INTESTATE SUCCESSION FOR AN

ALIYASANTANA FEMALE

SUBMITTED BY:
ISHA V. CHAVAN
T.Y.LL.B.
Academic Year: 2021-22

DIVISION: A
ROLL NO. 28
SUBJECT: LRWC
SEMESTER: 6

SUBMITTED TO:
Prof. DIPALI PATIL
INDEX
Sr. No. TITLE Page No.
1 Introduction 3–8
2 Objects 8
3 Relevant Case Laws 8–9
4 Conclusion 9 – 10
5 Bibliography 11 – 12

1) INTRODUCTION:
Since time immemorial, women all around the world have struggled to obtain even the most
basic of rights. The rights of men have been considered supreme and given preference over
the rights of the women. However, since last two decades the scene has been changing and
women are getting the rights they have been denied from ancient times.

Same is the case with India. Since ancient times women have been denied basic rights and
have been considered secondary to men. But with changing times women have been given
their rights. Along with many other personal rights, in the matter of property rights too, the
Indian women are highly discriminated against as compared to their male counterparts.

Since, ancient times in Hindu society, it was presumed that the daughter would get married
one day and be sent to a different household. So, in case of a division or partition of property,
it was only the male members would get a share. The only time a women or daughter of a
house would receive property was when they got married or through gifts on auspicious
occasions. So, Hindu women’s legal right to inherit property has been restricted since ages.

In the Vedic era, women were treated at par with men, economically. Wives had equal rights
over their husbands’ properties. In stark contrast to the Vedic scenario is Manu’s declaration
that property should not be granted to the wife, the slave or the minor son.

During the medieval period women’s position in the society deteriorated. So, they did not
have property rights during this period. In the Smriti period, the widow, the daughter and the
mother were expressly named as heirs. However, they could only succeed to the property of a
man only in the absence of male heirs. So, we can say that in theory, in the ancient times,
women could hold property but in practice, as compared to men, they were not given any
such rights.

Prior to 1937, there was no codified law which specifically dealt with Hindu women’s
property rights, whenever disputes arose, they were settled according to the customary
practices or Shastric laws. In 1937, the Hindu Women’s Right to Property Act was passed,
under which the widow of the deceased husband had a right over her husband's property after
his death. Unlike earlier, where the property was divided among the surviving coparceners by
the doctrine of survivorship, now, it was the widow who had the sole right over such
 property. However, she had limited rights over such property which remained with her till
her death.

Under limited estate rights, the women do not get any rights to alienate the property by sale,
will, gift, etc. However, the women had full rights over their Streedhan Property, including
the right to alienation by sale and will. However, limited estate as propagated by the Hindu
Women’s Right to Property Act, 1937 was abolished with the introduction of the Hindu
Succession Act, 1956.1

The Act was the first post - independence law which provided a comprehensive system of
inheritance among Hindus and also addressed the gender inequalities in the matter of
inheritance. It applies to both the Mitakshara and Dayabhaga systems, as well as to the
persons in certain parts of South India previously governed by matriarchal systems of Hindu
law.

The Act confers absolute rights, including unfettered rights of disposal of property, on the
female in any property, movable and immovable, acquired by inheritance, demise, partition,
in lieu of maintenance, arrears of maintenance, gift, property acquired by her own skill,
purchase, prescription or in any other manner, and also streedhan, which includes ornaments,
apparel, gift received at the time of wedding, property acquired out of her savings.

Section 14 sub – section (1) of the Act, states that any property possessed by a female,
whether acquired before or after the commencement of the Act, shall be held by her as full
owner and not as a limited owner. In here, property includes both movable and immovable
property obtained by inheritance, or devise, or by partition, or in lieu of arrears of
maintenance, or by gift by any person or relative, or by purchase or prescription.

The section further mentions that sub – section (1) does not apply to any property which was
acquired by the way of a gift or will or any other instrument or a decree or order of a Civil
Court or an award in which the terms of the gift, will or other instruments or the decree, order
or an award are prescribed as a restricted estate in such property.

Section 15 of the Act provides for the general rules of succession for a female. As per this
section, the property of female can be categorised into three types, namely, property inherited
1
Hereinafter the Act
 from her father or mother, inherited from her husband or father – in – law; and lastly, the
self-acquired property or any other property not falling under the other two types. The rules
for succession in case of a female are as follows:

 Firstly, upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the husband;
 Secondly, upon the heirs of the husband;
 Thirdly, upon the mother and father;
 Fourthly, upon the heirs of the father; and
 Lastly, upon the heirs of the mother.

The section further states that any property inherited by a female from her father or mother and
from her husband or father – in – law, shall devolve in absence of any son or daughter of the
deceased, including the children of any pre-deceased son or daughter not upon the above-
mentioned heirs but upon the heirs of the father and the heirs of the husband respectively.

Section 6 of the Act is considered one of the most provisions which gives equal rights to women.
Under the aforementioned section only men were gives coparcenary rights, but after the 2005
amendment women were also given equal rights as the men. It gives authority to a female
coparcener to dispose of her coparcenary property as per her will. It has brought daughters on par
with the sons. As a result, the females were even entitled to hold coparcenary property as well as
ask for partition of such property. Also, it explicitly states that female coparcener is entitled to an
equal share as her male counterparts. And in the case of a predeceased son or daughter, their
heirs would be entitled to such a share in the property.

Above we saw the intestate succession in case of Hindu female who fall under the Mitakshara or
Dayabhaga law or system. However, in India, there are more different succession laws apart
from the aforementioned laws or systems, each appearing to show the diverse and different
customs, traditions and more of the community. One of such different succession laws or
systems is Aliyasantana law or system. This system is applicable in South Kanara. It was
particularly practiced among the members of Buntas, Billavas and some other non- Brahmanical
communities. It is believed that this tradition or system was inherited from a king called Bhutala
Pandya, who ruled over Tulunadu and introduced this system in 77 A.D.
The rationale behind this system, according to many folk enthusiasts is that the Bunts in the
Tuluva land were mainly from the warrior community where the men stayed away from their
home. Thus, it fell on the women to take complete responsibility of running the household as
well taking care of the family property. It is also referred to as Ali - Santana or Aliya - Kuttu.

It is essentially a customary law and there is no sacred writing binding on followers of the
system. Under this system the inheritance is through nephews and nieces. Basically, where the
property is passed down the female line, giving property rights to women. Aliyasantana law and
Marumakkattayam law are only systems or laws in India where the property is passed down the
female side.

Under Aliyasantana law, the children are part of the mother's family and will inherit the ‘Bali’ of
mother. After marriage the wife would stay at her mother's place and husband would "visit" her.
For the Bunt community, the wife would stay with her husband and return to live with her
matrilineal family after the husband's death. The property of the mother is divided among the
children in such a way that female children would inherit the major share depending upon
number of children they have. A son would get only his share. There were no clear rules for the
father's property. Probably, in the earlier times it might have gone solely to nephew. However, it
was observed in the later period even though the mother's property distribution would always
follow matrilineal inheritance rules (sometimes at the expense of sons), father was free to
distribute his property according to his wish. This system also provides women the right to
divorce and re-marry.

Section 3 (b) of the Act defines Aliyasantana law as the system of law applicable to persons who
if this Act had not been passed, would have been governed by the Madras Aliyasantana Act,
1949 or by the customary Aliyasantana law with respect to the matters for which provision is
made in the Act.

Similar to the joint family and coparcenary of the Mitakshara school, Aliyasantana system has its
own unit, kutumba or kavaru. Every kavaru, in its initial state, must have consisted of a mother
and of her children, male and female, living in commensality with joint right in property. And as
it expands, the kavaru is added to by the descendants both male and female, of the female
thereof. The eldest male member is known as ejaman and eldest female member is known as
ejamanthi. The senior most member, whether male or female is entitled to carry on the family
management. The death of the last female member leads to the end of the kavaru.2

The kavaru differs from the Mitakshara coparcenary in the aspect that in the case of the former,
every member, whether male or female has equal rights in the kavaru by virtue of them being
born in the kavaru, while with respect to the latter only the son, grandson and great – grandson
have the right by birth in the joint family property. However, the kavaru is similar to the
Mitakshara coparcenary in the aspect that on the death of any one of its members, his or her
interest devolves on the other members of the kavaru by survivorship.

Also, under this system, a member was given a right to separate himself or herself from the joint
family and claim partition, the ascertainment of the share at the partition is per capita, not per
stripes.

One of the special features of Aliyasantana law is that there is no distinction as to the devolution
of property of a female or male member. The self-acquired property of a member goes to the
nearest branch, and where there are more branches than one in similar degree of relationship,
they inherit jointly. Basically, the succession rules applicable to a Hindu female or male are
applicable to persons governed by the Aliyasantana law but with certain modifications.

It must be noted that Section 7 (2) of the Act provides that when a Hindu to whom the
Aliyasantana law would have applied if this Act had not been passed dies after the
commencement of this Act, having at the time of their death an undivided interest in the property
of a kutumba or kavaru, as the case may be, their interest in the property shall devolve by
testamentary or intestate succession, as the case may be, under this Act and not according to the
Aliyasantana law.

These rules of succession have been enacted under Section 17 of the Hindu Succession Act,
1956. The section states that the provisions of 8, 10, 15 and 23 will be applicable to people
would have been governed by Aliyasantana law if the Act had not been passed. The rules of
succession with respect to a female belonging to the Aliyasantana law is as follows:

 Firstly, upon the son, and the daughters (including the children of any predeceased son or
daughter), and the mother;
2
Dr. Paras Diwan, Modern Hindu Law (2020), 460
  Secondly, upon the father and the husband;
 Thirdly, upon the heirs of the mother;
 Fourthly, upon the heirs of the father; and
 Lastly, upon the heirs of the husband.

Notwithstanding anything above, any property inherited by a female from her husband or from
her father – in – law shall devolve, in the absence of any son or daughter of the deceased
(including the children of any predeceased son or daughter), not upon the heirs mentioned above,
but upon the heirs of the husband. Also, where a disposition is made in favour of all members of
kavaru, the law presumes that it is disposition in favour of kavaru and that the named persons
will inherit the property with the incidents of Aliyasantana law.

2) OBJECTS:

 To learn about intestate succession for an Aliyasantana female.

 To know about the Aliyasantana law or system.
 To know about the evolution of Hindu women's property rights.
 To understand the difference between intestate succession in case of a Hindu female and
an Aliyasantana female.

3) RELEVANT CASE LAWS:

 Vineeta Sharma vs Rakesh Sharma

Citation: (2020) 9 SCC 1
In this landmark judgement, the SC held that daughters have equal coparcenary rights in
Hindu Undivided Family property. The Court held that this right arises by birth. So, when
a daughter is born, she also steps into the coparcenary as that of a son. However, a
daughter born before can claim these rights only with effect from the date of the
amendment, i.e., September 9, 2005, with saving of past transactions as provided in the
proviso to Section 6(1) read with Section 6(5). Further, the court also clarified that since
 the right in coparcenary is by birth, father coparcener doesn’t need to be living as on
9.9.2005.

 Agasti Karuna vs Cherukuri Krishnaiah

Citation: 1999 (5) ALD 387, 1999 (5) ALT 494
In this case, the court held that women had absolute right over the property of their
deceased husband under Section 14 of the Act. Any transfer or alienation of such
property by the wife after the commencement of the Act cannot be challenged by any of
the heirs.

 Punithavalli Ammal vs Ramalingam & Anr

Citation: 1970 AIR 1730, 1970 SCR (3) 894
The SC, in this case, held that Section 14 (1) gives an absolute right to women and it
cannot be curtailed in any manner by making any presumption or interpretation of the
law. It further held that the date of possession of such property is irrelevant as women in
possession of the property before the enactment of the provision would now be given
absolute rights which were previously limited.

4) CONCLUSION:

The progress of any society depends on its ability to protect and promote the rights and interest
of its members, especially women. In contrast to the statement, Hindu society has been
patriarchal in nature from the very beginning, which has always has promoted the interest of
their male heirs. With changing times, the social scenario has begun to shift. We can say that it
has almost changed.

With respect to the property rights under the Hindu law at least women have been given equal
rights after the Amended Act of 2005. The main purpose of the Act is to ensure that both, male
and female heirs, are entitled to be coparceners in the family’s property by birth. With this
amendment, the women also got the right to ask for partition as well as dispose of such
coparcenary property as per their own will or through testamentary disposition.
 All women are treated at par with their male counterparts as far as Hindu law is concerned.
Daughters, whether married or unmarried, are coparceners in the ancestral (joint) family
property. They can inherit property through intestate as well as testamentary succession. They
are also allowed to hold property in all forms and by all means as males. All these amendment
and provisions have retrospective effect. This is considered as one of the significant and historic
steps with respects to women’s right.

As for the Aliyasantana law or system, it declined over time and is followed by only few people.
However, in the patriarchal Hindu society Aliyasantana law or system was one of the two
systems which provided property rights and ownership to women as opposed to men. Under this
system the property was passed down from the maternal side. It was replaced by various state
enactments and the Hindu Succession Act, 1956. The Aliyasantana law was abolished by the
Kerala Joint Hindu Family System (Abolition) Act, 1975.

It must be noted that under the Hindu Succession Act, there provisions with respect to intestate
succession for an Aliyasantana female. Thus, when a woman who follows the matrilineal
customs (Aliyasantana law) dies intestate, her ‘general property’ would first devolve upon the
children, including children of any predeceased son or daughter and the mother. Then it would
devolve upon father and husband in the same category. ‘Heirs of the mother’ gain precedence
over the heirs of the husband, an order that is inverted in the case of other Hindus. These
provisions are provided under Section 17 of the Act and are similar rules which are applicable to
a Hindu female just with certain modifications.
5) BIBLIOGRAPHY:

Books:

 Dr. Paras Diwan & Peeyushi Diwan, Modern Hindu Law (Allahabad Law Agency,
Haryana, 24th edn., 2020)

Acts:

 The Hindu Succession Act, 1956, India, available at:

http://ncwapps.nic.in/acts/TheHinduSuccessionAct1956.pdf

Websites:

 https://www.deccanherald.com/content/257244/aliyasantana-accent-women.html
 http://shettyprasad.blogspot.com/2010/07/aliya-santana-nephew-lineage.html
 https://www.legalserviceindia.com/articles/mds.htm#:~:text=As%20per%20sec
%2017%20the,the%20heirs%20of%20the%20mother.
 http://asksts.blogspot.com/2014/02/aliyasantana-system-marumakkattayam.html
 https://incometaxmanagement.com/Pages/HUF/36-HUF-Aliyasantana-Law.html
 https://blog.ipleaders.in/evolution-of-hindu-womens-right-to-property/
 https://blog.ipleaders.in/succession-to-the-property-of-female-intestate/
 https://www.legalserviceindia.com/article/l258-Intestate-Succession.html
 https://www.mondaq.com/india/wills-intestacy-estate-planning/747976/property-of-a-
hindu-female-dying-intestate
 https://districts.ecourts.gov.in/sites/default/files/admsompeta.pdf
 https://lexlife.in/2021/06/05/evolution-of-property-rights-of-hindu-women/
 https://lexforti.com/legal-news/hindu-daughters-property-right-in-india/
 https://www.lawctopus.com/academike/right-property-hindu-women/
Articles:

 K. Asra Shifaya, “Property Rights of Women under Hindu Law: A Critical Study” Vol.4
Iss 3 IJLMH 2999 – 3008 (2021)
 Shruti Pandey, “Property Rights of Indian Women”
 Devendra D, Siddharth S, Tushar A, Viraj J and Vishal T, “Gender discrimination in
devolution of property under Hindu Succession Act, 1956” NIPFP (2020)
 Pandey, Anutosh, Has Matriarchy Influenced Succession Laws in India? (October 13,
2012)