Family Law-II Project

Topic: Intestate Succession to a Hindu Female

Submission Date:.
December 07, 2016.

Submitted By:
Mahendra Singh (2235)

TABLE OF AUTHORITIES
Cases

Bachiraju v. Venkatapadu, (1865) 2 MHC, 402.

Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.

Gangadaraiya v. Parameswaramma, (1869) 5 Mad HC, 111.

Gurbachan Singh v. Khichar Singh, AIR 1971 P&H 240.

Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, 1978 AIR 1239.

Shahaji Kisan Asme v. Sitaram Kondi Asme, AIR 2010 Bom 24.

Sheo Pertab v. Allahabad Bank, (1903) 25, 30 LA, 209.

Somaiah v. Rattamma, AIR 1959 AP 244.

Statutes

Hindu Law of Inheritance (Amendment) Act, 1929

Hindu Succession Act, 1956.

Hindu Womens Right to Property Act, 1937.

INTRODUCTION
Prior to the year 1956, the issue of intestate succession to a Hindu female bore little importance, as in most
cases, women enjoyed only a limited interest in property. A few exceptions existed, most notably in what was
known in Shastric texts as a womans stridhana, under which in some cricumstances, she had an absolute
interest, and succession devolved to the female intestates heirs. Though the earliest statutary reform sought to
give widows enhanced rights in respect of her husbands intestate property, intestate succession to a Hindu
female remained uncodified till the enactment of Section 15 of the Hindu Succession Act, 1956.
The paper begins with inquiring into the uncodified principles of stridhana that regulated the property of a
Hindu female, and the law relating to the succession to such stridhana. The paper then seeks to examine some
of the earlier statutary interventions in respect of a Hindus woman right to inherit property, and their
relevance to female intestate succession. The final section of the paper is devoted to a critical evaluation of the
first substantive statutary provision regarding intestate succesion to a Hindu female, viz., Section 15 and
Section 16 of the Hindu Succession Act, 1956.
In an effort to trace the evolution of the law relating to intestate succession from Shastric law to statutary
interventions, an attempt has been made to highlight the underlying social conditions that enabled the
incremental reform of Hindu law, with each reform progressively denting its inequitous character. Throughout
the paper, the author has sought to adopt a perspective that seeks to examine the premises underlying the
staunchly unequal character of the laws covering intestate succession to a Hindu female. The thesis of the
paper, broadly, is that the unequal and patriarchal premises of stridhana still lives on in the ghost of
Section 15 and Section 16 of the Hindu Succession Act, 1956.
It has been an objective of the author to privilege the original texts of Shastric law relating to stridhana
quoting relevant passages from such texts where possible. Due to a paucity of space, the thrust of the paper
lies in an evaluation of the Mitakshara principles relating to intestate succession to female Hindus, though
Dayabhaga principles, where relevant have also sought to be incorporated. For the same constraint of space,
principles of Marumakkattayam and Aliyasantana laws have not been investigated herein.

THE TRADITIONAL CONCEPT OF STRIDHANA UNDER SHASTRIC LAW

The issue of stridhana occupied a voluminous chunk in Sanskrit-law books. The term first occurs in the
Dharmasutra compiled by Gautama, and literally means a womans property. Though there are certain
aberrations, Mitakshara law and its allied authorities adopt the word in its etymological sense as including all

kinds of property of which a woman has become the owner, irrespective of the extent of her rights over such
property. As Mayne attests, in modern Hindu law, the term stridhana denotes not only the specific kinds of
property enumerated in the Smritis, but also other species of property acquired or owned by a woman over
which she has either absolute control or control subject to her husbands dominion. Further, she forms the
stock of descent in respect of such property, which accordingly devolves to her own heirs.
The Manusmriti states that a wife, a son, and a slave can have no property, and that the wealth they earn is
acquired for him to whom they belong. Yet, this was not construed to mean that women could not own
property, but rather, as commentators of the Manusmriti have remarked, that they could not dispose of such
property independentlywhich in itself was not held to be an absolute rule by later commentators. This view
is vindicated by Gautama who distinctly admits the right of a woman to hold separate property and provides
for its succession.
The texts relating to stridhana, except in the matter of succession, are fairly unequivocal in their import. The
principal definition, as articulated by Manu states, What was given before the nuptial fire (adhyagni), what
was given on the bridal procession (adhyavahanika), what was given in token of love (dattam pritikarmani),
and what was received from a brother, a mother, or a father are to be considered the six-fold property of the
woman. As Mayne notes, the words brother, mother, father appear to be for purposes of illustration only, as
in the next verse he says: Such property as well as a gift subsequent (anvadheyam) and what was given to her
by her affectionate husband shall go to her offspring even if she dies in his lifetime. Yajnavalkya, while
adopting this view of stridhana not necessarily falling into one of these six pigeonholes, adds: What was
given to a woman by the father, mother, her husband or her brother, or received by her at the nuptial fire or
presented on her supersession (adhivedanika) and the like (adi), is denominated a womans property.
Vijnanesvara explains that the term adi includes property which she may have acquired by inheritance,
purchase, partition, seizure, and finding. For him, Manus pigeonholes are not prescriptive, and as Mayne
observes, he is obviously correct, as Manu, Yajnavalkuya, and all the other Smritis enumerate more than six
kinds of stridhana. The term stridhana, then, comports with its etymology and is not technical.
While Vijnanesvara, in the tradition of Gautama, expanded the conception of adi within stridhana, his intent
was not to posit that all stridhana is to be at the absolute disposal of the woman. He expressly mentions the
property that is regularly inherited by a maiden as stridhana. However, it cannot be that he intended his
definition to include the property inherited by a woman as heir to her husband or to her son. The very rules of

stridhana succession that he lays down postulate that a womans property may devolve to a male issue or her
husband upon her death. For, in the absence of the daughter and the daughters children, her son and sons
sons are to take it and in their default, her husband is deemed to be an heir. Even prior to the passage of the
Hindu Succession Act, 1956, it was a settled matter of law under both the Mitakshara and the Dayabhaga
schools that property by a woman inhertied from a male is not her absolute property and passes on her death
not to her stridhana heirs, but to the heirs of the male from whom she inherited it.
The Mitakshara, in treating of a womans property, includes all kinds of stridhana lawfully obtained by a
woman, and does not make any qualifications with regard to her power of disposal over them. A more textured
interpretation, which came to acquire near universal acceptance subsequently, was offered in the
Smritichandrika and the Viramitrodaya, where distinctions are made as to the womans power to alienate
different kinds of stridhana. Two basic distinctions were carved out: firstly, property over which she has
absolute control, and secondly, property over which control is fettered by her husband.

As to the first, a woman has absolute dominion over her saudayika wealth. Saudayika property refers to all

gifts and bequests from relations, either before or after marriage. It includes all gifts and bequests from
relations, but not from strangers. Saudayika, of whatever species, is absolutely at a womans disposal. She
may spend, sell, devise, or give it away at her own pleasure. As first propounded by Katyayana, there exist
two fundamental exceptions to this absolute control, viz., wealth which is earned by the mechanical arts, or
which is received through affection (pritya) from an other but her kindred, is subject to her husbands
dominion. A further prohibition on the alienation of stridhana is prescribed by the Smritichandrika, which is
that immovable property, when given by a husband to his wife, is never at her disposal, though strictly
speaking, it is her stridhana.

Property included that which she inherited from a male or a female relation, including the husband, or

property received during the time of partition. Her position with respect to such property was in the nature of a
limited owner. The limitation was with respect to the power over its disposal and the inability to transmit this
estate to her own heirs, but other than that, she enjoyed unimpeded powers sell it, enjoy it, and appropriate the
income arising from such property. The prohibition also applies in the case of property that a woman had
taken by inheritance from a female for the purpose of inheritance. She does not, then, take such property as an
absolute estate, but as a limited estate that reverts to the heirs of the female who was the last full owner.

Under Mitakshara law, the succession to stridhana varies according to whether the deceased woman is
married or unmarried, as also according to the species of stridhana being inherited. Regarding the stridhana of
a maidenstridhana of a female acquired during maidenhood, there is unanimity with regard to the principles
of devolution. Under all Shastric texts iin Mitakshara law, succession to the maiden's stridhana passes in the
following order: first to the uterine brother; then to the mother; then the father; and finally, the fathers heirs,
or sapindas. The devolution of sulka, or bride-price also follows the same order as that of the stridhana of a
maiden.
All other forms of stridhana devolve in the following order: firstly, the unmarried daughter; then an indigent
married daughter; married daughter who is provided for; daughters daughter; daughters son; the son; and
finally the sons son. If none of the aforementioned heirs are alive, the property devolves to the husband and
the husbands heirs in favour of her blood relations. From the time of Gautama, a feature of a womans was
that when it came to the succession to her stridhana, preference was given to daughters over sons. As
Vijnanesvara observes, A womans property goes to her daughter because portions of her abound in her
female children and the fathers estate goes to his sons because portions of him abound in his male children.
This position of law, to a dispositive extent, bestrode the domain of succession law till the first statutary
interventions were made, as is discussed in the following chapter.
THE STATUTARY ENLARGEMENT OF A WOMANS RIGHT TO PROPERTY: AN INQUIRY
INTO THE 1937 AND 1956 ACTS
Prior to the codification of Hindu Succession law in the year 1956, the property of a female Hindu devolved in
accordance with the unwritten rules of Hindu law. In a majority of cases, women enjoyed only a limited
interest in property, and hence the law relating to succession to their property bore little importance. The
unique nature of stridhana can be found in the etymology of the word itself, as there is no complementatry
practice of describing property owned by males as purushdhan. Material assets normally lay in the possession
of men, while womens rights were restricted largely to gifts made out of love and affection, or in lieu of her
maintenance.
The enalrgement of a widows rights under the 1937 Act, and Succession to a womans estate
Prior to 1937, rather than permitting a woman to claim the share of her husband or father, the ownership was
instead vested in males, with her right reduced to one of maintenance only. To convert this liability of
maintenance from the responsibility of others to her own concern, the Hindu Womens Right to Property

Act, 1937 was legislated, under which, on the death of the husband, under both the Mitakshara and Dayabhaga
schools, on a widow being present, the widow of an intestate decedent was to be given an equal share to the
son in respect of the separate property of a husband. The Act also stated that, when a Hindu governed by any
school of law other than Dayabhaga or customary law died leaving an interest in joint family property his
widow shall have in the coparecenary property the same interest that he had enjoyed.
The Act, for the first time, established a womans interest in a Mitakshara coparcenary; yet, it offered no
guidance in respect of 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, this estate was not heritable among her heirs. As the
emphasis was on securing her maintenance, the rule applied to succession to her property was that where she
inherited the separate property of her husband, on her death, the property would go to her husbands heirs, and
where she inherited an undivided share in a Mitakshara coparcenary, this share would go to the surviving
coparceners under the doctrine of survivorship as if the deceased person on whose death the widow had
attained a limited interest had died now. This share of a woman under the Act, then, cannot properly be
labelled as stridhana and formed a unique species of ownership. This limited interested created, which was
known as womans estate conferred on the woman a similar right as that of the son to claim partition,
though her interest was still limited in nature.
The Hindu Succession Act: Bestowal of Full Ownership Rights on Women
Section 14 of the present Act converted the limited ownership given by the 1937 Act into absolute ownership.
Under the Act, A Hindu female inherits the separate property of her husband as his primary heir, and the
quantum and nature of her estate is identical to that of her son. Under the interpretation given to Section 6 in
Gurupad v. Hirabai, her presence defeats the application of the doctrine of survivorship over the undivided
share and prevents it from going to the surviving coparceners. This is so because the share of a deceased
husband, if there is a class-I female heir is present, is ascertained by means of a notional partition, part of
which she inherits as his class-I heir, taking it as an absolute owner.
There were two principal objectives of the act: the first was to remove the disability imposed under Shastric
law on a woman to hold certain kinds of property only as a limited owner. Section 14(1) removed it expressly,
enabling her to acquire property as a full owner, which included the power to alienate it at her pleasure.
Secondly, it also converted the then existing limited ownership into an absolute ownership. Now, instead of
her husbands heirs taking her non-stridhan property, the property would be transmitted through her own

heirs, thus abolishing the concept of revisioners. In doing so, the Act sounded the death knell for the entire
distinction between stridhan and non-stridhan, as well as between saudayika and non-saudayika property.
Succession to her heirs, which was previously restricted only to stridhana property was now amended to
include all property owned by her, with a new mode of devolution prescribed in Section 15 of the Act.
AN ANALYSIS OF INTESTATE SUCCESSION TO A FEMALE UNDER SECTION 15 OF THE
HINDU SUCCESSION ACT FROM A GENDER PERSPECTIVE

Section 15 of the Hindu Succession Act is the first statutary enactment dealing with succession to the property

of a Hindu female intestate. The initial efforts of the legislateure, viz., the Hindu Law of Inheritance
(Amendment) Act, 1929, and the Hindu Womens Right to Property Act, 1937, were geared predominantly
toward securing her maintenance and property rights, rather than providing a scheme of succession to her
property, as property ownership in absolute capacity was a rarity for a woman, and her economic and
dependence the norm.
The enactment of Section 15, as has been noted in the previous chapter, stemmed from the fact that Section 14
of the Act vested, for the first time, absolute ownership on the female with respect to all her property. The
Section applies to all property that a woman holds as an absolute owner, irrespective of the mode of its
acquisition, including immovable properties. This marked a major departure from Shastric law, where a
woman could not hold immovable property absolutely. It would also include an undivided interest in a
Mitakshara coparcenary in which a female was a coparcener. However, the section is not applicable to any
property that is held by a Hindu woman as a limited owner either under Section 14(2) of the Act, or even
otherwise.

The Act provides for three different sets of heirs depending upon the source of acquisition of the property of a

female that is available for the succession. Broadly, her property is divided into three categories: property that
a female Hindu has inherited from her parents; property that a female Hindu has inherited from her husband or
her father-in-law; and any other property (general property).

The term general property refers to the property of a woman other than that which was inherited by her from

her parents, husband or father-in-law. The term, then, will include the property that she might have inherited
from these relations through any other device, such as a gift, a Will or a settlement, and the like. It will also
cover properties that were her self-acquisitions or were received from any other source whatsoever.

Under the original Hindu Succession Bill (Bill No. 13) of 1954, provided for six separate categories of heirs in
respect of general property. In the original draft, the husbands turn to inherit under it came after the children
and the grandchildren of the intestate and her parents were preferred to the heirs of the husband. As a result of
the many concessions to orthodox forces opposing the dilution of Shastric law, this was finally amended in
favour of the current provisiongiving an equivalent share as the children to the husband and prioritizing the
husbands heirs over her parents. This was largely as a reflection of the antediluvian, patriarchal objective of
preserving property in the family of a male Hindu.
Rules for devolution of property under Section 15 are further elaborated in Section 16the first proposition
lays down the rule that among the heirs specified in 15(1), those in one entry shall be preferred to those in any
succeeding entry, and that such heirs shall have receive equivalent shares, simultaneously. The terms son
and daughter would include a womans biological or adopted, legitimate or even illegitimate children. Rule
2, Section 16 states that where a son or a daughter predeceased the mother, leaving behind a child, his/her
branch will be allotted a share. However, in order to be eligible for inheritance, such grandchildren must be the
legitimate offsprings of their parents, and born out of a valid marriage between them. The term husband in
Section 15 refers to the spouse of a valid marriage, which had come to an end with the death of the intestate. It
does not, though, include a divorced husband. It is interesting to note that though Section 8 provides that a
widow of a predeceased son are class-I heirs, these relations do not inherit the property of a female intestate,
but instead may inherit under Clause (b) of sub-section (1), as heirs to the husband.
It is important to note that the rules of inheritance across provisions of the Hindu Succession Act are
proclaimed to follow the principle of propinquity, or nearness in relationship and love and affection, and are
no longer premised on the need of religious efficacy or spiritual benefit of the intestate. Given this, it is absurd
to suggest, as is done by Section 15(1), that the entire group of heirs of the husband are near in relation to a
childless widow, when compared to her parents and brothers and sisters.
A married woman inherits only four relations of her husband, viz., the husbands father, the paternal
grandfather, his brother, and the step-son of the woman (from whom she inherits by virtue of being his fathers
widow). She inherits from no other relation of the husband, yet if she dies, the entire group of heirs of
husband are deemed eligible to succeed to her property, that too in preference to her own parents. The
provision also seems to be out of kilter with practical realities. A childless widow may not, in a majority of
cases, find her deceased husbands residence a fit place to live and decide to reside in her natal home. The

inequity of these provisions is highlighted by the fact that none of the other succession laws in the country
prvilege relations by marriage over the blood relatives of a woman.
Section 15(2) provides that the property inherited by a female Hindu from her father or mother shall devolve
not under sub-section (1), but upon the heirs of her father. From a feminist perspective, it is hard to not notice
the gendered nature of this section, for if the legislature wanted to conserve the property within the family
from where it had come, the appropriate provision should have been that where property is inherited from the
mother, it should devolve upon the heirs of the mother.
Section 15(2)(b) provides that where a woman inherits the property of her husband or father-in-law and dies
issueless, the property reverts to her husbands heirs from whom or from whose father, she had inherited the
property. Under a recent judgment of the Gauhati High Court in Dhanistha Kalita v. Ramakanta Kalita, it was
held that son from a previous marriage did not qualify as a son within the meaning of Section 15(2), and was
excluded from the inheritance of property received from the second husband. This, in the authors mind, seems
to be a subversion of the literal import of the section, which does not refer to any such qualification.
It is worthwhile to note that Hindu succession law is the only succession law in the country that provides for
separate schemes of succession for male and female intestates. The reason for not providing a uniform scheme
is linked closely to the emphasis laid by Hindu law on the the conservation and protection of the property in
the family of a male Hindu. A closer examination of Section 15 and Section 16 compels one to accept that the
underlying, highly patriarchal premises of stridhana is still alive. Section 15(2), which stipulates the reversion
of a womans estate in case of property inherited from her parents, or husband, is reflective of the principle
that a woman has only limited estate over non-stridhana property, where she was barred from controlling the
property that she inherited. Moreveor, as has been noted, despite the fact that the Act seeks to follow the
principle of nearness, her husbands heirs are preferred over her own blood relations.
The Act also makes a departure from the Shastric principle of preferring daughters over sons, and places them
on an equal footing with respect to the mothers intestate property. The Act was enacted with the underlying
backdrop of a patriarchal setup, where a woman is having no permanent family of her own. The privileging of
a husbands heirs is in part a function of the Shastric obsession with preserving the property of a male Hindu
within his family. Given that the organization of Hindu society has come a long way from the time where
preservation of property within the patrilineal house was a premium, these provisions are in dire need of
reformbeing entirely repugnant to the constitutional goal of equality. Such a proposal was sought to be

incorporated in the 2005 Amendment, which instilled a modicum of gender equality by conferring
coparcenary rights on daughters, but for a host of political reasons, Parliament was wont to demure from
reforming the provisions relating to intestate succession to a female Hindu.

CONCLUSION
The paper has sought to trace the evolution of the principles regulating intestate succession to a Hindu female
from its inception in Shastric law to the enactment of Section 15 and Section 16 of the Hindu Succession Act,
1956. The first section of this paper sought to analyze the uncodified principles regarding stridhana that
remained unimpeded till the 1956 Act. The second section focused on the early statutary interventions in the
field, as well as the relevance of Section 14 of the Hindu Succession Act, which in bestowing an absolute
interest in property to women, brought the devolution of intestate succession to such property in sharp focus.
Having examined these underlying principles, the author has tried to critically examine the rules relating to
succession laid down in Section 15 and Section 16 of the 1956 Act.
It can be no ones contention that the laws relating to intestate succession to a Hindu female still remain
largely patriarchal in outlook. In a country whose constitution envisages equality for all, the subordinate status
accorded to women under succession law is surely an unconscionable blot.
To meet the goal of building an equal society, it is essential that a legal framework giving women equal rights
in matter of succession is present. Not only do the current provisions engender inconsistent principles of law
in certain areas, but are also serious impediments to gender equality. It can only be hoped that in the next
phase of incremental reform to succession laws, Section 15 and Section 16 do not remain unamended.

BIBLIOGRAPHY
Books

Dr. Buhler, Max Muellers Sacred Books of the East, Vol. II.

Ganganath Jha, Hindu Law in its Sources, Vol. II, (1933).

Krishnaswamy Iyer, Smritichandrika, 445, (Madras, 1867).

Maynes Treatise on Hindu Law and Usage, (ed. S. Srinivasa Iyengar, 10th Edition, 1938).

Poonam Pradhan Saxena, Family Law Lectures, (3rd Edition, 2011).

PV Kane, History of Dharmasastram, Vol. I (1930).

Rameshwar Dyal Aggarwal, Hindu Law, (ed. A.N Sen, 2002).

SS Setlur, Subodhini and Balambhatti on Mitakshara (1912).

Cases

Bachiraju v. Venkatapadu, (1865) 2 MHC, 402.

Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.

Gangadaraiya v. Parameswaramma, (1869) 5 Mad HC, 111.

Gurbachan Singh v. Khichar Singh, AIR 1971 P&H 240.

Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, 1978 AIR 1239.

Shahaji Kisan Asme v. Sitaram Kondi Asme, AIR 2010 Bom 24.

Sheo Pertab v. Allahabad Bank, (1903) 25, 30 LA, 209.

Somaiah v. Rattamma, AIR 1959 AP 244.

Statutes

Hindu Law of Inheritance (Amendment) Act, 1929

Hindu Succession Act, 1956.

Hindu Womens Right to Property Act, 1937.