The court battle brewing between the children of the late Kollywood superstar Sivaji Ganesan offers a timely reminder about the challenges faced by women to inherit property under Hindu personal law.
Ganesan's daughters argue that they have an equal right to the properties of their late father, and that the will being used by their brothers to claim rights over several highly valued properties is fabricated.
While the issue of the genuineness of the will is going to have to be adjudicated by the Madras High Court, the fact that his daughters have to approach a court to secure their rights, shows that there is still a need to create awareness about the rights of women in the Hindu personal law even after these were secured over nearly a century of struggles in Parliament and the courts.
Here's what the law says.
Issue 1: Is There a Will?
With any inheritance issue, the first question to ask is always the same: did the deceased prepare a will before they died?
When a person prepares a will, they can decide exactly how their properties and other assets will be divided.
If a valid will has been prepared, that is, it was made by the person when they were sound of mind and had followed necessary formalities, including having proper witnesses, there are no guidelines or rules or restrictions that have to be followed.
In such circumstances, the person could bequeath all of their assets to just one child, or a friend, or a charity – the decision is purely theirs.
There is one restriction created by the Hindu personal law when it comes to what a person can put in their will, however. In general, a person cannot in their will specify how their share in the ancestral property of a 'Hindu Undivided Family' is to be distributed after their death.
Every child born into an HUF, gets a share in the property as a 'coparcener' – initially this was only for sons, not daughters, but the law was amended over the years (as will be seen in the section below).
If the coparcener's share in the ancestral property actually devolves to them, for instance, if there is a 'partition' of the property or dissolution of the HUF, then they can include the property in their will. But if not, any bequest in a will would be invalid.
If a person passes away without a will, then they have died intestate. In these circumstances, their self-acquired property will be distributed according to the relevant personal law applicable. For Hindus, this is codified in the Hindu Succession Act.
Issue 2: How Does an Intestate's Self-Acquired Property Get Inherited?
Section 8 of the Hindu Succession Act explains what happens to the self-acquired property of a Hindu male who dies intestate.
These are the rules which are relevant in the case of Sivaji Ganesan's estate, since it is argued that all his property was purchased by him through his own earnings, and wasn't ancestral property.
The Hindu Succession Act has a Schedule at its end that specifies two different classes of heirs for Hindu males.
Class I heirs include their children, widow and mother. In the event their children have pre-deceased them, then their grandchildren are also heirs who can inherit. If their children and grandchildren have pre-deceased them, then any greatgrandchildren will also be able to inherit. The widows of a pre-deceased son are also Class I heirs.
If a Hindu man dies intestate and there are any Class I heirs alive, then all these Class I heirs will inherit an equal share.
If there are no Class I heirs alive when a Hindu man dies, then the property will go to the Class II heirs, category by category based on who is alive at the time.
The first category in Class II is the father of the deceased. If the father is not alive, then the property will be shared between their brother, sister and children of their son's daughter (whoever is alive).
There are seven more categories, including great grandchildren by their daughters, children of their brothers or sisters, and other relatives of their father.
If the deceased was a Hindu female, then the rules are slightly different, and are laid out in Sections 15 and 16 of the Hindu Succession Act.
Section 15 specifies the following heirs who can inherit, in the following order:
Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
Secondly, upon the heirs of the husband;
Thirdly, upon the mother and father;
Fourthly, upon the heirs of the father; and
Lastly, upon the heirs of the mother.
Heirs from the second category only inherit if there are no heirs alive from the first, and so on. Heirs from each category inherit in equal shares.
In some senses, these rules are similar to those for a Hindu male, but the second category shows how even a seemingly equal set of rules can allow patriarchy to creep in.
Section 15 also specifies that if the woman has inherited property from her mother or father, and has no living children or grandchildren, then her property will not pass to her husband, but to the heirs of her father. If she inherited property from her husband, and has no living children or grandchildren, then the property has to go to the heirs of her husband.
This discrepancy in the way the property of an intestate Hindu female is distributed has been challenged in the Supreme Court, though a decision has not yet been passed on it.
Regardless of these differences, there is one rule which remains the same: that daughters and sons (and children of pre-deceased daughters and sons) have equal rights to the self-acquired properties of their parents under the Hindu personal law.
Issue 3: What About Shares in Ancestral Property?
Traditionally, though Hindu women had rights to certain kinds of property of their own, they were not entitled to a share in ancestral property as they were not considered to be coparceners.
Only sons would become coparceners, and their sons would become coparceners and so on.
The Hindu Succession Act, when enacted in 1956, made sure that daughters had equal rights in a parent's self-acquired property. However, it did not initially change the position of law when it came to ancestral property.
Starting with Andhra Pradesh in 1985, some states decided to correct this imbalance with state-level amendments to Section 6 of the Hindu Succession Act to allow daughters to become coparceners as well. The other states were Tamil Nadu, Maharashtra, and Karnataka.
However, the central law was only amended 20 years later (despite recommendations to do so earlier) by the Hindu Succession (Amendment) Act 2005. This amendment changed Section 6 of the Act to now say:
“On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,
by birth become a coparcener in her own right in the same manner as the son;
have the same rights in the coparcenary property as she would have had if she had been a son;
be subject to the same liabilities in respect of the said coparcenary property as that of a son”
This was a significant change. A daughter now not only gained rights in ancestral property, but also could become the 'Karta,' that is, the manager of an HUF. Her marital state is now no longer relevant to her ability to have a share in the property.
There was one snag when it came to the amendment. Did the fact that the new Section 6 said it would apply from the commencement of the 2005 amendment mean that it applied to cases instituted before, or where the father died before the amendment?
In 2015, the Supreme Court held that the amendment would not apply in cases where the father died before the amendment came into force. In a sense, this defeated the entire purpose of the amendment, which was meant to bring about equality between daughters and sons.
As a result, in 2020, the Supreme Court overruled this old position and held that the amendment had retrospective application. This meant that the father died before the amendment, the daughters still had rights as coparceners.
The court also clarified that it was irrelevant when the daughters had been born, and that even if they had been born before the Hindu Succession Act came into force, they were still entitled to be coparceners.
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