By : Madhulika Agrawal , Research Intern, kaalecoatwale.com
ABSTRACT:
This article deals with the provisions related to Hindu Succession Act, 1956 regarding the devolution of property of a Hindu women dying intestate. This article acknowledges the constitutional relation of such provisions and their consequences on the elderly. Females in Hindu families have long been divided against in terms of both settlement and continuation. For the time-being of forty-nine years, men and women had distinctive artifice with relation to inheritance where the woman was denied the right to spousal property on the groundwork of her spousal status. Luckily, in 2005, the amendment to the Hindu Succession Act dealt with most inheritance-based biasness. However, it is discovered that Hindu female testator who die as wedded women continue to face biasness that is backed up by many unfair provisions under the Hindu Succession Act. The Hindu Women’s Right To Property Act, 1937, Hindu Succession (Amendment) Act, 2005, The Hindu Succession Act, 1956 etc. as a result of expanding behest from supporter of women in society.
INTRODUCTION:
“The significant former lawmakers Manu and Baudhyana had described the good woman as a completely non-sovereign self, grown by father in childhood, by husband in youth, by son in old age.”
Under the Hindu law in operating prior to the coming into force of the Act, a woman's holding of property was restricted in by specific captivity on her right of ditching and also on her attestation power in relation of that property.
As claimed by Salmond, the ‘property’ takes the following aspects in legal terms such as: - (a) All legal rights (b) proprietary rights and (c) corporeal property rights.
The Hindu Succession (Amendment) Act, 2005 made the daughter, likes son, a coparcener or a co-owner in a joint family. The amendment was meant to make sure those women and men became equal next in line to ancestral property. She could take over uniformly with a male equivalent and a window was also given importance in relation to the advancement of her husband’s property as also to her father’s property. The Hindu Succession Act, 1956 and importantly Section 14 brought critical change, thus, upon the angle of a right of a Hindu female over her property and thereby fusibility in the quarrel. Though these estimates have restored some unimportant distinction in property ownership, the scheme stays largely unaffected as women are yet to carry on with their rights. Section 15 of the Hindu Succession Act that dictates the accordance of succession in the case of a Hindu woman who dies intestate should be reshaped for it reflects a rooted system of tyranny of women. Further, in India, a woman’s property right differentiates depending on her religion, her spousal status, the state she comes from and her tribal recognition. This means there is no one set of laws which govern the rights in relation to an Indian woman to property.
Intestate succession to Property of Hindu Female dying intestate:
The Hindu Succession Act 1956 deals with the advancement to the property of a Hindu female legacy/intestate. Pre 1956, there were many rules and orders under the straightforward Hindu laws.
Section 15 and Section 16 of Hindu Succession Act relates to the complete property of a female ‘including an undistinguished notice in a Mitakshara coparcenary property in which a female was a coparcener’ (2005 Amendment to the Act). Only the property which can be taken over and over which a woman had full powers of dispersal will be subject to the pleading of these sections. Thus, the scenario of inheritance does not relate to any property held by a Hindu woman in the form of a limited owner according to Section 14(2) or to which the Act does not put in.
For succession, the property of a Hindu female is bothered about the following three points:
- Property taken over by the female from her father or the mother.
- Property taken over from her husband or father-in-law by the female.
- Property occupied from any other things like by taken over or something else.
Section 15- General points of continuation in the case of female Hindus-
(1) The property of a female Hindu dying intestate shall transmitted according to the law set out in Section 16,-
(a). Upon the sons and daughters (involving the children of any pre-deceased son or daughter) and the husband;
(b). Upon the heirs of the husband ;
(c). Over the mother and father;
(d). Over the heirs of the father; and
(e). Over the heirs of the mother
(2) in-spite of anything said in Sub-Section (1), -
(a) Any property taken over by a female Hindu from her father or mother shall entrust, in the abstinence of any son or daughter of the deceased (involving the children of any pre-deceased son or daughter) not upon the other heirs talked about to in sub-Section (1) in the order specified therein, but upon the heirs of the father; and
(b) Any property taken over by a female Hindu from her husband or from her father-in-law shall entrust, in the abstinence of any son or daughter of the deceased (involving the children of any predeceased son or daughter) not upon the other heirs introduced to in sub-Section (1) in the order specified therein, but upon the heirs of the husband.
This Section put forwards a concrete and uniform scenario of progression in the property of a female Hindu who dies intestate after the beginning of the Act. The points laid down under this Section are to be read with Section 16. This Section groups the heirs of a female intestate into five classifications as lay in sub-Section (1).
However sub-Section (2), related to the scenario of Section 14, and is in the nature of a divergence to the general rule as laid in sub-Section (1). The two divergences are, if a female dies without disposal any issue then,
(i) in respect of property taken over by her from her father or mother, that property will entrust not as claimed by to the order laid down as in sub-Section (1) but upon the heirs of her father, and
(ii) In respect of the property taken over by her from her husband or father-in-law, which property will not entrust according to the order lay down in sub-Section (1) but upon the heirs of her husband.
It is significant to note that the two divergence herein mentioned are prohibited to only the property taken over from the father, mother, husband and father-in-law of the female and does not circumstances the property obtained by her by gift or other by other device. The Section has changed the entire aspect of stridhana and the mode and manner of ownership of property by the female, which earlier set to how the property would be taken over, has been changed and amended by the Section. In view of Section 17, it is important to note that Section 16 does not apply to persons governed by Marumakkattayam and Aliyasantana laws.
As mentioned in the beginning of the sub-Section (1), in the transfer of heritable property of a female intestate, those in a higher entry are stated to those in a lower entry.
Section- 16 Order of progression and manner of placement among heirs of a female Hindu. The order of succession among the heirs specified to in section 15 shall be, and the placement of the intestate’s property among those heirs shall take place according to the following order, which is:
Rule 1.Among the heirs mentioned in sub-section
(1) Of section 15, those in one entry shall be given to those in any take the place of entry and those involving in the same entry shall take concurrently.
Rule 2.If any son or daughter of the intestate had pre-deceased 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 alive at the intestate’s death.
Rule 3.—The delegation of the property of the intestate on the heirs mentioned 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 as claimed by to the same rules as would have mentioned if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof at once after the intestate’s death.
Case laws :
The date of the beginning of the progression is not the date of the death of the husband, but that of the deceased i.e. female Hindu (Seethalakshmi Ammal v. M. Iyengar Thus, it has to be intended that on the death of the intestate, it was her husband who had died and the property also belonged to him. In such a circumstance, the ‘step-son of a female’ who is a authenticated heir can succeed as the ‘son of the husband’ who was born to him from an earlier marriage. Thus, where a Hindu woman, W, dies intestate, leaving behind her step-son and her brother since brother is an heir in the later entry, the step-son will succeed to her property.
Section 15(2) rules only that property which was procured by the intestate by ‘inheritance’ as an heir and not collected from parents through gift or will. It may be taken into consideration that a gifted property is not equal to the inherited property. Any property gifted at the time of marriage is her Stridhan and progression to it is ruled by Section 15(1) (Meyappa v. Kannappa AIR 1976 Mad. 184). Similarly. If she has reshaped the property she inherited from her parents into some other property, succession will not be ruled under Section 15 (2) Emana v. Gudiseva.
Where a Hindu female died leaving behind her daughter from a earlier marriage and the second husband and property that she had taken over from her father, it was held that since the dead had taken over the property from her parent, her daughter alone will be allowed to succeed and the husband here cannot succeed as said in case Radhika v. Anguram
A ‘step-son’ is not an issue and cannot take over the property of a woman that she taken over from her parents as held in case Lachman Singh v. Kirpa Singh
CONCLUSION:
To conclude, we can unquestionably assume that the advantages of a woman to a property stand in in light of distinctive components like religion, culture, the economic well-being of the women and the general public to which she has a place.
“Women’s fairness as conveyed by Courts can only be blend into a pre-existing, largely male world.”
The property of a female Hindu dying intestate without making a Will to goes as per the sections made in Hindu Succession Act, 1956 while the propagation of women’ legacy, other than the individuals who are Hindus, Buddhists, Sikhs, Jains and Muslims, is represented by the Indian Succession Act, 1925.
Should a Hindu Female make a will? We still stay under the agitation that it is always too soon to make a will and the right time would be when old age sets in due to our urge.
However, based on the todays scheme in law, it is worthwhile that a Hindu female should save her assets after her death and leave it to persons she wants, else, in the event of testator, as is obvious from the case of Smt. Narayani Devi, the law will take its own course and a Hindu female's property will end up in the hands of person whom she never had any grounds of leaving it to or even had any accordance during her lifetime. Thus, the answer to the question that ‘should females make a Will?’ will be ‘Yes’.
Keeping all in mind, it’s not wrong to take for granted that the laws having such discriminatory angle will be quashed and new changes will be introduced and recognized/accepted as the society grows and develops.
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