Succession to the Property of a Hindu Female Dying Intestate

2. Inherited FROM WHOM? Only from her father or mother for clause (a), and only from her husband or father-in-law for clause (b). Property inherited from anybody else, a brother or an uncle say, falls outside both and goes under sub-section (1).

3. Did she leave a son or daughter, or the child of a pre-deceased son or daughter? If yes, sub-section (2) does not operate at all, and the property goes under sub-section (1), which means to her children and husband. The source rule exists only to stop property leaving a family where there are no children to keep it there.

4. Where does it go? Under clause (a), to the heirs of the father. Under clause (b), to the heirs of the husband.

Why the rule exists, and the criticism

The purpose is to keep inherited property in the family it came from, where the woman leaves no issue. Without it, property a father left his daughter would pass, on her childless death, to her husband's heirs, who are strangers to it.

The criticism is equally clear and should be given.

There is no equivalent for a male. A man's property devolves under section 8 whatever its source: land he inherited from his wife's family goes to his own heirs. Only a woman's property is traced back.

It treats her as a conduit. The rule assumes that inherited property is passing through her rather than belonging to her, which sits awkwardly with section 14(1), the very provision that made her a full owner.

Her mother's heirs are ignored in clause (a). Property inherited from her mother goes, under clause (a), to the heirs of the father. The Kerala legislature has added a further clause dealing with property inherited from a pre-deceased son, and the Act's own clause (a) still sends the mother's property to the father's side.

Section 16: the order and the manner

Section 16 lays down three rules.

Rule 1. Among the heirs specified in section 15(1), those in one entry are preferred to those in any succeeding entry, and those included in the same entry take simultaneously.

Rule 2. If a son or daughter had pre-deceased the intestate leaving his or her own children alive at the time of her death, the children of that son or daughter take between them the share which that son or daughter would have taken if living. That is representation, and it works branch by branch.

Rule 3. The devolution on the heirs referred to in clauses (b), (d) and (e) of section 15(1), and in section 15(2), shall be in the same order and according to the same rules as would have applied if the property had been the father's, or the mother's, or the husband's, as the case may be, and such person had died intestate in respect of it immediately after the intestate's death.

What Rule 3 means in practice

Rule 3 is short and it does a great deal of work. Whenever the property is to go to the heirs of somebody, you do not need a fresh list. You simply ask: if that person had died intestate immediately after her, who would have taken?

So "the heirs of the husband" means the people who would take under section 8 if the husband had died intestate at that moment: his Class I heirs first, then Class II, then his agnates, then his cognates. The same for the father's heirs and the mother's heirs.

Note the wording, because it is precise. The notional death is immediately after the intestate's death, not before it. So the woman herself is not one of the heirs in that notional succession.

A worked example

Example 1: children and husband

W dies intestate leaving a husband H, a son S and a daughter D, owning property she bought herself.

Entry (a) is occupied by S, D and H. They take simultaneously and equally: one third each.

Example 2: the source rule, no children

W dies intestate leaving no children, and a husband H. She owned a house inherited from her father.

Section 15(2)(a) applies: the property was inherited from her father, and she left no son or daughter. It goes not to H under sub-section (1) but to the heirs of her father, determined under Rule 3 as if her father had died intestate immediately after her.

Her husband takes nothing of that house.

Example 3: the source rule defeated by a child

The same facts, but W leaves one daughter.

Section 15(2) does not apply, because she left a daughter. The house devolves under sub-section (1), entry (a): the daughter and the husband take equally, one half each.

That contrast between examples 2 and 3 is the cleanest way to show the rule in an answer.

Example 4: MU's June 2018 problem

Vandana, a female Hindu, dies intestate leaving her husband, two sons and a daughter. How is her property distributed, and what if the property had been inherited from her father?

First limb. Entry (a): husband, two sons and daughter, four persons taking simultaneously and equally, one quarter each.

Second limb. The property was inherited from her father, but she has sons and a daughter, so section 15(2)(a) does not operate at all. The answer is the same: one quarter each.

That is the trap in the question. The examiner is testing whether the student applies the source rule mechanically or checks condition 3 first.

Example 5: a childless widow's own earnings

W, a widow with no children, dies owning money she earned as a teacher.

Section 15(2) does not apply: the property was not inherited. Sub-section (1) governs. Entry (a) is empty, since there are no children and the husband is dead. Entry (b) applies: it goes to the heirs of the husband.

That result is the one most people find surprising, and it is a good illustration for the criticism: her own earnings go to her late husband's relations rather than to her parents, who are only in entry (c).

Section 15 and section 8 compared

What it does NOT mean

Section 15(1) is not the mirror of section 8. A woman's husband is in her first entry; her parents are only in the third; and after them come her husband's heirs before her own father's and mother's heirs.

Section 15(2) is not a general source rule. It applies only where she leaves no son or daughter, including the children of a pre-deceased child, and only to property inherited from the named source.

"Inherited" is not "acquired". Property she bought, earned or received as a gift is outside section 15(2), however it was funded.

Section 16 Rule 1 does not give priority within an entry. Heirs in one entry take simultaneously and equally; priority is between entries.

Rule 2 is not a general rule of representation. It gives the children of a pre-deceased son or daughter the share their parent would have taken.

Rule 3 does not ask who those heirs are today. It asks who would have taken had that person died intestate immediately after her.

The asymmetry is not an accident of drafting. It is the point of the essay question: a woman's self-acquired property may end in her husband's family, while a man's never ends in his wife's.

Quick revision

• s.15(1), five entries in order: (a) sons and daughters, including the children of a pre-deceased child, and the husband; (b) the heirs of the husband; (c) the mother and father; (d) the heirs of the father; (e) the heirs of the mother.
• s.15(2) overrides that where she leaves no son or daughter: property inherited from her father or mother goes to the heirs of the father; property inherited from her husband or father-in-law goes to the heirs of the husband.
• s.16 Rule 1: heirs in an earlier entry are preferred, and those in one entry take simultaneously. Rule 2: the children of a pre-deceased son or daughter take the share their parent would have taken. Rule 3: "the heirs of" the husband, father or mother are those who would have taken had that person died intestate immediately after her.
• The asymmetry with s.8: there is no counterpart in a male's succession to entries (b) and (d), and no counterpart to the source rule at all.

Test yourself

1. State the order of succession to the property of a Hindu female dying intestate. First upon her sons and daughters, including the children of a pre-deceased son or daughter, and her husband; then upon the heirs of the husband; then upon her mother and father; then upon the heirs of the father; and lastly upon the heirs of the mother.

2. When does section 15(2) displace that order? Where she leaves no son or daughter, including the children of a pre-deceased child. Property inherited from her father or mother then devolves on the heirs of her father, and property inherited from her husband or father-in-law on the heirs of her husband.

3. What are the three rules in section 16? Rule 1: heirs in an earlier entry of section 15(1) are preferred to those in a later entry, and heirs in one entry take simultaneously. Rule 2: the children of a pre-deceased son or daughter take between them the share their parent would have taken. Rule 3: the heirs of the husband, father or mother are those who would have taken had that person died intestate immediately after the intestate's death.

4. How is a female's succession asymmetric with a male's? A woman's husband is in her first entry and his heirs in her second, ahead of her own parents in the third and her father's heirs in the fourth. A male's succession has no corresponding entry for his wife's relations, and there is no source rule in section 8. So a woman's property may end in her husband's family in circumstances in which a man's would never end in his wife's.