This article has been written by Lakshita Khurana.

Introduction

The Hindu Succession Act of 1956 is an act relating to the succession & inheritance of the property. The Act lays down a comprehensive & uniform system that incorporates both the succession and inheritance. Succession means the act of succeeding or following, as of the events, objects, or places in a series. Succession, in the sense of partition or redistribution of property of any former owner is, in modern systems of law, subject to several rules, depending on type of the succession. There are 2 types of succession, which are as follows:

• Testamentary Succession

When the succession of the property is governed by testament or a will, then it is referred to as testamentary succession. Under the Hindu law, a Hindu male or female can make the will for the property, including that of a share in the undivided Mitakshara coparcenary property, in favour of anyone. This should be valid & legally enforceable. The distribution will be under the provisions of the will & not through the laws of inheritance. When the will is not valid, or not legally enforceable, then property can be devolved through the laws of inheritance. 

• Intestate Succession 

It is based on laws of inheritance viz. the rules which determine mode of devolution of property of the deceased on the heirs solely on the basis of their relationship to the deceased. If the person dies without leaving a Will, it is the object of the law of inheritance.

The right of inheritance is primarily a transfer of the individual’s property, debts, titles, rights, and obligations to the other individual upon the death of that person.

The laws of inheritance in India are applicable based on types of succession as well as religion which include:

• The Hindu Succession Act, 1956/ 2005 – This law of succession applies on succession without any will i.e., intestate succession among Hindus which is applicable to Sikhs, Jains & Buddhists as well.
• The Indian Succession Act, 1925 – This law of succession is applicable on transfer of property of Hindus by a Will, i.e., testamentary succession. This law allows any individual for transferring his own property to any individual he wants legally by getting a Will drafted.

Inheritance Laws for Daughter, Mother, & Widow

• Daughter

The term ‘daughter’ includes a natural born or adopted daughter, but doesn’t include a stepdaughter or an illegitimate daughter. The daughter born of avoid marriage or avoidable marriage where a degree of nudity has been obtained from the court, may be a legitimate child and would inherit the property of her father. Under the act, there’s no distinction between the rights of a married and unmarried daughter. Under the Mitakshara law, an unmarried daughter was preferred over a married daughter. Presently there’s no such discrimination. A daughter may be a daughter and her legal marital status, her chastity, or maybe her financial position is of no consequence. So, a wealthy daughter will inherit an equal share thereto of a poor son. Similarly, how and to whom she gets married to is completely irrelevant.

The property rights for a son and a daughter were totally different before 2005, earlier, only an un-married daughter had a right to share within the ancestral property. However, after 2005, a daughter was granted similar rights also as duties as that of a son. A daughter has an equal share of right within ancestral property. Besides this, during a situation where the father has a self- acquired property or a separate property and he dies intestate, then the daughter who may be a Class I heir will have succession rights adequate to her living mother, sister, grandmother and brother.

• Mother

The expression ‘mother’ includes a biological also as an adopted mother, but it doesn’t include a stepmother. If a biological mother gives us under adoption, she ceases to be his mother and wouldn’t be entitled to inherit from him on his death.
Marital status of mother irrelevant: mother may be a mother and is usually deemed to be associated with her child regardless of whether she is married or unmarried at the time of the birth of her son, or whether the marriage was valid, void or voidable. The legitimacy or illegitimacy of the child doesn’t affect the inheritance rights of the mother.  

Moreover, conduct of mother is also irrelevant. She could also be involved during a live-in relationship with the father or the other person, and may have remarried somebody else, aside from the father of the child. Even if she renounces Hindu religion and converts to a different religion, she retains her right to succeed the property of the son.

• Widow

A wife has no right to share within the ancestral property. As a result, a widow has no right over husband’s ancestral property. However, since a wife may be a Class I heir, the wife will have the right in the self-acquired property of her husband.

The term ‘widow’ refers to the spouse of a legitimate marriage. It doesn’t include a divorced wife, but it includes a wife who at the time of the death of the male Hindu, was living separately under a decree of legal separation. The widow often Interstate takes a share that’s adequate to the share of a son. If there’s more than one widow (provided they were party to a legitimate marriage), all of them collectively, take one share that’s adequate to the share of the sun and divided equally among them, taking it as tenants in common.

Under the Mitakshara Law, be inherited together, but took the property as joint tenants, having a right of survivorship.

Presently, each of them takes it as an absolute owner, with full powers of enjoyment and disposal over it. Under this law, the moral connected or faithfulness of a wife aren’t relevant considerations for determining her eligibility to say inheritance from her husband. Moreover, the very fact that the widow remarried isn’t important, unless she didn’t remarry before the date of the death of the husband.

Historical Background

Prior to the passing of the Hindu Women’s right to property Act, 1937, the property of a woman comprised ‘stridhan’ [‘Stri’ means a woman, and ‘dhan’ means her property] and ‘non-stridhan’. Stridhan From Christ, property received by way of gifts and presents given to a woman by her parents, husband, close relations of husband or parents, either at the time of marriage or on other occasions, or at the time of the performance of ceremonies, of ‘sulka’ or gift, of money given in lieu of maintenance, etc. Non-stridhan comprised what she inherited from a male or female relation.

A woman enjoyed larger powers of disposal over her stridhan, but had limited interest in non-stridhan. She was called a limited owner of her non-stridhan property. The limitation was with reference to the power over its disposal and therefore the inability to translate this estate to her own heirs, but otherwise, she had full powers to enjoy it and appropriate the income coming out of it. It had been the power to transfer it that was denied to her, except in the case of need, or for the performance of indispensable religious and charitable purposes, including for according spiritual benefits to her husband.

Hindu Women’s Right to Property Act, 1937

Later, this Act was passed, under which, on the death of the husband, his share, in the presence of his widow (widow of a predeceased son and widow offer predeceased son of a predeceased son), didn’t pass survivorship to the surviving coparceners, but went to her. But the limited ownership terminated on her death, or maybe remarriage, going back to the heirs of the husband. This concept of ownership without absolute powers of disposal, had the aim of enabling of women to take care of herself, without being dependent on anyone.

This Act governs the devolution of the property of a male Hindu, and not the property of female. Consequently, the property of female devolved according to rules of the Hindu law, which provided a distinction between inheritance of the stridhan and non-stridhan property. Secondly, earlier, the widow succeeded only on failure of his male issue. Now, under the provisions of this act, she inherited with him, taking an share equal to his, but, due to her limited interest in the property, the doctrine of survivorship shall apply and her interest may be taken by the surviving coparceners, in case she remarried or died.  

The mode of acquisition of the share by the window created confusions with respect to her status, the quantum of interest and also the mode of devolution of this interest in her favor. 

Under the classical Hindu law, an unchaste woman was disqualified from inheriting property from her deceased husband. This act did not really help much, as it was silent on this issue. 

So, there was a need to enlarge the limited estate after women till now, which was accomplished by the Hindu Succession Act, 1956. 

Hindu Succession Act, 1956

Section 14 of the present Act, converted limited ownership into a full-fledged ownership and also terminated the confusion as well as controversy regarding the exact share that the widow took on the death of her husband as an undivided member in the Mitakshara coparcenary. Presently, she inherits separate property of her husband as his primary heir, & the quantum of her share and the nature of her estate are completely identical to that of the son. From the undivided share of the deceased husband in Mitakshara coparcenary, her mere presence defeats the application of the doctrine of survivorship over deceased husband’s undivided share and prevents it from going to his surviving coparceners. The share of the deceased husband is ascertained by means of a notional partition & she inherits his share as his class-I heir, taking it as an absolute owner. For widow who, on the date of the passing of the Act, were in possession of the property as the limited owner, it was provided that henceforth, they would hold these estates as full owners thereof.

There were two basic objectives of the Act. The primary one was to get rid of the incapacity imposed under Hindu law on a woman, to hold the property only as a limited owner. The Act removed it expressly, enabling her to acquire the property from as a full owner, that included the power to dispose it of at her pleasure. Any property that a woman acquired after the passing of the Act, was her absolute property. In this sense, it abolished the concept of a woman’s estate as being different from a man’s ownership.

Secondly, it also converted the then existing limited ownership, into an absolute ownership, by providing that where a Hindu female was in possession of the property as a limited owner, such limited ownership would automatically mature into an absolute ownership from the date of the commencement of the Act. Rather than her husband’s heirs taking her property, the property is often transmitted by her to her own heirs, thus abolishing the concept of reversioners. By providing for absolute ownership and a really wide definition of the term ‘property’, the Act also abolished the whole distinction between stridhan and non-stridhan, saudayika and non-saudayika stridhan and therefore the different modes of its acquisition and devolution.

The advantage of enlargement of limited interest into an absolute ownership is available to a Hindu woman regardless of her marital status and legality of her relationship. Thus, the expression Hindu ‘woman’ includes a woman in ‘live-in relationship’.

Application of Act to Properties Acquired before the Commencement of the Act 

One of the aims of the Act was to convert the limited interest of a widow into an absolute estate, provided she was in its possession on the date of the commencement of the Act. It was, therefore, immaterial that the acquisition of this property was before the passing of the Act. Where the widow inherited the property of her deceased husband or acquired an equivalent interest as her husband under the Hindu Women’s Right to Property Act, 1937, or maybe before that, and was in actual or constructive possession of it, the act converted the limited estate into an absolute estate. However, if she remarried before the commencement of the Act, or died, her heirs couldn’t take the advantage of these provisions, because the Act isn’t retrospective in application.
Two conditions were required to be satisfied before the limited estate matured into an absolute estate, viz.:

(i) She possessed the property as a limited owner.

The term ‘possessed by’ indicates a possession in law. It signifies a legitimate title to the property and includes a situation where an individual is possessed of the property in law, without having its actual or constructive possession. It includes a right to possess also.

(ii) She had not remarried.

In order that a limited estate held by a woman , converts into an absolute estate, she must be possessed of the estate on the date of the commencement of the Act. In three cases, the limited estate wouldn’t mature into an absolute estate. The primary case would be when she dies before the Act is passed. Therein, there would be no question of conversion of the estate, because the reversioners would get a vested title thereto. Second, where she relinquishes her estate or transfers it in favour of another person and parts with the possession; and therefore the third, when she remarries. Upon her remarriage, the limited estate terminates as if she had then died. A widow remarrying is presumed to be dead as far her rights within the former husband ‘s property is concerned, and therefore the reversioner’s right to succeed are going to be immediately activated.

Acquisition of Property 

The property that a woman may acquire before or after the commencement of the Act, shall be now held by her as a full owner and not as a limited owner. The term ‘property’ has been explained within the explanation appended to Section 14(1) that says: In this sub-section, ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition or in lieu of arrears of maintenance, or by gift from a person , whether a relative or not, before, at, or after her marriage, or by her own skill or exertion or by purchase or by prescription, or in the other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of the Act.

This explanation, which is extremely exhaustive, also contains a clause saying that it might include property acquired in any manner whatsoever. It clearly shows that the legislature wanted a really comprehensive definition of the term ‘property’.

• By Inheritance 

A Hindu woman inherited a limited interest within the property of her deceased husband under the Hindu Widows’ Right to Property Act, 1937, and also received his share within the coparcenary property that he had held as an undivided member of a Mitakshara coparcenary. Similarly, a woman may have inherited a limited estate from her husband or father-in-law, under the other Act. Such limited interests would be converted into absolute interests by virtue of this Act. Thus, where a Hindu man died, leaving two widows who inherited his properties, in 1946, the character of the estate that that they had inherited was a limited estate. This interest matured into an absolute estate on the passing of this Act.

• By Device 

A Hindu woman might have received a limited interest within the property given to her under a device of Will or a settlement. Such property shall be covered under s. 14(1), Explanation, and will mature into an absolute ownership.

• At a Partition

A Hindu female is entitled to receive a share at a partition in certain specific situations only. She wasn’t a coparcener and thus, couldn’t claim a right to invite a share within the coparcenary property. However, certain females were entitled to receive a share out of the property as and when an actual partition happened within the family, under all the sub-schools of Mitakshara, except the Dravida school. within the remainder of the regions governed by the Mitakshara law, the father’s wife would get a share adequate to the share of the son, when a partition happened between the father and therefore the son.

The mother would get a share adequate to that of the son if a partition happened among the brothers and therefore the paternal grandmother would get a share adequate to that of a grandson, where they effected a partition amongst themselves. If a partition happened and that they weren’t given their shares, that they had a right to approach the court and enforce their claims. the character of the interest that they took during this property, was that of a limited interest, terminable on her death or remarriage. Additionally, a widow of an undivided coparcener, under the Hindu Women’s Right to Property Act, 1937, was entitled to an equivalent share as that of her husband, and was capable of receiving his (deceased husband’s) share on partition and even demand a partition and ascertain the share herself. Any property that she received at a partition, during which she had only a life interest, after 1956, was held by her as an absolute owner, albeit she was given the property with some restrictions.

• In Lieu of Maintenance 

The incapability of a Hindu woman to acquire an absolute ownership within the property was very closely linked to her sole entitlement to the assets for her personal maintenance. Her economic dependence on men was a well-entrenched and deep-rooted practice within the Hindu society and was viewed by the conservatives as essential for her subjugation, lest she became too independent & assertive, a sign that was seen as a danger mark to the stability of family & even for the protection of marriage as an institution. However, as a human being, without any material assets, she had to be maintained. During coverture, the husband maintained her out of his property and after his death, the heirs who took his property were responsible for her maintenance. The Act of 1937, gave her a share in husband’s property, but in lieu of her maintenance, and that is why, on her death, it reverted again to the husband’s heirs. Because she got the property in lieu of her maintenance, she lost the right to claim maintenance once she inherited the husband’s property or acquired his individual share in Mitakshara coparcenary.

Whatever share or property she received in lieu of her maintenance became her absolute property after 1956. ‘Maintenance’ includes a reasonable provision for food, clothing, & shelter. It used to vary from case to case, but the basic purpose behind securing a maintenance is that, a woman who loses a regular monetary support, shouldn’t be left in the lurch, and a suitable alternative amount or property that yields income, should be given to her, more so if her husband died leaving behind the property. Maintenance is never to be understood as enabling a woman to strengthen herself economically or maybe to reach the same level as her male counterpart. It is basically an amount, or income, or property that can take care of her main or basic expenses or even the comforts of life. It isn’t a luxury and therefore, the quantum of the property given or settled in favour of the female, can afford a true test of whether the property was given in lieu of the maintenance or otherwise, i.e., in lieu of the partition.

However, where a widow had no pre-existing right of maintenance, but was given the right of possession of the property for her lifetime, out of love and affection, such rights will not mature into an absolute interest.

• By Gift 

The property that a female may receive under a gift, can be from her friends or her relatives or from any other person. Any property that she receives under a gift would be held by her as an absolute owner. Prior to 1956, a woman held these properties as stridhan and had absolute rights over it at all times, except coverture, where the consent of her husband was necessary for its disposal. 

• By Personal Skill or Exertion 

Any property that was acquired by a woman by her skill or exertion or through any art or a special learning, in the nature of a salary or a share in profits, with the help of any trade or business, was always considered to be her exclusive property and continues to be so even now. However, her absolute powers of disposal over it, were constrained during marriage as they were being subject to the consent of her husband. This restriction is now removed and even during marriage, a woman is free to dispose of her own property at her pleasure.

• Purchase and Prescription 

A property purchased with the help of her own funds, would be an absolute property of a woman, with full powers of disposal over it.

• Acquired in Any other Manner 

The property that a woman acquires in any other manner than the ones specified above, will be held by her as the absolute owner. It is a very wide clause and would cover property received under a decree or award, or through adverse possession.

Property Acquired After the Commencement of the Act 

14(1) of the Act removes the incapability of a woman to acquire property as a full owner. The property could have been acquired by her before commencement of the Act, as a limited owner, or after the commencement of the Act. Except for s. section 14, there is no other provision in the entire Hindu Succession Act, 1956, which specifies the ‘nature’ of the interest that a Hindu woman takes in the property that she may inherit under this Act. Had it not been for this phrase used in the section, ‘whether acquired before or after the commencement of the Act’, controversies as well as conflicts, genuine or due to vested interests of the parties, were bound to surface. It is these words that enables a woman to inherit the property as an absolute owner under the Act.

Limited Estate Expressly Conferred under a Will or an Award [Section 14(2)] 

Section 14(1) removes statutory incapability of a woman to hold property as the absolute owner. It recognizes that the acquisition of property by a woman needn’t be only for her maintenance, by obliterating the differences between the acquisition of property and the differential consequences based on the sex of the acquirer. But at the same time, it hasn’t interfered with the powers of an owner of property, to make a disposition of his property in accordance to his wishes. Thus, if a person wants to settle his property in favour of a woman by creating any life interest in it, he is competent to do so. Section 14(1) does not mean that after the commencement of the Act, a woman can never acquire any life interest; she can.

The position before the enactment of the Act was, that barring some exceptions, a woman couldn’t take an absolute ownership in property, and a compulsory limited ownership was being imposed on her. The situation presently, is that this statutory disability to acquire a full ownership is now removed, and depending upon the terms & conditions of the grant, she can acquire either a limited or the absolute estate. Her position has been brought at par with men. An absolute owner can make any kind of disposition of his property, in favour of anyone, under the Hindu law. Such life interest or a limited ownership will not mature into the absolute ownership. What is removed by the Act is the inability of the recipient to take a full ownership, but the Act does not impose a disability on the powers of an owner to make a disposition in accordance with his wishes. 

Section 14(2) thus provides: 

Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a civil court or under an award, where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property. 

Now, Section 14(2), which is an exception to the general rule incorporated under s. 14(1) protects the power of the owner to settle the property in accordance with his wishes. Hence, where a female receives a limited interest in any property under a decree of a court or an award or under a gift or a Will executed by an individual, such limited ownership wouldn’t be affected by section 14(1) and would not mature into an absolute interest. Section 14(1) is very wide in application, but section 14(2), being an exception, has a restricted application. Both these sections cover cases where a female acquires property by way of gift or Will, but the consequences mentioned are different. Where a female acquires property under a Will or a gift and the case is covered under section 14(1), the limited interest would mature into an absolute interest, but where it is governed by section 14(2), the limited interest would remain a limited interest. This overlapping has created a confusion and has made this a focal point of litigation.

Judicial pronouncements

• V. Tulasamma v. V. Sesha Reddy

The court noted that clause 1 and 2 of section 14, were presenting serious difficulties of construction in cases where property was received by a Hindu female in the lieu of her maintenance and the instrument granting such property prescribed a restricted estate for her in the property, and the divergence of judicial opinions was creating a chaotic situation. An uncertainty with respect to the interpretation of these two clauses of section 14 was prevailing & the legislature was not bothered about correcting its inapt draftsmanship, which had created endless confusion for the litigants and a paradise for the lawyers.

• A.K. Laxmanagounda v. A.K. Jayaram

The husband bequeathed his property in favour of the sons & created a life interest in favour of his widow, in lieu of her maintenance. After 1956, the widow sold her share so as to meet the marriage expenses of her daughter. This sale deed was for a valid consideration. The sons challenged the validity of the sale deed executed by their mother, on the ground that she was merely a limited owner of the property and consequently, incompetent to alienate it. The court upheld the validity of the alienation on the ground that after the passing of the Act, the limited interest that was bequeathed to her by her husband, had matured into an absolute interest, conferring on her, the power of disposal over this property, as the full owner.

• Karmi v. Amru

A Hindu man executed a Will in favour of his wife, expressly stating that she alone is to enjoy the property during her lifetime and it was only after her death that the property shall go to his three daughters. In 1955, the widow allotted some parts of the property to her two living daughters and retained the remaining portion with her, as the third daughter had by that time, died. She later executed a gift of that portion & the same was challenged by the heirs of the deceased daughter, for the want of competency. The court held that she was the absolute owner of the property and competent to dispose it by gift.

Conclusion & analysis

Prior to passing of the Hindu Women’s Right to Property Act, 1937, women only had limited rights over her non-stridhan properties or inherited property. On her remarriage, her limited estate terminates as if she died. This was because of an express provision in the Hindu Widow Remarriage Act 1856, which was passed with the primary aim of validating as well as legalising the marriage of Hindu widows and so as to accord legitimacy to their offsprings. So, after divorce, she had to depend on her husband and his family for her maintenance.

Hence, the Hindu Succession Act, 1956 was passed so as to enable her to maintain herself without depending on her in-laws. But this act was silent about her inheritance in case she remarried, giving her limited inheritance powers. So, an amending act was passed in 2005, which gave her absolute power over the inherited property, if she was still married to the deceased Hindu male when he died intestate.

Therefore, over time the rights of females in property were recognized, and power of female heirs over the inherited property were increased.

References

• Dr. Poonam Pradhan Saxena, Family Law Lectures, Family Law II (LexisNexis; 4th edition; 2019)
• http://www.legalserviceindia.com/article/l258-Intestate-Succession.html 
• https://www.helplinelaw.com/real-estate-wills-probate-and-trust/GIPIL/law-on-property-inheritance-in-india.html 

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