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neelakshi (Lawyer)     26 July 2009

wife died intestate

A wife died intestate leaving behind immovable and movable property leaving behind a minor daughter and a husband-separated but not divorced. The property is self acquired and she was the sole owner.

1. Whether the husband falls under the class I heir category?

2. Can he claim for succession and for the immovable property?



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 3 Replies

A V Vishal (Advocate)     26 July 2009

Unfortunately under the Hindu Succession Act, there is no mention of succession of husband to wife's property in Schedule of Class I & II heirs, the widow of the deceased male is a Class I heir, however if General clauses Act were to be applied then both masculine and feminine genders can be construed for a person. In my opinion the person can only be a guardian of the property till the minor children attain majority.

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A V Vishal (Advocate)     26 July 2009

Neelakshi,

Sorry for my reply earlier please ignore it. According to S 16 of the Hindu Succession Act in case of death of a woman intestate then:

 

General rules of succession in the case of female Hindus
(1) The property of a female Hindu dying intestate shall devolve according to the rules set
out in section 16:
(a) firstly, upon the sons and daughters (including the children of any pre-deceased
son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1)-
(a) any property inherited by a female Hindu from her father or mother shall devolve,
in the absence of any son or daughter of the deceased (including the children of
any pre-deceased son or daughter) not upon the other heirs referred to in subsection
(1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-inlaw
shall devolve, in the absence of any son or daughter of the deceased
(including the children of any pre-deceased son or daughter) not upon the other
heirs referred to in sub-section (1) in the order specified therein, but upon the
heirs of the husband.
COMMENTS
Within the expression " son and daughter" there is no inclusion of step-son and step
daughter.-Visalakshi v. Chelliah Pillai 1988 (2) MLJ 511
Clause (a) of the sub s. (1) does not include the widow of a predeceased son and the
husband of a predeceased daughter in the category of heirs. On the death of a female intestate,
the daughter of the predeceased son is given the preference over the sister of her husband.-
Mohindero v. Kartar Singh AIR 1991 SC 257.
16. Order of succession and manner of distribution among heirs of a female Hindu
The order of succession among the heirs referred to in section 15 shall be, and the
distribution of the intestate's property among those heirs shall take place, according to the
following rules, namely:-
Rule 1- Among the heirs specified in sub-section (1) of section 15, those in one entry
shall be preferred to those in any succeeding entry and those including in the same entry shall
take simultaneously.
Rule 2- If any son or daughter of the intestate had pre-deceased the intestate leaving his
or her own children alive at the time of the intestate's death, the children of such son or daughter
shall take between them the share which such son or daughter would have taken if living at the
intestate's death.
Rule 3- The devolution of the property of the intestate on the heirs referred to in clauses
(b), (d) and (e) of sub-section (1) and in sub section (2) of section 15 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
thereof immediately after the intestate's death.
COMMENTS
Where there was the pendency of the suit filed by a female Hindu against the family of
her father for the partition of the family property but the female filling the suit died issueless, her
husband was not granted permission to enter as her legal representative for the fact that the
property devolved upon the father of the deceased under s. 15 (2) (a)- Raghuvar v. Jhaniki
Prasad AIR 1981 MP 39

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Raman ( )     26 July 2009

I found a relevant thread @ lawyersclub

 






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