Why A Hindu Woman Should execute a Will!

Spread the love

Today’s Indian Women outshine men in all Spheres of life . We dismiss the verses Na Sthree Swathanthra marhathi”  of Manu as a folklore

But have you realized that those verses still resonate in our Jurisprudence??

Let us take a deep plunge into the legal Matrix of Law of Inheritance in India!!

In India, Personal Laws govern the individuals in the matter of Inheritance, Marriage, separation, Guardianship, adoption etc. The Traditional Hindu principles of Inheritance mostly followed the Doctrine of Survivorship either through Patrelineal or matrilineal route in the names of     Mythakshara, Dayabhaga, Aliyasanthana and Marumakkathayam Laws. Various enactments governing the law of Inheritance were enacted by the British like The Hindu Inheritance (Removal of Disabilities) Act, 1928,The Hindu Law of Inheritance (Amendment) Act, 1929,The Hindu Women’s Right to Property Act, 1937.

All these enactments were introduced to give better rights for woman, but the fact is that these enactments did not have any far reaching consequences in the Law of inheritance in the Hindu Society. Finally post independence all these personal laws and enactments confluence to become a single Legislation called The Hindu Succession Act of 1956.

The Hindu Succession Act, 1956 and its Amendment of 2005 governs the devolution of property upon the legal heirs on the death of a Hindu Male and Hindu Female. A reading of Section 8,10, 15 , 16 & 17 has constantly made me ask few questions to myself which I voice here.

Section 8 of the Hindu succession Act, 1956 deals with  the General rules of succession in the case of the Males. This Section postulates how the Property of a male Hindu who dies intestate (without he leaving a will or a settlement)would devolve. The section divides the legal heirs in 4 classes (Class 1, Class 2 Class 3 and class 4 Heirs). And Sec 10 of the Hindu Succession Act, 1956 deals with Distribution of property among heirs in class I of the Schedule .And the Class I legal Heirs of the Hindu Male are as per Schedule I .

And the CLASS I Legal Heirs are Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a predeceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a predeceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son. And then Class ii, Class iii & iv.

So If a Hindu Male dies intestate his property will devolve upon his wife, Children and Mother who are his class I legal heirs as per section 8 and 10 of the Hindu succession Act and they shall share the property equally excluding others. The Hindu Succession Act was amended in the year 2005 wherein “Mother” was included in the Class 1 heir list under Section 10 .The Judicial intent to bring the mother in parlance with the wife and children was to protect the interest of the Mother of a Male Hindu who could be a window with no one to support than her son. The father finds a place only in  a class II legal heir in the devolution of  properties of a male Hindu.

In the same way the property of a Hindu Woman who dies intestate is also covered Under the Act. Devolution of a self acquired property of a Hindu women who dies intestate is covered under  section 15 of the Hindu Succession Act, 1956

“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 predeceased son or daughter) not upon the other”.

These section makes it clear that under the same Act there is a different treatment (or should I call it discrimination) between devolution of Properties of a Male and a Female Hindu. When the Mother of a Male Hindu is entitled to be a Class 1 legal heir of her Sons Properties , A mother of a Female Hindu is not even  given a class 2 status and therefore does not  inherit any share in her Daughters Self acquired properties. Her daughter’s self acquired property will devolve only upon the deceased daughter’s husband and  her children and in the absence of Husband and Children , to the heirs of her Husband and not on the mother of the women who only find place after the heirs of the Husband.  

Interestingly, a thread bare analysis of the Sections 8, 10 and 15 ,16 of The  Hindu Succession Act and its provisos makes it amply clear that  while  Properties” of   male Hindu dying interstate mentioned under Section 8 & 10 of the Act doesn’t have any qualification, the female intestate succession qualifies the Properties as “ Self acquired” and “inherited”  and Accordingly ,the flow of succession is further dependent on the source of  the property of a deceased female.

In effect a self made woman who acquires properties before or after marriage is literally leaving in lurch her parents ( or a widowed mother) if she dies interstate unless she leaves a will to protect their interest. In otherwords the Social security contemplated by the legislature to provide protection to the Mother of a male is not extended to the mother of a female. This difference in treatment of intestate succession goes a long way to the extent that, the self acquired properties of a female Hindu who dies intestate without any issues (children) shall devolve upon her husband, and later on the demise of her husband will only devolve upon on her husband’s legal heirs and will not travel back to her parents who are more deserving than Husband’s heirs.

The Constitution Of India Under Article 14 envisages “ Equality of law and Equal Protection of law to all within the territory of India “ and Article 15  prohibits discrimination of Indians on the basis of Religion, Race, Sex or place of Birth. However, this equal status for all guaranteed under the Constitution may be a far cry unless the same public policy is extended to other enactments governing the personal laws of the Country.   

In the current matrix of Indian society where women stand shoulder to shoulder with men in Education, self reliance , domestic responsibilities and Economic contribution to the Country, and does not shun from taking Responsibilities of her parents , her Children and social  causes etc, Such disparity in treatment while interpreting inheritance  becomes all the more glaring than yesteryears.

Article By : Ambili Menon

Partner, A & S Legal,




Leave a Reply

Your email address will not be published. Required fields are marked *

Close Bitnami banner