• This FAQ tells what rights does the Law confer on a Hindu woman w.r.t inheriting her parent’s movable and immovable property? It also takes an e.g. and looks at different scenarios. 

Inheritance laws are complex. The purpose of this piece is to make it easier for the ordinary person to understand the inheritance law and how it works. For simplicity presented in an FAQ format.

With regard to law of succession for Hindus, the applicable law is the Hindu Succession Act, 1956 ("Act"). It is applicable throughout India including the Union Territory of Jammu and Kashmir. 

The Act applies to every person who is covered under the Hindu Marriage Act (i.e. Hindu, Buddhist, Jain and Sikh).  

In India, the law of Inheritance can be broadly divided into two branches-

1. Testamentary Succession - where a person may leave behind him a valid and enforceable "Will". A Will is a declaration made by a person in writing expressing such person’s wishes as to how his/her properties are to be distributed and divided after his death.

2. Intestate Succession - where a person dies without leaving behind a Will. 

Q1. When a Hindu dies without a will then only does the Succession Act comes into play. If will says only say 20% to daughter can daughter challenge say equal share.

A1. That is not correct. Irrespective of the whether a Hindu dies testate or intestate, Hindu Succession Act will be applicable to him/ her. However, if he has died leaving behind a Will, his assets will be distributed in terms of the Will, if the Will is not challenged. Any of the heirs/ legatees/ beneficiaries of the testator (i.e. the deceased person), including the daughter can challenge the Will. However, the grounds for challenge are limited i.e. one has to prove that the execution of Will was done by forgery, fraud, or undue influence for the purposes of invalidating the Will.

When a person dies leaving behind a valid and existing Will, the property and the assets of such a person shall be distributed as per the wishes of the deceased as stated in the Will. However, when such a person dies without leaving behind him a Will, such a person is said to have died intestate and the distribution of his properties will be governed by the personal laws of succession by which he was governed during his lifetime.

Q2. Does this apply to Hindus only or all Indians?

A2. This is a general rule applicable to all Indians.

Thus, when a Hindu dies without leaving behind him a Will, his property shall be distributed according to the Hindu Succession Act, 1956.

Q3. What was the impact of The Hindu Succession (Amendment) Act, 2005 ("Amendment Act")

A3. Prior to 2005, only a Hindu male acquired a right in the Hindu Undivided Property ("HUF"). Such right was acquired by a male in such HUF property by virtue of his birth. A Hindu female, however acquired no such rights in the HUF property. To disentitle a Hindu female from claiming any rights in such HUF property, the general practice at the relevant time, was to obtain a simple release deed from her upon her marriage whereby she released all her right, title and interest in such HUF property.

By the Amendment, the legislation has now conferred equal rights upon a Hindu daughter as that of a Hindu son. A Hindu daughter (whether married or unmarried) now has the same rights in a HUF property as that of a Hindu son with a right to dispose of the same by testamentary disposition.

Q4. Was the Amendment Act, applicable to a Hindu daughter who was born and alive at the said time?

A4. This question of law was answered by the Hon’ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma &Ors.1 wherein the Hon’ble Supreme Court held that such right was conferred upon a Hindu daughter born before or after the Amendment provided there was no disposition or alienation including any partition or testamentary disposition of property which had taken place prior to December 20, 2004.

Himachali Women, Manali.  

Q5. Can you give an example of how the law works?

A5. Since the law relating to inheritance by Hindus is constantly evolving and has more often than not been subject to confusion, we will try and elucidate the laws relating to the rights of a Hindu to inheritance especially a Hindu female through the following illustration:

Suppose a Hindu family consists of five members: A husband, his wife, and their three (3) children viz. two (2) sons and a daughter. In this backdrop, we shall consider various scenarios vis-à-vis the rights of the wife and the daughter to inheritance.

Scenario I - The Husband dies intestate (i.e. without a will) leaving behind him, his wife and their three (3) children:

The distribution of the assets of the husband will be governed by the Act. Under the Act, the property shall devolve upon the heirs, being the relatives specified in Class I of the Schedule to the Act. 

Thus, in the present scenario, since the wife of the deceased and the children of the deceased all come under Class I heirs, they are all entitled to the property of the deceased. The wife, the daughter and both the sons of the deceased will be entitled to share the property of the deceased husband equally.

It is to be noted that in the event, the husband leaves behind him,  his mother and father along with his wife and children, then in that event, his (husband’s) mother being a Class I heir along with the wife and children will be entitled to share the properties of the husband, being her son equally. The father of the husband will not be entitled to any share in the property as the father falls under Class II heirs to n the Schedule annexed to the Act. Now suppose value of property is Rs 100/ it is 100 divide by 4 if no mother and becomes 100 divide by 5 if mother. 

Scenario II- The husband dies leaving behind him (i) wife, (ii) daughter, (iii) son and (iv) wife and children of a pre-deceased son:

According to the Act, the pre-deceased son’s share will be distributed amongst his wife and his children such that the wife and children of such pre-deceased son shall take one share between them (to the extent of share of the pre-deceased son) and the deceased’s wife, daughter and his other son shall take one share each.

Scenario III- The husband dies leaving behind him (i) his wife, (ii) his two sons and (iii) husband and children of a pre-deceased daughter:

In this scenario, the pre-deceased daughter’s share will be distributed amongst her husband and her children such that the husband and children of pre-deceased daughter shall take one share between them (to the extent of share of the pre-deceased daughter) and the deceased’s wife and his two sons shall take one share each. 

Scenario IV- The wife dies intestate leaving behind her, her husband and their three (3) children:

The properties shall devolve upon the sons and daughters and the husband of the deceased. Thus, in the present scenario, the two (2) sons, daughter and the husband of the deceased will be entitled to share the property and assets of the wife equally.

Scenario V- Both the husband and wife die simultaneously intestate, leaving behind them their three (3) children:

In the present scenario, the properties of the husband and the wife shall devolve upon all the children including the daughter equally.

Scenario VI- The husband’s properties includes business (run by the two sons), HUF properties, flats, agricultural lands, shares, fixed deposit etc.

The nature of the properties is immaterial. However, as stated above, prior to the Amendment Act, a Hindu female could not inherit or have any rights to an HUF property. However, the same is not true anymore. After the Amendment Act, a Hindu female, whether born before or after the Amendment Act, shall have the same rights as that of a Hindu male in a HUF property. Therefore, the daughter will, by birth, be entitled to the same rights as that of the sons in the HUF properties of the father.

Scenario VII- In the above illustration, the daughter is married. Thereafter, the daughter divorced her husband and remarried again.

The rights of a Hindu daughter to the properties of her parents are not affected by her marriage. Consequently, irrespective of the daughter’s marriage and her subsequent re-marriage, her right to inheritance to her parent’s properties remain intact and she will be entitled to inherit the same according to the provisions of the Act.

In this regard, the Hon’ble Supreme Court, following the principles of purposive construction, in the case of Anurag Mittal v. Shaily Mishra Mittal, 2 held that if both the parties from first marriage have amicably parted, but their case for divorce is still pending in the court, the second marriage of any of them shall be valid. The Apex Court held that the restriction placed on second marriage under Section 15 of the Hindu Marriage Act, 1955 till dismissal of an appeal would not apply to a case where parties have settled the matter and decided not to pursue the appeal. 

Scenario VIII- In the above illustration, the daughter is legally adopted.

Under the Act, there is no distinction between a biological child and a legally adopted child. Consequently, a legally adopted daughter will be considered at par with a biological daughter and will be entitled to inherit as a biological daughter could from her parents.

Conclusion:

From the aforesaid discussions, it is clear that after the Amendment Act, the right to inherit by a Hindu daughter is on par as that of a Hindu son under the Act. By way of the Amendment, the legislature has enlarged the rights of a Hindu daughter and ensured that their rights are protected and they are not deprived of their fundamental right to hold and dispose of their parent’s property.

Disclaimer: The information contained herein is not intended to be a source of legal advice and the author and the firm are not responsible or liable in any manner whatsoever for any errors or omissions or for the results obtained upon use of this information and there is no guarantee for the completeness, reliability or accuracy of the information. It is strongly recommended to seek proper legal advice from a qualified legal person.

Pictures in article by Sanjeev Nayyar.  

References

1. (2020) AIR 3717(SC).

2. 2018 SCC OnLine SC 1136.

To read Inheritance Laws for Muslim Women click HERE

To read  The Incredible Women of Bharat 

Trinklet Seller, Seashore Temple Mahabalipuram.

Vivekanand Kendra Along, Arunachal Pradesh. 2013