ANS – 1

 INTRODUCTION

The position of women since inception has been a detestable one. This is not a new problem,
it is since ages that women have been subjected to unequal treatment. They have always been
looked down upon not only by society but even by their own family. It is a pity that in a
culture where goddesses are worshipped by the people, a woman is seen as a liability rather
than a blessing. This inequality can also been in right of inheritance.

The right to property of Hindu women has grown out of the on-going struggle between the
patriarchal society of India and modern democratic forces. Property inheritance rights were
largely influenced in ancient India by two Hindu law schools, Dayabhaga law school and
Mitakshra law school, as implemented in different parts of the country. The existing Hindu
law of inheritance of property is largely affected by ancient laws and regulations. These two
schools did not give women a lot of property rights, but women were granted far greater
rights than Mitakshara under Dayabhaga.

It has been recognized in the modern age that women should also be granted equal status and
rights as men for the country's development. In 1956, called the Hindu Succession Act of
1956, the first major law recognizing women's rights to inherit property came into being.
Since then, with the passage of time the right of women to property inheritance has grown
and has come a long way, the most recent and important law for women's right to property
inheritance came into being in 2005.

 HISTORICAL BACKGROUND

In ancient times, women were not considered equal to men, and their rights were also not
equal to those of male members of society. Women were denied the right to property because
of their incompetence to participate in sacrificial rites, and women were not permitted to give
funeral cake for the ancestor's eternal redemption, so it can be argued that the denial of
women's property rights is based on religious beliefs.

The laws of the Hindu religion vary from one place to another, including the partition and
succession of property. There were various Hindu law schools in different states that were
popular; the law schools of Mitakshara and Dayabhaga were the two most important schools.
The Mitakshara School was followed throughout India except for the eastern part of India,
while the Dayabhaga School, on the other hand, was followed in eastern India, especially in
the parts of Bengal and Assam.

The main difference between Mitakshara School and Dayabhaga School is that Mitakshara
School only acknowledges the right to ancestral property by birth or legitimate adoption, and
the members of the male family could apply to their father for partition for only ancestral
property, and the woman does not have a share of the coparcenary property. Whereas in the
Dayabhaga school, whether ancestral or self-acquired only by the death of the last holder, a
family member could get a right on the property.

In Mitakshara School, women's property rights were reduced to a large degree. Females were
deemed never to be able to become a coparcener. Dayabhaga school, on the other hand, was
more lenient, as Mitakshara school heirs had greater property rights than Mitakshara school.
Widows had more property rights in Dayabhaga school than Mitakshara school , a widow has
the right to inherit the share of her deceased husband and could enforce a partition against his
brothers, which under Mitakshara School was not permitted.

When the British ruled over India in the latter part of history, the Privy Council preferred the
rules and regulations of Dayabhaga school over Mitakshara School. The first case upholding
the right of women to land, which laid the foundation stone of modern Hindu law, was
Mussumat Thakoor Deyhee vs. Rai Baluk Ram1. In this case, the Privy Council held that if
it is movable, a widow may dispose of the property inherited from her husband, but she has
no such right in the case of immovable property. The Privy Council ruled that women can
dispose of movable property under the Hindu Benares law, but they can not dispose of
movable property or immovable property under the Hindu Bengal law.

However, this case was later overruled by the Privy Council in the case of Bhugwandeen
Dubey vs. Mynabaee2. Then after Hindu women were prohibited from alienating the movable
property inherited from the husband under the Hindu law of Benares, which relates to the
husband's heirs upon the widow's death.

 HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937

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  Estate of a Woman

The view adopted by the Judicial Committee of the Privy Council led to the notion of
Stridhan expanding into the Hindu women's limited estate, which led to the establishment of
the rule that there are two types of property that a woman may possess. They are:

A. Limited Estate of Women

Women were not allowed to alienate this part of the property. Generally this part was
acquired in the division of the share of the husband after his death in coparcenary property or
property inherited by a female from the estate of the father.

There was no uniformity as to the nature of women's property inherited from the father, there
was a disagreement between different schools, some considered it to be Stridhan and some
considered it to be the women's estate. However, all the schools unanimously agreed that the
property received by the widow from the share of the deceased husband was the woman's
estate.

The idea of women's limited estate was legally recognised in 1937 under the Hindu Women's
Right to Property Act, 1937; it wasn't until 1956 that parliamentary legislation abolished the
principle of women's limited estate.

B. Stridhan

Stridhan had been recognised as a woman's estate; they have full right over it, and they have
the right to be alienated.

Stridhan & Coparcenary:

The reforms passed by the legislature in the definition of coparcenary with the idea to
improve position of  women under the Hindu Women's Right to Property Act, 1937, did more
harm than improve her property rights. The reforms introduced resulted in contrasting views
as to women's coparcenary status.

The Act gave women some powers, such as the right to claim partition, that had previously
only been open to men. As it was still used by the 1937 Act, terms such as 'women's limited
estate' were still in practice, and there was still increasing confusion regarding women's status
as daughters, mothers, widows, and other characters.

 HINDU SUCCESSION ACT, 1956

 Hindu Law in Modern Era

After India's independence, Hindu personal laws went through drastic change, and the Hindu
Succession Act, 1956, was one of those laws. It was the first universal law in matters of
inheritance under the Hindus, as it applied to both the schools of Mitakshara and Dayabhag,
as well as to the parts of southern India that were previously governed by the Hindu
matriarchal regime.

The 1956 Act not only granted women the right to inherit property from male heirs and
abolished the limitation imposed by ancient Hindu law, but also cleared the position by
ending the instance of women's estate and helped to expand the notion of stridhan, which
now included both movable and immovable property.

The law created the right of Hindu women through which they they can  inherit property in
the same way as in the case of the male heirs; Section 6 of this Act specifies that the property
is transferred by the death of a coparcenary member to the mother, widow, and daughter,
along with the son and also in the same share by any of the testamentary or intestate
succession.

Drawbacks To This Act

o However, this Act has its own drawbacks, as this Act does not give the daughter the right
to become a coparcener and as the son, in the coparcenary territory, she does not have a
right by birth. Section 6 of the Act provided that if a male Hindu dies intestate, then his
interest in the coparcenary land is to be passed on by the coparcenary members. In a very
narrow sense, the term notional partition was interpreted, giving women heirs very little
to none in the partition at all.
 In the case of Gurupada vs. Heera Bai,3 Supreme Court cleared this position and
interpreted by it in such a way that a just right to the property of a coparcener was given
to women . The court stated that the share of the successors must be calculated in a way
that every person should receive as much; he would have received that much if a division
had taken place during the lifetime of the deceased person.

o Section 14 of the Act acted to contrary and defeated the notion of limited estate for
women and gave a woman the right to purchase and hold property as an absolute owner
of the property, introduced another major reform, and after the implementation of the Act,
a property on which she had a limited right became her absolute property, regardless of
whether the property is movable or immovable.

The Parliament attempted to clarify any confusion that might have arisen when making
this provision by specifying in Sub Section (2) that this law does not apply to wills, gifts,
any other tools, a declaration of the civil court prescribing a restricted estate in such a
property.

o In answer to the second question raised by this Clause, the extent of Section 14 was
decided as to whether the property allocated to a widow would be absolute property of
hers or a restricted property instead of her maintenance.

The matter was settled upon in the case of V. Tulasamma & Ors Vs. V. Sesha Reddy 4.
The Supreme Court ruled that if the right of ownership had not been established in the
first instance, it would attract sub-section (1) of Section 14 and the Hindu woman would
have full rights of ownership and would be avoided if an instrument upheld a pre-existing
right.

In the light of this, the Apex Court ruled that the life estate given to a wife or daughter-in-
law for maintenance is merely a pre-existing privilege and will be drawn to the sub-
section(1). Therefore a Hindu woman may, if she wants, alienate the property given to her
as maintenance.

 Retrospectivity Of The Act

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 Upon its reading, the Act states that even before the establishment of the Act if
the property is acquired, it is to be regarded as an absolute property. This very
much establishes that the Act is of retrospective nature. But to what extent the
Act is retrospective, it is not specified and this resulted in conflicting judgments
by various High Courts.

it was the opinion of some that the Act is solely retrospective. This implies that
the property of which she had a limited ownership would become her total
property, even though if in the past it was alienated. Some courts, on the other
hand, have taken a view contrary to this that the Act is not completely
retrospective, even though in the past limited-ownership property has been
alienated, it is not deemed to become absolute property.

This dispute was finally settled by the Ap Court in the Kotturuswami vs.

Veeraavava5. The Supreme Court ruled in this case that "the estate should be
entirely owned by a Hindu woman, acquired before or after the establishment of
the Act." This phrase apparently made the Section retrospective in nature, but
even when the Act came into force, the property should be in the possession of a
Hindu woman to make the Section applicable.

 Reforms In The Act

By the amendment in Section 6 of the Hindu Succession Act, 1956, in the year 2005, the
classical notion of coparcenary that only included male members underwent a significant
change by the legislature, because the daughters were accepted as coparceners and were
given birth rights in the ancestral property.

The need to give the daughters the right to be a coparcener was first felt before the enactment
of the Hindu Succession Act, 1956, but it was scrapped during that time because of furore.
Then with time, the meaning of stridhan deteriorated into dowry, and the daughter lost grip of
it. In Articles 14 and 15 of the Indian Constitution we can find the second reason why

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Parliament felt that why it was a necessity to give the title of coparcener to Hindu women. It
was to realize the constitutional mandate of equality and to defeat gender discrimination.

 Prior to the amendment, concept of 'karta' which was limited only to the male heirs, the 2005
amendment granted women also the right to become 'Karta' of the joint family property. due
to this, I t did not matter if she inherited it from her parents or from her in-laws, women will
enjoy the property entirely.

After the adoption of the amendment, the issue of whether the amendment is retrospective or
prospective came before the court. After more than a decade of discussion and many case
laws, the issue was answered for the last time by the Supreme Court in 2020 after a detailed
reasoning in the case of Veeneta Sharma vs. Rakesh Sharma6. The court held that
"Amended Section 6 of the Act confers on the daughter born before or after the effect of the
amendment, the status of coparcener in the same way as the son, and the rights can also be
asserted by the daughter born before 9.9.2005 to the division, alienation or disposition that
took place prior to 20 December. Through this the Apex Court cleared the whole picture of
the Act being a retrospective one.

 CONCLUSION