class shall have right over her property simultaneously, while the order of succession shall be as laid down above.

While this explains the succession of the self-acquired property of a woman who has died intestate, in 2005’s amendment to the Hindu Succession Act, 1955, it was declared that women too have the right over succession to the ancestral property. However, this continued to remain a gray area as to whether this right applied retrospectively or prospectively.

The Supreme Court in a recent judgment[3] gave clarity on the gray area. The three-judge bench headed by Justice Arun Mishra adjudged that a Hindu Woman’s right to be a joint heir to the ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005. Hence, the Supreme Court gave clarity that the Hindu Succession (Amendment) Act, 2005 does indeed have retrospective effect and applies since the original act came into effect i.e. 1955. Hence, such property acquired by her, if continued to be enjoyed in common, would continue to be devolved as ancestral property as per relevant laws of succession of ancestral property.

Though there is not a vast difference between the laws of succession of a female Hindu compared to a male Hindu, the intestate succession of female hindu does differ owing to her dual status as that of a daughter and a daughter in-law.

[1] Section 14-16 of the Hindu Succession Act, 1955

[2] Section 16 of the Hindu Succession Act, 1955

[3] Vineeta Sharma vs Rakesh Sharma & Ors. Dated August 11, 2020

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