FEMALE INTESTATE

SUCCESSION
• Section 15 of the HSA deals with property of a Hindu female intestate
• This was first legislation to deal with property of an intestate Hindu
women. Previous laws focused on securing maintenance for women rather
than property rights.
• Earlier property was devolved as per rules provided under different schools
of Hindu law.
• Section 15 applies to: a) Property women has absolute ownership over.
b) Undivided interest in Mitakshara coparcener in which female was a
coparcener- she must have died leaving behind children.
• The section is not applicable to any property held by Hindu woman as a
limited owner under section 14 (2)
Scheme for succession
• The scheme for succession is dependent upon the different sources of
acquisition of property.
• The 3 different sources of acquisition are:
a) Property inherited from her parents
b) Property inherited from her husband or father in law
c) Any other property or general property

What is general property?

1) Anything that does not include property from the first two categories
2) Eg: self acquired property, property received as gifts or through wills,
property inherited from any other relative.
Section 15
• General rules of succession in the case of female Hindus.—(1) The property of a female Hindu
dying intestate shall devolve according to the rules set out in section 16,—
• (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the husband;
• (b) secondly, upon the heirs of the husband;
• (c) thirdly, upon the mother and father;
• (d) fourthly, upon the heirs of the father; and
• (e) lastly, upon the heirs of the mother.
• (2) Notwithstanding anything contained in sub-section (1),—(a) any property inherited by a
female Hindu from her father or mother shall devolve, in the absence of any son or daughter of
the deceased (including the children of any pre-deceased son or daughter) not upon the other
heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father;
and
• (b) any property inherited by a female Hindu 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 pre-
deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the husband.
Section 16
• Order of succession and manner of distribution among heirs of a female Hindu.—
The order of succession among the heirs referred to in section 15 shall be, and
the distribution of the intestates property among those heirs shall take place
according to the following rules, namely:—
Rule 1.—Among the heirs specified in sub-section(1) of section 15, those in one
entry shall be preferred to those in any succeeding entry and those included in
the same entry shall take simultaneously.
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 living at the intestate’s death.
Rule 3.—The devolution of the property of the intestate on the heirs referred 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 according to the same rules as would have applied
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 immediately after
the intestate’s death.
 Clause a: firstly, upon the sons and daughters and the
husband
• Total 7 heirs.
• Children can be adoptive, biological or illegitimate
• Validity of marriage not important
• Children born from different father will inherit together and take equal
share
• Grandchildren will become primary heirs when their parents are dead
• Grandchildren must be legitimate and born out of valid marriage. Their
deceased parents must also be legitimate for them to inherit the property
A
Important case: Shahji Kisan
Asme vs. Sitaram Kondi S1 (S2) W
Asme, AIR 2010 Bom 24

D
 Husband of the deceased
• Spouse of a valid marriage or voidable marriage. Not void marriage
• Not divorced before death of intestate. Includes judicial separated or
deserted husband
• Husband’s character is immaterial except if he is a murdered.
• Suppose intestate dies without any heirs, it would be presumed that
the property belonged to the husband
 Rules for calculating the share
• Each surviving son and daughter and the husband takes one share
• Where aa son or daughter had predeceased the intestate, but is
survived by a child, his/her branch has to be allotted a share
• Such surviving grandchildren takes the share of the deceased parent
and if there are more than one, they will divide the property equally
among themselves
W H H=
D=
S3 S3=
H=
S D (D2) D2=
S1=
S1 S2=
S2
 Clause b: Heirs of Husband
• Originally place in the 4th category but was relegated to 3rd place in 1956
• Inherit in absence of first group (howsoever remote)
• Better placed than any other group
• Presumption is made that property belongs to the husband and property is distributed as
per male intestate succession rule. But death of husband not required
• When woman marries more than ones, the term “heirs of husband” refers to the heirs of
the last husband

Problems with this classification:

a) Against the principles of nearness of relationship, love and affection

b) Preferred over intestate’s own parents
c) Excludes great grandchildren born form previous marriage
d) Married women inherit only from four relation of the husband.
e) Has not considered a situation where woman dies in her birth family house
 Constitutional Validity of Section 15
• Constitutional validity challenged on the ground of hostile discrimination
on ground of sex
• The question came up several times in High Courts.
• Bombay HC in 1983 held that property reverting to the family where it
belonged was in furtherance of the objective of continuing the family unity.
• This is a flawed argument, as it suggests that communities that follow a
single scheme of succession is unable to protect family unity
• The constitutional validity of section 15 has been challenged again in Kamal
Anant Khopkar vs. Dr. Ashish Sidharam Hankare. The case is ongoing.
 Constitutional validity of section 14(1)
• Validity challenged in SC on the ground of hostile discrimination against
men.
• Women visualized as share snatchers
• Provisions of S.14 is vague and uncertain
• Pratap Singh vs. UOI, AIR 1985 SC 1695
• Court held: As per Article 15(3) of the Constitution, legislature are allowed
to enact special provisions in favor of women and children. Moreover, S.14
was enacted to remedy the plight of Hindu women, who could not claim an
absolute interest in property inherited by them from her husband. Also,
there was no justification for a male Hindu to raise objection for
preferential treatment
 Doctrine of escheat
• Doctrine of Escheat is a common law doctrine which transfers the
property of a person who dies without heirs to the crown or the state.
It serves to ensure that property is not left in 'limbo' without
recognized ownership.
• Question: In case of failure of specified heirs, should property go to
any other heirs or can Govt claim the property as per doctrine of
escheat?
• State of Punjab vs. Balwant Singh AIR 1991 SC 2301: Hindu widow
died issueless and only surviving relative was her brother’s grandson.
• Court held: Object behind S.15(2) was not to eliminate other heirs
specified in s.15(1), but to give an order of preference.
Important cases for female intestate
succession
Important cases for Male Intestate Succession