“SUCCESSION TO THE PROPERTY OF FEMALE INTESTATE

UNDER THE HINDU SUCCESSION ACT, 1956”

Submitted by:
Krishna murari
B.A. LL.B. (Hons), Roll No – 151331
4th Semester

Submitted to:
Mrs. Pooja Srivastava
Faculty of Family Law
C.N.L.U

Final Draft submitted in Partial Fulfillment of Course Family Law II for

Completion of B.A. LL.B.(Hons.) Course

APRIL 2017
CHANAKYA NATIONAL LAW UNIVERSITY
Nyaya Nagar Mithapur Patna-800001
 DECLARATION

I hereby declare that the work reported in the B.A LL.B (Hons.) Project Report entitled
“SUCCESSION TO THE PROPERTY OF FEMALE INTESTATE UNDER THE HINDU
SUCCESSION ACT, 1956” submitted at CHANAKYA NATIONAL LAW UNIVERSITY,
PATNA is an authentic record of my work carried out under the supervision of Mrs. Pooja
Srivastava . I have not submitted this work elsewhere for any other degree or diploma. I am
fully responsible for the contents of my Project Report.

I take this opportunity to express our humble gratitude and personal regards to faculty of Family
law for inspiring us and guiding us during the course of this project work and also for his
cooperation and guidance from time to time during the course of this project work on the topic.

Name –KRISHNA MURARI

Roll No. 151331
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to faculty of Family law Mrs. Pooja Srivastava for his guidance and
constant supervision as well as for providing necessary information regarding the project & also
for his support in completing the project.

I would like to express my gratitude towards my parents & my friends for their kind co-operation
and encouragement which help me in completion of this project.

My thanks and appreciations also go to my colleagues in developing the project and people who
have willingly helped me out with their abilities.

THANK YOU.
 TABLE OF CONTENTS

 DECLARATION
 ACKNOWLEDGEMENT

INTRODUCTION
1.1 AIMS AND OBJECTIVE
1.2 HYPOTHESIS
1.3 RESEARCH METHEDOLOGY
1.4 SCOPE AND LIMITATIONS

CHAPTER-I
INTRODUCTION TO WOMENS PROPERTY

CHAPTER-II
THE EXISTING LAW

CHAPTER-III
CONSTITUTIONAL VALIDITY
CHAPTER-IV
THE TRUE SCENE OF WOMENS PROPERTY
CHAPTER- V
CONCLUSION AND SUGGESTION

BIBLIOGRAPHY

INTRODUCTION
Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal
of the law made by the legislature itself. This is particularly so in relation to laws governing
the inheritance/Succession of property amongst the members of a Hindu joint family.

The Indian civilization is one of the oldest civilizations in the world and the Hindus form the
majority of this civilization. Trying to trace the original source of this religion is difficult as this
means going back to the time when written material was unavailable and most of the
communication was oral. There was no distinction between religion, law and morality during the
early days, and they were referred cumulatively as ‘Dharma’.

The Hindu Succession Act came into force on 17th June, 1956, with an objective of providing a
comprehensive and uniform scheme of intestate succession for Hindus. Prior to 1956, different
communities within the Hindu religion were governed by different succession laws. There were
three major categories, besides the co-existence of a number of sub-communities, the Mitakshara
School, the Dayabhaga School and those adhering to the matriarchal system were subject to
different laws. Besides these the Mitakshara sub-schools had regional variations. Moreover, a
number of tribal communities following Hindu religion observed their own distinct rules of
succession. Amidst this maze, it was important and necessary for a uniform law that could be
applicable and more importantly accepted by the diverse population following Hindu religion.

Also, in the latter half of the nineteenth century, there was a strong establishment of the judicial
system. The court settled controversial issues related to the personal laws and passed laws and
these laws were to be applied not just to the parties but to the entire communities also. Besides
this, several legislations were enacted with an aim to modify and reform all personal laws,
including the Hindus’. The co-existence of textual Shastric Laws, several legislations,
innumerable customs and conflicting judicial precedents presented a confusing haze of laws
necessitating clarity and certainty and only solution in hand was codification.

Succession to the property of a Hindu is now governed by the provisions in Chapter II of the
Hindu Succession Act, 1956.1 Sections 18 to 28 deal with the general provisions relating to
succession. Sections 23 and 24 of the Act dealing with Special provision respecting dwelling
houses and Certain widows remarrying may not inherit as widows respectively have been
omitted by the Hindu Succession (Amendment) Act, 2005 (39 of 2005) Section 4 & 5
respectively (w.e.f 9-9-2005). The rules laid down in Sections 18 to 28 are supplementary to the

1
Henceforth, The Act.
ones laid down in Sections 5 to 17. These rules however, are not merely explanatory, but some of
them lay down substantive rules involving legal principles.

AIMS AND OBJECTIVE

The researcher by doing this project will try to find out:

 Is section 15(1) of Hindu succession act, 1956 constitutionally valid?

 Is there is a need to change the present law?
 What are the alternatives?

HYPOTHESIS
The researcher presumes that this law is discriminatory in nature which clearly violates article 15
of the Indian constitution which states that no one can be discriminated against based on gender.

RESEARCH METHEDOLOGY

In this project Doctrinal Method are used. Doctrinal Methods refer to Library research, research
or processes done upon some texts writings or Documents, legal propositions and Doctrines,
Articles, Books as well as Online Research and Journals relating to the subject. The doctrinal
method helps in doing a comparative study of the topic. This methodology helps in going
through not only the work of one eminent person but of many other too. This helps in getting the
bird’s eye view of the subject also.

SCOPE AND LIMITATIONS

Owing to the large number of topics that could be included in the project, the scope of this
research paper is exceedingly vast. However in the interest of brevity and due to certain
restrictions and limitations of time the researcher will not be able to deal with the topic in great
detail.

CHAPTER-I
 INTRODUCTION TO WOMENS PROPERTY

Section 14, Hindu Succession Act, 1956, has introduced fundamental changes in the Hindu
law of woman's property. Before 1956, the property of woman was divided into two heads :
(a) stridhan, and (b) woman's estate. The Hindu Woman's Right to Property Act, 1937
conferred some new rights of inheritance on certain Hindu females which had the effect of
increasing the bulk of woman's estate, but apart from its side repercussions on the joins
family property, it did not alter the basic division of woman's property ins stridhan and
woman's estate. Section 14, Hindu Succession Act, 1956 hai abolished woman's estate and
has virtually introduced Vijnaneshwara* interpretation of Stridhan2.

STRIDHAN AND WOMAN'S ESTATE

Literally, the word Stridhan means woman's property. But in Hindu law it has, all
along, been given a technical meaning. In the entire of Hindu law, woman's right to
hold and dispose of property has recognized. At no time whether as a maiden, wife or
widow, has the been denied the use of her property as an absolute owner (apart from
the husband's dominant position in respect of certain type of stridhan)3. It is su-true that at
no time the quantum of her property has been anything meagre. The Smritikars differ
from each other as to what items of property constitute her stridhan4. Gooroodass Banerjee
very aptly said :

The difficulties besetting an enquiry into the question what constitutes stridhan, arise
from the fact that majority of sages and commentators give neither an exact definition of
stridhan, nor an exhaustive enumeration, and if the Mitakshara gives a simple and
intelligible definition, that definition Z -3 L S been qualified and restricted in its application
by our courts, in ronsequence of its disagreement with the view of other authorities. 5

According to the Smritikars, the stridhan constituted those properties which she
received by way of gift from relations which included mostly movable property (though
sometimes a house or a piece of land was also given in gift), such as ornaments, jewellery

2
Mitakshara, II, ix, 2
3
Mitakshara, II, ix, 2

5
Hindu Law of Marriage and Stridhan, (3rd Ed.), 280.
and dresses. The gift made to her by strangers at the time of the ceremony of marriage
(before the nuptial fire), or at the time of bridal procession also constituted her stridhan.
Among the Commentators and Digest-writers, there is a divergence of opinion as to what
items of property constitute stridhan and what do not. Vijnaneshwara commenting on the
words "and the like" in Yajnavalkya's text expanded the meaning of stridhan by including
properties obtained by inheritance, purchase, partition, seizure and finding. (This
expansion was not accepted by the Privy Council which resulted in the emergence of the
concept of woman's estate). Jimutvahana gave a different enumeration of stridhan, so did
the sub-schools of the Mitakshara.

Whether the property is stridhan or woman's estate, mostly depends upon the source from
which it has been obtained.

Relevance of 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 mean brothers, sisters etc;
The last and the fifth category is the heirs of the mother upon whom the property of the female
Hindu will devolve 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 basis of inheritance of a female Hindu's property who dies intestate would thus be the
SOURCE from which such female Hindu came into possession of the property and the manner
of inheritance which would decide the manner of devolution.

Self Acquired Property - A Grey Area

The term 'property' though not specified in this section means property of the deceased
inheritable 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. The 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 section has not clearly enumerated and considered about succession of a female Hindu
property where it is self-acquired. Or to put it this way, the Legislators did not contemplate that
Hindu females would be in later years having self-acquired property and in certain cases, where
her heirs in the first category fail, the property would devolve totally upon her husband's heirs
who may be very remotely related as compared to her own father's heirs.
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 case of the self-acquired property of a Hindu married female dying intestate, her
property devolves on her husband's heirs. Her paternal and maternal heirs do not inherit, but the
distant relations of her husband would inherit as per husband's heirs.
 CHAPTER-II
THE EXISTING LAW

Intestate Succession is the method by which property is distributed when a person dies without a
valid will.

The Hindu Succession Act, 1956 slots property of a Hindu female under three categories:

i. property inherited by a female from her father or mother

ii. property inherited from her husband or father-in-law

iii. properties that are not governed by the first two categories.

Under sec 15 r/w sec 16 of the HSA, the general rule for succession of all kinds of the properties
is that it will pass on to the children (or if children predeceased the female, to the predeceased
children’s children) and the husband. However, in case there is no one in existence from the
above at the time when succession opens, the first kind of property will be inherited by the heirs
of her father and the second by the heirs of her husband. Perhaps, the intention of the legislature
was that the property should go back to the source from which it was received.

It is the succession procedure of the third kind of property, which includes the self acquired
properties or properties received in any other manner or from any other source, provided the
female has absolute rights in that property, which is under question in this research paper. Sec
15(1) of the act provides for a specific order, in which this property divests;

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.[3]

The HSA relegates blood relations of a Hindu woman to an inferior position vis-à-vis her
husband’s heirs. This leads to a situation where a woman’s relatives from her parent’s side will
never be able to inherit her property when the husband has an heir, however remotely related.
Section 14- Property of a female Hindu to be her absolute property

(1) Any property possessed by a Female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

(2) 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.

S.14 has been given retrospective effect. But this Section has no application for those who has
already inherited and alienated the property before the Act came into force. In Anandibhai v.
Sundarabhai6 , High Court has been observed as “the expression ‘any property possessed by a
female Hindu’ in Section 14 means ‘any property owned by a female Hindu’ at the date of the
commencement of the Act, and, these words are prospective in their application. Any property
‘acquired before’ the commencement of the act shall be the absolute property. The expression
‘whether acquired before or after the commencement of this act’ shows that section is operative
retrospectively.

There are two conditions to be fulfilled for the application of Section 14 of The Hindu
Succession Act, 1956:

1. Ownership of the property must vest in her, and

2. She must be in the possession of the Estate when the Act came into force.

6
AIR (1965) MP 85
 SCTION 15 APPLICABLE TO THE ABSOLUTE PROPERTY OF A F EMALE

The section applies to:

(i) Property that a woman holds as an absolute owner, irrespective of the mode of its
acquisition. It would include movable or immovable properties, but would not include
any property to which the Act does not apply7.

(ii) The term 'property' would include an undivided interest in a Mitakshara coparcenary in
which a female was a coparcener who dies leaving behind her son, daughter, or
children of a predeceased son and/or daughter.This rule is applicable in four Indian
states, viz, Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra.

This section and the scheme of succession are not applicable to any property that is held by a Hindu
woman as a limited owner either under s 14(2) of the Act, or even otherwise8. The property in
which she acquired a limited ownership to begin with, which matured into an absolute ownership
due to s 14(1), will be governed by the provisions of this Act9. The rule is that only that property will
be subject to the application of these sections, which are heritable and over which a woman had
full powers of disposal.10

7
See the Hindu Succession Act 1956, ss 4(2) and 5.

8
Somaiah v Rattamma AIR 1959 AP 244; Indu Bai v Vyankati AIR 1966 Bom 64; Renuka Bala
v Aswin Kumar AIR 1961 Pat 498; Bai Kamla v Chagan Lai AIR 1965 Guj 84.

9
Munuswami v Rajammal AIR 1977 Mad. 228; Manikyamma v Venkatasubba Rao (1978) 1
Andh LT 274; Pasmani v Patra Bala AIR 1981 Gau 42; Mahadevappa v Guramma AIR 1973
Mys 142; Harjesa v Laxman AIR 1979 Guj 45.

10
Ajib Singh v Ram Singh AIR 1959 J&K 92 (FB).
As per Section 16 of the Act,

“The order of succession among the heirs referred to in section 15 shall be, and the distribution of
the intestate’s 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 including 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) of 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.”

SEPARATE SCHEMES OF SUCCESSION FOR MALE AND FEMALE INTESTATES

A unique feature of the Hindu Succession Act 1956, though not a happy one, is that it provides
for two entirely different schemes of succession, based on the sex of the intestate. No other major
succession law in vogue in India, has a provision parallel to this and they lay down one scheme
and one set of heirs for all intestates. The reason for not providing a uniform scheme under
Hindu law, is linked closely to the emphasis on the conservation and protection of the property
in the family. The old concept of stridhan is still very evident if we look at the content of ss 15
and 16. A woman under the patriarchal setup is visualized as having no permanent family of her
own. She is born in her father's family, and remains there till she gets married, whereupon, she
joins her husband's family. Her stay in none of these families is permanent. Even in her
husband's family, in the event of a marital breakup due to the death of the husband or even divorce,
she can remarry and move out of this family and join the second husband. In contrast, the
husband's family does not change with his marriage. The ability of the woman to move and carry
the property with her, away from the family from whose members she had inherited it, is given
primary importance under Hindu law, but is not treated as of any consequence under the
inheritance laws applicable to women belonging to the other religious communities. It appears
surprising that the patriarchal set up is followed by all Indian families (excepting the matrilineal
societies), irrespective of their religion, yet none of the other succession laws provide for separate
schemes for male and female intestates. A closer look at ss 15 and 16 also reveals that not only is a
separate scheme of succession provided in case of a female intestate, there is further divergence
linked with the source of acquisition of the property and on considerations of her marital status,
and factors like whether she died leaving behind children or issueless. With respect to the
categorisation of heirs, in case of a married woman, her blood relations are relegated to a very
inferior placement in comparison to the entire category of the heirs of her husband.
 CHAPTER-III
CONSTITUTIONAL VALIDITY OF SECTION 15

In a case before the Bombay High Court the constitutional validity of section 15(2) was challenged
on the ground of hostile discrimination on grounds of sex. The court ruled in favour of the impugned
legislation and held that the rule of reversion, ie, property reverting to the family from where it was
inherited, was in furtherance of the clear objective of continuing the family unity. The petition was
rejected and the court held that it is not discriminatory. As aforesaid, it is only under Hindu law that
not only separate schemes have been provided for male and female intestates, but also different sets of
heirs and rules have been specified, linked with the source of acquisition of the property. The
argument that family unity can be protected by providing different sets of heirs, appears strange. Are
communities that are governed by a single scheme of succession, unable to protect family unity? This
whole scheme of section 15 and the nomenclature or description of heirs as heirs of her husband, of
her father or of her mother, shows that the legislature does not treat a woman as an independent
individual, and does not define her relationship with her heirs, in terms of her own blood, but
ascertained them with respect to the heads of the family in which she was a member. If she received
something from a family, 'let it not go to another family' in the absence of her issue, seems to be the
dominant purpose behind providing the exception in s 15(2). Her brother is not her heir in the capacity
of her brother, but can succeed as her father's heir. This whole exercise is meaningless and there is no
reason why it should not be scrapped and a uniform scheme governing all Hindu intestates,
irrespective of their sex, framed.

Under Article 15(1) of the Constitution, there cannot be discrimination “against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them.” This being the case,
discrimination based only on the above grounds is unconstitutional, but not the one which is based on
the above factors coupled with some other criteria like social and educational backwardness.

It was argued in the Mamta Dinesh Vakil case that the inequality which exists in Section 15(1) of the
act is not based on gender alone, but also on family ties.

The woman, upon marriage, goes into the family of her husband; the converse is not true. A woman
gives up her maternal/paternal ties upon her marriage and assumes marital ties. Hence, intestate
succession for Hindus takes into account this ground reality.

It was argued that it is considering this reality that the legislature has provided for the heirs of the
husband in the woman’s property.

The constitutional validity of the section in question was brought to the judiciary in an earlier case of
Sonubai Yeshwant Jadhav v Bala Govinda Yadav11. It was held there that

“The object of the legislation was to retain property with the joint family upon marriage which
brought males and females together forming one institution. It, therefore, accepted that in recognition
of that position when the wife’s succession opened, the class known as heirs of the husband were
permitted to succeed as a result of initial unity in marriage upon which the female merged in the
family of her husband.”

The court, in the Mamta Dinesh Vakil12 case, rejected this argument and added that the discrimination
in the section is only based on gender and not on family ties. The court analysed the succession
scheme of the male intestates under the HSA to check the viability of the argument. It noticed that
keeping the property within the family was not being envisaged. Otherwise, the property of a male
Hindu would not be inherited by daughters, sister’s sons and sister’s daughters. It was thus observed
that the only basis of this classification was gender. It was further concluded that the section is
extremely discriminatory inasmuch as the female’s property, even if self-acquired, is not inherited by
her core heirs. Further, a Hindu female, “who would otherwise hope to succeed to an estate of another
Hindu female as an heir would receive setback from the distant relatives of the husband of the
deceased not even known to her or contemplated by her to be her competitors.” Therefore, the section
is ultra vires of the scheme of the Constitution and hence invalid.

The succession laws are not only about the ones who are entitled to the property, but also about the
ones who should be disentitled. The 21st edition of Principles of Hindu Law (Mulla) also observes
that section 15(2) is based on the grounds that property should not pass to the individual “whom
justice would require it should not pass.” Example of the same is the Section 25 of the HSA which
disqualifies a murderer from inheriting the property of the person he/she has murdered. It is based on
the belief that the deceased person will never want the person who murdered him/her to inherit
property.

11
AIR 1983 Bom 156
12
2012(6) Bom.C.R. 767
INTERFERRENCE IN PERSONAL LAWS

It will be a blemish that even when the Hindu society is thriving towards gender equality, the
succession laws discriminate. A legislation which discriminates only on the basis of gender, can be
questioned, as was done when section 10 and 34 of the Indian Divorce Act were amended (in the
cases of Ammini E. J. v. Union of India13 and N. Sarda Mani v. G. Alexander14). Moreover, there
have been progressive changes in the Hindu law itself, e.g. the amendment in sec 6 giving women the
right to coparcenary and deletion of section 23 which deprived women of sharing the dwelling house
by the 2005 amendment. Although there can be different laws for different religions, there cannot be
different laws for different sexes and thus the judiciary has a right to interfere in the latter case.

13
AIR 1998 AP 157
14
AIR 1995 Ker 252
 CHAPTER-IV
THE TRUE SCENE OF WOMENS PROPERTY
The 174th 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.
At the time of enactment of the HSA, the socio-economic conditions of women were different.
At present, women hold some really good share of personal property and the family ties with her
in-laws are the same as her own family due to the emerging concept of nuclear families.
The adoption of century old law, hence, does not make any sense and presents the possibility of
being discriminatory and vague, which is true in the present case at least.

To set an example, some other States have amended the law. The Hindu Succession [Andhra
Pradesh] Amendment Act, 1985 is one such example.

The Supreme Court has ruled that a Hindu woman or girl will have equal property rights along
with other male relatives for any partition made in intestate succession after September 2005. A
bench of justices R. M. Lodha and Jagdish Singh Khehar in a judgment said that under the Hindu
Succession (Amendment) Act, 2005, the daughters are entitled to equal inheritance rights along
with other male siblings, which was not available to them prior to the amendment. The new
Section 6 provides for parity of rights in the coparcenary property among male and female
members of a joint Hindu family on and from September 9, 2005. The legislature has now
conferred substantive right in favour of the daughters.

CASE STUDY

In Janaki v. Narayana Swami15 Privy Council observed regarding women’s estate as “her right is
of the nature of right of property, her position is that of owner; her powers in tat character are,
limited…So long as she is alive , no one has vested interest in succession.”

In another case, Kalawati v. Suraj16, SC stated that in the context of section 14 “ ‘women’ does
not mean any woman , but that woman who is the owner of woman’s estate. If the holder of
woman’s estate had alienated the estate to a woman, that woman is not the woman whose estate
is enlarged to full estate.”

15
(1916) 43 I.A.207
16
AIR (1991) SC 1581
Omprakash and Ors Vs. Radhacharan and Ors17

In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she
was driven out of her matrimonial home. She lived with her parents, earned a living and died on
July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her
husband’s family claimed a succession certificate. The Supreme Court considered the scope of
Section 15 of the Hindu Succession Act and held against the mother.

The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section
15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a
Hindu woman’s self-acquired property, and such property cannot be considered as property
inherited from her parents.

The court said:

“This is a hard case… But then only because a case appears to be hard would not lead us to
invoke different interpretation of a statutory provision, which is otherwise impermissible. It is
now a well settled principle in law that sentiment or sympathy alone would not be a guiding
factor in determining the rights of the parties which are otherwise clear and unambiguous.”

In Narayani Devi’s case, the mother’s claim was not based on sympathy or sentiment, but logic
and principles of fairness, equity and justice. The Supreme Court, however, found that the law
was a hurdle to her claim.

Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the
provision of Section 15(1) read with sub-section (2) in the absence of children, the order of
succession in the case of a female Hindu would vary according to the source of acquisition of
property.” He asked why the source of acquisition should be a determinant in the case of a Hindu
woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a
somewhat different form the old outmoded view that ownership of property cannot be full but
must be somewhat limited.”

Hindu law as it existed before the Constitution has been the subject of criticism for the glaring
inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.

Here, the court granted the property to the very people who behaved cruelly with the deceased
and did not maintain the relationship when she needed it the most.18
17
(2009)15 SCC Page 66
 CHAPTER-V
CONCLUSION AND SUGGESTIONS

CONCLUSION:

Section 15(1) of the Hindu Succession Act, is a violation of the Fundamental Right of Equality and
hence, it needs to be amended. “What women can expect from Courts… is a qualified degree of equal
treatment. Women’s equality as delivered by Courts can only be integration into a pre-existing,
predominantly male world.”

In India those who own property do not always write a will. Narayani did not. She did not know the
law of succession. She certainly would not have wanted her husband’s sister’s children to grab her
earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her
husband because of death, desertion or divorce, there is a high probability that she will come to be
with her parents. In the present day, many women have self-acquired property that they have earned
because of their parents’ support. These are the ground realities. Keeping that in mind, it’s not wrong
to assume that the laws having such discriminatory orientation will be repealed and new changes will
be introduced and accepted as the society grows and develops.

The changes made by the Act in the area of inheritance to separate property, were in the nature of
modifications of earlier laws, and accorded a legislative recognition of the right of a widow. It
was a progressive step that strengthened her position, but it did not radically, depart from the old
law. However, the rights granted to the widow in the coparcenary property were revolutionary and
ended up making major inroads into the concept of coparcenary that further deepened with later
legislative enactments.

The Act, as aforesaid, postulated that when a Hindu dies, having at the time of his death, an
interest in the Hindu joint family property, his widow shall have, in the property, the same interest
as he himself had. It therefore, provided for the substitution of the widow in the place of her
deceased husband in the coparcenary and so long as she was alive, her presence defeated the
application of the doctrine of survivorship. Her introduction in the place of her husband did not
make her a coparcener, but enabled her to enjoy his share in her own right, something that was
not possible before this Act. 36 Her substitution did not disrupt the unity of possession in the

18
Prabha Sridevan, “A law that thwarts justice”, The Hindu, June 26, 2011, retrieved at 04:43 pm on 20 April 2016
coparcenary, nor the joint family.37 Her situation was unique, as she could not be called a
coparcener, nor could she be a Karta,38 but she continued to be a member of the joint family39 and was
empowered to claim a partition and demarcation of this share.40 Till a partition was effected, she
was represented by the Karta in all family matters. She was entitled to possess and use the
property and, as she was the owner for life, on her death or remarriage, this share reverted to the
surviving coparceners, as if the deceased coparcener whose widow interrupted the survivorship,
had died now.

Therefore we conclude that the Act concretized the rights of a woman in clear terms. It was through
this Act that for the first time, she could take the place of her husband in a Mitakshara
coparcenary. Yet, the Act was totally silent about the devolution of her estate after her death. Since
her ownership in this estate terminated on her death and she was not a fresh stock of descent, ie, this
estate was not heritable among her heirs, the question that arose was, who will succeed to this
estate? The rule was that, where she inherited the separate property of her husband, on her death,
the property would go to her husband's heirs, and where she inherited an undivided share in a
Mitakshara coparcenary, on her death, this share would go to the surviving coparceners, under
the doctrine of survivorship.

SUGGESTIONS

Although a magnum opus, the judgment of the Mamta Dinesh Vakil case has been passed by a single
bench of the high court and needs to be affirmed by the division bench. Once it is so done, it will be a
watershed judgment to bring in equality in the Hindu law. Once declared unconstitutional, the
government can use the recommendations of the 207th Law Commission Report, 2008 to bring
reforms in the law.

The report suggests two options, one of bringing the intestate succession laws in parity with the males,
and the other of dividing the property equally among the matrimonial and natal heirs, taking into note
the ground reality that the woman ultimately leaves her natal place and works under the constant
support of her in-laws. Either of these options will be progressive changes in the Hindu law and would
prove the supremacy of the Constitution.
 BIBLIOGRAPHY

BOOKS

 Mulla, Fardunji Dinshaw, “Hindu Law” Lexis Nexis Publication, 21st edition

 Saxena, Poonam Pradhan “Family law lectures” Lexis Nexis Publication, 3rd edition

DOCUMENTS

 Prabha Sridevan, “A law that thwarts justice”, The Hindu, April 18, 2017, retrieved at
04:43 pm
 Professor Wendy Williams, “The Equality Crisis: Some Reflections on Culture, Courts,
and Feminism,” published in 7 Women’s Rts. L. Rep. 175 (1982), retrieved at 01:28 am
on 18 April 2017

WEBSITES

 http://www.legalindia.com/female-intestate-succession-hindu-succession-act-1956/

 https://www.lawctopus.com/academike/hindu-women-changes-towards-property-rights/

 http://lawyersupdate.co.in/LU/1/119.asp