Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a' of Section 15, the property should devolve on her husband's heirs and also on the heirs of her paternal side.

This refers to the article “A law that thwarts justice” (The Hindu, June 27, 2011) by Ms. Prabha Sridevan, former Judge of the Madras High Court. I have analysed it and am in agreement with the views expressed by the author for my own reasons.

As Chairman of the Law Commission of India, I took up for consideration the necessity of amending Section 15 of the Hindu Succession Act, 1956 which deals with the general rules of Succession in the case of female Hindus dying intestate — not having made a will before one dies — in view of the vast societal changes that have taken place.

The Hindu Succession Act, 1956 is part of the Hindu Code which includes the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.

The Hindu Succession Act made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband's property as also to her father's property. The Act was amended in 2005 to provide that the daughter of a co-parcener in a joint Hindu family governed by the Mitakshara Law shall, by birth, become a co-parcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the said property as that of a son.

Scheme of succession

Section 15 of the Hindu Succession Act propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Act which provides for the order of succession and the manner of distribution among heirs of a female Hindu.

Source of acquisition

The group of heirs of the female Hindu dying intestate is described in 5 categories as ‘a' to ‘e' of Section 15 (1) which is illustrated as under:

In a case where she dies intestate leaving property, her property will firstly devolve upon her sons and daughters so also the husband. The children of any pre-deceased son or daughter are also included in the first category of heirs of a female Hindu;

In case she does not have any heir as referred to above, i.e., sons, daughters and husband including children of any pre-deceased sons or daughters (as per clause ‘a') living at the time of her death, then the next heirs will be the heirs of the husband;

Thirdly, if there are no heirs of the husband, the property would devolve upon the mother and father;

Fourthly, if the mother and father are not alive, then the property would devolve upon the heirs of the father which means brother, sister, etc;

The last and the fifth category is the heirs of the mother upon whom the property of the female Hindu will devolve if in the absence of any heirs falling in the four preceding categories.

This is the general rule of succession, but the Section also provides for two exceptions which are stated in Sub-Section (2). Accordingly, if a female dies without leaving any issue, then the property inherited by her from her father or mother will not devolve according to the rules laid down in the five entries as stated earlier, but upon the heirs of father. And secondly, in respect of the property inherited by her from her husband or father-in-law, the same will devolve not according to the general rule, but upon the heirs of the husband.

The Hindu Succession Bill, 1954, as originally introduced in the Rajya Sabha, did not contain any clause corresponding to Sub-Section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The intent of the legislature is clear that the property, if it originally belonged to the parents of the deceased female, should go to the legal heirs of the father.

So also under Clause (b) of Sub Section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. The fact that a female Hindu originally had a limited right and after acquiring the full right, would not, in any way, alter the rules of succession given in Sub Section (2) of Section 15.

The 174{+t}{+h} Report of the Law Commission also examined the subject of “Property Rights of Women; Proposed Reforms under the Hindu Law” and had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions.

The basis of inheritance of a female Hindu's property who dies intestate would thus be the SOURCE from which such female Hindu came into the possession of the property and the manner of inheritance which would decide the manner of devolution.

The term ‘property' though not specified in this Section means property of the deceased heritable under the Act. It includes both movable and immovable property owned and acquired by her by inheritance or by devise or at a partition or by gift or by her skill or exertion or by purchase or prescription. This Section does not differentiate between the property inherited and self-acquired property of a Hindu female; it only prescribes that if a property is inherited from husband or father-in-law, it would go to her husband's heirs and if the property is inherited from her father or mother, in that case, the property would not go to her husband's, but to the heirs of the father and mother.

This is very aptly illustrated by the following illustration:- A married Hindu female dies intestate leaving the property which is her self-acquired property. She has no issue and was a widow at the time of her death. As per the present position of law, her property would devolve in the second category, i.e., to her husband's heirs. Thus, in a case where the mother of her husband is alive, 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, the next to inherit will be her father-in-law and if in the third category, the father-in-law is also not alive, then her property would devolve on the brother and sister of the deceased husband.

Thus, in the case of the self-acquired property of a Hindu married female dying intestate, her property devolves on her husband's heirs. Her paternal and material heirs do not inherit, but the distant relations of her husband would inherit as per the husband's heirs.

The case for change

The Hindu Succession Act, 1956 was enacted when, in the structure of the Hindu society, women hardly went out to work. There has been a vast change in the social scene in the past few years and women have made progress in all spheres. The consequence is that women are owning property earned by their own skill. These situations were not foreseen by the legislators.

If that is so, what is the impact of these socio-economic changes? Do they warrant any change in the law of succession in relation to the property of a female Hindu dying intestate? What is the fallout of a gradual disintegration of the joint Hindu family and the emergence of nuclear families as a unit of society over the years in the context of law of succession governing the issue at hand?

A fundamental tenet of the law of succession has been the proximity of relation in which a Successor stands to the person who originally held the property that may be the subject matter of inheritance in a given case. The fact that women have been given the right to inherit from her parental side also assumes relevance in the present context. These developments and changes lead to competing arguments and approaches that may be taken in re-defining the law of succession in case of a female Hindu dying intestate. Thus, three alternative options emerge for consideration, namely:

1. Self-acquired property of a female Hindu dying intestate should devolve first upon her heirs from the natal family.

2. Self-acquired property of a female Hindu dying intestate should devolve equally upon the heirs of her husband and the heirs from her natal family.

3. Self-acquired property of a female Hindu dying intestate should devolve first upon the heirs of her husband.

The third option may be taken first as this can be disposed of summarily. The option essentially means continuation of the status quo. We have seen earlier that socio-economic changes warrant corresponding changes in the law as well.

We may now take up the first option. The protagonists of this approach contend that the general order of succession reflects a gender bias. It will be relevant to refer to a passage in Pradhan Saxena – Succession Laws and Gender Justice in Re-defining Family Law in India by Archana Parasar, Amit Dhanda, New Delhi.

The supporters of the said approach contend that the joint family system has slowly eroded and that an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more economically independent. With the growth of the nuclear family, a married woman's dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Most married women would prefer that their parents should be the more preferred heirs to inherit her property if her children and husband are not alive. She would also prefer that her sister and brother have a better right to inherit her property than her brother-in-law and sister-in-law.

Accordingly, it is urged that Section 15(1) should be modified to ensure that the general order of succession does not place a woman's husband's heirs above those who belong to her natal family like her father and mother and thereafter, her brother and sister. It is contended that when a man dies intestate, his wife's relatives do not even figure in the order of succession despite the manner in which he may have acquired the property. In view of this, parity is sought in the case of a female by applying the same rules as applicable to male's property.

Accordingly, it is suggested that it would be better to amend Section 15(1) to specify the general rules of devolution, which will apply not only to self-acquired property by a woman, but also to other property acquired through her family, gifts, etc. The only proviso which would then be needed would be the property that a woman acquires from her husband's family.

The second option in this regard is that the property of a female Hindu dying intestate devolves upon the heirs depending upon the source from which, the said property was acquired by her, the self-acquired property of such female be simultaneously inherited by her heirs both from the husband family as well as the natal family in equal share. The fact remains that in spite of her closeness to and dependence on her natal family, her relations with her husband's family are not separated and uprooted in entirety. She continues to be a member of her husband's family, getting support from it in all walks of life. One cannot afford to ignore the ground realities in this regard. The social ethos and the mores of our patriarchal system demand that the existing system should not be totally reversed as claimed by the protagonists of the first option. Lest, there may be social and family tensions which may not be in the overall interest of the family as a whole and as such, ought to be avoided. In any case, it is open to the female Hindu to bequeath her property the way she likes by executing a Will.

Conclusions

In the present scenario, when amendments are made to the effect that women have been entitled to inherit property from her parental side as well as from husband's side, it will be quite justified if equal right is given to her parental heirs along with her husband's heirs to inherit her property.

It is, therefore, proposed that in order to bring about a balance, Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a' of Section 15, the property should devolve on her husband's heirs and also on the heirs of her paternal side.

If this amendment is brought about, the effect will be as under:

A married Hindu female dies intestate leaving self-acquired property at the time of her death, the only surviving relatives being her mother-in-law (L) and her mother (M).

Pre-Amendment

As per the present law, her property would devolve entirely on ‘L' and ‘M' will not get anything from her property.

Post Amendment

By the proposed amendment, her mother-in-law and mother should equally inherit her self-acquired property.

A married Hindu female dies intestate leaving self-acquired property and she has no heirs as per Clause ‘a' of the Schedule, the only surviving relatives are her husband's brother and sister (BL & SL) and her own brother and sister (B&S).

Pre-Amendment

As per the present law, her property would normally devolve upon ‘BL' and ‘SL'. ‘B' and ‘S' do not inherit anything from her in this property.

Post Amendment

By the proposed amendment, her own brother and sister should equally inherit along with her brother-in-law and sister-in-law.

The above amendment, suggested by me as Chairman of 18{+t}{+h} Law Commission as early as in June 2008 in the public interest, is still pending with the Union Law Ministry.

(The writer is a former Judge of the Supreme Court of India and former Chairman, Law Commission of India. His email id is jusarlakshmanan@ gmail.com)

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