By Shristi Banerjee, NUJS
Editor’s Note: This paper traces the progress made in the field of Hindu law with regard to women’s right in property. It evaluates the discriminatory laws that existed in the ancient times. It moves further with the introduction of different laws which tried to bridge the gender gap in property rights. Then, a comparative analysis has been done by citing the present amendments and laws and the earlier existent condition of law. After shedding light on the historical context of laws that differentiated on the basis of gender, the paper elaborates on the current position of wives, daughters and widows. This analysis covers the path travelled by Hindu law to provide justice to the fairer sex.
“Na stri swatantramarhati”, ‘swatantram na kachit striyah”[i] is an ancient saying that elaborates the ancient take on women’s rights that women are always subject to the rule of their male counterparts. They don’t have the capability to be independent. At that time unmarried women were not entitled to any property but on marriage they used to get some amount of either movable or immovable property which would be called Streedhan. However she was not the sole owner since she herself and her property were subjected to the rule of her husband.
Marriage is a sacrament in Hindu society. Sabar and Jaimini shared the view that after marriage, both the husband and wife would share and enjoy their properties together. But, in relation to Streedhan, it has been found that the husband had the right to use it in times of distress and was not under any obligation to return it.[ii] Under the Bengal school, only the sonless wives were entitled to a share in partition and not otherwise. It was held that the wife had a right in his absence to get the share similar to that of his sons or other coparceners during his absence.[iii]
The earliest attempts to strengthen the position of women in society started from the second half of the nineteenth century. The Indian Succession Act, 1865 mentioned that “ no person shall by marriage, acquire any interest in the property of the person whom he or she marries nor become incapable of doing any act in respect of his or her own property which he or she could have done if not married to that person.” The Married Women Property Bill 1874 was a sequel to this act. The bill gave women a right to file suit for her own property. Till 1923[iv] it included only Christian women but it was later on amended to include women from all other religions.
HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937
This act was brought in the light of hue and cry from the people for the unjust position of women with regard to property rights. The act took a step forward in covering gender gap by providing a widow with the right to inherit the same share as to the son. This right was extended to the widow of a predeceased son of a predeceased son.[v] It also had a provision that when a widow is governed by any law except Dayabhaga, she would have the same interest in the property as the owner had.[vi] But the act could not bridge the gender gap entirely because it mentioned that on acquiring the property on such situations, Hindu women’s interest would be limited known as ‘Hindu women’s estate’, [vii]however she would have the same right of claiming partition as a male owner. [viii]
STATUS OF WIFE UNDER PREVIOUS LAW AND CURRENT POSITION
In earlier times, a woman could assert her rights only upon her Streedhan. This included both movable and immovable property which a woman used to get during her marriage. According to Narada, wife had the right to enjoy the property which was gifted to her by her husband but she had no right to alienate any such immovable property after his death. Such property was also included in Streedhan.
With the passage of time, the concept of Streedhan got two wings. The first being Sauadayika which was acquired by her as gifts from both the sides as well as by self skills during maidenhood or widowhood. She had the right to alienate these properties. The second being Non Saudayika, which was acquired by her as gifts from strangers and property acquired by her own skill as a married woman. She did not have the right to alienate them without her husband’s consent. [ix]The Privy Council coined the word ‘Women’s estate’ [x]in place of Streedhan. The difference was that it could not be alienated and on death it has to be devolved on the heirs of the last full owner.
The present act of succession for Hindus does not give many rights to the wife on coparcenery property. She can only get right of inheritance along with her sons and daughters in case of demise of her husband. This right extinguishes in case she is a divorcee. But in Rudr Narain Singh v Rup Kuar[xi], it was held that “Immovable property given to a wife by a husband would appear to be held on terms similar to those on which property inherited from her husband is held, and her acts in respect of it are liable to question in a similar
manner by the next heirs.” Under the current law, the wife cannot be a coparcener since she holds her coparcenery rights in her maternal home.
STATUS OF WIDOWS AND THE CURRENT LAW
Under classical law, on husband’s death, the widow was supposed to become Sati on the funeral pyre of her husband. This was prevalent mostly in parts of eastern India where the Dayabhaga law was in force which addressed the rights of women. [xii] In these parts Sati indeed was practised profusely so that the property could be saved from the hands of the woman. Not only this, but Manu said that “If the future husband of a maiden dies after troth verbally plighted, her brother in law shall wed her according to the following rule”.[xiii] The child begotten from such marriage would be regarded as the son of the deceased person.[xiv] The Hindu women’s right to property act, 1937 tried to put the widow in place of the husband after her death in Mitakshara law. Widow would succeed in preference to daughters but to limited estate. Similarly, on the death of the widow, the daughters could succeed as limited owners.[xv] Even after acquiring such a vested interest in the property the widow would continue to be a part of the joint family.[xvi] In State of Maharashtra v Narayan Rao[xvii], it was held that the widow would get the share in the property at the time when her husband dies but she cannot be exempted from the family without her assent as it would lead to unintended consequences by the legislature. Although, she did not become the coparcener which would mean that she would get the same interest but not the same right as that of her husband.
Under the old Hindu Law only the “Streedhan” was the widow’s absolute property and she was entitled to the other inherited properties only as a life-estate with very limited powers of alienation, if at all. Even under the 1937 Act, the concept of “limited estate” continued.[xviii] Section 14 of the Hindu Succession Act[xix] removed the disability of a female to acquire and hold property as an absolute owner, and converted the right of a woman in any estate already held by her on the date of the commencement of the Act as a limited owner, into an absolute owner. [xx]
The provision is retrospective in that it enlarged the limited estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. The only exception, in the form of a proviso, is for the acquisitions under the terms of a gift, will or other instrument or a decree, or order or award which prescribe a restricted estate.[xxi] This would be so only if the woman has title as well as de jure possession of the property at the time of commencement of the act. The case of Amar Kaur v Raman Kumari[xxii] best explains the right of women in ancestral property.
Under sec 3(1)[xxiii] of the Act, the widow under Mitakhshara law would inherit along with the male issue. In Dayabhaga, she inherits equally with the male issue. Moreover, it covered intestate’s widow, widow of intestate’s son and widow of predeceased son of predeceased son. This act however deprived the widow of any agricultural land leaving her at a losing end. But an important step that was taken was the right to claim partition.[xxiv]Although the nature of the property held by her would be “limited estate” which she can alienate on legal necessity and only enjoy the property during lifetime.[xxv]
After the introduction of the Hindu Succession Act, 1956, this “limited estate” of the widow was converted into absolute estate. But in Commissioner of Income Tax v. Seth Govindam Sugar Mills,[xxvi] it was held that a widow of a Karta cannot be the Karta after his death. In order to extend the rights of the widows, the concept of notional partition was elaborated in Gurapad Khandappa Magdum v. Hirabai Khandappa Magdum[xxvii] that gave the widows a right to claim partition.
CHANGE IN THE STATUS OF DAUGHTERS WITH THE INTRODUCTION OF THE NEW ACT
A consistent concern has been that under Mitakshara law, a son would inherit his deceased father’s property and would also have a share in the joint family property whereas the daughter would only get a share out of the notional partition of the deceased person. No right would be accrued to her by the virtue of birth.[xxviii]
Since the passing of the Act of 1956, right of a daughter and a married daughter was consistently agitated upon. Some states like Kerala, Karnataka and Andhra took steps to amend the acts to liberalize the law. As a result, the Hindu Succession Act, 2005 came in to introduce substitution in Section 6 of the Act[xxix] to bring in equality in law for both the sexes.[xxx] In B. Chandrasekhar Reddy v State of Andhra Pradesh[xxxi], it was held that denying women right to coparcenary from birth would be denying them their right to equality with other coparceners. Under the 1956 Act, under the proviso of Section 6, the representation for heirs go up to two degrees in the male line of descent but in female line of descent it went only upto one degree.[xxxii] Apart from that, Section 23 of the 1956 Act mentioned that women were not dispensed with the right to residence in paternal home unless she was divorced or widowed. Moreover, she was not entitled to seek partition of the property unless the male members took a stand.[xxxiii]
The 2005 Amendment brought in a change that made the daughters capable of getting a birth right in the ancestral property. If she dies intestate, then her property would devolve in accordance with section 15 of the Act.[xxxiv] But this provision would not apply retrospectively. It also addressed the other glitches mentioned in the previous act. The amending act also added new heirs.[xxxv]
Section 29 A of the Andhra Act gives the daughter the right to be the coparcener by birth. But the contention that raised here was that whether daughters who are adopted would also be given the same rights as the daughter who gets it by virtue of birth. But it was argued that the provision was introduced so as to bring in daughters at par with the sons and the discrimination between an adopted daughter and a daughter who is born in the family won’t serve the purpose of the change. Moreover marital status of a woman cannot define her coparcener rights in the father’s property. Savita Samvedi v Union of India[xxxvi] espouses this. In this case the Railways deprived a married daughter of the benefits of the employees since the rules mentioned that she was not eligible if she didn’t have a son. This was challenged on the basis of constitutionality. Hence, no discrimination is made when it comes to the marital status of a woman. In another judgement the court disqualified the daughter in law from her father in laws property on grounds that her husband had murdered his own father.[xxxvii] Extending the benefit to the daughters, Supreme Court also dealt with cases where it ruled that a father can gift ancestral property within reasonable limits to his daughter.[xxxviii] In order to secure a daughters position more, Balwant Kaur v Chanan Singh[xxxix] held that a destitute widowed daughter had a right to claim maintenance from her father during his lifetime and also in his estate after his death. Moreover, as per section 15[xl], an illegitimate daughter cannot claim heir ship. Hence the rights of women considerable improved with the introduction of new laws in the Indian scenario.
This paper entails a sojourn covering the earlier position of women in the sphere of succession and proceeds to establish the odyssey of different laws that were introduced by the legislature of India to provide justice to women. The glitches of previous Acts were covered by the subsequent acts that came into force. The 1956 Act was majorly successful in bringing turbulent change in the Indian society. Although it was also affected with some drawbacks which was not accepted by the society and then another outcry gave birth to the act of 2005 which is currently in force.
This project analyses the difference in the legal status of wives, daughters and widows with regard to succession rights. It traces each one’s journey in the Indian context of equal rights and ends with a satisfactory note of changes introduced to bring both the gender at par with each other.
Edited by Hariharan Kumar
[i]D. Haldar and K. Jaishankar, ‘PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW OF SUCCESSION LAWS OF ANCIENT, MEDIEVAL, AND MODERN INDIA’  665, available at http://www.jstor.org/stable/25654333?seq=3, last accessed on 4/08/2014
[ii] Monmayee Basu, Hindu Women and Marriage Law, (Oxford 2001) 15
[iii] Srinath v Probodh 11 C.L.J., 580 1910
[iv] 1923 was regarded as a landmark year with respect to recognising women’s right to property. In this year, Kamath, T.V. Seshagiri Ayyar also moved a bill in the legislative assembly to change the order of inheritance and give priority to female members of close proximity than male heirs of far relations.
[v] S. 3(1) of THE HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937.
[vi] S. 3 (2) of THE HINDU WOMNE’S RIGHT TO PROPERTY ACT, 1937.
[vii] S. 3(3) of the HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937.
[viii] Monmayee Basu, Hindu Women and Marriage Law, (Oxford 2001) 33
[ix] Dwarka Nath Mitter,The position of women in Hindu Law (1 Cosmo Publications) 340
[x] Devi Prasad v. Mahadeo, 39 I.A. 121
[xi] I.L.R. i All., 734
[xii] Under Dayabhaga School of law, rights by birth or by survivorship were not accorded recognition. It listed down one mode of succession and the same rules of inheritance applied irrespective of the fact whether it is separate property or ancestral property. So, both son and daughter inherit as tenants in common. In such a case, to do away with the right of the female members, Sati was a useful weapon. Hence, most instances of Sati were noted in the eastern part where Dayabhaga law was in practice.
[xiii] M.R. Mallick, Commentary on Hindu Succession Act (2nd ed. KLH 2000) 102
[xiv] Dwarka Nath Mitter,The position of women in Hindu Law (1 Cosmo Publications) 368
[xv] P.K. Das, Universal’s Handbook on Hindu Succession (3rd ed. 2011 Universal) 308
[xvi] Parappa v Nagamma, [1954)] Mad. 183, kamal Kishore v Harihar  30 Pat. 357
[xvii] AIR 1985 SC 716
[xviii] S3(3) of the WOMENS RIGHT TO PROPERTY ACT, 1937
[xix] (1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section, “property” includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or
arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as Stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under
a will or any other instrument or under a decree or order of a civil court or under an award where the
terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in
[xx] Daya Singh v Dhan Kaur  1 SCC 700
[xxi] Available on http://www.muslimpersonallaw.co.za/inheritancedocs/Property%20Rights%20of%20INdian%20Women.pdf last accessed on 6/08/2014
[xxii] AIR 1985 P&H 86
[xxiii] Devolution of property- When a Hindu governed by Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by another school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub section (3) be entitled in respect of property in respect of which he dies intestate to the same share as the son.
Provided that the widow of a predeceased son of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving a son or son’s son of such predeceased son:
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
[xxiv] S. 3 (3) of THE HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937
[xxv] P.K. Das, Universal’s Handbook on Hindu Succession (3rd ed. 2011 Universal) 333
[xxvi]  57 ITR 510
[xxvii] AIR 1978 SC 1239
[xxviii]Shabbeer Ahmed Shaik, A Paradigm of Hipocricy of Law available on http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=738d295a-bce4-45b8-b908-51dd762d6f70&txtsearch=Subject:%20Family%20Law last accessed on 04/08/2014
[xxix] Devolution of interest in coparcenary property.
— (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, —
(a) by birth become a coparcener 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 a son,
[xxx] B Chandrashekhar Reddy v. State of Andhra Pradesh AIR 2003 SC 2322 (November 19, 2010).
[xxxi] AIR 2003 SC 2322
[xxxii] P.K. Das, Universal’s Handbook on Hindu Succession (3rd ed. 2011 Universal) 345
[xxxiii] Ibid, 12
[xxxiv] The hierarchy is mentioned under the section.
[xxxv] Viz son of a pre deceased daughter of a predeceased daughter, daughter of a predeceased daughter, son of a pre deceased daughter, daughter of a predeceased son.
[xxxvi]  2 SCC 380
[xxxvii] Vallikannu v Singaperumal AIR 2005 SC 2587
[xxxviii] R. Kupayee v Raja Gounder, AIR 2004 SC 1284
[xxxix] AIR 2000 SC 1908
[xl] Of the 1956 act