Share of step son in the step father's property

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Since neither ‘son’ nor ‘step-son’ have been defined by the Hindu Succession Act, 1956, these expressions have been open to judicial interpretation. The expression ‘son’ has also been used in the list of Class I heirs, but here again, the phrase ‘stepson’ has not been specifically included. To begin with, it is generally accepted that the expression “son” undoubtedly includes natural, adopted and even illegitimate sons, though the rules governing succession of each to the shared or self-acquired property of the father would be quite different. For example, a child born out of a void marriage, though in fact illegitimate, by a legal fiction (under Section 16 of the Hindu Marriage Act, 1956) is considered to be the legitimate son of his father. However, this legal fiction only allows him a share in the self-acquired property of the father and gives him no coparcenary interests that a legitimate child would get by virtue of birth in the family. Nevertheless, such a child would be considered a “son” under the Hindu Succession Act, 1956.

The question as to whether the expression “son” in Section 15(1)(a) would include “step-son” was dealt with in some detail in the case of Lachman Singh v. Kripa Singh (AIR 1987 SC 1616) where it was argued that under the Act, a son of a female by her first marriage will not succeed to the estate of her 'second husband' on his dying intestate. The case draws a clear distinction between a child ‘from the womb’ and a stepson. Under Hindu law as it stood prior to the coming into force of the Act, a stepson, i.e., a son of the husband of a woman by another wife did not automatically succeed to the stridhana of the woman on her dying intestate. In such cases, the son born out of her womb would have clear precedence over a stepson. It was therefore held that Parliament would have made express provision in the Act if it intended that there should be such a radical departure from the past. A stepson would thus only be able to stake a claim under the category of ‘heirs of the husband’ referred to in clause (b) of Section 15(1).

This decision reaffirms those in a number of similar cases such as Mallappa Fakirappa Sanna Nagashetti v. Shivappa, A.I.R. 1962 Mysore 140; Rama Ananda Patii v. Appa Bhima Redekar, A.I.R. 1969 Bombay 205; Gumam Singh v. Smt. Ass Kaur, A.I.R. 1977 P & H 103 and Smt. Kishori Bala Mondal v. Tribhanga Mondal & A.I.R. 1980 Calcutta 334 and overrules a contrary judgment in Ram Katori v. Prakash Nati L.L.R., [1968] 1 Allahabad 697.

The rule of devolution in Section 15 of the Act applies to all kinds of property left behind by a female Hindu except those dealt with by clauses (a) and (b) of Section 15(2) which make a distinction as regards the property inherited by her from her parents and the property inherited from her husband or father-in-law and that too when she leaves no sons and daughters (including children of predeceased sons and daughters). When the property in question is the absolute property of a female Hindu it has been held to devolve first on her children (including children of the predeceased sons and daughter) as provided in Section 15(1)(a) of the Act and then on other heirs. The stepsons or stepdaughters will come in as heirs only under clause (b) of Section 15(1) or under clause (b) of Section 15(2) of the Act.

It is therefore clear that at least for the limited scope of succession under the Hindu Succession Act, 1956, the expression “son” cannot be read to include “stepson”.

Indian Succession Act, 1925

The law of succession under the Indian Succession Act, 1925 also does not provide a definition for the expression “son”. Section 37 of the Act (Distribution where there are lineal descendants – where intestate has left child or children only) uses the expression “children” which again has not been defined but specifically excludes adopted and illegitimate children. In the absence of any case law on the subject, the scope of the expression remains open to judicial construction and is conducive to a liberal interpretation.

The use of the expression “son” is found prominently only in Chapter III (Special Rules for Parsi Intestates) of the Act, to be specific, Sections 51 and 52 which deal with Division of male and female intestate’s division of property among the widow/widower, children and parents. With regards to the question as to whether the expression “son” in Section 51(2)(a) can be read so as to include a stepson, there is no case law on the subject, but Paruck (Paruck on The Indian Succession Act, 1925, eds. Chowdhury and Saharay, p.74) is of the opinion that such a son would not get a share in the estate of the step father. This opinion is reaffirmed by Re. Davidson, [(1949) Ch. 470] where it was held from a study of the construction of the term “children” in Section 99(a) of the Act that in a gift to “children” of a person, the step-children would not be included.

Criminal Procedure Code, 1973

In Kirtikant D. Vadodaria v. State of Gujarat, the Court was required to look into the converse situation, i.e., to study the scope of the word “mother” to see whether it can be extended to include “stepmother” for the purpose of claiming maintenance under Section 125(d) of the Criminal Procedure Code, 1973. This issue was subject of serious controversy and conflict of judicial decisions. The Orissa High Court in Petei Bewa v. Laxmidhar Jena (1985) Criminal Law Journal 1124) and the High Court of Allahabad in Ganga Sharan Varshney v. Smt. Shakuntala Devi (1990 Criminal law Journal 128), took the view that the word "mother" occurring in clause (d) of Section 125(1) of the Code included a "step-mother" or woman who has the status of a "step-mother" by reason of her lawful marriage with the father of the person sought to be made liable for maintenance under section 125 of the Code and such a woman or a step-mother can file application for maintenance from the Step-son. However, as against the aforementioned decisions, the High Court of Bombay in Ramabai v. Dinesh (1976 Maharashtra Law Journal 565); and the High Court of Andhra Pradesh in Ayyagari Suryanarayana Vara Prasad Rao v. Ayyagari Venkatakrishna Veni (1989 Criminal Law Journal 673), were of the opinion that the word "mother" in Section 125 (1)(c) of the Code would have to be given its natural meaning and would mean only the natural mother. The stepmother, it was held, in common parlance is a distinct and separate entity and cannot be equated with one's own mother.

The importance of this case lies in its approach towards the interpretation of the scope of such expressions that a part of common usage but can have no defined, all-encompassing scope of meaning. Such expressions, it was held, must be subject to a liberal construction keeping in mind the social object. In such a case, the legislative intent would obviously be to safeguard the interest of the widow and hence the expression was interpreted sufficiently widely so as to include stepmothers within the scope of “mother”.

By drawing an analogy, it would be reasonable to assume that the expression “son” would also be subject to such a liberal interpretation and would thus include step-sons within it’s scope.

Conclusion

As the above analysis shows, the interpretation of the term “son” differs widely from one legislation to another. Recently, however, in light of the case of Githa Hariharan v. Reserve Bank of India there seems to be a shifting trend in favor of liberal construction of such terms. Passing judgment on the constitutionality of the phrase “the father and after him the mother”, the Court held that since there was a presumption of constitutionality of statutes, they should be interpreted liberally so as to ensure that fundamental rights of the parties (in this case, the right to gender equality) are not violated.

Keeping in mind the purpose of the Hindu Minority and Guardianship Act, 1956 as a safeguard of the best interests of the child, it was stressed that “a rigid insistence of strict statutory interpretation” and a “narrow pedantic interpretation running counter to constitutional mandate” ought always to be avoided. On the basis of these guidelines, the term “after” was interpreted to include within its scope the expression “in the absence of”

An analogy can be drawn with respect to the definition of the scope of the expression “son” where a narrow interpretation in the case of certain legislations has resulted in arbitrary exclusion of the stepson. While it is generally accepted that a natural son would take precedence in matters of succession, there seems to be no rationale for the complete failure to recognise a stepson. Any interpretation resulting in violation of the rights of the stepson would go against the guidelines laid down in the Githa Hariharan case, and should thus be opened to re-interpretation by liberal construction.

A step in this direction was taken in Chanan Singh v. Jai Kaur AIR 1970 SC 349 which, in dealing with an interpretation of the phrase “son or daughter” under Section 15(2)(b) of the Punjab Preemption Act, 1913 held - “a son of the husband of a female vendor though not born from her womb would be entitled to preempt”.

A similar interpretation is found in Nagendra Prasad v. Kempananjamma, AIR 1968 SC 209, where the term “son” in Section 8(3) of the Hindu Law Women’s Rights Act, 1933 was liberally constructed to include stepsons.

Advocate Siddhant Sharma LawRato