Testamentary disposition is a transfer of property by the testator by, deed, gift or will, but the disposition does not become effective until after the testator’s death. The testator holds full control of the property during their lifetime.
Law of Inheritance
The assets both movable or immovable in India are governed by Hindu Succession Act, 1956 and Indian Succession Act, 1925 depending upon whether the person has died intestate or left a WILL. The distribution of assets in India can be made in two ways as briefly described below:
- By way of execution of Will
This concept is discussed under PART VI, Testamentary succession of Indian Succession Act, 1925. You can make a Will of only those assets that are self-acquired. Besides, the beneficiary does not necessarily need to be a legal heir, but can be any friend, trust and relative or anyone that the testator wants to be the beneficiary. Depending upon its validity, the Will shall prevail over any other law. After testator’s death, the distribution of the assets by the Executor is strictly done as per the provisions of the Will.
In case a person dies without preparing any Will, his/her assets are distributed to the legal heirs according to the law of inheritance and succession. Furthermore, this process is regulated by the Hindu Succession Act, 1956.
The legal heirs are distributed under different classes as per the Act. Moreover, the priority of Class I legal heirs is higher than the priority of Class II legal heirs. This basically means that the assets of a person who has died intestate shall devolve equally amongst the legal heirs mentioned in Class I category. The Class II legal heirs come into picture in case of absenteeism of Class I heirs.
Section 15 & 16 of Hindu Succession Act, 1956
Matters related to succession pertaining to Hindu females are managed by Sections 15 and 16 under the Hindu Succession Act, 1956.
When a Hindu female dies intestate, her devolution of assets would happen as per the regulations mentioned under Section 16:
- The husband, sons & daughters. This also includes any pre-deceased son or daughter.
- Heirs of the husband.
- Her mother and father.
- Heirs of the father.
- Heirs of the mother.
As per Section 15(2), regardless of what is defined under sub-section (1),
- When Hindu females inherit properties from their fathers or mothers, such properties shall be distributed to the heirs of the fathers and not as how it is defined under sub-section (1).
- When Hindu females inherit properties from their father-in-law or husbands, such properties are allocated to the heirs of the husband and not based on how it is mentioned under sub-section (1).
| Note: The above-mentioned key points are provided under Section 15(2) and they are applicable when there are no children. It is also subject to the absence of the children of any pre-deceased son or daughter. |
Inheritance of Property by Hindu Female
The inheritance of property by Hindu females can be done through v various means, including:
- From their father or mother.
- From their husband or father-in-law.
- Through any other means such as inheritance, etc.
Till the time they are alive, it is legally established that the females shall have complete power, control over and rights of all types of properties inherited by them.
Can Testatory Disposition to a Female Hindu Override Intestate Succession?
- It is settled law that the testatory disposition in any mode will overrule intestate succession.
- The legislature used the term ‘inheritance’ while taking intestate succession into account. Section 15(2) also states an exception to the provisions mentioned under Section 15(1) of the Hindu Succession Act. Acquisition of properties by Hindu females post family partition is similar to acquisitions through gifts or Wills. When such properties are partitioned by metes and bounds, they are regarded as the absolute properties of the sharer. The partitioned properties would thereafter become the joint family properties of such individuals and their family members/surviving heirs.
Note: A landmark judgment in this regards was made by the Karnataka High Court in 2023 in the case of Basangouda vs.Muddangouda & Ors. A single judge bench presided the matter where the Court declared that a Hindu female becomes the absolute owner after she acquires the property through a partition deed agreed upon by the family.
The Court further stated that such acquisitions do not fall under ‘acquisition via inheritance’ and, therefore, would not revert to the siblings in case of her death. |
Conclusion
A Hindu female is deemed as the absolute owner after acquisition of property through a partition deed that has been agreed upon in her family.
However, such properties cannot be considered for acquisition through inheritance and shall not pass on to her siblings after her death.
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