Discriminatory devolution of property under Hindu Succession Act, 1956

The Hindu Succession Act, 1956 [“the Act”] governs the intestate succession and applies to any person who is Hindu, Buddhist, Jain, or Sikh by religion or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. An “intestate” refers to a person who has died without making a will, indicating the distribution of his/her assets among the heirs. The manner in which the property of an intestate is to be distributed/devolved upon the heirs of the intestate person is governed by the provisions of the Act. Section 8 and 15 of the Act is a guide on how the property of a male and a female Hindu, respectively, is to be devolved upon their heirs in case they die intestate. The general rules laid down under Section 8 and 15 of the Act for intestate succession of a male and a female, respectively, is juxtaposed herein below:

Section 8 of the Act dictates the order and preference in which the property of a male Hindu is to be devolved in case he dies intestate.  Firstly, the property is to devolve upon his Class I heirs¹Class 1 and 2 heirs are listed in the Schedule of Hindu Succession Act, at the very last page of the Act which broadly comprises of his son, daughter, wife, mother and children of pre-deceased children. Each person mentioned in the Class I shall take the share in property simultaneously and divide the same equally among the other heirs mentioned therein. In the absence of Class I heirs, the property is to be devolved upon the Class II heirs which are divided into nine categories featuring father of the deceased at the top of the hierarchy, followed by the deceased’s siblings and the grandparents. The distribution of property in case of Class II heirs is to take place at the exclusion of the other heirs mentioned in the hierarchy and not simultaneously unlike Class I heirs. For instance, if father is alive to take the share in the property, the next in hierarchy, mentioned in this Class shall not have any claim over the property. Similarly, in absence of both Class I and Class II heirs, the property shall devolve upon the agnates of the deceased²A person is said to be an agnate of another if the two are related by blood or adoption wholly through males. Ex. For a person C, the child of his father’s brother is an agnate. The child of his father’s sister is not an agnate. and if there is no agnate then lastly, the property shall devolve upon the cognate of the deceased.³A person is said to be cognate of another if the two are related by blood or adoption but not wholly through males. Ex. For a person X, the child of his father’s sister is a cognate. The child of his father’s brother is not cognate The heirs mentioned in one class completely exclude the heirs mentioned in the other class. For instance, if a man dies intestate leaving behind his class I heirs (Eg. Wife and children.), then class II heirs or any further classes of heirs mentioned in the schedule shall have no claim over property.

Section 15, similarly, lays down the hierarchy in Section 15(1) which is to be followed for devolution of shares of a female Hindu dying intestate with exceptions carved out in Section 15(2) viz.

1. If a female Hindu inherits property from her father or mother, then in absence of a son or daughter of the deceased, the property shall devolve upon the heirs of her father and not in the order specified in 15(1). Ex. If a female Hindu has inherited property from her father or mother, then in case she dies intestate without leaving any children, then the property she inherited from her father or mother shall devolve upon the heirs of her father and not upon the heirs mentioned in 15(1).
2. If a female Hindu inherits property from her husband or father-in-law, then in absence of a son or daughter of the deceased, the property shall devolve upon the heirs of the husband and not in the order specified in 15(1). Ex. If a female Hindu has inherited property from her husband or father-in-law, then in case she dies intestate without leaving any children, then the property she inherited from her husband or father-in-law shall devolve upon the heirs of her husband and not upon the heirs mentioned in 15(1).

Features of discrimination in Section 15 of the Act

1. Heirs of Husband has precedence over share in property than the Female’s own mother and father

The scheme of Section 15(1) of the Act dictates the order in which the property of an intestate female is to be devolved upon her heirs. The hierarchy is as follows:

1. Son, daughter and the husband
2. Heirs of husband
3. Mother and Father
4. Heirs of the father
5. Heirs of the mother.

Heirs mentioned in one entry are preferred to those in the succeeding entry, so on and so forth. For ex. If a female dies intestate leaving behind heirs mentioned in clause (a) viz. a son or the husband, then heirs mentioned in the succeeding entries i.e. heirs of husband shall have no claim over the property.  As evident from the line of hierarchy, in case a female dies intestate, then, in the absence of heirs mentioned in clause (a), the property of the female shall devolve upon the heirs of her husband and not upon her own mother and father who come next in preference in clause (c). Therefore, in essence, distant relatives of a female’s husband have stronger claim over her property, on her demise, than her own mother and father.

2. No distinction between Self acquired property and inherited property of the Female.

Another striking feature of discrimination under Section 15 of the Act is that it does not take into account the self-acquired property of a female. The only property which is exempted from devolution in accordance with the hierarchy mentioned in Section 15(1) is property which she has inherited from her mother and father or Husband and Father-in-Law, in which case, the property shall be devolved upon the heirs of her father or the husband in accordance with Section 15(2) as the case maybe. In absence of any other specification and any indication to the contrary, any other property acquired by the a female Hindu, whether by way of a purchase, lease, mortgage or under a will, the fate of that property shall be governed by the rules/hierarchy laid down in Section 15(1) in which case the heirs of her husband have a precedence over share in the self-acquired  property of a female than her own parents. The corollary is that a female Hindu may work hard putting in her toil and labour to acquire a property by her own hard-earned money, only for that property to go in the hands of distant relatives of her husband than her own parents, in the event she dies intestate without children.

Whereas, on contrary, the rules of succession pertaining to a male Hindu mentioned in Section 8 of the Act does not treat his property differently whether self-acquired or inherited. All his property is to be devolved in a uniform manner upon the heirs mentioned therein. What is also noteworthy is that the mother of a male Hindu is mentioned as Class I heir. Therefore, in case a male dies intestate, his own mother has claim over the property acquired by her son. However, a self-acquired property of a female Hindu has almost no chance of falling in the hands of her own parents on her intestate demise, as before them, the heirs of her husband have a claim over the property in the hierarchy laid down in Section 15(1).

3. Source based discrimination

Section 15(2) of the Act embodies reversion of property inherited by a female Hindu to the source where she inherited it from viz.

1. Property inherited from her own mother or father will revert to heirs of her father on her intestate demise. (in absence of children)
2. Property inherited from her husband or father-in-law will revert to heirs of her husband on her intestate demise. (in absence of children)

In essence, the property inherited by a female Hindu remains in the family where she inherited the property from. Per contra, there is no such source-based discrimination envisaged in Section 8 of the Act pertaining to properties acquired by a male Hindu. For instance, a property in the possession of a male Hindu, whether acquired through purchase or inherited from his parents or his wife, shall devolve upon his heirs and in such preference as mentioned in Section 8 of the Act. However, in case of female dying intestate, if her property is inherited from her husband, then, in absence of children, the same shall revert to the heirs of her husband as per Section 15(2)(b).

4. Strict interpretation of “inherited” in Section 15(2)

Section 15(2) of the Act provides some vestige of possibility wherein a property of a female Hindu could fall in the hands of her own family viz. heirs of her father, in the absence of her children. However, the same is subject to a caveat viz. the property must be in the form of “inheritance” in its purest form and not otherwise. For instance, if a female Hindu has acquired a property under a will executed by her father or by way of gift, lease, etc. then the same shall not be considered as inheritance, and the said property shall take the colour of Section 15(1) and will devolve in the manner provided therein and not upon the heirs of her father as prescribed in 15(2)(a). The case of Jayantilal Mansukhlal vs Mehta Chhanalal Ambalal (AIR 1968 Guj 212) is one peculiar case in the facts of which the daughter had acquired a property from her mother by way of a registered will. The daughter died intestate without children, the property, therefore, devolved upon the heirs of her father as per Section 15(2)(a). However, her husband brought a challenge before the Court claiming possession over the property as per Section 15(1)(a). The Gujrat High Court categorically noted that “the instant case is clearly a case of a devise and not of an inheritance.” Since the property acquired by the daughter was under a will executed by her mother, the same cannot be termed “inherited” for the purposes of Section 15(2)(a) and the same shall devolve upon her husband as per Section 15(1)(a).

5. Discrimination solely on the basis of gender

A property held by a Hindu male, whether self-acquired or inherited devolves naturally on his heirs mentioned in Section 8 of the Act. However, a property held by a Hindu female falls in two categories and meets two separate fates viz.

1. Self-acquired property of a Hindu female is governed by Section 15(1) in which case the property shall devolve in the order mentioned therein.
2. Inherited property of a Hindu female is governed by Section 15(2) and reverts to the family from where she inherited the property.

Therefore, solely on the basis of gender, separate rules govern the devolution of properties held by a male and a female under the Act. The analogous source-based succession provisions do not exist for Hindu males.

Impact of discriminatory provisions- Case Laws

1. Omprakash and Ors. Vs Radhacharan and Ors.⁴MANU/SC/0728/2009

The aforementioned is a classic case which exhibits the discriminatory provisions of the Act and the extent to which they can prove to be unfair and unjust towards the females in this country. The facts in brief are that one Narayani Devi was widowed within three months of her marriage. Consequently, she was driven out from her matrimonial home and returned to her parents who provided her with money and education. Narayani Devi got employment and died intestate without children, leaving a huge amount in her bank and provident fund solely due to her own hard work and labour. Not once during her lifetime her in-laws came to support her. When her mother sought claim over her bank accounts, some distant relatives of her husband⁵sons of sister of Narayani’s Husband challenged the same and sought possession over them as per Section 15(1)(b). The court noted self-acquired property of a female Hindu is governed by Section 15(1). Therefore, in absence of her heirs mentioned in clause (a) viz. her children and husband, her property would devolve upon next in line i.e. (b) heirs of her husband.

Therefore, her own mother who looked after her and provided her with education and employment, was deprived of her daughter’s hard-earned money in view of the discriminatory order of preference mentioned in Section 15(1) giving preference to the heirs of a female’s husband over her own parents.

2. Lata Maitry and Ors. Vs State of Delhi and Ors.⁶MANU/DE/2787/2023

In this case the wife had self-acquired property worth crores and died intestate without children. Her parents sought a claim over the property of their daughter, however, the same was challenged by her husband. The court noted that self-acquired property of a female is governed by the preference laid down in Section 15(1) of the Act in which the husband has a preeminent right over the self-acquired property of his wife than her own parents.

Discrimination is against the scheme of the Act

Section 14 of the Act was introduced to grant absolute rights to the females in the property inherited by them as earlier the females were granted limited rights of ownership over the property. Section 6 of the Act, as introduced by the Hindu Secession Act, 1956 discriminated against the females as it prohibited females from inheriting ancestral property unlike their male counterparts. The Hindu Succession Amendment Act 2005 substituted the erstwhile Section 6 and brought sons and daughter on an equal footing to claim inheritance. The statement of object and reasons of the 2005 Amendment Act categorically states that “the object of amendment of Hindu Succession Act, 1956 is to remove discrimination between sons and daughter and give equal rights to the daughter..” In contradistinction, the effect of Section 15(2), as observed herein above, is that the property inherited by a female is only held by her in the of form of life-interest. She may enjoy the property as long as she is alive but the property so inherited must revert to the source viz. heirs of father or husband, in case she dies childless. It does not grant absolute right of ownership to the female which is against the legislative intent of Section 14 which conferred absolute right of ownership to women for the properties held by them at the time of introduction of the Act.

Therefore, the entire scheme of the Act endeavors to treat male and female on an equal footing. When the aforesaid anomalies have been recognized and rectified by way of amendment, then it begs a question that why Section 15 continues to hold ground despite being so conspicuously discriminatory towards the females. Bombay High Court in Mamta Dinesh Vakil and Ors vs Bansi s. Wadhwa and Ors.⁷MANU/MH/1869/2012   observes as follows:

“..Whatever that be, the heirs of the husband before the mother and father as also the heirs of the father before the heirs of the mother would constitute gender discrimination. The egalitarian bluestocking that the Hindu society may have become, in consonance with the constitutional mandate, it has still left untouched perhaps the last discriminatory corner of the Hindu Society which has otherwise come of age and which would have to be looked upon as wanting in an equal society.”

Constitutional Validity

Article 14 of the Constitution of India guarantees equality before law to everyone. Article 15 (1) of the Constitution prohibits the state from discriminating against any citizen solely on the gourds of religion, race, caste, sex, place of birth or any of them. The scheme of Section 8 and 15 of the Act envisage separate rules of succession for male and female which are detrimental to the interests of the female solely on the account of her gender. Section 8 and 15 of the Act squarely fall afoul of Article 15 of the Constitution and are antithetical to the very spirit of the Constitution which endeavors to treat each and every person equally in the eyes law and prohibits discrimination solely on the basis of gender of a person.

The constitutional validity of the aforementioned provisions of the Act is a subject of challenge before at least two High Courts. A single judge bench of High Court of Bombay in Mamta Dinesh Vakil and Ors vs Bansi s. Wadhwa and Ors. (supra) has categorically declared Section 8 and 15 of the Act unconstitutional, observing that it discriminates devolution of properties between man and woman solely on the basis of gender. However, the said decision has been referred to a division bench and the decision is pending. The High Court of Punjab and Haryana is also hearing a challenge to the constitutional validity of aforesaid provisions of the Act in Manju Narayan Nathan vs UOI and Anr.⁸CWP 14305 of 2021 . This is another peculiar case in which the mother has been deprived of the hard-earned self-acquired property of her daughter whose husband had predeceased her and she died intestate without children and now her mother-in-law has staked a claim over her property in terms of Section 15(1)(b).

 

Conclusion

The Hindu Succession Act, 1956 was introduced in an era when it was inconceivable for a woman to own property. The elements of the same are glaringly visible in Section 15 of the Act which does not even take into account self-acquired property of a woman and presumes from the very outset that the only way a woman could come in possession of a property is by way of inheritance. The manner in which the heirs of husband have been given preference over the parents of a female in Section 15(1) reeks of discrimination in its finest of forms and is rooted in patriarchy. The treatment meted out to the females insofar Section 15 is concerned is a far cry from the credos and ethos of the Constitution which guarantees equal rights and prohibits discrimination solely on the basis of gender.