FAMILY LAW – II

HINDU WOMEN’S RIGHT TO PROPERTY

UNDER HINDU LAW

SUBMITTED BY,
M.SWARNA GEETHAM
REG NO: H13103
II YEAR ‘B’ SECTION
B.A., B.L (HONS)
SCHOOL OF EXCELLENCE IN LAW
DATE OF SUBMISSION: March 9, 2015

[1]
SYNOPSIS:
 Introduction
 Stridhan and women’s estate
 Hindu women’s right to property act,1937
 Changes effected by the act
 Widows effect on mitakshara coparcenary
 Power of a Hindu female over her women’s estate
 Power of management
 Power of alienation
 Surrender
 Reversioners
 Hindu succession act,1956
 Definition
 Pre-act women’s estate
 Post-act women’s estate
 Hindu succession act(amendment),2005
 Conclusion

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TABLE OF CASE:

S.NO CASE NAME CITATION

1. Naresh jha vs rakesh AIR 2005 jhar 2

2. Pratibha rani vs AIR 2007 SC 826

milkha singh

3. Basant kumar vs AIR 2010 HC 243

indra sen and ors

4. Baliram atmaram AIR 2009 HC 436

dhake vs
rahubai@saraswathi
w/o madhavrao
bhole

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INTRODUCTION:
The Hindu women’s right to property act came into force on the 14th April, 1937
and has no retrospective operations. As the act was considered to be defective, it was amended
by the Hindu women’s right to property (amendment) act XI, 1937, which was declared to have
retrospective effect, from the 14th April, 1937.ever after the amendment, the act remained
defective and obscure in some respects.
The act of 1937 conferred new rights on the widows in modification of previous
decisions. It recognized three widows, viz. intestate widow, his son’s widow and the widow of
predeceased son of a predeceased son.

The law of Property of a Hindu female is marked by vicissitudes starting from the
Vedic society when female enjoyed equal status economically and wife enjoyed equal rights in
husband’s house1 to a very inferior position when Manu declared: a wife, son and a slave are
declared to have no property and if they happened to acquire it would belong to male under
whom they are in protection. The daughter’s right to inherit the patrimony was also disputed and
she inherited only when she was a putrika, a brother less girl. In the joint family, the position of
female was relegated as only entitled to maintenance in the family. But whatever rights were
given by the Smritikaras to a female to inherit the property she was limited owner of the property
and could enjoy it only during her lifetime and the property reverted back from where it came.

Thus it was clear that women’s right was limited during 1937 and women’s rights
become absolute during 1956. After Hindu women’s right to property act 2005(amendment)
women’s attains equal rights with men under property. Here listed below by differentiate the
Hindu women’s right to property act during 1937 & 1956 &2005.

FOOTNOTES:

1 .Sir Gooroodas Banerjees in Marriage and Stridhana, remarks, “nowhere were

proprietary rights of women recognized so early as in India; and in very few
ancient systems of law have these rights been so largely. Vol. III (1968). Ch. XXX.

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STRIDHAN AND WOMAN’S ESTATE:

Literally the word “stridhan” means ‘women’s property’2. In the history of Hindu
law, women’s right to hold and dispose of property has been recognized. At no time whether as a
maiden, wife or widow, has the women been denied the use of her property as an absolute owner.

Whether the property is Stridhan or women’s estate mostly depends upon the source from
which it has been obtained;

 Gift and bequests from relations3

 Gift and bequests from strangers
 Property acquired by self-exertion and mechanical arts
 Property purchased with stridhan
 Property acquired by compromise
 Property obtained by adverse possession
 Property obtained by lieu of maintenance
 Property obtained by inheritance
 Share obtained on partition

For a married woman stridhan falls under two heads;

 The sauadayika- gifts of love and affection received by a woman from relations on
both sides (parents & husband).
 The non-saudayika- gifts from stranger, property acquired by self-exertion or
mechanical arts.

FOOTNOTES:

2. Mitakshara II ix, 2.

3. Banerjee, Hindu law of marriage and stridhan, pg 321

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 HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937
Before the passing of the Act she was not entitled to inherit any property but was
entitled only to maintenance4

CHANGES EFFECTED BY THE ACT:

The Act replaces the rule of Hindu law recognized in all the states except in Madras
where it has become obsolete, that a widow was entitled to share when her sons or her step
son have actually divided the estate between themselves.18 Under the Act the widow on her
husband’s death gets a right to the same share as a son along with her sons or step-sons,
independent of any partition which may or may not be entered into by them. In Madras, of
course, the change effected by the Act is much greater. What is more, it repeals in the States,
the older rule according to which a widow succeeds only on failure of male issue.

For instance, even where her husband leaves an only son and there can be no question of
partition, she succeeds along with him for the share of a son.

Evidently following the view of Visvarapee (para 457), the Act makes a widowed daughter-in-
law and a widowed-grand-daughter-in-law entitled to share along with, or in default of, the
male issue .and the widow. It brings the Mitakshara and Dayabhaga system closer together by
conferring upon the widow of a member of an undivided family the right to inherit his
coparcenary interest.

WIDOWS EFFECT ON MITAKSHARA COPARCENARY:

The Act affected the Mitakshara coparcenary fundamentally and introduced far
reaching changes in its structure. Section 3(2) laid down that in the joint family property the
widow of the deceased coparcener would have “the same interest as he himself had”. This was
irrespective of the fact whether the deceased coparcener left behind a son or not. This virtually
mean abrogation of the rule of survivorship Section 3(3) gave her the same right of claiming
partition as a male owner5.

FOOTNOTES;

4. Naresh Jha vs Rakesh, AIR 2005 Jhar 2

5. Paras diwan, modern Hindu law, 9th ed.1993 p.35

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 Before the decision of the Supreme Court in P. Lakshmi Perumallu vs. P. Krishanavenamma6,
there was a conflict in the decisions of the various High courts as to the interest of the widow
under section 3(2) of the Act of 1937. One view was that it is to be determined as on the dated
on which she seeks to enforce partition. The other view was that it was to be determined on
date on which her husband died, that is to say, that it was not a fluctuating interest

Increasing or decreasing as a result of deaths or births in the family. In the instant case there
were three brothers S, L & K S died leaving a son SP from his first wife and his second wife W1
SP died in the year 1939. W1 filed suit in 1950 against L claiming half share in the entire
property. It was held by the Supreme Court that her share did not get fixed at the time of death
of her husband in 1938, which was ¼ at that time as his son SP was alive) but was one half
when she claimed partition in 19507.

S-----------------L---------------K (died 1930)

(Died 1938)

(w) W1

(SP)

(DIED 1938)

On the same principles the position of Karta in the joint family remains unaffected so long as
there is no partition and Karta had right to deal with the joint family property including the
interest of the widow. If the widow got her share partitioned, on her death the succession
would be traced to the husband’s heirs on the basis that the property was his separate
property. But if she died, joint family property would pass survivorship. Mere severance of
status is enough to carve out her interest in the family, though there was no division by metes
and bounds. If two or more widows inherit the property, on the death of one would go by
survivorship to other.

FOOTNOTES:

6. AIR 1965SC 825; SC C.E.D vs Radheshyam,(1996) 133 CTR 426(raj)

7. B.K.Sharma, Hindu law, 2nd ed.2008, pg.365

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POWER OF A HINDU FEMALE OVER HER WOMEN’S ESTATE:

(a)Power of management-
The Karta of a Hindu joint family she has full power of management. The Karta is
merely a co-owner of the joint family, there being other coparceners, but she is the sole
owner, she alone is entitled to the possession of the entire estate and its income. Her
power of spending the income is absolute. She need not to save and if she saves, it ll be
her stridhan. She alone can sue on behalf of the estate and she alone can be sued in
respect of it. Any alienation made by her proper or improper is valid and binding so long
as she lives. She continues to be its owner until the forfeiture of estate by her re-marriage,
adoption, death or surrender.

(b)Power of alienation-

She has limited powers of alienation, like Karta her powers are limited and she
can alienate property only in exceptional cases. She can alienate the property for the following;

 Legal necessity (that is, for her own need and for the need of the dependents of
the last owner)
 For the benefit of estate, and
 For the discharge of indispensable duties( such as marriage of daughters,
funeral rites of her husband, his shrada and gifts to Brahmans for the salvation
of his soul; that is, she can alienate her estate for the spiritual benefit of the last
owner, but not for her own spiritual benefits.

Under the first two heads her power are more or less the same as that of the Karta.
Restrictions on her powers of alienation are an incident of the estate and not for her benefits of
the reversioners. As to the power of alienation under the third head, a distinction is made
between the indispensable duties for which the entire property could be alienated, and the pious
and charitable purpose for which only small portion of property could be alienated.

(c)Surrender- means renunciation of estate by the female owner8.She has the power of
renouncing the estate in favors of the nearest reversioner. This means that by a voluntary act she
can accelerate the estate of the reversioner by conveying absolutely the estate thereby destroying
her own estate. This is an act of self-effacement on her part and operates as her civil death.

FOOTNOTES:

8. Dayabhaga XI, I, 56-57

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 For a valid surrender, the first condition is that it must be of the entire estate, though she
may retain a small portion of her maintenance. The second condition is that it must be in favors
of the nearest reversioner or reversioners, in case there are more than one of the same category.
Surrender can be made in favors of female reversioners also. The third condition is that the
surrender must be bonafide and not a device of dividing the estate with the reversioners.

(d)Reversioners- On the death of the female owner the estate reverts to the heir or
the heirs of the last owner as if the latter died when the limited estate ceased. Such heirs may be
male or female known as reversioners. So long as the estate endures there are no reversioners
though there is always a presumptive reversioner who has only a spec successions (an
exception). The property of the female devolves on the reversioners when her estate terminates
on her death, but it can terminate even during her lifetime by surrender.

HINDU SUCCESSION ACT, 1956

DEFINITION:
Sub-sec (1) of s.14 of the Hindu succession act runs as under;

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.

Sub-sec (2) of s.14 retains the power of any person or the court to give limited estate to
woman in the same manner as a limited estate may be given to any other person.

PRE-ACT WOMAN’S ESTATE:

Sec 14 has been given retrospective effect. It converts existing woman’s estate into
stridhan or absolute estates. Two conditions are necessary:

(a) Ownership of the property must vest in her, and

(b) She must be in possession of the estate when the act came into force.

But if she has no rights in her deceased husband’s property except the right of maintenance, that
property cannot become her absolute estate.

 SHE MUST BE OWNER OF THE PROPERTY:

It is well settled if a Hindu female has no title to the property, she will not become
its absolute owner, even though she is in its possession. The property possessed by a
female Hindu, as contemplated in the section, is clearly the property to which she has
acquired some kind of title whether before or after the commencement of the act.

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 In the context of section 14,”woman” does not mean any woman, but that woman
who is the owner of woman’s estate. If the holder of woman’s estate had alienated the
estate to a woman, that woman is not the woman whose estate is enlarged to full estate.

 INTEREST ACQUIRED UNDER THE ACT OF 1937:

When a mitakshara coparcener’s widow acquired the interest of her husband
under the Hindu women’s right to property act,1937 and she had not exercised her right
to partition, does this interest become her absolute estate by virtue of s.14(1), Hindu
succession act, 1956 ?
In ‘subaram vs gauri Shankar in 1956, a widow took the interest of her
deceased husband who was a coparcener with his brother. In Dec, 1956 she sold the
portion of joint family property. Shah.j observed that doubtfully the coparcener’s powers
of alienating his interest in the coparcenary property is limited,” but a widow acquired an
interest in that property by virtue of the Hindu succession act is not subject to any such
restriction.”
 WOMAN’S ESTATE AND WIDOW REMARRIAGE ACT,1956:
Section 2 of Hindu widow’s remarriage act,1956 provides that the rights and
interests in certain properties which a widow gets her husband as limited estate, shall
cease upon her marriage and shall devolves as if she had died. Does this property also
become her absolute property? And if so, will her remarriage afterwards lead to its
forfeiture? It has been held that her estate even as referred to in S.2 of Hindu succession
act,1956, become her full estate by virtue of S.14 , of Hindu succession act,1956. If there
is some inconsistency between the provisions of two enactments, the act of 1956 will
have overriding effect. If she remarried after coming into force of the act of 1956, she
will incur no disqualification and her estate cannot be forfeits as contemplated by S.2 of
the act of 1856. After the widow becomes absolute owner, subsequent remarriage would
not divest her.
 THE PROPERTY MUST BE IN HER POSSESSION:
The second condition for the applicability of S.14 (1) is that when the act came
inti force, the Hindu female must be in possession of the property. TN a series of cases,
the high courts and the Supreme Court has that the expression,’ property ‘and
‘possession’ is to be given widest possible interpretation. In the absence of a restrictive
definition in the relevant statue, it is not proper to restrict its scope and
comprehensiveness.
When the property is given to the woman by way of maintenance over which
she had a right, her possession was accepted, it became her absolute property.
The term possession has a very wide connotation. It includes actual as well as
constructive possession. Even when she is entitled to the possession of property, such as
when the property is in the possession of a trespasser, it has been held that she is in its

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 constructive possession. Similarly, if the property is in the actual possession of a
mortgagee, lessee or licensee, the female has the constructive possession.
 WHO ARE REVERSIONERS AFTER 17.5.56:
Where the reversioners have a right to file a suit, under law they are to be reckoned
with, under the old Hindu law of succession or under the new law, i.e., Hindu succession act.
The Patna, madras and Orissa high court subscribe to the former view. The andra Pradesh,
himachal Pradesh, madras and the Punjab high courts subscribe to the latter view. The settled
rule of Hindu law, prior to the Hindu succession act was that wherever a widow succeeded to the
property, she succeeded it as representing the husband and the husband was deemed to die when
the widow died.

POST-ACT WOMEN’S PROPERTY:

1. PROPERTY RECEIVED IN LIEU OF A PARTITION:

The Karta can grant some property to a member of the family for his or her
maintenance. A Hindu female can also be granted property for her maintenance under a
family arrangement or a partition. Section 14 lays down that any property which a Hindu
female gets on partition after the commencement of the Act will be her absolute property
and any property which she got at a partition before the commencement of the Act will
also become her absolute property provided it was in her possession at the
commencement of the Act.
2. PROPERTY GIVEN UNDER AN AWARD OR DECREE:
In Badri Prasad v. Kanso devi9, where a partition under an award was
subsequently embodied in a decree, certain properties were allotted to a Hindu female as
her share, the Supreme Court said that section 14(2) did not apply. The Supreme Court
was of the view that a share obtained by a Hindu female in a partition under section 14(1)
even though her share is described as a limited estate in the decree or award.
3. PROPERTY UNDER AN AGREEMENT OR COMPROMISE:
The test that if the decree or award is the recognition of pre-existing right then
sub-section (1) will apply and if property is given to the Hindu female for the first time
under an award or decree subsection (2) will apply. It has been applied to the acquisition
of property under an agreement or compromise.

FOOTNOTES:
9. AIR 1982 Ker 137
10. Uncodified Hindu law-dr.T.V.subba roa-ch IV, syn.4.3,pg no:64

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4. PROPERTY RECEIVED IN INHERITANCE:

Any property that a Hindu female inherited from a male or female relation was
taken by her as limited estate except in the Bombay school10.
Section 14 lays down that any property that a Hindu Female inherits from any relation
after the commencement of the Act will be her absolute property. On her death it will
devolve on her heirs under the provisions of section 15 and 16. If any property has been
inherited by her before the commencement of the Act and if it is in her possession then
that property also became her absolute property.
5. PROPERTY RECEIVED IN GIFT:
Under the Act, there is no distinction between the gifts received by her from
relatives or strangers and at any stage of her life, and all gifts that she receives will be her
absolute property. Ornaments received by her at the time of her marriage are ordinarily
her stridhan property

6. PROPERTY RECEIVED UNDER A WILL:

It was held that where only life estate is conferred under a will, Section 14(2)
will apply, and the estate will not become full estate .But if a will confers on her full
estate, she will take absolutely. Properties given under a settlement to the widow which
were to revert to the settlor on his brother on her death do not get enlarged into full estate.

7. DOWRY:
Dowry and traditional presents made to the wife at the time of the
marriage constitute her stridhan, and if the husband or her in-law refuses to give it back
to her, on her demand, they would be guilty of criminal breach of trust11. Similarly, if any
item of stridhan is entrusted to them at the time of marriage or thereafter and if they
refuse to give it to her on demand, they would be guilty of criminal breach of trust under
Section 405, IPC12.

FOOTNOTES:

11. Pratibha rani vs milkha Singh, AIR 2007 SC 826

12. Ibid.

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 HINDU SUCCESSSION ACT (AMENDMENT), 2005

Section 6 of the Hindu succession act 2005 states that,

Devolution of interest in coparcenary property:

(1) On and from the commencement of the Hindu succession (amendment)
act,2005, in a joint family governed by the mitakshara law, the daughter of a
coparcener shall,
(a) By birth become a coparcener in her own rights 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,;

Provided that nothing contained in this sub-section shall after 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)(a) The daughter is allowed the same share as is allotted to a son;

A Hindu woman or girl will have equal property rights along with other male relatives for
any partition made in intestate succession after September 2005, the Supreme Court has ruled.

A bench of justices R.M.Lodha and Jadish Singh khehar in a judgment said that under the
Hindu succession (amendment) act, 2005, the daughters are entitled to equal inheritance rights
along with other male siblings, which was not available to them prior to the amendment.

The apex court said the female inheritors would not only have the succession rights but also
the same liabilities fastened on the property along with the male members.

“The new section 6 provides for parity of rights in the coparcenary property among male and
female members of a joint family on and from September 9, 2005. The legislature has now
conferred substantive right in favors of the daughters.

The term coparcener refers to the equal inheritance rights in a property.

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 CASE LAWS
CASE LAW I:
Basant kumar

Vs

Indra sen and ors13.

In the high court of Madhya Pradesh

F.A.No.243 of 1997

Decided on: 25.11.2010

SUBJECT: family

Disposition: appeal allowed

ACTS/RULES/ORDERS:
Hindu succession Act, 1956-sec 14(1)(2); Hindu women’s right to property Act, 1937; cpc-sec
96

CASE NOTE:
Property-title of possession-gift deed-sec 96 of cpc(1908)-present appeal filed under
sec96 of cpc against order dismissing suit of plaintiff/appellant for possession of land on
basis of gift deed-it was well settled principle of law that no right, titles or interest can be
created by orders of revenue court regarding mutation-oral evidence of H(PW3) and
S(PW5) showed that S was in possession of dispute land as B on behalf of
plaintiff/appellant-defendant C raised dispute when crops were harvested by S-S, patwari
also admitted that he had seen possession of both parties on dispute land, then he further
stated that he was unable to say that who was in possession of disputed land-in these
circumstances in year 1981-82,there was a dispute regarding possession of property and it
showed that defendant/respondent tried to dispossess plaintiff-judgments and decree
passed by trial court was set aside-defendant were restrained permanently to interfere in
possession of above mentioned property of plaintiff/appellant-appeal allowed.

FOOTNOTES:
13.AIR 2010 HC 234

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 CASE LAW II:
Baliram atmaram dhake

Vs

Rahubai@ saraswatibai w/o madhavrao bhole14

In the high court of Bombay at Aurangabad

S.A.No.436 of 1989

Decided on: 07.01.2009

Disposition: appeal allowed

SUBJECT: property

CASE NOTE;
Family-widow right to property-section 14 &24 of the Hindu succession Act,1956-
respondent remarried in 1962-respondent filed suit for possession and partition in 1979 claiming
½ share in ancestral suit properties of her first husband-trial court decrees suit awarding 1/3rd
share to respondent and appellant alongwith deceased-appellant and deceased appealed to district
judge-deceased died during pendency of appeal about 1986-district judge dismissed appeal
holding share of respondent as ½ due to death of deceased-whether respondent entitled to ½
share in property of appellant-held, respondent member of joint family of appellant at time of
death of husband when succession act came into force-respondent enjoyed absolute ownership
the over 1/3rd share inherited from husband under section 14- respondent not re-married at the
time when Hindu succession act came into force in 1956 but much later-but she remarried before
death of deceased-hence, inheritance of share of deceased by respondent not correct-section 24
applicable –error by district judge in holding respondent entitled to ½ share-respondent entitled
to 1/3rd share-decision judge set aside and decision of civil judge confirmed-appeal allowed

FOOTNOTES:

14.AIR 2009 HC 436

[15]
Conclusion – A case for change

Certain rights having been denied to women on the basis of gender are now
slowly been granted to them by the legislative and judicial machinery of the state. Landmark
legislation has been brought in wherein daughters have now been granted coparcenary rights as
also the liabilities, more female heirs have been promoted from Class II to Class I, thereby
making them primary heirs, provisions granting partition right restricting only to males in the
dwelling house which reiterated traditional patriarchal concepts towards women have now been
deleted thus giving rights also to females to ask for partition in the dwelling house and provisions
exempting agricultural holdings from HSA, 1956 has been deleted thus removing the gender
inequalities in the inheritance of agriculture land. Bombay High Court while discussing the
constitutional validity of provisions dealing with the devolution of male and female dying
intestate under HSA, has rightly held that such provisions show discrimination between Hindu
men and women, therefore they are unreasonable thus, unconstitutional and ultra vires as being
violates of Article 15(1) of the Constitution of India. Law as it is applied in India today shows a
positive reform with regard to the position of females and clearly shows that rules of personal
law based on religion are not above reform in order to bring them into conformity with social
and legal change.

BIBLIOGRAPHY:

1. Diwan paras, family law, 6th edn, Allahabad law agency, Faridabad 2003
2. Jai Prakash, supreme court on hindu law, vinod publications, delhi
3. Chadha prem nath, hindu law, eastern book company, lucknow.
4. See sub-section(2) section 14, hindu succession act,1956

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