Hindu Women’s Right to Property – The Fight for Equal Rights from Past to Present

Introduction –

Hindu women’s right to property has been evolved out of continuing struggle between
patriarchal Indian society and modern progressive forces of India. The right of Hindu women’s
to inherit property has been restricted from beginning of the Indian culture, though women were
not completely stopped from inheriting properties, but their share was negligible in amount. The
contemporary Hindu law of property inheritance is largely influenced by ancient rules and
regulations, in ancient India property inheritance rights were largely influenced by two Hindu
law schools as enforced in different parts of the country respectively Dayabhaga school of law
and Mitakshra school of law. Both these schools didn’t provide much property rights to women,
but women were given somewhat greater rights under Dayabhaga than Mitakshara.

In the modern era with changing times, it has been recognised that for the development of the
nation women should also be given equal status and rights as males. Hence, the first major
legislation recognising women’s rights to inheritance of property came into existence in the year
1956 named as Hindu Succession Act, 1956, since then with the passage of the time women’s
right of property inheritance are getting evolved and have come a long way, the most recent and
significant rule for women’s right to property inheritance was introduced in the year 2005, when
an amendment was done in the Section 6 of Hindu Succession Act, 1956 and daughter’s were
given equal right compared to the share of the son’s in the father’s property, the provision set out
the rule that daughter acquires right in the father’s property by birth and continue to have an
interest even when the father disposes his own interest through a will.

The Historical Period – Women’s Incompetency to Offer Funeral Cake –

In the ancient times women were not considered as equal to men, thus their rights were also not
equal to the male members of the society. Women were denied right to property because of their
incompetency to participate in sacrificial rituals, women were not allowed to offer funeral cake
for the spiritual salvation of the common ancestor, so it can be inferred that denial of the property
rights to women has its basis in religious practices. However, at the time of marriage she
received a limited range of property, which only included moveable property such as jewellery,
clothes, utensils etc., this property was called Stridhan. Laws of Hindu religion differ from place
to place even in the matters of partition and succession of property. There were different schools
of Hindu law, which have prominence over different states; the two most significant schools
were Mitakshara and Dayabhaga schools of law. The Mitakshara school was followed
throughout India except for the eastern part of India, on the other hand Dayabhaga school was
followed throughout eastern India especially in the parts of Bengal and Assam.

The main difference between the Mitakshara and Dayabhaga school is that Mitakshara school
recognises the right in the ancestral property by birth or a valid adoption only, and the male
members of the family could ask for partition to their father for only ancestral property and
doesn’t hold a right in the father’s self acquired property, this right in the ancestral property by
birth is called the rule of survivorship, and the woman doesn’t have a share in the coparcenary
property, whereas in the Dayabhga school a member of the family could only get a right in the
property whether ancestral or self acquired only by the death of the last holder. In the Mitakshara
school right in the coparcenary property can only be acquired by birth, thus the share of a person
cannot be defined it keeps fluctuating at the birth and death of a male member, on the other hand
there is no difference between separate and coparcenary property in the Dayabhaga school,
whatever property a person earns is by the inheritance, and that too only by death of the father
(last holder). Every coparcener enjoys equal rights in the coparcenary property, and only if a
father dies intestate then in that case separate property of the father is inherited by rights of
succession.

In Mitakshara school property rights of the women were restricted to a great extent; women were
believed to never be able to become a coparcener. The widow of a deceased coparcener could
not get his share and were not allowed to enforce a partition of his husband’s share against his
brothers, Dayabhaga school on the other hand was somewhat lenient, it differs in the matters of
inheritance by women and women as heirs from Mitakshara school, widow’s had greater
property rights in Dayabhaga school than Mitakshara school, a widow has the right to inherit her
deceased husband’s share and could enforce a partition against his brothers. In spite of the
freedom provided by Dayabhga school, this policy has its own restrictions, for instance on the
death of a widowed woman who doesn’t have any sons, her husband’s didn’t pass on to her
daughters, and was inherited by the nearest male heir.
During the later part of the history, when the British were ruling over India, Privy Council
preferred the rules and regulations of Dayabhaga school over Mitakshara school. The first case
upholding the women’s right to property that laid down the foundation stone of the modern
Hindu law was the Mussumat Thakoor Deyhee vs. Rai Baluk Ram, in this case the Privy Council
held that a widowed woman can dispose of the property inherited from her husband, if it is
moveable, but she had no such right in case of immoveable property, the Privy Council ruled that
women can dispose of the moveable property in the Benares Hindu law, but she can neither
dispose of moveable property nor immoveable property under Bengal Hindu law.

However, this case was later overruled by the Privy Council in the case of Bhugwandeen Dubey
vs. Mynabaee and Hindu women were also stopped in Benares Hindu law from alienating the
moveable property also inherited from husband, which on the death of the widow devolves upon
the heirs of the husband. This was done as to prevent the conflicting judgements as Bengal
school adopted the more stringent form of ancient text, which was finally approved by the
Judicial Committee of the Privy Council.

Women’s Estate and Hindu Women’s Right to Property Act, 1937 –

The view adopted by judicial committee of the Privy Council lead to the concept of Stridhan
evolving into the Hindu women’s limited estate, this limited estate lead to the foundation of rule
that there are two types of property, which a women can own – i) Stridhan, ii) Women’s Limited
Estate.

i) Stridhan – Stridhan was also recognised as women’s estate; woman has the complete right
over it, and has the right of alienation over it.

ii) Women’s Limited Estate – She didn’t have the right to alienate this share of property,
usually this property was obtained in the partition of the deceased husband’s share in
coparcenary property or property inherited by a woman from the father’s estate, there was no
unanimity as to the character of the women’s property inherited from the father, there was a
confliction among different schools, some considered it as Stridhan and some considered it as
women’s estate. However, all the schools unanimously agreed that property obtained by the
widow from the deceased husband’s share is women’s estate.
The concept of women’s limited estate was statutorily recognised in the year 1937 under the
Hindu Women’s Right to Property Act, 1937; it wasn’t until the year 1956 when the concept of
women’s limited estate was done away by the parliament legislation.

The Concept of Coparcenary under Hindu Women’s Right to Property Act, 1937 –

The reforms introduced by legislature in the concept of coparcenary, under Hindu Women’s
Right to Property Act, 1937 for the betterment of women did more damage to the property rights
of the women than improving it. The reforms introduced resulted in conflicting opinions as to the
position of the women in coparcenary. Though the women were not allowed to become a
coparcener, they were allowed to inherit the position of deceased husband, thus the operation of
the coparcenary was postponed till her death. The Act gave those powers to the women which
previously were only availble to the males, such as the right to demand partition. The terms such
as women’s limited estate were still in practice, because the 1937 Act was still using it, and the
confusion as to the women’s position as daughter, wife, widow, and other characters were still
rising.

Hindu Succession Act, 1956 - The Modern Era of Hindu Laws –

After the independence of India, personal laws of Hindus went under a radical change and one of
those laws was Hindu Succession Act, 1956. It was the first uniform law in the matters of
inheritance under Hindus as it applied to both the schools Mitakshara and Dayabhag, and also to
the parts of southern India that were previously governed by matriarchal system of Hindu law.
The 1956 Act did not only gave the women right to inherit the property from male heirs, and
ended the restriction placed by ancient Hindu law, but also cleared the position by ending the
concept of women’s estate, and helped in enlarging the concept of stridhan, which now included
both moveable and immoveable property. The legislation introduced the right of Hindu women
inheriting property as in the same lines of male heirs; Section 6 of the Act laid that by the death
of a member of coparcenary, the property devolves upon the mother, widow, and daughter, along
the son in the same share by testamentary or intestate succession and not by the rule of
survivorship. Inheritance by the rule of survivorship was not allowed if there were female heirs.

However, this Act has its own drawbacks such as, since, this Act doesn’t give the daughter the
right to be a coparcener, and she doesn’t have a right by birth in the coparcenary property as the
son. The Section 6 of the Act mentioned that if a male Hindu died intestate, then his interest in
the coparcenary property shall be devolved by the members of the coparcenary. In the case there
was a surviving female relative of the deceased coparcener then the devolution of property would
happen by the testamentary or intestate succession. The term notional partition was understood in
a very narrow sense, which gave very little to nothing at all in the partition to female heirs. The
Supreme Court cleared the position, and interpreted the section in such a sense that it gave the
woman an equal right in the property of a coparcener, in the case of Gurupada vs. Heera Bai, the
court held that the share of the successors should be decided in such a way, that each person
should receive that much amount; he would have got if a partition had taken place during the
lifetime of the deceased person. The share a heir will receive during the partition of the interest
of the deceased coparcener is not the only interest he will get in the property, the share is in
addition to the share one must receive if a rational partition would took place.

The second important change was brought by the Section 14 of the Act, which defeated the
concept of women’s limited estate, and gave the right to a woman to acquire and hold property as
an absolute owner, and any property on which she had a limited right becomes her absolute
property after the commencement of the Act, irrespective of whether it is moveable or
immoveable. While making this Section parliament tried to clear any ambiguity that may have
arisen by mentioning in the Sub Section (2) of that this rule doesn’t apply to a wills, gifts, any
other instruments, decree of a civil court which prescribes a restricted estate in such a property.
Despite all these efforts at the end of parliament, when the Act came into power this Section
remained in controversy as it was getting interpreted in many ways.

The Act upon its reading mentions that the property which was acquired even before the
commencement of the Act shall be construed as an absolute property, thus one can interpret that
the Act is retrospective in the nature, but to what extent the Act is retrospective it was not
mentioned, and this resulted in conflicting opinions by various High Courts, some took the
opinion that the Act is totally retrospective meaning that the property in which she had a limited
ownership will become her absolute property, even if it was alienated in the past, on the other
hand some courts took the opinion that the Act is not completely retrospective, and if the limited
ownership property was alienated in the past it will not become the absolute property. The
controversy was resolved by the Supreme Court in the case of Kotturuswami vs. Veeraava, the
property should be in full ownership of a female Hindu, which had been acquired either before or
after the commencement of the Act, this line certainly made the Section retrospective, but even
then the property should be in the possession of a female Hindu in order when the Act came into
force in order to make the Section applicable.

The scope and ambit of the Section 14 was decided in answering the second question arose by
this Section that was whether, the property given to a widow in lieu of her maintenance would be
her absolute property or a limited property with no power to alienate as a restricted estate, the
question was decided in the case of V. Tulasamma & Ors. Vs. V. Sesha Redd, the Supreme Court
said that where the right in the property was not created for the first time sub section (1) of the
Section 14 would be attracted, and a female Hindu will have the complete right over the said
property, and will be avoided where a pre-existing right is confirmed via an instrument. In the
light of this principle the Supreme Court held that life estate given to a wife or daughter-in-law
for the maintenance is merely a pre-existing right, and the sub section (1) would be attracted.
Hence, a Hindu woman can alienate the property given to her as maintenance as she wishes.

Daughters as Coparcener – Amendment in the Section 6 of the Hindu Succession Act, 1956-

The classical notion of coparcenary which only included male members underwent a change by
the legislature in the year 2005 through the amendment in Section 6 of the Hindu Succession
Act, 1956, daughters were accepted as coparceners, and were given the right by birth in the
ancestral property. The need of giving the daughters the right to be a coparcener was first felt
before the enactment of Hindu Succession Act, 1956, but due to furor during that time it was
scrapped, then with the time concept of stridhan degenerated into dowry and the daughter lost
control over it, the second reason why parliament felt that there is a need of giving the Hindu
women title of coparcener was for the realization of constitutional mandate of equality and to
defeat discrimination on the grounds of gender in Articles 14 and 15 of the Indian Constitution.

By the effect of 2005 amendment women were given the power to become ‘Karta’ of the joint
family property, prior to the amendment which was only limited to the male heirs, due to this
women become able to enjoy the property fully, whether she inherited it from her parents or her
in-laws. Further, because of the amendment devolution of the property by the rule of
survivorship has been stopped, it would only operate if she died intestate leaving behind no
children. If she died intestate then her share was given to her child, which was decided by the
concept of notional partition.

After the enactment of the amendment the question arose before the court whether the
amendment is retrospective or prospective, after more than a decade long discussion and many
case laws the question was answered for the final time by the Supreme Court in the year 2020
after a detailed reasoning in the case of Veeneta Sharma vs. Rakesh Sharma, the court said that
amended Section 6 of the Act, confers the status of coparcener to the daughter born before or
after the commencement of the amendment in the same manners as the son, and the rights can
also be claimed by a daughter born before 9.9.2005, to the partition, alienation or disposition
which has taken place before 20th December, 2004. Hence, the Act operates on a retroactive
effect.

Conclusion –

The 2005 amendment in the Hindu Succession Act, 1956 was the most significant step in the
history of Hindu women’s property rights. Now that the daughters have been recognised as
coparceners, their interest in the ancestral property is now protected more than ever, since the
daughters now also have right by birth in the ancestral property as the sons, she cannot be denied
her share in the property by testamentary disposition by the father. Still, if the women don’t
know about these rights available to her, then it is of no importance, the government should
spread general awareness of the rights available to the women at the grassroots level, legal
literacy camps should be organised not just for the Hindu women’s, but for all the religions. In
the modern period a nation cannot be developed if the women of that nation are still lacking
behind, thus the women should have equal rights to their male counterparts not just in paper, but
also in practice, then only a nation can be on the right track of development.