INTRODUCTION

It is common knowledge that the Indian society is predominantly patriarchal and

the preferential rights given to men with respect to property, both movable and
immovable, are just another manifestation of the male centric societal structure.
Giving women the right to inherit, own, use and dispose of property is a fairly
recent phenomenon.

Although this project deals specifically with the right to property of Hindu women,
the absolute lack of such rights or the presence of only limited rights regarding
property, where women are concerned is common across religions.

The current position on a Hindu woman’s right to property is backed by an

interesting history of a broad spectrum of laws, both customary and formal. In the
Vedic era, women were treated at par with men, economically. Wives had equal
rights over their husbands’ properties. In stark contrast to the Vedic scenario is
Manu’s declaration that property should not be granted to the wife, the slave or the
minor son.

Wives, however, were not the only victims of such gender-based discrimination as
daughters faced similar disadvantages when it came to proprietary interests.
Daughters were seldom allowed to inherit their father’s property and in case of the
joint family property, their rights were relegated to mere maintenance as against
their natal homes. Widows were no better off in their matrimonial homes. Even if
women were allowed ownership of property, it was only a life interest, which
reverted back to the source on their deaths.

In ancient times, Hindu women, irrespective of their marital status were not
deprived of the use of their property. It has been found from Manusmriti that the
right of women to hold property was respected.[i] Women’s property rights were
improved and defined during the time of eminent jurists like Yajnavalka,
Katyayana, and Narada, who strived to promote the idea of women exercising their
right to property[ii]. Stridhan, which translates literally to “woman’s wealth” and
denotes a type of property unique to women, was a term coined by the
Smritikars[iii].

This was a woman’s separate property. Jimutavahana went to the extent of stating
that a woman possesses absolute control over her property, even after marriage.
[iv] However, this statement on his part was not completely accurate given the
actual practice prevalent in those times. Women, although not barred from the
enjoyment of their property, were denied absolute control over it.
The rationale behind this was to keep a check on the female population in society.
To give women unbridled freedom would allow them to become independent and
independence was seen as a highly undesirable trait to be found in a woman.
Though women were given the right to their separate stridhan they didn’t enjoy
complete control over it, they needed their husband’s consent to dispose of a
certain part of their stridhan.

Manu said, “three persons, a wife, a son and a slave are declared by law to have in
general no wealth exclusively their own; the wealth which they may earn is
regularly acquired for the man to whom they belong.”[v] This was a manifestation
of the then prevalent view that women fell in the same category as slaves and
chattel of men.
The evolution of the legal stand on the right to property of Hindu women can be
traced from the ancient times when customary laws were prevalent to the current
era where the written law is the last word in matters of conflict.

This paper shall focus broadly on the various rights and responsibilities,
concerning property, of Hindu women. The two broad classes into which women
shall be classified for the purpose of this study are Wives and Daughters. While
studying daughters’ right to property, I shall take into account both unmarried as
well as, married daughters. The issues that shall be highlighted in this paper are as
follows.

Whether or not females have the right to inherit property?

If they do, how much is their share in comparison to their male counterparts?

If the right to property accrues to a woman, is it absolute?

THE HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937:

Prior to 1937, there were no codified laws to deal specifically with the Hindu
women’s right to property, where disputes arose, they were settled in accordance
with the customary practices. In 1937, the Hindu Women’s Right To Property Act
was passed after much voicing of discontent over the unsatisfactory condition of
women’s rights. In the prevalent socio-legal atmosphere of that time, this Act came
as a breath of fresh air for supporters of female empowerment.

However, it was by no means enough to achieve the lofty target of gender equality.
Under the said Act– “a widow was entitled to a limited interest over the property of
her husband – what was to be termed as Hindu widow’s estate.” [vi]The
ameliorative effects of this legislation was further diluted in 1938 when it was
amended to exclude a widow’s interest in any agricultural land.
Under this Act, “a Hindu man’s widow, his widowed daughter in law and widowed
granddaughter in law are entitled to inherit to his estate, not only in default of but
along with, his male issues.”[vii] The widow in a Hindu coparcenary succeeds to
her husband’s claim irrespective of the existence of male heirs. The right of
survivorship of his collaterals is hence defeated. However, the claim granted to the
widow is a limited one and it is such a limited interest that has come about to be
called as a Hindu woman’s estate.
It is incorrectly presumed that a widow has an interest in life in the estate she
inherits. Hindu Mitakshara law does not measure estates in terms of time but on the
basis of usage of the estate[viii]. A Hindu widow in possession of the estate is
entitled to its complete beneficial enjoyment and is answerable to no one as long as
she’s not guilty of willful waste[ix]. The peculiarity of this estate is that on the
death of the widow, the estate does not pass onto her heirs but to the heirs of the
last male owner or the last full female owner with regard to stridhan property,
whichever the case might be[x]. The widow herself cannot become “fresh stock of
descent”[xi].
Shastric authorities have stated that a widow only inherits a limited interest in her
husband’s estate, however, nowhere is it said that similar restrictions are applicable
over other female heirs. The class of female heirs which are from another gothra or
after marriage shall become of a gothra different from that of the last male
owner[xii], take from the male heirs, the property in full as absolute owners. This
class includes daughters, children’s daughters and the sisters and daughters of
descendants, ascendants, and collaterals within five degrees, who inherit in order of
propinquity[xiii].
THE HINDU SUCCESSION ACT, 1956:
The idea of the limited estate as propagated by the Hindu Women’s Right to
Property Act was abolished in 1956 by the introduction of the Hindu Succession
Act. The Hindu Succession Act was a progressive act that brought about many
reforms, the most important being the granting of absolute rights to women, over
the property that they held. The benefits of the Act were twofold as held by the
Supreme Court in an attempt to put all controversy at rest.

The Supreme Court declared that as under Section 14 of the Act, the disability of
women to hold property absolutely was removed. In addition to this, it converted
the limited estate of a female owner to an absolute estate irrespective of the fact
that the creation of the estate occurred at a point of time before the enactment of
the said legislation, which was retrospective in nature.

It has been said that this Act, “abrogates all the rules of the law of succession
hitherto applicable to Hindus whether by virtue of any text or rule of Hindu law or
any custom or usage having the force of laws in respect of all matters dealt with in
the Act.  Therefore no woman can be denied property rights on the basis of any
custom, usage or text and the said Act reformed the personal law and gave woman
greater property rights.”[xiv]
In practice though, this Act is quite biased in favor of male heirs. An example of
this gender based discrimination is the fact that in the presence of both male and
female heirs, there being an ancestral dwelling house, the female heir cannot ask
for partition of the residence until and unless the male heirs ask for their respective
shares. Also, the right of residence exercised by the daughter is limited by her
marital status, a daughter may claim this right if she is unmarried or a widow or
has been divorced from or deserted by her husband. She cannot claim her right to
residence if she is happily married to her husband.

Section 14 of this Act provides for the conversion of the limited interest of a Hindu
female is into absolute rights. If she gets property from her husband she can sell it
and the purchaser gets absolute right in the property, which prior to this Act, she
could sell it only for the necessities of the family or to perform religious
ceremonies for the benefit of her deceased husband. Section 14 is wide in its ambit.
The legislation has defined women’s property in the widest possible manner. The
property includes both movable and immovable property acquired by a female by
inheritance, partition, in lieu of maintenance, arrears of maintenance, gift from any
person, a relative or not, before or after marriage or by her own skill, exertion, by
purchase or by prescription or in any other manner whatsoever and also any such
property held by her as stridhanam immediately before the commencement of the
Act. Prior to the enactment of this legislation, women were deprived of the right to
the alienation of property.

The concept of survivorship lost much of its effect due to this Act, which provided
for the devolution of a coparcener’s property unto his mother, widow, and
daughter, i.e. his female heirs in addition to his son if he dies intestate. However,
section 6 of this Act still retains the Mitakshara coparcenery excluding women
from survivorship as a result father and sons hold the joint family property to the
total exclusion of the mother and daughter despite providing a uniform scheme of
intestate succession[xv].
According to the 174th report of the Law Commission-
“While broadly removing the gender discrimination inherent in Mitakshara
Coparcenary.  The broad features of the legislation are more or less couched in the
same language in each of these Acts.  The amending Acts of Andhra  Pradesh, 
Tamil  Nadu, and Maharashtra add three sections namely, 29A, 29B, and  29C but 
Karnataka numbers them as Sections 6A, 6B and 6C of the Act.

These state enactments provide equal rights to a daughter in the coparcenary

property and contain a non-obstante clause.[xvi]
Despite the improvements brought about by the Act, it remained predominantly
gender discriminatory, especially where inheritance rights of daughters were
concerned. It was amended in 2005 to give equal rights to daughters in separate
property as well as coparcenary property left by the father. The disability of
women inheriting their patrimonial property was taken away by Section 6 of the
amended Act.

The right accrued to a daughter in the ancestral property, by virtue of the

Amendment Act, 2005 is absolute, except in the circumstances provided in the
amended Section-6.  The excepted categories to which new Section-6 is not
applicable are two, namely, (1) where the disposition or alienation including any
partition which took place before 20-12-2004 and (2) where the testamentary
disposition of the property was made before 20-12-2004.

CONCLUSION
From a predominantly male centric set of property rights, the law has evolved over
time to give first limited then absolute rights to women where property is
concerned. It was the previously held view that giving women the right to property
would lead them to have too much freedom and a sense of their own importance
that would lead to the eventual breakdown of the societal structure and lead to utter
chaos. Such views are now known to be erroneous. The various rights and
liabilities of women holding property are as of now at par after the amendment of
the Hindu Succession Act 1956, in 2005.

However, the reality is far from the black letter of the law since even now only one
in ten women are aware of the rights they are capable of exercising. It is the duty of
the legally aware people in society to ensure that this deficiency is remedied.
Nevertheless, these laws are a significant step forward in achieving gender equality
as envisaged by the framers of our constitution, the founding fathers of our nation.

Formatted on February 20th, 2019.

REFERENCES:
[i] Kanaka Latha Mukund, Turmeric Land, women’s property rights in Tamil
society since early medieval times, XXVII/17,Economic and Political Weekly,
WS-2 (1992)
[ii] ibid
[iii] Mayne’s Hindu law and Usage 840 (1986).
[iv] D Bh IV, I, 18.
[v] Manu, VIII, 416.
[vi] Available at http://newcenturyindianlaw.blogspot.in/2011/02/womens-right-to-
property.html (Last visited March 10, 2014).
[vii] Mayne’s Hindu law and Usage 840 (1986).
[viii] Vasonji V Chanda Bibi (1915) 37 All 369 PC
[ix] Renka v. Bhola Nath (1915) 37 All 177
[x] Kery Kolitany v. Moneeram (1875) 13 BLR 5, 53, 76: 19 WR 367
[xi] Mayne’s Hindu law and Usage (1986).
[xii] Bhau V. Ragunath  (1906) 30 Bom 229
[xiii] Devcooverbaee’s case (1 Bom HC 130)
[xiv] Available at http://newcenturyindianlaw.blogspot.in/2011/02/womens-right-
to-property.html (Last visited March 10, 2014).
[xv] Amrito Das, “Notional Partition, A critique, Section 6 of The Hindu
Succession Act 1956’’, J 149 AIR (2004)
[xvi] Available at http://www.lawcommissionofindia.nic.in/kerala.htm, last seen on
5/04/2014.
Introduction
The Hindu Succession Act (‘the act’) enacted in 1956 is the governing piece
of legislation concerning the transfer and devolution of property amongst
Hindus in India.[1] It codified the existing laws of inheritance while also
introducing certain changes. It sought to redress some anomalies created by
traditional Hindu Law. However, it was a compromise between tradition and
modernity that could not lead to full equality.[2]

The desire to retain the Mitakshara  coparcenary along with principals of

intestate succession in the act led to complexities. [3] While a daughter would
get only a share from the presumed partitioned property of her father, the
sons continued to get a share in the coparcenary property as well as the
notionally partitioned property. [4] To redress these problems, the act was
amended in 2005. It gave women a right by birth in the property of their
father by including them in the coparcenary.[5] This was a huge blow to
patriarchy institutionalized by law and paved way for women to have true
economic and social equality. However, post the amendment, there have
been inconsistencies in the interpretation of § 6 concerning the devolution of
interest in the coparcenary property. This has hindered the achievement of
the objectives of the amendment act.

 In the first part, we will deal with the nature of rights in coparcenary
property before the amendment act. In part two we seek to understand the
implications of the amendment act. In part three we probe the controversy
regarding the retrospectivity of the amendment act and judicial
pronouncements regarding the same. We shall examine the inconsistencies
that have plagued the interpretation of § 6 of the amended act. In part IV,
we look at the possible redressal of the issue.

I. Property Rights of women under the act

before the amendment

The Concept of Hindu Coparcenary

Traditional Hindu Coparcenary consisted of four generations of male
members in a family, starting from the oldest surviving member. [6] The
undivided coparcenary property belonged to all the members of the
coparcenary where each coparcener held a share by birth, and thus it
devolved by the rule of survivorship.[7] Such an arrangement left the female
relatives of the deceased without any protection as the property rights were
vested solely in men who were a part of the coparcenary. [8] The exclusion of
women was a result of the notion that women lacked the potency to perform
religious obligations, such as providing offerings to ancestors and performing
funeral rituals.[9] Thus, traditional laws of succession were ridden with gender
bias and hindered any possibility of equality for women.
When the act was being framed, B. N Rau and B. R Ambedkar recognized
these problems and had, in fact, proposed to do away with the concept
of Mitakshara coparcenary altogether.[10] This proposition was met with fierce
opposition. The idea of making daughters a part of the coparcenary was also
pioneered but was not accepted.[11] Thus the act was a product of a middle
ground. The Mitakshara coparcenary was retained but more protection was
offered to women than what was offered under traditional Hindu law.

Protection offered to women under the 1956 act

In light of the principles of equality enshrined in the constitution, the act
tried to alleviate the position of women by giving them a share in father’s
separate property. Daughters were introduced as class I heirs and this
enabled the daughters to get a certain share out of their father’s property
through the concept of a notional partition.[12]

A Hindu male can hold two types of property. The first one is ancestral
property that devolves by the rule of survivorship. [13] The second one is
separate property that devolves according to the rules of intestate
succession.[14] After partition, the property is considered to be separate
property of the man which devolves upon his heirs by intestate succession.
Thus, the concept of notional partition was introduced in explanation I of § 6
of the 1956 Act.[15] It mandated a legal presumption that a partition had taken
place immediately before the death of the coparcener who had, either a
female relative specified in class I of the schedule of the Act, or a male
relative who claimed through such a female relative. [16] This entailed that the
property would devolve by intestate succession and not by the rule of
survivorship.  This legal fiction was created to protect the interests of the
daughter of the deceased.[17] As the notionally partitioned property would be
considered to be separate property, she would be entitled to a share out of
it.

This assured the daughter some interest in the father’s property. Before the
act, entire undivided property would devolve to surviving coparceners as per
the rule of survivorship, leaving the daughter remedy-less. [18] This was the
first step, though a cursory one, is ensuring that there is parity between
male and female successors. However, the result of this provision was that
sons of the deceased coparcener could claim both as heirs and later as
surviving coparceners.[19] This is because notional partition is only a tool to
demarcate the share that the deceased would have received and it does not
disrupt the coparcenary property as whole.[20] Hence, the rest of the undivided
property continues as coparcenary property. This enabled the male members
to get a share larger than their female counterparts.

Click Above

II. Position Post Amendment

It was observed that granting daughters a share in the notionally partitioned
property of their fathers still did not place them on the same level as their
male counterparts. In light of this, there could be only two ways in which
equality could be truly achieved in this regard. Either the concept of
coparcenary property had to be abolished or daughters had to be made a
part of the coparcenary.[21] Kerala followed the first route while the  second
model of making daughters a part of the coparcenary was introduced by
Andhra Pradesh and was later followed by Maharashtra, Tamil Nadu et al.
[22]
 These state amendments were an effort to realize the constitutional
mandate of equality. It was also to eradicate the practice of dowry which was
believed to have stemmed from this exclusion of women from holding
property.[23] However, some of these amendments excluded married
daughters from their ambit.

In 2000, the 174th Law Commission Report suggested a number of reforms

with regards to women’s right to property.[24] It also pointed out another bias
in § 6 of the Act wherein, when property devolves according to § 8, it
considers male line of descent up to two degrees, but the female line only up
to one degree.[25] It also proposed to delete § 23 of the act that excludes
female heirs from claiming a partition of the dwelling house. [26]

In 2005, the amendment was passed along the lines of various state
amendments and the Law Commission Report. This had the effect of
overriding the state amendments.[27] After the amendment the fundamental
principles of the Hindu coparcenary were challenged. Daughters were made a
part of the coparcenary and were granted the same rights over the
coparcenary property as their male counterparts. [28] Further, earlier daughters
were barred from becoming kartas because they were not a part of the
coparcenary.[29] However, by the application of the amended § 6 they can now
act as kartas. The Parliament also proceeded to obliviate the distinction
between a married and an unmarried daughter. [30] This was path-breaking
blow to institutionalized patriarchy as it made women economically
independent. However, problems still persist regarding concepts like
reunification which are governed by uncodified Hindu law. [31]

III. Issues in Interpretation

Prakash v. Phulavati
In the present case the suit for partition and for inheritance was filed in the
year 1992 by the daughter of the deceased.[32] During the pendency of this
suit, the amendment of 2005 was enacted and the plaintiff amended her plait
to be able to benefit from this amendment.
The trial court however, did not decree a share in the ancestral property in
her favour. In appeal, the High Court reversed this decision and held the
amendment act would be applicable to the present case, even though the
respondent’s father had passed away before the enactment. While
interpreting § 6(5) of the amendment act, it held that it only bars
applicability of the amendment act to cases where partition has been effected
before the stipulated date.[33] However, this bar will not be attracted in the
present case because there was no deed of partition but only a notional
partition that had taken place.

The defendants in the present case appealed to the Supreme Court and
contended that the plaintiff respondent was entitled to the separate property
of her father, but was not entitled to the ancestral property. [34] According to
them, the plain wording of the amended provision made it clear that the
provision would apply to “daughter of a coparcener” during the
commencement of the act.[35] However, since the coparcener had died before
the amendment in the present case, the daughter would not able to claim
benefit of the amendment. Against this it was contended that the
amendment was a social legislation and should be given retrospective effect
barring for partitions that have been effected by a decree of court or those
done by a registered deed.[36]

The court held that the amendment act can only be effective if the death of
the father occurs after the date of enactment. In absence of any express
provisions, it was held that the act cannot be applied retrospectively, even if
it is a social legislation. Thus, the amended shall only apply to “living
daughters of living coparceners” at the time of enactment and the
transactions prior shall remain unaffected.[37]

Dannamma v. Amar
In this case, the appellants were the daughters of a coparcener who had died
in 2001.[38] The respondents were the sons of the deceased who had filed a
suit for partition of the property in 2002. They claimed that the daughters
were born prior to 1956, the enactment of the act. The trial court had denied
any share to the daughters. The appeals to High Court were also dismissed.

However, the Supreme Court reversed the impugned judgements. The

question was whether by the virtue of the amendment, the daughters would
become coparceners “in the same right as the sons.” [39] While relying on the
case of Anar Devi, it held that the concept of notional partition exists only for
the computation of the interests of the shares of the heirs and does not
disrupt the coparcenary as a whole.[40] Further, the court reiterated the
principles laid down by the Phulavati case.[41] It said the purpose of the
amendment was to realize the constitutional mandate of equality. 

The trial court decree in the present case was passed in 2007. The court held
that the lower courts should have been mindful of this change in legal rights.
It relied on the case of Ganduri Koteshwaramma, to say the rights under the
amended act are not lost merely because a preliminary decree has been
passed in a partition suit before.[42] It was held that the amendment further
gave an inherent right by birth in the property to the daughters. [43] The court
then directed the trial court to apply the principles accordingly and grant a
share in the coparcenary property to the daughters as well.

Ambiguities in Interpretation
The judgement in Danamma thus brought back the controversy from its
grave. Though the judgement agrees with the ratio in Phulavati, it does not
apply it. By giving the daughters the benefit of the amended act even though
the father had died before the amendment, the judgement directly goes the
against the ratio of Phulavati which prescribed that the amendment shall only
apply to “living daughters of living coparceners.” [44] Since the Phulavati case
still continues to be good law, a daughter whose father had died before the
amendment cannot claim the benefit of the amendment act. However, going
by the ruling in Danmma, a daughter will be entitled to the benefits of the
amendment act in a pending suit filed after 2005 regardless of when the
father died. The distinction between fresh suits for partition and pending
suits does not a have sound basis.
By the literal interpretation of the statute, the ruling in Phulavati is legally
sound. It is also more pragmatic to set a clear date for the application of the
amendment act. This has, however, been blurred by the judgement
in Danamma. There is still ambiguity as to whether daughters of coparceners
dying before the amendment act can by the virtue of the judgement
in Danamma institute a claim in the coparcenary property.

The rationale in Danmma focuses of the objective of the amendment to give

the daughters “inherent right to property by birth.” [45] If this rationale is
followed, then in case of father’s death before the amendment a daughter
should be allowed to institute a claim for partition based on this right.
However, the ruling restricts itself to pending suits or suits filed by a male
coparcener. In contrast, noticing that the ruling in Phulavati is an
“authoritative precedent,” a female has no rights under the amendment act if
the father had died before enactment. In such a case, she shall have no
claim to institute proceedings for partition. Hence, in this author’s view, it is
not logically sound to draw a distinction between suits for partition that have
not been finally decided, those suits for partition that are sought to be
instituted by daughters.  The effect of these two judgements, thus, has
dichotomized the law.

IV. The way forward

The statement of objects of the amendment act states that the
traditional Mitakshara coparcenary infringes women’s right to equality by
excluding them from inheritance of ancestral property. [46] The amendment
seeks to redress this inequity. The ruling in Danamma[47] thus, is more in
consonance with the objective of the act.

The logical basis provided by amendment act and that provided by the ruling
in these cases remains the same. It says that transactions prior to enactment
shall not be affected and it seeks to protect that rights that have already
been conferred. However, this end can be achieved even if the ruling
in Danamma is not restricted only pending proceedings. Even in a scenario
where father has died before the enactment of the amendment act and no
partition has been effected for the coparcenary property, a daughter should
be allowed to institute proceedings and claim her share as per the
amendment act. In such cases too, there is no finality of shares among the
coparceners. Hence, giving such a benefit to the daughter will not negative
rights conferred previously. In this case also, the benefit of the amendment
act can be provided regardless of the date of death of the father.

Going one step further, it has been proposed by some critics that the concept
of coparcenary property be abolished altogether. [48] This had been done in the
state of Kerala in its now overridden amendment act. This idea was ejected
by the Law Commission on the account that this would not protect the
interests of women.[49] Thus making daughters a part of the coparcenary is
perhaps the best way to protect their interest from being willed away.

Conclusion
In a country like ours where patriarchal notions still control the economic and
social lives of women, legislation should be a stepping stone to overcome
these barriers and not act as a roadblock. Despite the enactment of the
amendment, women do not claim a share in their father’s property. The
society still treats women who demand their rightful share in ancestral
property with contempt. The 2005 amendment is a big step in dismantling
patriarchal forces because it grants women economic freedom and challenges
the notion that they become a part of their husband’s family after marriage.
Many families are concerned about the status of their property in absence of
a son being born. This anxiety can be alleviated with the amendment act as
it treats the daughter as a legitimate inheritor.

In such a scenario, legislative ambiguities make path to equality even more

difficult. In absence of a fixed precedent, lower courts find it difficult to apply
to provisions of the amended act. The judgement in Phulavati[50] may deter
daughters of coparceners having died before the amendment from
approaching the court. In any case, their rights under the Danamma[51] case
are also restricted.  Hence, there is an immediate need to reconcile the law
and decide whether a strict  approach needs to be followed   or whether  the
statute should be applied liberally. Though a liberal approach is encouraged,
it must also been seen that such an approach does not  lead to disturbance
of previously settled rights. Thus an authoritative ruling is needed to  enable
the better implementation of the amendment act.

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Bibliography
Cases

Anar Devi and Ors. v. Parameshwari Devi and Ors. (2006) 8 SCC 656.

CIT v. Govindram Sugar Mills, AIR 1966 SC 24.

Danamma v. Amar and Ors. (2018) 3 SCC 343.

Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788.

Prakash v. Phulavati (2016) 2 SCC 36.

Statutes

Statement of Object and Purposes, The Hindu Succession (Amendment) Act,

2005.
The Hindu Succession (Andhra Pradesh Amendment) Act, 1985, §29A, §29B,
§29C

The Hindu Succession (Maharashtra Amendment) Act, 1994

The Hindu Succession Act, 1956.  

The Hindu Succession Act, 2005, §6.

Other Authorities

Law Commission Of India, 174th  Report on Property Rights of Women:

Proposed Reforms under the Hindu Law (May 2000).

Treatises

D.F. Mulla, Principles Of Hindu Law, Vol.1 (21st ed., 2013).

J.D. Mayne, Treatise on Hindu Law and Usage  (5th ed.,1892)

M.P. Jain, Indian Constitutional Law  (8th ed., 2018)

Poonam Pradhan Saxena, Family Law Lectures, Family Law 2 (3rd ed.,
2011).

Journal Articles 

Sivaramayya, Coparcenary Rights to Daughters: Constitutional and

Interpretational Issues, SCC J-25 (1997)

Florence Laroche-Gisserot, Women’s Inheritance According to the 2005

Amended Hindu Succession Act, INT’L SURV. FAM. L. (2007).

Kishwar, Codified Hindu Law: Myth or Reality, 33 Economic And Political

Weekly (1994).
Poonam Pradhan Saxena, Notes and Comments: Judicial Re-Scripting of
Legislation Governing Devolution of Coparcenary Property and Succession
Under Hindu Law, 58 JILI (2016).

Shivani Singhal, Women as Coparceners: Ramifications of the Amended

Section 6 of the Hindu Succession Act, 19 Stud Adv (2007).

Endnotes                               
[1]
 The Hindu Succession Act, 1956.

[2]
 Florence Laroche-Gisserot, Women’s Inheritance According to the 2005
Amended Hindu Succession Act, INT’L SURV. FAM. L. (2007).

[3]
 Poonam Pradhan Saxena, Notes and Comments: Judicial Re-Scripting of
Legislation Governing Devolution of Coparcenary Property and Succession
Under Hindu Law, 58 JILI (2016).

[4]
 Poonam Pradhan Saxena, Family Law Lectures, Family Law 2 (3rd ed.,
2011).

[5]
 The Hindu Succession (Amendment) Act, 2005, §6.

[6]
 D.F. Mulla, Principles Of Hindu Law, Vol.1 (21st ed., 2013).

[7]
 Id.

[8]
 J.D. Mayne, Treatise on Hindu Law and Usage  (5th ed.,1892)

[9]
 Id.

[10]
 M. Kishwar, Codified Hindu Law: Myth or Reality, 33 Economic And Political
Weekly (1994).
[11]
 Shivani Singhal, Women as Coparceners: Ramifications of the Amended
Section 6 of the Hindu Succession Act, 19 Stud Adv (2007).

[12]
 The Hindu Succession Act, 1956.

[13]
 Mulla, supra note 6.

[14]
 Mulla, supra note 6.

[15]
 The Hindu Succession Act, 1956.

[16]
 The Hindu Succession Act, 1956, §6; Mulla, supra note 6.

[17]
 Saxena, supra note 3.

[18]
 Mulla, supra note 6.

[19]
 Singhal, supra note 11.

[20]
 Saxena, supra note 3.

[21]
 Gisserot, supra note 2.

[22]
 The Hindu Succession (Maharashtra Amendment) Act, 1994, The Hindu
Succession (Karnataka Amendment) Act, 1994, §6A, §6B, §6C, The Hindu
Succession (Andhra Pradesh Amendment) Act, 1985, §29A, §29B, §29C,

[23]
 Singhal, supra note 11.

[24]
 Law Commission Of India, 174th  Report on Property Rights of Women:
Proposed Reforms under the Hindu Law (May 2000).

[25]
 Id.

[26]
 Law Commission of India, supra note 23.
[27]
 M.P. Jain, Indian Constitutional Law  (8th ed., 2018)

[28]
 The Hindu Succession (Amendment) Act, 2005, §6. 

[29]
 CIT v. Govindram Sugar Mills, AIR 1966 SC 24.

[30]
 Singhal, supra note 11.

[31]
 B. Sivaramayya, Coparcenary Rights to Daughters: Constitutional and
Interpretational Issues, 3 SCC J-25 (1997)

[32]
 Prakash v. Phulavati (2016) 2 SCC 36.

[33]
 Id.

[34]
 Id.

[35]
 The Hindu Succession (Amendment) Act, 2005, §6. 

[36]
 Prakash v. Phulavati (2016) 2 SCC 36.

[37]
 Id.

[38]
 Danamma v. Amar and Ors. (2018) 3 SCC 343.

[39]
 Id. 

[40]
 Anar Devi and Ors. v. Parameshwari Devi and Ors. (2006) 8 SCC 656.

[41]
 Prakash v. Phulavati (2016) 2 SCC 36.

[42]
 Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788.

[43]
 Danamma v. Amar and Ors. (2018) 3 SCC 343.
[44]
 Prakash v. Phulavati (2016) 2 SCC 36.

[45]
 Danamma v. Amar and Ors. (2018) 3 SCC 343.

[46]
 Statement of Object and Purposes, The Hindu Succession (Amendment)
Act, 2005.

[47]
 Danamma v. Amar and Ors. (2018) 3 SCC 343.

[48]
 Singhal, supra note 11.

[49]
 Law Commission of India, supra note 23.

[50]
 Prakash v. Phulavati (2016) 2 SCC 36.

[51]
 Danamma v. Amar and Ors. (2018) 3 SCC 343.
Notional Partition

Meaning
Before the amendment in the Hindu Succession Act, 1956, female heirs were
not given a share in the ancestral property. There was a need for radical
reforms in this Mitakshara Law so that everyone gets equal share who has an
interest in the property if the coparcener died intestate(without any will).
This concept refers to that when one of the coparceners died, in respect of
his undivided interest in the coparcenary property, there should be an equal
distribution of that share between his male heirs and female heirs,
particularly between his daughter and son. 

For example, A had a family property and he had only one son B, who died
intestate. B had one daughter and one son. The family property was
undivided when B died. Now B’s children will get an equal share from the
share of B i.e. half in the family property. But before the 2005 amendment in
the Hindu Succession Act, female heirs had no right to the share in the family
property.

Recent developments
Section 6 of the Hindu Succession Act, 1956 provided the devolution of
interest in a coparcenary or co-ownership property of a person who died
intestate. It means that when the person dies intestate and if he has any
coparcenary property then it will devolve accordingly to his male sons,
grandsons and great-grandson (not more than three degrees of generation).
This is defined as survivorship when the undivided interest in the
coparcenary property is divided equally among the male heirs of the
deceased person in terms of survivorship. No right was given to females in
this Act. Even the wife was not also given any entitlement in the coparcenary
property as she was not considered as a direct bloodline of the deceased
person. In simple terms, male heirs were regarded as coparceners but
female heirs (including daughter and wife) were not.

In 2005, the Indian legislature made some amendments to the Hindu

Succession Act, 1985. We will specifically talk about Section 6 of the Hindu
Succession (Amendment) Act, 2005. It iterated that the devolution of the
property will be according to the survivorship if there are only male heirs in
the family and no female heirs. If the family has both male and female heirs,
then the concept of survivorship will not apply, the devolution will occur to
the heirs prescribed by the law.

Some of the major changes introduced by the amendment in the Act are as
follows:

1. All the heirs will have equal rights irrespective of gender and they
will be considered coparceners by birth.
2. The daughter of a deceased person has the same entitlement on
coparcenary property as the right of a son.
3. There is no difference when it comes to the liabilities, just as rights
are equal, so also, the liabilities. In Mitakshara if there is any
coparcenary’s liability then it will be applicable to both son and
daughter equally.
4. Similarly, female’s three-generation such as daughters,
granddaughters, and great-granddaughters are also entitled as in
the case of male heirs.
5. The responsibility of debt repayment by the male heirs and female
heirs for their fathers, grandfathers, and great-grandfathers. Debt
repayment does not transfer to the descendants and it ends when
the debtor dies. 
6. These Amendments are only applicable to a Hindu whose property
interest lies to a joint Hindu family under Mitakshara law and who
 dies either testamentary or intestate after the commencement of
the Amendment Act.
7. The female heirs who are eligible to inherit are classified as follows:
1. The daughter(s),
2. The daughter’s-daughter’s son(s),
3. The daughter’s-daughter’s daughter(s),
4. The daughter’s son’s daughter(s), and
5. The son’s daughter’s son(s) (the predeceased great-
granddaughter which is only applicable if the male heir or
the grand is predeceased).

Landmark judgments

Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo &

Ors. (1981) 

In this case, Lalu Pratap, the plaintiff, filed a complaint that the estate of the
deceased person be governed by the rule of lineal primogeniture, whereby
the estate of the deceased held jointly is divided among the male members
even though there are female members in the family. The plaintiff believed
that the rule of survivorship or the rule of lineal primogeniture is the
applicable law, not the Succession Act as the Act came into force after the
death of the deceased.

The Honourable Court held that the rule of survivorship or the rule of lineal
primogeniture is not applicable since the Act was already in force. It was also
observed that the old Act is retrospective in nature.

Yogendra & Ors v. Leelamma N. & Ors. (2009)

In this case, Yogendra’s first marriage was carried out legally in the court
and the marriage was registered under Section 5 of the Hindu Marriage Act,
1955. One of the provisions in the said Act is that a spouse cannot marry
another spouse if the first one is still alive or the divorce happened. In other
words, it prohibits bigamy or polygamy. Yogendra had three daughters-
Leelamma, Kamalamma, and Parvathamma with his first wife. Subsequently,
Yogendra got married to another woman while the first one was still alive.
The second marriage was illegal according to the Hindu Marriage Act, 1955.
Thereafter, the second wife bore him a daughter namely Dinesh.

The bone of contention was whether the daughter of the second wife Dinesh
was entitled to the property of Yogendra as a coparcener under Section 6 of
the Hindu Succession Act or under Section 8 of the Amended Act.

The Court held that the Hindu Marriage Act, 1955 declared the second
marriage as illegal and also null and void. It was also held that Dinesh will
not be considered as a coparcener but as an illegitimate child of Yogendra.
She cannot inherit any property as coparcener under Hindu Succession Act
but can inherit the property as an illegitimate child under the Amended Act.

Prakash v. Phulavati (2015)

This is a landmark case in which the interpretation of the law was done by

the judges of the Supreme Court. The deceased person died before the
amended Act i.e before 2005 but after some years, his daughter filed a
complaint to get an equal share in the property of the father as a coparcener
under the Act. The court interpreted the legislation and held that the Act was
meant to be prospective in nature, not retrospective, therefore, the person
who died before 9th September 2005 will not be covered under this amended
Act and it will only apply to the person who died after the Act came into
force. Thus, the rule of survivorship will apply in this case and the daughter
will not have any share in the estate of the father.

Danamma v. Amar (2018)

In this landmark case, the Supreme Court took a different opinion as it took

in the case of Prakash v. Phulavati (2015). The father (propositus), male
coparcener, died in the year 2001 and subsequently next year, his sons filed
suit for partition. The daughters contested the suit and the sons claimed that
the daughters of the deceased father are not entitled to any share in the
estate as the father died before the commencement of the amended Act. The
claim of the daughters was rejected by the trial court as well as by the high
court on the ground that they were born before the commencement of the
Hindu Succession Act, 1956. On appeal, the Supreme Court held in favour of
the daughters that they have entitled to the share in the estate. It was held
that the preliminary decree is a pertinent factor in the devolution and
partition of the estate. The Supreme Court relied on the judgment in Ganduri
Koteshwaramma & Anr v. Chakiri Yanadi & Anr. (2011) case in which the
principle that partition is not complete with the passing of preliminary decree
until the final decree is passed was laid.

The legal scholars found both the judgments in the Prakash & Ors. V.
Phulavati & Ors. and the Danamma Suman Surpur & Anr. v. Amar &
other cases are debatable and opposite. According to the law interpreted in
the case of Phulavati, the daughters in the case of Danamma were not
entitled to any share in the property, but the Supreme Court took a different
position by implying that the commencement date is no longer applicable to
birth or conception but relied on the principle of preliminary and final decree
laid in the wholly different case i.e. Ganduri Koteshwaramma & Anr. v.
Chakri Yanadi & Anr. because of which the whole judgment favoured the
daughters and they did get entitlement in the share of the father. It is now
difficult to interpret such cases as the judgments created confusion for all the
lower courts.

But the decision in the Prakash & Ors. v. Phulavati & Ors case should be the
dictum on which one can rely and not on the decision given in the Danamma
Suman Surpur & Anr. v. Amar & others.  The reason is that the decision in
the latter case makes no practical sense as it only makes mention of
conception, birth and death. But in the former case, it was the pure
interpretation of the legislation made by the legislators when drafting the Act
and they didn’t envisage any passage of decree principle in the law.

Conclusion
Society has gradually started removing the element of patriarchy. But prior
to the development of the equality rights in the world, the society was
completely patriarchal. The male heir was given the preference and was
accorded with everything: the title, succession of his parent’s wealth and
estate, devolution, etc. Now in recent times, women are also accorded with
the same rights as that of men. 

The Constitution of various countries gives this right of equality to the people
irrespective of gender. If we talk about the Hindu Succession Act, 1956, no
rights were given to the female heirs but the Amended Act of 2005 speaks
volumes of gender equality and inheritance. The main goal of this Act is to
ensure that both, male and female heirs, are entitled to the title of the
coparceners in the family’s estate. 

Though the Supreme Court decisions have created confusion in the

interpretation, the basic aim and goal of equality in inheritance can be
achieved by this Act and the correction of the said confusion will soon be
done. The step taken by this amended Act of eliminating gender inequality is
much appreciable, but the social perception in Indian society on gender
equality is still lacking and that is to be achieved.

“Gender equality is a human fight, not a female fight.” 

 -Frieda Pinto

References
 https://www.livemint.com/Money/b6jqj4AbIIG72OLa7dg8lK/Notiona
l-partition-applies-to-share-in-joint-Hindu-property.html
 https://indiankanoon.org/search/?formInput=notional%20partition
 https://www.lawweb.in/2017/02/how-concept-of-notional-
partition.html