DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P, INDIA

TOPIC:WIDOWS CAPACITY TO SUCCEED THE PROPERTY OF A DECEASED HUSBAND-JUDICIAL APPROACH

FAMILY LAW-LAW OF SUCCESSION AND INHERITANCE

SUBMITTED BY
ASHIRBAD SAHOO

2019082

SEMESTER IV

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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 Sir for his guidance and constant supervision as well as for providing necessary information regarding the project &
also for their support in completing the project.”
“I would like to express my gratitude towards my family and friends for their kind co-operation and encouragement, which help me in
completion of this project.”
My thanks and appreciations also go to my friends in developing the project and people who have willingly helped me out with their abilities.
ASHIRBAD SAHOO
2019082

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Contents
LAW OF SUCCESSION AND INHERITANCE....................................................................................................................................................4
Latest trends in Succession among Hindus..........................................................................................................................................................4
Rights of Widow Under Hindu Succession..........................................................................................................................................................6
The Current Inheritance Laws for Widows.........................................................................................................................................................6
Provisions under the Hindu Succession law.........................................................................................................................................................6
Rights of Widow of Christians & Parsis Under the Indian Succession Act......................................................................................................7
Rights of Widow Under Islamic Law...................................................................................................................................................................7
CASE LAW.................................................................................................................................................................................................................7
Conclusion...................................................................................................................................................................................................................8
Bibliography................................................................................................................................................................................................................8

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Objective of the study
1. To understand the capacity to succeed the property of deceased husband
2. To figure out the widow’s capacity to succeed the property of deceased husband.
3. to understand the different concepts of inheritary rights of a widow.
Scope of the study
The study is limited to the concept of the capacity of widow to inherit the property of the deceased husband.
Significance of the study
The study helps us to know the concept of the capacity of widow to inherit the property of the deceased husband..
Literature review
In this project the student researcher has taken valuable information from various articles, journals, books and web sources.
Books – 1. Modern Hindu Law-Paras Diwan
2.Mohammedan Law-Aquil Ahmed
Web sources –1. www.lawctopus.com, - useful for accessing various judgements and statutes
2. www.lawteacher.net – useful for accessing various perspective and knowledge over a single topic
Research methodology
The student researcher has used doctrinal method of research for this project work. This research is a critical and explanatory study of the
concept of the capacity of widow to inherit the property of the deceased husband.
Sources
The student researcher has collected valuable information from secondary sources like books, web sources, articles and journals.

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LAW OF SUCCESSION AND INHERITANCE
Latest trends in Succession among Hindus.
“After an amendment to the Hindu Succession Act 1956 in the year 2005, more descendants, specially females, have been elevated as Class I
heirs in respect of property left behind by a Hindu male, who has died intestate i.e., without making a Will. The Hindu Succession Act 1956 is a
codified law dealing with the matters of succession of a deceased dying intestate and it applies to any person who is a Hindu by religion in any
of its forms or development. The Act also applies to any person who is a Buddhist, Jaina or Sikh by religion. The general rules of succession
under the Hindu Succession Act 1956 for a male who dies intestate is that heirs known as Class I heirs succeed in preference to heirs in other
classes.”1

CLASS I HEIRS

“Prior to the amendment these were the Class I heirs: Son, daughter, widow, mother Son of a pre-deceased son Daughter of a pre-deceased son
of a pre-deceased daughter of a predeceased daughter Widow of a pre-deceased son of a predeceased son of a predeceased son Daughter of a
pre-deceased son of a pre-deceased son Widow of a pre-deceased son of a predeceased son After the amendment, these heirs have been added in
the list of Class I heirs: Son of a predeceased daughter of a pre-deceased daughter of a predeceased daughter of a pre-deceased daughter of a
predeceased son of a pre-deceased daughter Daughter of a predeceased daughter of a pre-deceased son.”2

CLASS II HEIRS

“In Class II there are many categories, father falls in the category I, these were fall in category II: Son's daughter's son Son's daughter's daughter
Brother Sister.”

CLASS III HEIRS

“These fall in category III: Daughter's son's son Daughter's son's daughter Daughter's daughter's son Daughter's daughter's daughter Four heirs
from category II and III of Class II are the same as that of Class I. This discrepancy is so because these heirs were elevated to Class I after the
amendment, but were not deleted from Class II. However, these deletions can be implied. It is to be noted that the father has not been elevated to
Class I. Further, even son's daughter's son and daughter's son's son have not been elevated to Class I. “There are nine categories in Class II. If
there are no heirs in Class II, then the property devolves upon agnates and failing which to cognates.” Lastly, if the deceased does not have any
of the above heirs, the government will succeed to the property.”

EXAMPLE 1

“A male die leaving behind father, mother, widow, one son and one daughter surviving him. “The deceased also had one other daughter who
predeceased him, the predeceased daughter had husband, one son and one daughter, all of whom survived the deceased. In the given case, the
father of the deceased and the husband of the predeceased daughter will not inherit anything.” The mother, widow, son and the surviving
daughter will get one-fifth share each in the property of the deceased, while the son and daughter of the pre-deceased daughter will get one-tenth
share each.”

EXAMPLE 2

“A male die leaving behind mother, father, brother and sister. In this case, the mother will succeed to the entire property.”

EXAMPLE 3

“A male die leaving behind father, brother and sister. In this case, the father will succeed to the entire property.”

EXAMPLE 4

1
https://indiankanoon.org/doc/1602066/
2
https://www.proptiger.com/guide/post/what-are-the-property-rights-of-widows

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“A male die leaving behind two brothers and one sister. “In this case, the property will be divided equally between the three siblings. It may be
noted that words such as son, daughter mean legitimate son or daughter and includes a son and daughter who are adopted but does not include a
step-son or a stepdaughter.” A posthumous son or daughter is also included. It is also immaterial whether the daughter is married or not. Brother
or sister includes brother and sister by full blood, by half blood and by illegitimate relationship. Full blood will, however, take preference over
half blood.”3

IN CASE OF WOMEN

“As per the general rules of succession, in case of females under the Hindu Succession Act 1956, if a female dies intestate, her property devolves
as: First, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband. Second, upon the heirs of
the husband. Third, upon the mother and father. Fourth, upon the heirs of the father and lastly, upon the heirs of the mother.” However, if a
female has inherited any property from her father or mother, in the absence of any son or daughter or the children of any predeceased son or
daughter, such property will devolve upon the heirs of her father. Further, if the female has inherited any property from her husband or from her
father in-law, such property will in absence of any son or daughter or children of any pre-deceased son or daughter, devolve upon the heirs of her
husband. The word inherited is emphasised and would therefore mean inherited under intestate succession and not by testamentary succession or
gift. Sons and daughters in relation to a female mean natural born son or daughter, both legitimate and illegitimate, as well as adopted or
posthumous.”

EXAMPLE

“A female die leaving behind her self-acquired property and leaving behind her husband, a son and two sons of a predeceased son and two
daughters of a pre-deceased daughter.” In the given case, the husband and son will get one-fourth share each, while the two sons of the
predeceased son and the two daughters of the predeceased daughter will get one eighth share each. These rules of succession vary slightly in case
of certain Hindus. It is also provided under the Special Marriage Act 1954 that succession to the property of the persons married under that Act
or whose marriage is registered under the Act will be governed by the Indian Succession Act 1925 and not by their personal law.”

Rights of Widow Under Hindu Succession

“The prevailing legislation at the time, however, was a colonial creation, called The Hindu Widow’s Remarriage Act, 1856. According to this
legislation, a Hindu widow had to give up any right to property, or maintenance from her dead husband’s property (self-acquired and joint family
property), if she married again. As a result, there was a lot of misuse of this law. Plenty of Hindu families denied widows their rights on
remarriage, even when customary law allowed her to retain possession of property. The legislation was also used to deny widows their rights
when they turned “unchaste,” a rather vague term that had no clear meaning. This system prevailed until the early 20th Century, where it was
called in question for being arbitrary at the behest of reformers. At this time, The Hindu Women’s Property Right Act of 1937 came into place.
Under this, single widows, i.e., widows who did not remarry, had some rights for maintenance and property out of the joint family estate at the
time. However, things expanded and changed with the arrival of the Hindu Succession Act and the Hindu Marriage Act in 1956.”

Hindu Widows’ Remarriage Act, 1856, – “All rights and interests which any widow may have in her deceased husband’s property … shall upon
her remarriage cease; and the next heirs of her deceased husband, or other person entitled to the property on her death, shall thereupon succeed to
the same.”4

“However, this Act has been repealed. The Bombay High Court had ruled that the provisions of the Hindu Succession Act, 1956 would prevail
over the repealed Hindu Widows’ Remarriage Act, 1856.A few years ago, the Bombay High Court (HC) heard a case where the brother of a
deceased man quoted the Section 2 of the Widow Remarriage Act 1856 and asserted that his sister-in-law who had remarried should not be
allowed to inherit the property of her former husband. The court, however, ruled that a widow has the rights over her former husband’s
properties, even if she has remarried, as she would qualify as a Class I heir while the husband’s kin would be considered a Class II heir.”””

The Current Inheritance Laws for Widows

“Fundamentally, as the law stands, if there is a will defining how property is to be divided, that document, so long as it is valid in the eyes of
law, takes precedence over everything else. It is when one dies without a will, that laws of succession kick in. Succession, in simple terms, refers
to the inheritance of property after the death of the one who owns the property. One’s personal religious beliefs identify the legislative or
customary laws that govern succession. Accordingly: The Hindu Succession Act, 1956 applies to Hindus, Sikhs, Jains and Buddhists for
intestate succession/inheritance. The Indian Succession Act, 1925, particularly Sections 50 to 56, apply to Parsis for intestate succession. The
Indian Succession Act, 1925, particularly Sections 31 to 49, apply to Christians and Jews for intestate succession. The law of succession
3
https://www.proptiger.com/guide/post/what-are-the-property-rights-of-widows
4
law.html#:~:text=A%20childless%20Muslim%20widow%20is,of%20the%20deceased%20husband's%20property
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governing Muslims, for intestate succession, is the Muslim Personal Law (Shariat) Application Act, 1937.Today, widows have a right to
inheritance from their deceased husbands’ property, even if they remarry.”””

Provisions under the Hindu Succession law

“Under the scope of the Hindu Succession Act, 1956, which acts as the property law for those who are Hindu, Buddhist, Sikh or Jain, the
properties of a Hindu male who dies without a will, go to his sons, daughters, widow and mother equally. The Hindu Succession Act, 1956
mentions the distribution of property among heirs in class I of the schedule. The first rule says that if a person dies without leaving a will
(intestate) then his widow, or if there are more widows than one, all the widows together, shall take one share. While the husband’s kin are
counted among the Class-II heirs.”.5

The Class-I heirs who share their rights with the widow of the intestate, include

a) son, daughter, mother,

b) son of a predeceased son, daughter of predeceased son,

c) widow of predeceased son, son of a predeceased daughter,

d) daughter of predeceased daughter, son of predeceased son of predeceased son,

e) daughter of predeceased son of a predeceased son,

f) widow of predeceased son of a predeceased son.

It is to be noted that:

a) Adopted children (sons or daughters) are also counted as heirs.

b) Children born out of void or voidable marriages are considered to be legitimate by virtue of Section 16, and are entitled to succession. –

c) A widowed mother (who may be an adoptive mother) of the intestate also succeeds to her share along with other heirs by virtue of Section 14.
Even if she is divorced or remarried, she is entitled to inherit from her son. –

d) However, if there is an adoptive mother, the natural mother has no right to succeed to the property of the intestate. A mother is also entitled to
inherit the property of her illegitimate son by virtue of Section 3(I)(J).

e) Certain widows re-marrying may not inherit as widows. Any heir, who is related to an intestate as the widow of a pre-deceased son or the
widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-
married.

Rights of Widow of Christians & Parsis Under the Indian Succession Act
“For the Parsi community – The widow of a Christian male takes a specified share. The amount of that share depends on the identity of the other
succeeding relatives of the deceased. If the heirs are children, the widow receives a third of the share, with the remaining going to the others. If
the heirs are relatives other than the children, the widow receives a half of the share, and the remainder goes to the other relatives. If there are
neither children nor other relatives, the widow receives the entire property.”

“For the Parsi community – A widow receives equal shares with each child or parent of the deceased husband. If the widow alone is the lone
heir, she takes half of the said property, and the residue is to be divided among other relatives of the deceased.”6

Rights of Widow Under Islamic Law

The Muslim law of succession is a codification of four sources of Islamic law, namely,

a) The Holy Koran, the Sunna (the practice of the Prophet),

b) The Ijma (the consensus of the learned men of the community on what should be the decision on a particular point),

c) The Qiya (an analogical deduction of what is right and just in accordance with the good principles laid down by God).

d) The Muslim Personal Law (Shariat) Application Act, 1937.

5
https://indiankanoon.org/doc/1602066/
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law.html#:~:text=A%20childless%20Muslim%20widow%20is,of%20the%20deceased%20husband's%20property
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“Under Muslim law, no widow is excluded from inheritance. A childless Muslim widow is entitled to one-fourth of the property of the deceased
husband, after meeting his funeral and legal expenses and debts.”

“However, a widow who has children or grandchildren is entitled to one-eighth of the deceased husband’s property. If a Muslim man marries
during an illness and dies from that medical condition without brief recovery or consummating the marriage, his widow has no right of
inheritance. But if her ailing husband divorces her and afterwards, he dies from that illness, the widow’s right to a share of inheritance continues
until she remarries.”

CASE LAW
Cherotte Sugathan (Died Through … vs Cherotte Bharathi & Ors on 15 February, 2008 7– “Supreme Court of India – A Remarried Widow
Can Keep The Share Of Her Dead Husband’s Property – In 2008, the Supreme Court of India decided that widow who remarries cannot be
deprived of a share in her dead husband’s property as according to it the widow becomes an absolute owner of the deceased husband’s riches to
the extent of her share as the provisions of the Hindu Succession Act 1956 would prevail over the earlier Hindu Widow’s Remarriage Act 1856.”

“The Supreme Court of India did not concur with the provisions of the Hindu Widow’s Remarriage Act 1856 which says that all rights and
interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance, shall cease upon her re-
marriage and set it aside. The apex court based its decision on the fact that since the Hindu Marriage Act provides for absolute ownership for a
widow over her deceased’s husband property; she cannot be deprived of the same. The change in her marital status thereafter does not matter,
particularly after the tremendous changes brought in by the Hindu Succession Act.”

“The Supreme Court in its decision observed that the Hindu Succession Act had brought about a sea change in Shastric Hindu law and made
Hindu widows eligible and equal in the matter of inheritance and succession along with male heirs.””

The Apex court held that section 4 of Hindu Marriage Act would have overriding effect over the text of any Hindu law including the Hindu
Widow’s Remarriage Act.

Ajit Kaur v. Darshan Singh, 2019 SCC – 04.04.2019 8 – “Widow can’t claim ownership over a mutated property – under Section 14 of Hindu
Succession Act – In a case where a widow claimed possession of a property mutated in her name on the basis of the oral gift from her husband
before the enforcement of the Hindu Succession Act, 1956, the bench of AM Khanwilkar and Ajay Rastogi, JJ said,”

“Section 14(1) of the Act, 1956 clearly envisage that the possession of the widow, however, must be under some vestige of a claim, right or title
or under any of the devise which has been purported under the law. “The Court also explained the concept of mutation and said. “the mutation of
a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title. It only
enables the person in whose favour mutation has been ordered, to pay the land revenue. At the same time, the effect of a declaratory decree to
restore the property alienated to the estate of the alienor and until and unless the alienees are able to convince the court that they have no
subsisting interest in the property, the heirs of the alienees would be entitled to the benefits of the property as per the law of succession.”

“The Court, hence, held that in the instant case, the widow although was holding possession but not under any of the devise referred to under
explanation to Section 14(1) of the Act, 1956 and mere possession would not confer pre-existing right of possession over the subject property to
claim full ownership rights after the Act, 1956 came into force by operation of law.””

Conclusion

“The Act put the widow of a member of a joint family in the place of her deceased husband, and the husband's interest or right to a share in the
joint family property in all schools, except the Dayabhaga, vested upon his death in the widow, which she could enforce by claiming a partition
in her own right and independently of any partition taking place between the sons or not.”

“The rule that the widow succeeds in her deceased husband's property only in default of his male issue, that is, son, grandson, or great-grandson,
was abrogated by the virtue of section 3 of the Act. She was to be entitled to the same share as a son along with or in default of the male issue.”

7
Ajit Kaur v. Darshan Singh, 2019 SCC – 04.04.2019
8
Cherotte Sugathan (Died Through … vs Cherotte Bharathi & Ors on 15 February, 2008
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Bibliography

https://taxguru.in/corporate-law/womens-rights-hindu-law.html#:~:text=A%20childless%20Muslim%20widow%20is,of%20the%20deceased

%20husband's%20property.

https://www.proptiger.com/guide/post/what-are-the-property-rights-of-widows

https://www.makaan.com/iq/legal-taxes-laws/property-rights-of-widows-in-india

https://indiankanoon.org/doc/1602066/

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