By Advocate S R Agarwal
Accommodation Times Bureau
The succession to the property of a Hindu may be testate or intestate The testate succession means, where a person leaves behind a will with the instructions for the distribution of his/her property/assets after his/her death in the manner mentioned in the will. In case of intestate succession i.e., where a person has not left behind a will, the law takes its own course and the succession to the property of a Hindu is governed by the provisions of the Hindu Succession Act, 1955.
In case of a Hindu female, dying intestate her property devolves, as per Section 15(1) of the said Act; firstly, upon the sons and daughters (including the children of any pre-diseased son or daughters) and the husband; secondly, upon the heirs of the husband; thirdly, upon the mother and father; fourthly upon heirs of the father; and lastly, upon the heirs of the mother. Among the heirs so specified, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously. However, in terms of Clause No.(2) of the said Section, as clarified by the Hon’able Supreme Court of India in the case of Smt..Rajathiamal, the property inherited by a woman from her father or mother would neither pass to her husband nor the heirs of her husband, but it would revert back to the heirs of the father or the mother, as the case may be.
One Smt. Narayani Devi was married to one Shri Deendayal Sharma in the year 1955. She became widow within 3 months of her marriage and she was driven out of her matrimonial home by her in-laws immediately after the death of her husband and she never stayed with them thereafter. She went back to her parental home, where she was given education and on the completion of the education, she got an employment. She did not remarry and on her dying intestate i.e., without leaving behind a will, on 11.7.1996, she left a huge amount in various bank accounts and her provident fund account. A dispute arose between both the families for the succession to the said property. Smt. Ramkishori, mother of the diseased Smt. Narayani Devi, filed an application for grant of succession certificate under Section 372 of the Indian Succession Act. Similarly, Radhacharan and others, sons of the sister of the late husband of Smt.Narayani Devi, also filed an application for the succession certificate.
The question which arose for the decion of the court was whether the succession to the said property would be governed by Section 15(1) of the said Act and her property would be succeeded by legal heirs of the husband, as mentioned herein i.e., the family members of in-laws as the property in question was her self-acquired property of and not inherited one either from the father or mother by the late Smt. Narayanai Devi. During the pendency of the case, Smt. Ramkishori, mother of Smt. Narayani Devi, expired and Shri Omprakash and others were substituted in her place.
The counsel for Shri Omprakash and others contented that in a case of this nature where the husband of the diseased or her in-laws did not support her during her life time; rather she was thrown out of the matrimonial home, it should be held that Section 15(2) of the said Act would be applicable and the family members of Smt. Narayani Devi on paternal side should succeed to the property. It was vehemently opposed by the counsel of the respondents i.e. family members of late husband of Smt. Narayani Devi.
After hearing both the parties in this Civil Appeal No.3241 of 2009 the Hon’able Supreme Court of India observed in its judgment dated 05.05.2009 as under:
“The law is silent with regard to self-acquired property of a women. Sub-section (1) of section 15, however, apart from the exception in sub section (2) thereof does not make any distinction between self-acquired property and the property which she had inherited ….. The self acquired property of a female would be her absolute property and not the property she had inherited from her parents. ….. This is a hard case ….. but then only because a case appears to be hard would not lead us to invoke different interpretation to a statutory provision which is otherwise impermissible. It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous. … The Act does not put an embargo on a female to execute a will……. In such a situation the normal rule of succession as provided by the statute, in our opinion must prevail.”
Therefore the appeal stood dismissed by the Hon’able Supreme Court of India and the respondents i.e. Radhacharan and others, the legal heirs of late husband of Smt. Narayani Devi, were declared entitled to succeed to her property. In fact, neither she was aware nor she was advised during her life time to prepare a will, specifying, her wishes about the succession to her property after her death. It should be kept in mind that making a will is the simplest way of disposal of the property after death as per the wishes of the diseased, as it only needs to be made in writing on a piece of paper, duly signed by the person and attested at least by two witnesses. No stamp duty is required and registration is also not mandatory.
Such mistake is often committed by most of us and we remain under the impression that it is too early and the time would be ripe only, when the old age sets in. It is always advisable that in the present day context when greed has overtaken human values, leave aside the factor of family bond and needs and welfare of each member, a properly drafted will should be prepared to make provision for the equitable distribution of the property and assets keeping in view the circumstances of the family, particularly, the needs of the unfortunate family members, who may be crippled or financially weak; otherwise as is evident from the case of Smt. Narayani Devi, the law will take its own course and the property will go into the hands of the persons, whom a diseased had not even thought of in his or her wildest dreams.
This case is the best example to wake us from our slumber to put down in black and white our wishes to be carried out after our death.
18th May, 2009 Vashi, Navi-Mumbai.