THE DEVOLUTION OF THE PROPERTY OF A HINDU- DYING INTESTATE
Gursukhman Deep Singh
Associate
INTRODUCTION
The devolution of the property of a Hindu dying intestate (without a will) is governed by Hindu Succession Act, 1956 (herein referred ‘Act’). The Act, 1956, came into force on June 17, 1956. It was enacted by the Parliament of India to amend and codify the law relating to intestate succession among Hindus, Buddhists, Jains, and Sikhs.
The Act applies to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj or any person who is a Buddhist, Jaina or Sikh by religion, and to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless proved the contrary, as per Section 5 of the Act.
The scheme of the Act has divided the devolution in two categories, i.e., of male dying intestate and female dying intestate and further a sub- category – self acquired property of female dying intestate and inherited property of female dying intestate.
DEVOLUTION OF INTERST IN COPARCENARY PROPERTY
The devolution of interest in a Hindu coparcenary property is governed by Section 6 of Hindu Succession Act, 1956, which has undergone significant evolution, particularly through the 2005 amendment. A ‘coparcenary’ earlier was a narrower body within a Hindu Joint Family, consisting only of persons who acquire an interest by birth in the joint family property.
However, this rule of survivorship was fundamentally altered by the 2005 amendment of Hindu Succession Act. The Hindu Succession (Amendment) Act, 2005, was a landmark reform. It made a daughter of a coparcener a coparcener by birth in her own right, with the same rights and liabilities as a son.
Consequently, on the death of a coparcener after the amendment, his interest now devolves by succession to all Class I heirs, including his daughters, and not by survivorship. This effectively diluted the traditional concept of survivorship, treating the coparcenary interest as property that can be inherited by individual heirs.
The Supreme Court’s judgment in Vineeta Sharma v. Rakesh Sharma (AIR 2020 SUPREME COURT 3717) is a landmark decision that finally settled the confusion surrounding a daughter’s right to inherit ancestral property under the Hindu Succession (Amendment) Act, 2005.
The core issue was whether the 2005 Amendment, which granted daughters equal coparcenary rights, applied retrospectively, i.e. will it cover daughters born before the amendment, even if their father had already passed away?
The Supreme Court held that the 2005 Amendment is “retrospective” in nature. A daughter becomes a coparcener by birth, with the same rights and liabilities as a son, irrespective of when she was born . Further, a daughter can claim her coparcenary rights even if her coparcener father died before September 9, 2005. The right accrues by birth, not from the father being alive on the amendment date.
DEVOLUTION OF THE PROPERTY OF A MALE DYING INTESTATE
The rules of devolution of the property of a male dying intestate are governed in Section 8 of the Act. It states that upon the demise of the male intestate, the property devolves in the following way:
At first instance on the class-I heirs. Even if there is a single class-I heir, then the property will not go to the heirs specified under the class-II category. Class-I category has total of 11 female heirs and 5 male heirs.
Secondly, if there are no class-I heirs, then the property would pass to the class-II heirs. This category comprises nine separate entries, the prior excluding the latter. The class-II heirs in each entry take the property in equal shares.
Thirdly, if there are no class-II heirs, then the property descends to the class-III category, i.e. agnates, which comprises all blood relatives of the intestate, related to him through a whole male chain of relatives.
And lastly, if there are no agnates, then the property goes to the rest of the blood relatives of the intestate, called the cognates.
Further, Section 9 of the Act specifies the order of the succession among heirs in the schedule and states that the heirs specified in class-1 take the property of the male dying intestate simultaneously and to the exclusion of heirs specified in class-2, agnates and cognates. Further it states that when there is no class-1 heir, then while distributing the property amongst class-II heirs, those in first entry shall be preferred to those in second entry, those in second entry shall be preferred to those in third entry and so on. Hence, it is clear that while in a situation where a male has died intestate leaving no class-1 heirs, only one entry will get the property while excluding all the other entries.
The former part of Section 9 of the Act, i.e. ‘the heirs specified in class-1 take the property of the male dying intestate simultaneously and to the exclusion of heirs specified in class-2, agnates and cognates’ has to be read with section 10. Section 10 of the Act specifies four rules of distribution of property among heirs in class I of the Schedule―
Rule 1.―The intestate’s widow, or if there are more widows than one, all the widows together shall take one share.
Rule 2.―The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3.―The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.―The distribution of the share referred to in Rule 3— (i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same portion; (ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
Further the later part of Section 9 of the Act, i.e. ‘while distributing property amongst class-II heirs’ has to be read with section 11. This section specifies the Distribution of property among heirs in class II of the Schedule and states that the property of a male intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they, share equally.
The order of succession among agnates and cognates is laid down in three rules stated in Section 12 of the Act.
Rule 1 states of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2 states that where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.
Rule 3 states that neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously.
It was the case of Sheela Devi and Ors. v. Lal Chand and Anr. (AIRONLINE 2006 SC 237), where two legal issues arose-
Whether the succession to a person’s property who died after the commencement of Hindu Succession Act 1956 would be governed by the Hindu Succession Act, 1956, or by the pre-1956 Hindu Law.
The Supreme Court reiterated that the Hindu Succession Act, 1956, is codifying legislation. If a person dies after the Act came into force, succession would primarily be governed by the 1956 Act, not by the old Hindu Law.
DEVOLUTION OF THE PROPERTY OF A FEMALE DYING INTESTATE
Sections 14, 15 and 16 of the Act collectively form a comprehensive framework governing how a female Hindu’s property devolves when she dies without a will (intestate).
Section 14 (1) of the Act declares that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner. This provision converts any pre-existing limited interest into absolute ownership.
In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, (1996) 8 SCC 525, the Supreme Court held that Section 14(1) must be read in light of constitutional guarantees under Articles 14, 15 and 21, as well as international conventions like CEDAW. The Court observed that any limited rights to property accruing to a Hindu woman under pre-existing law would be transformed into full ownership under Section 14(1), provided such rights were possessed by her.
The Supreme Court in Mukatlal v. Kailash Chand, 2024 SCC OnLine SC 964 recently reiterated that for Section 14(1) of the Hindu Succession Act to apply, the Hindu female must not only have a pre-existing right (like maintenance) but must also be “possessed of” the property. The words “possessed by” are of wide amplitude. The possession must be under some vestige of a claim, right, or title.
Section 15 of the Act talks about the scheme of succession of the property of woman dying intestate and states that the property first devolves upon sons and daughters (including children of any pre-deceased son or daughter) and the husband. In their absence, it goes to the heirs of the husband, then to the mother and father, followed by heirs of the father, and finally heirs of the mother.
Sub-section (2) introduces the “source rule,” providing that property inherited from parents reverts to the father’s heirs, while property inherited from husband or father-in-law reverts to the husband’s heirs, in the absence of children.
Section 16 of the Act provides the rules for distribution among heirs. Rule 1 establishes that heirs specified in one entry of Section 15(1) shall be preferred over those in succeeding entries, while those in the same entry take simultaneously. Rule 2 allows children of a pre-deceased son or daughter to take the share their parent would have received.
The Bombay High Court in Narayan Tukaram Kate v. Hirabai Ramchandra Godse (AIR 2009 (NOC) 860 (BOM) applied Section 15(1) to hold that where a Hindu widow died leaving behind an adopted son and five daughters, all being heirs in the first entry under Section 15(1), they would take the property simultaneously and equally under Section 16.
CONCLUSION
The Hindu Succession Act, 1956, represents a comprehensive codification of intestate succession law for Hindus, fundamentally altering the traditional framework by establishing separate and detailed schemes for male and female intestates.
A landmark shift occurred with the 2005 Amendment, which, as definitively interpreted by the Supreme Court in Vineeta Sharma v. Rakesh Sharma, granted daughters equal coparcenary rights by birth, thereby dismantling the ancient rule of survivorship. This reform ensures that a daughter’s right to ancestral property is inherent and not contingent on the father being alive at the time of the amendment, marking a progressive step towards gender equality in property law.
The rules for a male intestate are clearly hierarchical, prioritizing Class-I heirs simultaneously, followed by Class-II heirs in a specified order, and finally agnates and cognates, as elucidated in cases like Sheela Devi v. Lal Chand.
For female intestates, Section 14(1) serves as a transformative provision, converting a woman’s limited estate into absolute ownership, provided she is “possessed of” the property, a condition recently reaffirmed by the Supreme Court in Mukatlal v. Kailash Chand. This ruling clarifies that a mere pre-existing right, such as maintenance, is insufficient without actual possession or a vestige of title.
Upon a woman’s death, Section 15 governs devolution, prioritizing her children and husband. A crucial aspect is the “source rule” under Section 15(2), which directs property inherited from parents or her husband to revert to the paternal or husband’s family in the absence of her own children. The Bombay High Court’s decision in Narayan Tukaram Kate v. Hirabai aptly demonstrates the application of these principles, holding that a widow’s share, once rendered absolute under Section 14, devolves equally upon her adopted son and daughters as simultaneous Class-I heirs under Section 15 and 16.
Kumar Sumit
Senior Associate
Chirag gupta
Associate
