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CHAPTER-II

WOMEN'S PROPERTY RIGHTS

– A HISTORICAL PROSPECTIVE

1. INTRODUCTION

In the historical development of humanity, in the proliferation of human

civilization and in the social economy of the world, woman has always been

considered as an important part as man. At the same time she has always been treated

as an inferior creature as compared to their male counterparts. This inferior status of

the woman exists not merely in their households and in the society but also in the

matter of privileges and right1. It is so because our legal system also develops itself on

the basis of prevailing norms of social sphere and these social norms and values put

tremendous effect on the legal system. Thus the effect of social status and position of

women shows its impact over conventions and laws of our society also.

Our Constitution in its preamble provides for Justice - social, economic and

political, and with its declaration of equality of man and woman through its numerous

provisions e.g. Fundamental Right's and Directive Principles. It envisages the

ushering of new era wherein women as a citizen of India will be treated as equal to

man in all walks of life. It is indeed a great proclamation which ends an old era and

declares the principles on which the new era will be based. But it is that blueprint

which is however to be realized. It is one thing to enact a principle and it is another to

actualize it in real life. Though de-Jure rights and freedoms are provided with great

enthusiasm but it does not essentially mean that those rights and freedoms are actually

realized. If we want to achieve these rights and freedoms in reality it could be done

only by adopting a very stern, active, ceaseless and conscious struggle guided by a

very clear and comprehensive perspective2. But unfortunately up till now, this

milestone fails to convert this de-Jure equality into de-facto reality. There is still a lot

of gender discrimination almost in all walks of life.

Though this gender in equality facets itself in different forms, but the most

tiresome one relates to the effective property rights of women. It is one of the most

controversial topics in the Hindu law. Because the Parliament by enacting the Hindu

1 Prof. Khan, H Nazeer, Ambedkar on Gender Equality: Myth and Reality, Deep and Deep

Publications, New Delhi (2007), p. 173. 2 Raj Kumar, Women and Nation (Encyclopedia of Woman and Development Series), Anmol

Publications Pvt. Ltd., New Delhi (2000), pp. 156-157.

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Succession Act 1956, accorded those property rights to the women where by she can

constitute her independent rights of inheritance and independent stock of descent.

Before the passing of this Act, women’s right to inherit, own and control property are

determined primarily by the values and norms which are socially acceptable and the

primary objective of inheritance systems in Indian society has been to preserve

property, especially landed property, intact for male heirs3.

Though the Hindu Succession Act was passed with main objective of

ameliorating and to enhance the women’s economic position, but the real problem

began when it is going to be applied in reality. Since the question of woman’s

inheritance rights are concerned with immovable property, especially land, and our

patriarchal structure does not allow women to inherit the landed property. Even our

customs (excluding, of course matrilineal customary law) tend to limit women’s

property only up to the movable contents e.g. ornaments and clothing actually given

to them at the time of marriage. Sometimes these customs allow them to inherit from

very near relation like the father and mother or some time from the mother only

otherwise it denies the right of inheritance to cognate kindred4.

Here if we analyze the historical perspective of women’s property rights, we

find that though lot has been done in this direction but much more is still left to be

done. For a better understanding of the subject historical background regarding the

position of woman's property rights up till now is presented here in this chapter.

2. HISTORICAL BACKGROUND

2.1 Property Right of Women in Vedic Age: During this age the Brahmins occupied

the highest position in the socio-religious hierarchy and they for legalizing their

superiority adopted the method of relying upon dharamsastras. The sources of these

dharamsastras were supposed to be Hindu religious texts like the Vedas and Smritis,

approved customs and good conscience. The Vedas were religious hymns, perhaps

3000 years old, and the Samritis were collection of rules of conduct and explanatory

principle based on Vedas. The Samritis comprised texts, such as Manu Samriti which

was written between 300 BC and 300AD and later on commentaries and digests. An

important digest on all the samritis written by Jimutvahana in 12th Centaury was

3 J. Dancan. M. Derret, A Critique of Modern Hindu Law, N. M Tripathi Pvt. Ltd, Bombay (1970), p.

193. 4 Ibid., p. 194.

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Dayabhaga which got much acceptance in Bengal. The Mitakshara which was again

written in 12th Century is a running commentary on one of the samritis called

Yajanavalika written by Vijnaneshwara which was accepted in the rest of India. Later

on these two (digest and commentary) emerged as two different schools known by the

name Mitakshara and Dayabhaga. These two schools differed on the subject of

inheritance5.

Regarding the position of women in early Vedic society, women occupied the

same position as the man. There was complete gender equality in all spheres of life

and women enjoyed great respect, significant rights and privileges. A girl was free to

get herself educated just as boys in those days. During the Vedic period, studies

started after the thread ceremony, which was called 'Upnayana Samskara'. In Rig

Veda it was mentioned that who wore sacred thread were considered capable of

performing many responsible jobs. Many statements in the Vedic literature indicate

clearly that women were undergoing Upnayana Samskara, studied Holy Scriptures

and recited Mantras. With regard to the institution of marriage, women had also an

effective say in the selection of her life partner. The famous system of marriage by

‘Svayamvara’ had its origin in Vedic literature. It was intended that man cannot

perform various religious ceremonies alone. For the performance of religious rites

and ceremonies the presence of wife was must. A man was believed to be incomplete

so long as he does not have a wife. The wife wass said to be her husband’s

‘Ardhanagini’ i.e. half of the man.

So for as the property rights of females are considered the Rig Veda speaks

about the individual proprietorship, the sons dividing their father's property after the

demise of father, unmarried daughter staying in father's home also have a share of a

father's property. In Vedic literature the unmarried daughter had the right to get a

share of her paternal wealth, but the brothers did not partition their paternal property

with their married sisters. Similarly the position of the daughter's son was also

recognized for religious ceremonies. It was said that sonless father honoring the son-

in-law goes to the grandson born of the daughter. Again where the daughter was the

only child of the family, she can perform funeral rites of her father. This gives her

5 Jana Matson Everett, Women and Social change in India, Heritage Publishers, New Delhi (1978), p.

142.

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right to inherit the property also but if she has brother the general opinion of

Dharamsastras was that sisters should not get share in father's property6.

During the Vedic period the husband and wife were treated as joint owners of

the household. The husband was required to take a solemn vow at the time of

marriage that he would never contravene the economic rights and interests of his wife.

On the basis of this joint ownership theory of husband and wife in the household, it

was concluded in the Apastamba Dharmasutra that the wife was entitled to incur

normal expenditure on the household during her husband's absence. Along with this

joint ownership theory, another important fiction i.e. the fiction of identity between

the husband and wife also gave females right to inheritance. Brihaspati7, on the basis

of this fiction, declared that a widow to be entitled to succeed the estate of a sonless

husband in preference of all other heirs. So if husband and wife are treated as one and

there is joint ownership the question naturally arises as to how, in Hindu Law, the

wife was deprived of her right of ownership and inheritance on the death of her

husband. On this question, Kane's statement concisely summaries the position.

Apastamba postulated the identity of husband and wife in the religious matter. But

this identity of the husband and wife was not accepted by the ancient sages for secular

or legal purposes. Later on with the passage of time there was a slow recognition by

the Hindu law writers of women’s right of inheritance as a natural corollary of her

joint ownership8. But the theory of joint ownership of the husband and wife in the

household gave only minor advantages to the wife. She was given the right over her

husband's property to enjoy it as a usufruct and not as her absolute property. Thus it

did not, however, secure for her equality with the husband in the ownership of the

property.

In Vedic times widow was not given right to inherit her husband's property. It

seems that the Vedic texts were definitely opposed to giving this right to her.

Baudhayana states that the Vedas declared no inheritance to a widow. Taittiriya

samhita allowed her no share in her deceased husband property. Apastamba also

reject the widow as successor of her husband's property. But he mentioned one

exception to it. According to him a childless widow was entitled to succession to her

6 P.C Jain, Heritable Rights of Hindu female: General survey, Journal of legal Studies, University of

Rajasthan, Vol. 28 (1997-98), p. 3. 7 Brihaspati, 25, 46-52 quoted in Samriti chandrika, Oriented Library Series No 48, Mysore Govt. 673. 8 B. Sivaramayya, Matrimonial property Law in India, Oxford University Press, New Delhi, (1999),

p. 4.

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husband' estate. But as it is known in Vedic times the practice of Niyoga was

prevailing so it can be said that widows without sons were very few. Thus, a woman

as maiden, as a wife and as widows enjoyed very limited legal and economic status

during Vedic times. She was not on equal footing with men. But looking at her social

status and prevailing circumstances of Vedic times, it can be concluded that the legal

status occupied by women at that time was by no means embarrassing.

The theory that Hindu women are excluded from inheritance was started with

the text of Baudhayana, the reputed founder of one of the schools of Black Yajurveda.

He was responsible for not giving heritable rights to women. He could never regard

women as capable of possessing an independent status. According to him women

were not known to be eligible for freedom. In support of his views he contends:

The father protects woman in her childhood; the husband during her youth;

the son in the old age; woman ought not to have freedom.

This apparently has no bearing on women's rights of succession. But Baudhayana

further propounds that a women is not entitled to inherit property. In order to support

his ideas, he brings Veda to his aid. Replying on the text of the Veda to the effect that

women are devoid of senses and thus they are not the sharers in property. Thus he

concludes that the Vedas declared no inheritance rights to women. The later

commentators and digest writers such as Haradatta, King Partap Rudra Deva the

author of Saraswati Vilasa, Mitra Mishra the author of Virmitrodaya have also

adopted the same base for excluding the women from inheritance rights. Though, later

on it was presumed by the scholars that the Vedic text cited by Baudhayana has

nothing to do with the inheritance rights of the women. They are of the opinion that

Baudhayana cited this text only to support his own view as to the capacity of women

to inherit9.

Further the low status of women is attributed to the Manusamriti. Dr.

Ambedkar traces the low status of women to Manu's Manusamiriti which instructed

the menfolk not to allow women to have unbridled rein in any walk of life. Manu

observed: A wife, a daughter and a slave have no property. The wealth, which they

earn, belongs to their owners. Thus Manu was deadly against the welfare and giving

dignified status to the women at every stage of their lives. According to him, they

could never enjoy an independent status in the society. As a child they should be

9 P.C Jain, Heritable Rights of Hindu female: General survey, Journal of legal Studies, University of

Rajasthan, Vol. 28 (1997-98), pp. 3-6.

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under the direct control and supervision of her father. The father could give her in

marriage to anyone without her consent and authority. After being married, she should

live under the direct supervision and control of her husband. As a widow, her son

could exercise his authority over her. She was deprived of freedom and personal

property10. Generally, she had only one right i.e. right to maintenance in the family

and not inheritance or ownership rights.

Although within this framework an exception to inherit the property was made

in the case of an appointed daughter. Her right was almost universally acknowledged

by the ancient legislators of India. In this regard, there is one aspect which deserves

special mention. Gautama gave caution to his followers not to marry a woman who

had no brothers. He said "some declare that a daughter becomes an appointed

daughter solely by the intention of the father. Through fear of that, a man should not

marry a girl who has no brothers."11 Thus, if a person married a girl who has no

brother, the consequence is fatal to his family. Because his sons are all transferred to

the family of his wife's father and he has no claim upon his own children. There is no

other shocking thing to a Hindu man than the idea of being deprived of a son.

Similarly Apastamba included the daughter as an heir. He says "if there is no male

issue, the nearest Kinsman (sapinda) inherits; or in default of kindred, the preceptor;

or failing him, the disciple or the daughter may take the inheritance."12 Sankha also

declares the mother's and eldest wife's right of succession. He stated that “the wealth

of man, who departs for heaven having no male issue, goes to his brothers. If there is

none, his father and mother take it; or the eldest wife or kinsman, a pupil or a fellow

student.”13

Thus it may be said that Gautama included the widow, Apastamba- the

daughter and Sankha- the mother and the eldest wife, in their enumeration of heirs.

But it can also be said that Gautama and Apastamba did so with great reluctance.

Further their incorporation of widow and daughter in the list of heir has served no

useful purpose, because they introduced widow and daughter as heirs after the long

list of other kindred relations and strangers. In reality, it could never happen that the

deceased would be a person who never belonged to a spiritual brotherhood, or never

10 S.S Azmi, Dr Ambedkar as pioneer for the upliftment of status of women in B.R Ambedkar on

federalism, Ethnicity and gender justice, edited by Nazeer H.Khan, Deep and Deep Publications, New

Delhi ( 2007), p. 192. 11 Gautama, Ch. XIX. 12 Apastamba, II, 14.

13 Sankha, cited in Mitakshara ch II, sec. 1, 7.

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had teacher, or a pupil, or a priest. In the presence of anyone of these persons, the

widow or the daughter could not inherit. Thus even though the widow and the

daughter were included in the list of heirs, it was never intended by heart to give them

property by way of inheritance. In this manner, women were callously excluded from

inheritance. Thus most of these samritis were restrictive in the areas of rights of

females. Most of these Hindu religious text treated woman as dependent, requiring

protection and considering them incapable of exercising independent authority.

However there were exceptions to this restrictiveness within customary laws.

2.2 Property Right of Women under Schools: After the rights of female as given in

samiritis the next came digests and commentaries. In these commentaries modern law

of Hindu Succession is embodied. But the commentators of these commentaries gave

their own views on the ancient texts and as a result the authority of these

commentaries having been received in one and rejected in other part of India. This led

to the emergence of schools with conflicting doctrines. Basically there were two

important schools of Hindu Law- Mitakshara and Dayabhaga. Mitakshara is a running

commentary on the code of Yajnavalika. It is however more a digest then a mere

commentary on a particular Samiriti. It was written in latter part of 11th century by

Vijnaneswara. The Mitakshara is further sub divided into four minor sub schools i.e.

Benars school, Mithila School, Bombay School and Dravida School. Mitakshara was

accepted as supreme authority in whole of India except in Bengal where Dayabhaga

written by Jimutvahana was prevalent.

These two Schools differ from each other in various aspects but one of the

principal differences between these two main schools relates to the law of inheritance,

because regarding inheritance, Mitakshara system is based on consanguity or

proximity of blood relations where as Dayabhaga system is based upon the religious

efficacy. According to the Mitakshara the nearest "sapinda" is one who is nearest in

blood relation but according to Dayabagha the nearest Sapinda is one who offers

greatest spiritual benefit by making offerings of ‘Pinda’.

But so far as females’ proprietary rights are concerned, in both of these

Schools succession to the property was vested in male heirs. Since women were

viewed as dependents upon these males, Hindu Law give them right of maintenance

but not to inheritance. In Mitakshara School son had given a birth right in the father's

property. Even at that time (before Amendment 2005) the institution of coparcenery

which is the narrower body within the joint family consists only of male members. It

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comprises of one lineal male ancestor along with his three lineal male decendents.

Thus under Mitakshara School property right are given only to male members. The

Supreme Court in a case of State Bank of India v. Ghamandi Ram14 stated that the

textual authority of Mitakshara lays down in express terms that joint family property

is held in trust for the joint family members then living and thereafter to be born. The

incidents of coparcenarship under the Mitakshara law are:

(a) The lineal male descendants of a person up to the third generation acquire

right by birth in ancestral properties of such person.

(b) Such descendants can at any time work out for their share in the property

by asking for partition.

(c) But till partition each member has got ownership rights extending over the

entire property, conjointly with the rest.

(d) That as a result of such co-ownership the possession and enjoyment of the

properties is common i.e. there is unity of ownership and unity of

possession.

(e) That no alienation of the property is possible unless it is for legal necessity

or for the benefit of the estate, that too not without the consent of the

coparceners.

(f) That the interest of a deceased coparcener lapses on his death to the

survivors i.e. rule of survivorship

Thus looking into these incidents of coparcenary, it is aptly clear that the

females have no right in the coparcenery. The male members of coparcenary were

obligated to maintain women family members and to provide dowries for unmarried

daughters on their marriage. Succession to the property of a separated male under

Mitakshra law was even more complicated. If he died intestate, succession was

determined by proximity of blood relationship. Women who were entitled to inherit

when the succession opens gained only a limited estate i.e. to use the property during

their lifetime with no power of alienation. After they died, the property reverted back

to the next heir of the previous male owner (presumptive reversioners). These

provisions of the Hindu law intended to prevent the property from passing out of male

line.

14 A.I.R., 1969 S.C. 1330.

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Under the Dayabagha School, it neither accords right by birth nor by

survivorship though a joint family and joint family property is recognized. It laid

down only one mode of succession and the same rules of inheritance apply whether

the family is divided or undivided and whether the property is ancestral or self

acquired. Neither son nor daughter becomes coparcener by birth nor do they have

rights in the family property during the father's lifetime. Successions were determined

by spiritual benefit theory, which held that property should be inherited by nearest

relatives who were entitled to perform rituals for the ancestors. For the performance

of these rituals, males were considered spiritually superior to females and person

related through male were considered more nearly than persons related through

females i.e. agnates were preferred over cognates. Dayabagha coparcenary comes into

existence for the first time on the death of father. After the death of the father, sons

inherit their father's property and they constitute a coparcenary.

On the death of the father, succession is per stripes i.e. branch of each of his

son take equal share but this does not mean that when an heir takes property by

succession his male or female descendents have no right in the property, But if the son

is dead leaving behind a son then that son (or sons) by representation will take the

same share which there father would have taken. When son inherit property jointly

and constitute a coparcenary, on the death of anyone of them his heir will succeed to

the property and if a son dies leaving behind a widow or daughter, then she will

succeed and become a coparcenar. Thus under Dayabhagha School a female can

become coparcenar but the coparcenary will not start with female members and it

would not consist only of female members. Thus under Dayabagha School also

importance is given only to male heirs and females came much later in the line of

succession.

2.2.1 Females entitled to get a Share: Under Mitakshara School there are certain

female who are entitled to get a share on partition but there share was again in form of

limited estate i.e. during there life time. After the death of these female the estate

reverts back to the reversioners of last male owners. These female who are entitled to

get a share are:

2.2.1.1 Father's Wife: whenever a partition takes place between her sons and her

husband, then the father’s wife is entitled to get a share equal to the share of son. She

can hold this share and enjoy it separately from her husband. If there is more than one

wife, then each wife is entitled to take a share equal to the share of a son. It is

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immaterial that whether a wife has her own son or not. If no share is allotted to her

then she has a right to get the partition re-opened. Under the Dayabhaga School she

has no such right.

2.2.1.2 Mother: whenever a partition takes place among the sons, a widowed mother

has a right to take a share equal to the share of son. This right accrues to her only

when partition by metes and bounds takes place.

Under the Mitakshara School the mother, including the step-mother even if

she is childless is entitled to take a share when ever partition takes place after the

death of the father among sons. Mother and step-mother each take a share equal to the

share of son. Under the Dayabhaga School a childless step-mother is excluded from

taking a share on partition.

2.2.1.3 Grandmother: In the Mitakshara school the paternal grandmother and step-

grandmother are entitled to a share on partition in the following situations:

(1) When partition takes place between her grandsons (son's son), her son being dead,

she is entitled to a share equal to the share of a grandson.

(2) When partition takes place between her son and sons of a predeceased son, she is

entitled to a share equal to the share of a grandson.

(3) When partition takes place between her sons and their sons, according to the

Allahabad and Bombay High Courts,15 she is not entitled to a share, but according to

the Calcutta and Patna High Courts,16 she is entitled to a share equal to the share of a

grandson.

(4) In Ramdhan v. Bala17 the Nagpur High Court has evolved a fresh scheme. In this

case there is a partition suit, between an uncle and nephew. The mother of the uncle,

as grand-mother and the mother of the nephew as mother were allowed to participate

in the distribution of properties. Mother was allowed to take 1/6 and the grandmother

taking 1/3 share. So far as the decision relates to the uncle's mother, the decision is

correct, because the case comes under the rule (2) set out here. But so far as it relates

to nephew's mother, it is curious since there is no partition among her son, and the

rule being that 'mother' takes a share only when there is partition 'among her sons'.

Probably the court was compelled to take this view on equitable basis, because the

nephew’s mother would otherwise get nothing. Here it is submitted that there is no

15 Shoe Narayan v. Janki Prasad ILR (1912) 34 AII 505; Joti Ram v. Ram Chandra, A.I.R. 1941, Bom

382. 16 Badri v. Bhagwant (1882) 8 Cal 649; Krishna Lal v. Nandeshwara A.I.R. 1918, Pat 91.

17 A.I.R., 1946 Nag 206.

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authority in support of that view, and it is obviously wrong according to the Shastra

also.

2.2.1.4 Coparcener Widow: - Now, it seems to be settled law that after partition

whenever two or more widows succeed to the property of their husband then each

widow acquires a right of survivorship alongwith this either widow also gets the right

to partition with or without the consent of the other or others. Thus coparcener widow

can put an end to joint status of the family. Even when a father's widow succeeds

along with her sons, she also acquires right to partition. Similarly if a partition takes

place among the brothers, after the death of the brother his widow is entitled to a

share18.

2.2.1.5 Daughter: - In the case of Paachi Krishnamma v. Kumaram19 daughter

claimed a share equal to the son in a partition of the property. But however she failed

to prove this custom and that is why she was unable to get the share. It seems that if

such a custom was proved, she can claim the share, since under the uncodified Hindu

law custom still override the rules of Hindu Law20.

2.3 Concept of Stridhan and Women’s Property: -

2.3.1 Meaning of Stridhan: - As the world denotes, Stridhan comprises of two words

Stri+Dhan. Thus it means Dhan of the 'Stri' i.e. women's property. The term

'Stridhana,' first occurs in the Smritis and literally means woman's property but

various sages use the word in different senses. Some extend the scope of the word,

others try to restrict it, like a text of Manu states that a wife, a son and a salve can

have no property and that the wealth which they earn is acquired for him to whom

they belong. According to Manu’s commentators, this did not mean that they could

not own property, but they could not dispose of their property according to their own

wishes. This view also receives support from Gautama who specifically admits the

right of a woman to hold separate property and provides for its succession. Apastamba

also hold the same view and mentioned that the share of the wife consists of he

ornaments and the wealth, which she may have received from her relations.

The Mitakshara and the authorities that follow it, take the term 'Stridhana' in

its etymological sense and includes all kinds of property of which a woman has

become the owner, whatever may be the extent of her rights over it. Vijnanesvera

18 Duddi v. Duddin, A.I.R., 1983, S.C 583 ; Munnalal v. Rajkumar, A.I.R. 1962 S.C 1493. 19 1982 Ker. 137.

20 Paras Diwan: Hindu Law, Second edition, Orient Publishing Company, New Delhi (2002), p.319.

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explains that the term 'adi' includes property which she may have acquired by

inheritance, purchase, partition, seizure and finding. According to him, Manu's six-

fold classification is only illustrative. Jimutavahana restricts the term stridhan only to

that property of the woman over which she has absolute control even during the life of

her husband. The Vyavahar Mayukha, while following the Mitakshara's

comprehensive signification, makes a distinction between technical and non-technical

stridhana for the purpose of inheritance, designating all those kinds of stridhana that

are enumerated in the Smritis as technical stridhana i.e. paribhashika.The principal

definition of stridhana was given by Manu. Manu’s six fold classification defines the

term stridhan as what was given before the nuptial fire (adhyagni), what was given at

the bridal procession (adhyavahanika), what was given in the token of love(dattam

Pritikarmani) and what was received from a brother, a mother, or a father, are

considered as the six- fold property of a woman. Katyayana indicates a cross-

classification of stridhana properties, with reference to a woman's independent powers

of disposal over it, into saudayika and non- saudayika stridhana. That, which is

obtained by a married woman or by a maiden, in the house of her husband or of her

father, from her brother, from her husband or from her parents, is termed 'saudayika.'

For the purpose of succession, another cross-division of stridhana is into yautaka and

ayautaka. According to Viramitrodaya, whatever is given at the time of marriage to

the bride and the bridegroom sitting upon the same seat is called yautaka through the

derivation, what belongs to the 'yutau'(or the two united) is yautaka. Ayautaka is that

which not yautaka is. In the modern Hindu Law, the term 'stridhana' denotes not only

the specific kinds of property enumerated in the smritis, but also other species of

property acquired or owned by a woman over which she has absolute control and she

forms the independent stock of decent in respect of such property, which accordingly

devolves on her own heirs21.

2.3.2 Power to Dispose off Stridhan: - Even though stridhana constitutes women's

absolute property but inherent limitations were placed upon her right to dispose off

her stridhan and on her testamentory powers related to stridhan. According to samriti

chandrika “A woman has not full dominion over other kinds of property, than

saudayika and husband's donation except immovable although they are her stridhana."

Even though all schools of Hindu law agree that the husband has no ownership rights

21 Mayne's: Treatise on Hindu law and Usage, Revised by Justice Alladi Kuppuswami, Bharat Law

House, New Delhi, (1986), pp. 840-843.

49

over her property and it is only her authority over such property that is subject to the

husband's control. But its effect is that it reduces the woman's actual enjoyment of

property without which ownership is farce. Thus it is evident that a woman may have

absolute power over her property, as regards to all other persons but her husband,

restrained her power of disposal. Thus a woman's stridhana or separate property

therefore falls under two heads: 1st, property over which she has absolute control and

2nd, property as to which her control is limited by her husband22.

2.3.3 Right of the Women over her Stridhan: - The following are the principles

which can be deduced from the Hindu texts with regard to rights of a Hindu female

over her stridhana:-

(1) During maidenhood, she can dispose off her stridhana of every description at her

own pleasure.

(2) During coverture she can dispose off only that kind of Stridhana which is called

saudayika i.e. gifts from relations except those made by husband. For the purpose

of determining the rights of a woman over Stridhana during covereture, Stridhana

has been classified into two categories: - (a) Saudayika, (b) Non-saudayika.

(3) Right of a female over Saudayika kind of Stridhana- Saudayika means a gift from

relations made through affection. It includes bequests from her relations also.

Over this type of stridhan she has an absolute power of disposal. She can dispose

off it by way of gift, sale, will or in any other way she pleases, even without the

consent of her husband. Her husband has no control over it, and he cannot bind

her in any way while dealing with it. But her husband can use this stridhan in case

of distress famines, illness or imprisonment.

(4) Rights of a female over non-saudayika stridhana- As regards non-saudayika

stridhana which means gifts from strangers and property acquired by mechanical

arts, etc., she has no power to dispose off it without the consent of her husband. It

is subject only to her husband's control and not the control of any other person.

Her husband is entitled to use it at his pleasure even if there is no distress etc.

After the death of her husband, her power to dispose of it becomes absolute and

she then can dispose off it at her pleasure, the way she likes.

(5) During widowhood, she can dispose off her Stridhana of every description

according to her own wish, including movable property given by the husband as

22 Ibid., p. 848.

50

well as immovable property given by him. She has during widowhood absolute

power of disposal of every kind of Stridhana, whether acquired before or after

husband's death23.

2.3.4 Succession to Stridhan: - Succession to a woman's Stridhana varies according

to her marital status i.e whether she was married or unmarried, and whether she was

married in an approved or in an unapproved form or according to the source from

where the Stridhana came. The rules of descent are different in different schools. But

there is no difference as to the rules regarding the Stridhana of a maiden, i.e.,

Stridhana of a female acquired during maidenhood. Below the rules of succession to

the stridhan are discussed:

2.3.4.1 Order of succession to a maiden's Stridhana- In all the schools, succession

to the maiden's property passes in the following order:

(1) Uterine brother.

(2) Mother.

(3) Father.

(4) Father's heirs, i.e. his Sapindas, Samanodakas and Bandhus.

2.3.4.2 Order of Scuccession to Sulka24- Sulka devolves in the same order as a

maiden stridhana passes. Other than sulka, stridhan passes in the following order:-

(1) Unmarried daughter.

(2) Married daughter who is not provided for or is poor25.

(3) Married daughter who is provided for.

(4) Daughter's daughter.

(6) Daughter's Son.

(6) Son.

(7) Son's son.

If none of these are present, i.e. if the woman dies without leaving any issue,

her Stridhana if she was married in an approved form goes to her husband and after

him, to the husband's heirs in order of their succession to him and on failure of the

23 Rameshwar Dyal Aggarwal, Hindu Law Revised Edition by A.N Sen, Sri Sai Publicatins, Faridabad

(2002), pp. 106-107. 24 Regarding the definition of sulka various authors defined it differently some hold the view that it

means the bride price or gratuity on the payment of which girl is given in the marriage. Some says

it means the price of household items like utensils, furniture etc. given to the bride so that she can

set up her matrimonial home. Others say that it is a kind of special presents given to the bride to

persuade her to go to bridegroom’s house. 25 Kammathi v. Padamanath, A.I.R., 1952 S.C. 501.

51

husbands heirs, her Stridhana goes to her blood relations in preference to the

Government.

If she was married in an unapproved form, her Stridhana goes to her mother,

then to her father and then to the father's heirs and then to the husband's heirs in

preference to the Government. It is now well settled that Stridhana of a Hindu woman

governed by Mitakshara passes in the order mentioned in Mitakshara, and the children

of the deceased woman do not take the same as " a body either jointly or as tenants-in-

common." Only the heirs belonging to a class take the properties as tenants-in-

common26. The expression "son's son" does not include son's daughters because

daughter's daughter succeeds to the Stridhana in preference to daughter's son.

2.3.4.3 Succession to Stridhana-Dyabhaga School- For purpose of succession the

Dayabhaga divides Stridhana into three classes:

(1) The Yautaka: Yautaka consists of gifts "given before the nuptial fire". The

High Court at Calcutta has held that this term signifies all gifts made during

continuance of the marriage ceremonies27.

(2) The Avadheyaka: Avadheyaka means gifts and bequests made by the fathers

subsequent to marriage.

(3) The Ayautaka: Ayautaka includes (a) gifts and bequest made by relations

(including the father) before marriage and (b) gifts and bequests made by

relations other than the father after marriage.

Besides this Hindu widow out of her own Will can put restrictions on her rights in

stridhan property28.

Succession to Stridhana-Yautaka- In the first instance, the order of succession of

Yautaka is given below:

(1) Un-affianced daughters.

(2) Daughter but not actually married.

(3) Married daughter, who have or are likely to have male issue.

(4) Daughters who are barren and childless widowed daughters; they take together

equally.

(5) Sons.

(6) Daughter's son.

26 Sham Lal v. Amarnath, A.I.R., 1970 S.C. 1643. 27 Biotoo Pershad v. Radha Soonder Nath, 16 WR 115.

28 B.T. Govindappa v. B. Narasimhaiah, A.I.R., 1991 S.C. 1969.

52

(7) Son's son.

(8) Son's grandson.

Failing the great-grandson., the succession devolves on the son of a rival wife, and on

his son and grandson in order.

Thereafter, if the marriage was in unapproved form, the order of succession is:

(1) Mother.

(2) Father.

(3) Brother.

(4) Husband.

If the marriage was in approved form the order of the succession is:

(1) Husband.

(2) Brother.

(3) Mother.

(4) Father.

Later series of heirs- In default of all heirs mentioned above, irrespective of the fact

that whether the deceased was married in an unapproved form or an approved form,

the order of succession is identical for all kinds of Stridhana. This order of

successions is given below:

(1) Husband's younger brother.

(2) Husband's brother’s son.

(3) Sister's son.

(4) Husband's sister's son.

(5) Brother's son.

(6) Daughter's husband.

In default of all the above mentioned six heirs, the order of succession is:

(1) Father-in-law.

(2) Her husband's elder brother.

(3) Her husband's other Sapindas in accordance with the Sapinda relation.

In default of them, the order of succession is:

(1) Her husband's Sakulyas.

(2) Samanodakas.

(3) Father's kinsmen.

(4) Mother's kinsmen29.

29 S.K Mitra, Hindu Law, Revised by Publisher's Editorial Board, Orient Publishing Company,

Allahabad (2006), pp. 111-112.

53

2.4 Women’s Property Rights under Customary Law: - Customs were regarded as

an important source of law. Especially, local customs under the samritis were held in

high esteem and were recognized as an important source of law. The widely used

terms in samritis like achara, sadachara, shishtachara, loksangraha etc. symbolize

various features of custom. These local customs varied from region to region in terms

of their acceptance. So far as the women rights are concerned southern states in their

local customs granted much more rights to women. Incidentally, it is also believed

that both Yajnavalkya and Vijnaneshwara, who had extended their structure on

women's right to property, belonged to the southern (Dakshina) region.

The southern and primarily Dravidian regions followed various pro-women

practices of property inheritance even under samriti law. The broadminded definition

of stridhana under the Bombay and Madras schools is an example of these pro women

practices. There were also various other lesser-known local customs and practices

prevalent in the region which also favours women. For example, there are many

references to women and their use of property in inscription in Tamil Nadu which can

be traced back to the thirteenth to the fourteenth centaury AD, during the reign of the

Cholas, Pandyas and Pallavas. These inscriptions indicate that at that time ownership

rights including the power of alienation through gifts and sales were given to females.

Similarly, a custom of handing over a piece of land to the daughter at the time of her

marriage existed within the Madras presidency also. The income accrued from this

land was meant for the women’s exclusive use. This constitutes her stridhana and

devolved on the female heirs and passed from mother to daughter. A similar custom

of providing a piece of land for the daughter's personal expenses also prevailed in the

Maratha region of Bombay presidency which is named as ‘Bangdi Choli’ (which

literally means bangles and blouse). A woman was also entitled to get one third of

the property upon her husband's remarriage. It was recognized within certain lower

castes of Madras Presidency and was termed as patnibhagam.

Carol Upadhya in her study of the coastal Andhara region has recorded a

practice of giving land to the daughter at the time of her marriage, which was known

as ‘katnam’. As per her observation, this land owned by the woman was very distinct

from the land owned by husband's family and also distinct from the present day north

54

Indian practice of dowry. Even after marriage, traditionally, women continued to

exercise control over this land30.

On the other hand the Brahminical-Aryan customs followed by the upper

castes of north India exercised a stringent control over women and their powers. The

status of these upper caste women’s of north India was low, as compared to women

from the lower castes and the women belonged to Dravidian regions. These prevalent

customs of northern India symbolizes that the woman was a mere bearer of the

children who actually belonged to the man. These are the indication of the lower

status of women among the north Indian higher castes.

Among various castes and tribes, along the Malabar Coast, there were female-

headed joint family households having matrilineal inheritance patterns. Out of these

matrilineal joint family systems, the Marumakkathayam and Aliyasanthana received

judicial recognition during the British period. The female-headed joint families were

called Tarwaad and Tavazi and in these families the line of descent was traced

through the female line. These systems were in the exercise up till recently and were

brought to an end through specific state intervention in the form of legislations in the

post-independent period. Thus these customs shows pro-proprietary status of females

but gradually along with the development of society these custom came on the back

foot and patriarchal customs giving the preference to male’s dominate position came

into existence.

2.5 Women Property Rights and Statutory Law:

2.5.1 The Caste Disabilities Removal Act, 1850:- The Hindu law of succession

underwent first modification with the enactment of the Caste Disabilities Removal

Act, 1850, a general statute which applied to all communities. It lays down:

"So much of any law or usage now in force in India as inflicts on any person

forfeiture of rights or property, or may be held in any way to impair or affect any right

of inheritance by reason of his or her renouncing, or having been excluded from the

communion of, any religion, or being deprived of caste shall cease to be enforced as

law in any court”.

This meant that conversion ceased to be a disqualification. The Act applied

only to the actual person who either renounced his religion or was deprived of a caste,

30 Carol Upadhya, Dowry and Women's Property in Coastal Andhra Pradesh in Contribution to Indian

Sociology, Sage Publications, New Delhi (1990), p. 29.

55

but did not enable his descendants to claim the benefit of the provision. This is also

the position under the Act.

2.5.2 The Hindu Wills Act, 1870:- Since the traditional Hindu law did not provide

for testamentary succession, the Hindus were permitted to dispose off their property

by will for the first time by the Hindus Will Act, 1870. In this regard Madras passed

the Hindu Transfer of Bequests Act, 1914 and the Central Legislature passed the

Hindu Disposition of Property Act, 1916. The provisions of the Hindu Will Act, 1870

were with some modifications, re-enacted in the Indian Succession Act, 1925 which

now governs the testamentary succession among Hindus.

2.5.3 The Hindu Inheritance (Removal of Disabilities) Act, 1928:- This Act

removed the disqualification of congenital lunacy and idiocy. It lays down:

"Notwithstanding any rule of Hindu law or custom to the contrary, no person

governed by the Hindu law, other than a person who is and has been from birth a

lunatic or an idiot, shall be excluded from inheritance, or from any right or a share in

joint family property by reason only of any disease, deformity or physical and mental

defect”.

Though this statute has been expressly repealed, but a similar provision has

been enacted in Section 28 of the Hindu Succession Act, 1956.

2.5.4 The Hindu Law of Inheritance (Amendment) Act, 1929:- It altered the order

of intestate succession under the Mitakshara law with a view to prefer certain near

cognates (bandhus), to distant agnates in the matter of succession to the property of a

Hindu male who dies without leaving any male issue. It laid down that a son's

daughter, daughter's daughter, sister and sister's son " shall in that order, be entitled to

rank in the order of succession next after the paternal grandfather and before the

paternal uncle." The Act obviously was a half-hearted attempt. It did not include son's

daughter's son, daughter's son's son, Daughter’s daughter's son., son's son's daughter

and son's daughter's daughter which are near relations.

Further, clause (a), (b), (c) of section 3, it has not affected any special, family

or local custom having the force of law. The Act has also made it clear that it did not

affect the nature of the estate taken by the female heirs according to the school

concerned nor enabled more than one person to succeed where, by a customary or

56

other rule of succession, a single person could succeed. This Act has been replaced by

the Hindu Succession Act, 195631.

2.5.5 The Hindu Women's Right to Property Act, 1937:- In order to confer more

better and significant inheritance rights to the women, this Act was passed to amend

the Hindu law of succession of all schools. It made innovative changes in the

Mitakshara law. In fact, it affected the law of coparcenary, partition, alienation and

succession. It conferred upon the widow of a man, whether governed by the

Mitakshara or the Dayabhaga law, right to inheritance to the property even when he

dies leaving behind a male issue. Similar rights were conferred upon the widows of

his pre-deceased son and the widow of pre-deceased son of a pre-deceased son. After

this Act, in the Mitakshara undivided family the widow of a deceased coparcener was

entitled to take his interest in the joint family. In all cases, widows were entitled to

claim partition. All the females took a limited estate.

Prior to the passing of this Act the widow in respect of the separate property

left by her deceased husband had no right of inheritance. If the deceased husband had

left a son, grandson or great grandson then the widow had only right of maintenance.

She could inherit as an heir to her husband in respect of his separate property only

when he had not left any son, grandson or great grandson. Even when in the absence

of these persons she inherited as an heir, she would be divested of the same, the

moment she adopted a son to her husband. This Act conferred better rights on the

above mentioned widows in the devolution of separate property of the deceased dying

intestate as well as in the joint family property in which the deceased had an interest

at the time of his death. By the Act of 1937 new rights of inheritance have been

conferred on her and she had been given the right to inherit her deceased husband's

property in the same manner as the son. In other words, the Act has made her co-heir

with the sons and entitled her to inherit in her husband's property the same share as

that of a son. In the case of more than one widow, the Act together gave them a share

equal to that of a son. Similar rights were conferred on the widow of a predeceased

son and the widow of a predeceased son of a predeceased son32.

2.5.6 The Hindu Succession Act, 1956: - The Interpretation given to the Act of

1937 gave rise to a number of inconsistencies and uncertainties. In order to resolve

these controversies and to consider them in better way, the Government of India

31 The Act of 1929 is discussed in detail in chapter 1, p. 21-22.

32 The Act of 1937 is discussed in detail in chapter 1, pp. 24-26.

57

constituted the Hindu Law Committee known by the name of Rau committee on 25th

January 1941. This Committee expressed itself in favour of codification of Hindu law

by stages. These stages started with the codification of law of succession and law of

marriage. On these two matters the committee submitted two draft Bills in March

1942, the first dealing with the law of intestate succession and the second with the law

of marriage. Thereafter the committee ceased to function. In course of discussions on

these draft bills, before the Assembly, the Government passed a resolution on 20th

January, 1944 by which the Hindu Law Committee was again revived with the

directions to formulate a code of Hindu law which would be as comprehensive as

possible. The Committee began its work in February, 1944. The final Report of the

Rau Committee together with the Hindu Code Bill was placed before the Cabinet on

or about 24th March, 1947. The Bill was introduced in the Central Legislative

Assembly on 9th April, 1947 and on 11th of April, 1948, the Bill was referred to a

Select Committee. The Select Committee submitted its report on 12th August, 1948

suggesting certain changes and amendments. The motion for consideration of the

Report came before the Assembly on 31st August 1948. There were debates upon it at

various alternating sittings and finally on 19th of December, 1949 the House adopted

the motion, "that the Bill, as reported by the Select Committee, be taken into

consideration." Before the motion was adopted, the Prime Minister gave an assurance

that before the Code was taken up for detailed consideration, an informal conference

would be convened in which members of the general public would also be represented

to discuss thoroughly the points regarding the Bill that were in controversy between

the various sections of the Hindu community.

A revolutionary proposal was made to modify the Hindu law by the

introduction of the Hindu Code Bill in the Central Indian Legislature. The Bill had

undoubtedly created the greatest sensation; no other Bill was able to stir the people so

deeply and strongly. The people of the country were equally divided for and against

the Bill. The jurists, the experts and the laymen also had expressed themselves on it.

Indeed, no other Bill could evoke so much criticism and agitation. The Bill was

regarded by its critics as a sort of challenge to the whole social and cultural structure

of the Hindu Philosophy33. The Committee considered the views expressed before it

33 U.C Sarkar: Epochs in Hindu Legal History, Vishveshvaranand Institute Publications (1958), pp.

391- 392.

58

but it appeared that it never considered them in an impartial manner. The Committee

was pre-disposed to usher the changes as was clear from its own observations.

"But more important than any happening in India are the repercussions of

events in the International sphere. In recent months, India has been participating in

International Conferences and pleading for Human Rights and for equal treatment of

Indians in foreign countries with and eloquence which has commanded universal

admiration. The eyes of the world are upon her now and it would be more than a

misfortune if at this juncture she were to fail to enact within her own borders a Hindu

code in which there was equality before the law and in which disabilities based on

caste or sex were no longer considered. We are now almost bound in honour to

remove these disabilities at the earliest possible moment. This should be sufficient

answer to the question "who demand these changes in Law"? "Moreover, we cannot

afford to ignore either world opinion or India's own recent declaration of certain

fundamental rights. The bill will not be completed unless it provided for a share to the

daughter in Mitakshara coparcenery34."

Thus, so far as Rights of Women was considered in the Code they had been

sought to be expanded. But at the same time the important question regarding this

code was how would these contemplated efforts actually benefit the Hindu society at

large in the collective sense? It may apparently be supposed that if a girl is allowed to

inherit her father's property, then after the marriage of the daughter, she will be adding

to the estate of her husband when that property will be taken by her to her husband's

family. But it is not possible to ignore this very clear fact that as the wife will be

taking some property from her father's family, similarly if there is any sister of the

husband, she will also take out her share out of her father's property to her husband's

family. Then what is the net gain or final position? Thus these additions and

subtractions are ultimately meaningless, as none of the families is actually gaining

any thing significantly. Ultimately, more or less same position will be retained and

that is the final result. If the husband's patrimony is not reduced in any way by his

sister's inheritance, it does not matter much whether the wife will be getting any

property from her father’s family or not. If the husband's property remains un-

affected, this will virtually mean that the wife also will be benefited by the property of

her husband. Hence the contemplated preferential treatment to the daughter would not

34 Anjani Kant: Women and the Law, A.P.H. Publishing Corporation, New Delhi (1997), p. 258.

59

actually improve their status, as it is sought by the code. This is a simple question of

Arithmetic.

Another striking consequence of the contemplated preferential treatment to the

daughters would be that sufficient expenses will not be incurred for daughter’s`

education and training up to the time of marriage. In the present scenario, even

without any aid of legislation, family members of the girl i.e. parents and brothers try

their level best to find out suitable grooms even at the highest possible costs. This is

wholly because of the sentiment of love and affection for their daughter. But once

legislation is there, then no one will be dedicated enough for their daughter’s higher

education or training. This will also put an end to all sorts of individual endeavors for

the benefit of the daughters. Thus the proposed legislation was sure to do more harm

than good. Moreover, married daughters have no obligations (morally or legally) to

maintain and support the parents even during the time of difficulties and distresses. In

this respect the position of sons are quite different. Thus one view was that, giving

rights to the female under the proposed Act does not provide any benefit to females.

The most balanced and the best considered opinions on the Hindu Code Bill

had been given by four Judges of the Calcutta High Court including the then Law

Minister Shri C.C. Biswas and Dr. B.K.Mukherjee, the late Chief Justice of the

Supreme Court of India. These eminent judges and jurists did not also fail to notice

the real improvements, suggested by the Code in some matters of inheritance, when

they held that in the rules regarding inheritance the Committee have brought in many

blood-relations who are now excluded from the list of heirs either because they

belong to the female sex or because they do not come within the scope of the Pinda

theory35.

So these discussion, criticism and protest against the Hindu code Bill led to the

idea that it is not possible to have a comprehensive codification of Hindu law at one

time. Due to this the Government deemed if fit to split up the measures contemplated

by the Hindu Code Bill into fragments. Accordingly the Hindu Code Bill was divided

and finally delivered in four parts. Out of these four parts, the second part of the

lapsed Hindu Code seeks to amend and codify the law relating to intestate succession

among the Hindus, and ultimately this led to the passing of the Hindu succession Act,

1956.

35 U.C Sarkar, Epochs in Hindu Legal History (1958), pp. 407-409.

60

2.5.6.1 Scheme of the Act: - The scheme of the Act in the matter of succession to the

property of a Hindu who dies intestate after the coming into force of the Act is as that

section 6 to 13 lays down the set of general rules of succession to the property of a

Hindu male including the including rules relating to ascertainment of the shares and

portions of various heirs which may be explained as the Statute of Distribution. It is

also the part of this scheme to enact in Sections 15 and 16 separate general rules

affecting succession to the property of a female intestate. Section 14 of the Act is

independent one which abolishes the concept of limited estate and converts it into

absolute and make the women absolute owner of the property. Section 17 provides for

modifications and changes in the general scheme of succession to the property of

male and female Hindus in relation to person who are governed by Malabar and

Aliyansantana Law. Sections 18 to 28 of the Act headed as "General provisions

relating to succession", and it lay down rules which are supplementary to the

provisions under Sections 5 to 17.

Thus, in the present scheme of the Act the two separate systems of inheritance

to the property of a Hindu male prevailed under the Mitakshara and Dayabhaga Law

have been abolished and an uniform system comes into operation as propounded in

Section 8. The three recognized classes of heirs of sapindas, samanodaks and bandhus

cease to exist after the coming into force of the Act. Now the heirs are divided into

four classes under the Act, viz, (i) heirs in class 1 of the schedule, (ii) heirs in class II

of the schedule, (iii) agnates, and (iv) cognates.

The Hindu women's limited estate is abolished and any property possessed by

a female Hindu howsoever acquired is now held by her as her absolute property and

she has full power to deal with it or dispose off it by will as she likes. The restraints

and limitations on her power cease to exist even in respect of existing property

possessed by a female Hindu at the date of the Act coming into force whether

acquired by her before or after the commencement of the Act. It is now held by her as

full owner and not as limited owner (Sec.14).

2.5.6.2 Fundamental Feature of the Act: - Thus the rules of intestacy and

testamentary succession prevailing under the existing system of Hindu Law (i.e in

Mitakshara and its schools generally it is consanguity and in Dayabhaga the guiding

principle of religious efficacy) have been considerably altered. In the Act an entirely

new line has been substituted, based on love and affection. The other important

features of the Act are as follows:

61

(1) Daughter is also included as a simultaneous heir along with son, widow, etc.

(2) The share of daughter in the property of the father is made equal to that of a son.

(3) Married and unmarried daughters are placed on the same footing and both are the

heirs to the father's property equally along with the other heirs.

(4) Under section 6 of the Act provision is made to provide a share to the daughter in

Mitakshara coparcenary property of a Hindu male also.

(5) Certain relations, such as brothers and sisters, etc are grouped together for the

purpose of simultaneous succession.

(6) Elimination of all widows of gotrajas from heirs specified in Class II of the

Schedule except the father's widow and brother's widow.

(7) Providing the right of pre-emption36.

2.5.7 State Amendment Acts: - Though Hindu Succession Act brought radical

reforms in the property rights of woman, the most important of which was to

introduce equal rights of succession between male and female heirs in the same

category like brother and sister, son and daughter, simplification of law by abolishing

the different systems prevailing under the Mitakshara and Dayabhaga schools and

abolition of life estate for female heirs. But still there are certain inherent loopholes

under the Hindu Succession Act which still discriminate the females. To overcome

these discriminations four states introduced amendments in Hindu Succession Act,

1956 and these amendments were implemented by those states also.

The objectives for the amendment of the Act in these states are to provide

equal rights and share to the daughters in the coparcenery property also. The

exclusion of daughters from participating in coparcenary property ownership merely

on the basis of sex is unfair. It is long felt social need to improve their economic

condition and social status by giving them equal rights by birth. For this purpose a

radical reform of the Mitakshara law of coparcenary is needed to provide equal

distribution of property not only with respect to the separate or self-acquired property

of the deceased male but also in respect of his undivided interest in the coparcenary

property.

The idea of making woman a coparcener was suggested as early as in 1945 in

the written statements submitted to the Hindu law Committee by number of

36 T.P Gopalkrishanan, R.B Sethi and C.Unikanta Menona, Codified Hindu Law, Law Book Company,

Allahabad (1959), p. 9.

62

individuals and groups. This idea was again given in 1956 also, when the Hindu

Succession Bill was being finally debated. Prior to its enactment an amendment was

also moved to make a daughter and her children members of the Hindu coparcenary in

the same way as a son or his children. But this progressive idea was finally rejected

and the concept of Mitakshara coparcenery was retained. Since then the concept of the

Mitakshara coparcenary property retained under section 6 of the Hindu Succession

Act has not been amended.

In this type of setup, it is a matter of great satisfaction that five states in India

namely, Andhara Pradesh, Kerala, Karnatka, Maharashtra and Tamil Nadu37, have

taken note of this fact that a woman needs to be treated equally both in the economic

and the social spheres. Thus these states introduced an amendment in the Hindu

Succession Act, 1956 in their own respective states. As per the law of four of these

states (excluding Kerala), in a joint Hindu family governed by Mitakshara law, the

daughter of coparcener shall by birth become a coparcener in her own right in the

same manner like the son. Kerala, however, had gone one step further and abolished

the right to claim any interest in any property of an ancestor during his or her lifetime

founded on the mere fact that he or she was born in the family. Thus Kerala has

abolished the joint Hindu family system altogether including the Mitakshara,

Marumakkattayam, Aliyasantana and Nambudri systems.

The approach of the Tamil Nadu, Maharashta, Andhara Pradesh and

Karnataka, State legislatures is remarkably different from that of Kerala. These four

states instead of abolishing the right by birth in the joint family strengthened it, at the

same time these States broadly remove the gender discrimination existed in the

Mitakshara Coparcenary by making daughters also the coparceners and giving them

same rights which is given to other coparceners. The broad features of the legislations

in these States are more or less understood in the same language in each of these Acts.

The amending Acts of Andhra Pradesh, Tamil Nadu and Maharashtra add three

sections namely, 29 A, 29 B and 29 C but Karnataka numbers them as Sections 6 A, 6

B and 6 C of the Act.

Now these State enactments provide equal rights to a daughter in the

coparcenary property. The position of daughter in these four states is as under:

37 For details see Annexure.

63

(a) The daughter of a coparcener in a joint Hindu Family governed by Mitakshara law

shall become a coparcener by birth in her own right in the same manner as the

son and have similar rights in the coparcenary property and be subject to similar

liabilities and disabilities.

(b) On partition of a joint Hindu family’s coparcenary property, she will be allotted a

share equal to that of a son. The share of the predeceased son or a predeceased

daughter on such partition would be allotted to the surviving children of such

predeceased son or predeceased daughter, if alive at the time of the partition.

(c) This property shall be held by her with the incidents of coparcenary ownership and

shall be regarded as property capable of being disposed off by her by will or other

testamentary disposition.

(d) The state enactments are prospective in nature and do not apply to a daughter who

is married prior to, or to a partition which has been effected before the

commencement of the Act.

Thus, these four states Amending Acts have considerably changed the concept

of the Mitakshara Joint family and coparcenary by enhancing the position of a

daughter similar to that of a coparcener. Once a daughter becomes a coparcener she

naturally continues to be a member of her natal joint family and after marriage, she

will also be member of her marital joint family.

However, these four states Hindu Succession (Amendment) Acts have been

criticized as they have given rise to various difficulties in their working and

application. Along with this in various states these Amendment Acts fails to achieve

the desired objectives like it was noticed that in the State of Tamil Nadu, when this

Amendment was made, many properties were partitioned between the coparcenars

before the Tamil Nadu (Hindu Succession Amendment) Act, 1989 came into force.

These partitions were made with the sole objective i.e. with a view to defeat the

daughter's right to become a coparcener. These partitions were by and large fraudulent

partitions which were pre-dated only because that no coparcenary property was made

available to the daughter. Thus these types of malpractices have to be checked

thoroughly in order to achieve the intended results, otherwise the very objective of the

Act, which was to remove discrimination inbuilt in the Mitakshara coparcenary

against daughters, stands defeated. In order to stop these fraudulent partitions, (though

the Tamil Nadu Act received the President's assent on 15.1.1990, and was published

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in the official gazette only on 18.1.1990), the Act provides that partitions effected

contrary to the Act after 25.3.89 will be deemed to be void.

Another infirmity of these state enactments is that these states enactments

discriminates married and unmarried daughters. These states law exclude the right of

a daughter who was married prior to the commencement of the Act, from the

coparcenary property, though the right is available to a daughter who is married after

the coming into force of the said Amendment Acts. As a result in the same category

i.e. ‘of married daughters’ discrimination is there. Because the daughter who were

married prior to the commencement of the Amendment Act, gets no rights at all in the

joint property her paternal family, where as if the marriage of the daughter has taken

place subsequent to the enactment, she continues to have her interest in the joint

property of her paternal family. Such discrimination appears to be unfair and illegal.

But still the positive feature of these state Amendment Acts is that it took the

notice of the discrimination existed under the Mitakshara coparcenery and took the

initiatives to remove it. These four states i.e. Andhara Pradesh, Tamil Nadu,

Karnataka and Maharashtra have conferred equal coparcenary rights on sons and

daughters, thus preserving the right by birth and extending it to daughters also in the

Mitakshara Coparcenary.

2.5.8 Kerala Model: The Kerala model is different from the model adopted by the

above mentioned four states. The state of Kerala by accepting the recommendations

of Hindu Law Committee headed by B.N. Rau (the committee which was given the

responsibility of framing the Hindu Code Bill) has abolished the concept of

coparcenary. The Kerala Model helped in the unification of Hindu law which will be

achieved only by abolishing the concept of coparcenery and P.V. Kane supporting the

recommendation of the Rau Committee also stated in this context that the unification

of Hindu Law will be helped by the abolition of the right by birth which is the

cornerstone of Mitakshara School and which the draft Hindu Code seeks to abolish.38

The Kerala joint Family System (Abolition) Act, 1975 (hereinafter known as

the Kerala Act) in section 4(1) of the Act lays down that all the members of a

Mitakshara Coprcenary will hold the property as tenants in common on the day the

Act comes into force as if a partition had taken place and each holding his or her share

separately. The notable feature of the Kerala law is that it has abolished the traditional

38 P.V. Kane, History of Dharamshatra; Ancient and Medieval Religious and Civil Law (1946), vol.

III, p. 823.

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Mitakshara coparcenary and the right by birth. But in Kerala, the Marumakkattayam,

Aliyasantana and Nambudri systems were also present, some of which were

matrilineal joint families and these joint families were also abolished in Kerala along

with the concept of Mitakshara coparcenery and right by birth. The Kerala Model in

all probabilities resulted in the preservation of more unity in the family. This model

adopted in Kerala appears to be more fair and impartial because as in Kerala both

matrilineal and patrilineal joint families existed. So to bring unity in Kerala among all

the types of joint families Kerala abolished the joint family system. If the joint family

was abolished today in the other states then a deemed partition would take place and

women not being coparceners would get nothing more, whereas if they are made

coparceners, then they became equal sharers in the partition of the property39.

2.5.9 Passing of Hindu Succession (Amendment) Act, 2005:- The subject matter of

the law of succession falls in entry 5 of the concurrent list of the Seventh Schedule to

the Constitution. Therefore, Parliament as well as the State Legislatures is competent

to enact laws in this area. Thus the amendments brought by the five states i.e. Kerala,

Andhara Pardesh, Tamil Nadu, Karnatka and Maharashtra is perfectly valid. But the

problem arises if any other state brings some another model of legislation in this field,

there is a likelihood of having still more diversity in the law. Because already three

types of law are existing in this area i.e. (i) the Hindu Succession Act, 1956 (ii) Kerala

Model (iii) Andhara Model. This would also result in non-adherenece to the directive

principles of state policy which require the state to take steps to secure a uniform civil

code throughout the territory of India. Though, these states done a lot to implement

the property rights of women, but having these different laws on these property

matters, again it creates confusions in the society.

Accordingly, the need was felt to have Central law enacted by Parliament

under Article 246 of the Constitution on the same subject. Considering this need and

to remove the continuing inequalities existing under the Hindu Succession Act, the

Law Commission of India prepared a draft of Hindu Succession (Amendment) Bill, in

2000. This Bill was embodied in the Hindu Succession (Amendment) Bill of 2004

which became the Hindu Succession (Amendment) Act, 2005. It was passed by both

the Houses of Parliament in August, 2005 and came into force on 9th September

39 Property Rights of Woman; Proposed Reforms under Hindu law, 174th Report of Law Commission

of India, (May 2000), pp. 16-19.

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2005. This amendment introduced sweeping changes in the Hindu Succession Act,

1956. Though directly it is an amendment made under Hindu Succession Act but

indirectly it put major effects on Hindu coparcenary, joint family and joint family

property, and thus tries to remove discrimination against female which exist in these

institutions. It follows Andhara model but at the same time tries to remove the

loopholes which were still existed in these state amendments. The changes introduced

by this Amendment are:

(1) The discriminatory provision contained in section 4(2) of Act of 1956 which

provided that state can pass rule providing for the prevention of fragmentation of

agricultural holding or for fixation of ceiling or for the devolution of tenancy

rights in respect of such holding was omitted. This provision was usually used by

the male lobbies to retain their supremacy in land laws, which deprives the women

of their equitable share. For instance under the U.P Zamindari, Abolition and

Land Reforms Act, 1951 women were not entitled to inherit land if the male heir

is alive. Property inherited by a woman from man does not devolve on her own

heirs but on the heirs of man. By omitting this provision of section 4(2), the

Amendment Act 2005 tries to remove the gender discrimination under the Act of

1956.

(2) Under Section 6(1) of Amendment Act, 2005: The daughter of a coparcenar shall:

(a) By birth become a coparcenar in her own right in the same manner as the son.

(b) Have the same rights in the coparcenary property as she would have had if she

had been a son.

(c) Be subject to the same liabilities in respect of the said coparcenary property

as that of son; and any reference to a Hindu Mitakashara coparcenar shall be

deemed to include a reference to a daughter of coparcener.

Provided that nothing contained in this sub-section shall affect or

invalidate any disposition or alienation including any partition or testamentary

disposition of property which had taken place before the 20th day of

December, 2004.

(3) Section 6(2) provides that any property to which female Hindu becomes entitled

by the virtue of above provision shall be held by her with the incidents of

coparcenary ownership and shall be regarded, as the property capable of being

disposed off by her by will and other testamentary disposition.

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(4) Under Section 6 (3) the provision was made that where a Hindu dies after the

commencement of the Hindu Succession (Amendment) Act, 2005, his interest in

the property of a joint Hindu family governed by the Mitakshara law, shall

devolve by testamentary or intestate succession, as the case may be, under this Act

and not by the survivorship, and the coparcenary property shall be deemed to have

been divided as the partition had taken place.

The daughter is allotted the same share as is allotted to a son. The provision

was also made that the share of the predeceased son or a predeceased daughter as

they would have got, had they been alive at the time of partition, shall be allotted

to surviving child of such predeceased son or of such predeceased daughter.

Further the share of the pre-deceased child of a predeceased son or of a

predeceased daughter as such child would have got, had he or she been alive at the

time of partition, shall be allotted to the child of such pre-deceased child of the

pre-deceased son or a pre-deceased daughter.

The most important fact is that the interest of a Hindu Mitakshara coparcener

shall be deemed to be the share in the property that would have been allotted to

him if a partition of the property had taken place immediately before his death,

irrespective of whether he was entitled to claim partition or not.

(5) Under Section 6(4) the Amending Act of 2005 lays down that no court shall

recognize any right to proceed against a son, grandson or great-grandson for the

recovery of any debt due from his father, grandfather or great grandfather (on the

ground of the pious obligation under the Hindu Law), of such son, grandson or

great grandson to discharge any such debt. But if any debt contracted before the

commencement of this Amending Act of 2005 the right of any creditor, to proceed

against son, grandson or great grandson, shall not affect or any alienation relating

to any such debt or right shall be enforceable under the rule of pious obligation in

the same manner and to the same extent as it would have been enforceable as if

Hindu Succession Amending Act of 2005 had not been enacted.

Further for the purpose of creditor’s right stated above the expression son,

grandson or great grandson shall be deemed to refer to the son, grandson or great

grandson who was born or adopted prior to the commencement (9th September,

2005) of the Amending Act of 2005.

(6) Further under Section 6(5), the amendment Act of 2005 tries to plug that

loopholes of anti dating partition from the date of commencement of the

Amendment by providing that only partitions effected by a registered partition

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deed or by a decree of court made before the prescribed date i.e. 20th Dec. 2004

would be recognized. Under the old law even the oral partitions or compromises

was valid in the eyes of law. Moreover under the state amendments a daughter,

who was married before the amendment was disentitled from becoming a

coparcenar. But now there is no such distinction of married and unmarried

daughters.

(7) Under the Amending Act of 2005 Section 23 of the Act of 1956 has also been

omitted which disentitled the female heir to ask for partition in respect of a

dwelling house wholly occupied by a joint family until male heirs choose to

divide their respective shares therein. Thus again it removes the disability imposed

on female heirs and thus reduces the gender gap.

(8) Similarly Section 24 of the Act of 1956 was also omitted which debars the widow

of predeceased son and the widow of a pre-deceased son of the predeceased son

or brother’s widow to succeed the property of the intestate if they were remarried

at the time when succession opens.

(9) Lastly the Amendment Act also introduces four new cognatic relations in class I of

the schedule of Hindu Succession Act, 1956. These relations are:

(i) Son of a predeceased daughter of a pre -deceased daughter.

(ii) Daughter of a predeceased daughter of a pre-deceased daughter.

(iii) Daughter of a pre-deceased son of a predeceased daughter.

(iv) Daughter of a pre-deceased daughter of a pre-deceased son.

3. CONCLUSION

Thus the Amendment of Hindu Succession Act of 1956 in 2005 is a total

commitment for the women empowerment and provides more and more property

rights to women in the Mitakshara system which was mainly patriarchal one. Making

daughters as a member of coparcenary and giving them equal rights as other male

coparcenars is indeed a very bold step to provide new arena of rights to females, but

one question remains there: whether these females actually get their share in joint

family property? Or does under the social pressures and our social set up these rights

were not at all exercised by females and these things remain only in our statutes and

lastly that inspite of such like amendments. Whether our male counterparts accept

these changes or they evolve the other measures which directly by pass the law in

their own favour?