Gender based succession in India

The laws governing Inheritance for Hindus in India have been segregated on the basis of gender. The gender specific laws of inheritance have been provided under the Hindu Succession Act, 1956.

The article discusses in detail the various gender-specific provisions regarding the laws relating to inheritance in India for the Hindus, as contained under the codifying legislation, Hindu Succession Act, 1956. The laws governing Inheritance in India are polarised by the gender factor of the deceased and the beneficiaries under the succession. The gender marginalisation has been existing in the Indian society since time immemorial, thus probably also find existence under the legislation.

 

Male intestate succession

The rules governing intestate succession in case of a Hindu male are contained in Section 8 to 13 of the HSA. These provide that property of an intestate Hindu male devolves upon the following heirs in the order as specified below:

  1. Upon the Class I heirs;
  2. If there is no Class I heir, then upon the Class II heirs;
  3. If there is no Class II heir, then upon the Agnates; and
  4. If there is no Agnate, then upon the Cognates.

The order of succession as provided signifies that the Class I heirs inherit the estate in exclusion to all others and in case of absence of a Class I heir, the state devolves upon the Class II heirs in exclusion to all other and so on.
Class I and Class II Heirs
The Schedule to the HSA provides for the list of relations covered under each of the classes of heirs. The Schedule explicitly excludes a brother or sister by uterine blood in any reference to a brother or sister. The heirs have been divided in the following manner:-

  1. Class I heirs: Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.
    The relations of ‘son’ and ‘daughter’ include both natural and adopted. Amongst the Class I heirs, the distribution among themselves is as follows:
    (i) The intestate’s children, mother and widow each take one equal share. The term ‘children’ includes both son and daughter and it is irrelevant whether the daughter is unmarried or married, as she gets an absolute share equal to that which the son gets; and
    (ii) The heirs in the branch of each predeceased child take one share between them.
  2. Class II heirs: The Class II heirs would be entitled to inherit the estate in the absence of Class I heirs. The below mentioned relations are covered under Class II heirs in the following order only-
    I. Father.
    II. (i) son’s daughter’s son,
    (ii) son’s daughter’s daughter,
    (iii) brother,
    (iv) sister.
    III. (i) Daughter’s son’s son,
    (ii) daughter’s son’s daughter,
    (iii) daughter’s daughter’s son,
    (iv) daughter’s daughter’s daughter.
    IV. (i) Brother’s son,
    (ii) sister’s son,
    (iii) brother’s daughter,
    (iv) sister’s daughter.
    V. Father’s father; father’s mother.
    VI. Father’s widow; brother’s widow.
    VII. Father’s brother; father’s sister.
    VIII. Mother’s father; mother’s mother.
    IX. Mother’s brother; mother’s sister.

Amongst the heirs specified in Class II, those in the first entry inherit the estate simultaneously and in exclusion to those in the subsequent entries i.e. the heirs specified in one entry get an equal share in the property and so on and so forth. Thus, if the father is surviving, he takes the property in exclusion to all other Class II heirs, Agnates and Cognates.

 

Agnates and Cognates

Two people are called the Agnates of each other, if they are related (either by blood or adoption) wholly through males, although the Agnates could be either males or females. A father’s brother’s daughter is an Agnate but a father’s sister’s son is not an Agnate because the relation is not entirely through males. Similarly on the other hand, two people are Cognates of each other if they are related (either by blood or adoption) not wholly through males, although the Cognates could be either be males or females. A mother’s brother’s daughter or a father’s sister’s son is a Cognate because the relationship is not wholly through males.

 

Female Hindu’s property

Section 14 of the HSA provides that all property / estate, whether movable or immovable, belonging to a female Hindu acquired by her by way of inheritance, partition, will, gift, on marriage, own efforts, purchase, etc. shall be held by her as an absolute owner and not as a limited owner.
However, in case she has acquired the property by way of a gift or under a will and the terms of such gift or will prescribe a limited estate, then such restriction shall prevail. Thus, a female Hindu has been granted the absolute power to deal with and dispose off her property.

 

Female intestate succession

The rules governing intestate succession of a Hindu female are provided under Sections 15 and 16 of the HSA. The rules provide that the estate / property of an intestate Hindu female devolves upon the following heirs in the below order:

  1. Upon her sons and daughters (including children of any pre-deceased children) and husband;
  2. Upon heirs of her husband;
  3. Upon her parents;
  4. Upon heirs of her father; and
  5. Upon heirs of her mother.

The order of succession denotes that the husband and the children of a deceased female Hindu would inherit her property in preference and in exclusion to all other heirs specified. In case of the devolution as regards her husband’s heirs, the estate would be treated and would devolve as if it was her husband’s property and he died intestate. To the general rule of the order of devolution, the below mentioned exceptions are carved out:-

  1. In the absence of any son or daughter or children of any pre-deceased son or daughter, any property inherited by a Hindu female from her father or mother shall devolve upon the heirs of the father and not upon any other heirs specified above; and
  2. In the absence of any son or daughter or children of any pre-deceased son or daughter, any property inherited by a Hindu female from her husband or her father-in-law shall devolve upon the heirs of the husband and not upon any other heirs specified above.

It is pertinent to note that these exceptions apply only in case the Hindu female does not leave behind any children or children of any pre-deceased children and only with regard to the property inherited by her and not acquired other ways.

 

Atul Dua
Atul Dua
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