WOMEN'S RIGHT TO PROPERTY

In this Post I shall briefly explain the property rights of women under the Hindu
law. There are four stages here, to wit, pre-1937, 1937-1956, 1956-2005 and post-
2005.

In theory, in the ancient times, the woman could hold property but in practice,
in comparison to men’s holding, her right to dispose of the property was qualified,
the latter considered by the patriarchal set up as necessary, lest she became too-
independent and neglect her marital duties and the management of household
affairs. This was the situation prior to 1937 when there was no codified law. The
Hindu Women’s Right to Property Act, 1937 was one of the most important
enactments that brought about changes to give better rights to women. The said Act
was the outcome of discontent expressed by a sizeable section of society against the
unsatisfactory affairs of the women’s rights to property. Even the said Act did not
give an absolute right to women. 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. The Act was amended in 1938 to exclude the widow from any interest in
agricultural land.

The Hindu Succession Act, 1956 introduced many reforms and it abolished
completely the essential principle that runs through the estate inherited by a female
heir, that she takes only a limited estate. The Supreme Court put a lot of controversy
at rest by holding that the woman becomes the absolute owner under Section-14 of
the Hindu Succession Act, 1956. The object of Section 14 is two-fold : (1) to remove
the disability of a female to acquire and hold property as an absolute owner and (2) to
convert the right of woman in any estate held by her as a limited owner into an
absolute owner. The provision was retrospective in the sense that it enlarged the
limit of the estate into an absolute one even if the property was inherited or held by
the woman as a limited owner before the Act came into force. Any property acquired
under the 1937 Act held in capacity of a limited owner was now converted to her
absolute estate. The Hindu Succession Act, 1956 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. The daughters were also granted property rights in
their father’s estate.

Under Section 8 of the Hindu Succession Act, 1956 the property of a male
Hindu dying intestate (that is, without leaving any testamentary instrument like will,
settlement etc.,) shall devolve on his son, daughter, widow, mother, son of a
predeceased son, daughter of a predeceased son, son of a predeceased daughter,
daughter of a predeceased daughter, widow of a predeceased son, son of a
predeceased son of a predeceased son, daughter of a predeceased son of a
predeceased son, widow of a predeceased son of a predeceased son. Thus female
heirs were granted property rights in the estate of the deceased male Hindu.

The above said Section applies to the self acquired property or the separate
property of a male Hindu.

However Section-6 of the Act clearly states that in the case of joint family
property, known as coparcenary property, the interest of a male Hindu, on his death,
would devolve by survivorship upon the surviving members of the coparcenary and
not in accordance with the above said provision. Coparcenary consists of
grandfather, father, son and son’s son. However, if the deceased had left him
surviving a female relative (daughter, widow, mother, daughter of a predeceased son,
widow of a predeceased son, daughter of a predeceased son of a predeceased son,
widow of a predeceased son of a predeceased son) the interest of the deceased in
the coparcenary shall devolve by testamentary or intestate succession, as the case
may be, under this Act and not by survivorship. For example, A (who had an interest
in the coparcenary property) dies leaving behind him his 2 sons B & C and a
daughter D. When he was alive, B & C (sons) were members of the coparcenary and
D (daughter) was not a member of the coparcenary. On the death of A, his daughter
D will get only 1/3 share in the 1/3 share of her father in the coparcenary property. It
means the sons B & C will get 1/3 +1/9 each where as the daughter D will get only 1/9
share in the property.

Under Section 23 of the Hindu Succession Act, 1956, where a Hindu intestate
has left surviving him or her both male and female heirs and his or her property
includes a dwelling house, wholly occupied by members of his or her family, the right
of any such female heir to claim partition of the dwelling house shall not arise until
the male heirs choose to divide their respective share therein; but the female heir
shall be entitled to a right of residence therein; Provided that where such female heir
is a daughter, she shall be entitled to a right of residence in the dwelling-house only
if she is unmarried or has been deserted by, or has separated from, her husband or is
a widow.

No doubt, the above provisions of the Hindu Succession Act, 1956 are gender
discriminatory. To remove the said gender discriminatory provisions the Hindu
Succession (Amendment) Act, 2005 was enacted and the said Act came into force
on 9th September, 2005 and it gives the following rights to daughters:

In a Joint Hindu family the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son; (b)
have the same rights in the coparcenary property as she would have had if she had
been a son; (c) be subject to the same liabilities in respect of the said coparcenary
property as that of a son, and any reference to a Hindu coparcener shall be deemed
to include a reference to a daughter of a coparcener:

Where a Hindu dies after the commencement of the Hindu Succession

(Amendment) Act, 2005, his interest in the property of a Joint Hindu family shall
devolve by testamentary or intestate succession, as the case may be, under this Act
and not by survivorship, and the coparcenary property shall be deemed to have been
divided as if a partition had taken place and (a) the daughter is allotted the same
share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at the time of partition, shall be
allotted to the surviving child of such pre-deceased son or of such pre-deceased
daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a
pre-deceased daughter, as such child would have got had he or she been alive at the
time of the partition, shall be allotted to the child of such pre-deceased child of the
pre-deceased son or a pre-deceased daughter, as the case may be.

The above mentioned provision under Section 23 of the Hindu Succession Act,
1956 relating to right of residence in dwelling houses has been omitted under the
Hindu Succession (Amendment) Act, 2005.

Thus gender discrimination has been removed to a larger extent by the 2005 Act.
Now, daughters can claim equal right in the self acquired/separate property and also
coparcenary property left by their father.
1

CHAPTER – I

INTRODUCTION

Women have a unique position in every society whether developed,

developing or underdeveloped. This is particularly due to the various roles they

play during various stages of their life, as a daughter, wife, mother and sister etc.,

inspite of her contribution in the life of every individual human being she still

belongs to a class or group of society which is in a disadvantaged position on

account of several social barriers and impediments. She has been the victim of

tyranny at the hands of men who dominates the society. The position of Indian

woman is no better compared to their counterparts in other parts of the world. On

one hand she is held in high esteem by one and all, worshipped, considered as

the embodiment of tolerance and virtue. But on the other hand she has been the

victim of untold miseries, hardships and atrocities caused and perpetuated by the

male dominated society. The vulnerability of the women as a class has nothing to

do with their economic independence. The woman has been a victim irrespective

of her economic background. The rich and the poor alike are the victims of social

barriers and disadvantages of varying kinds. A report of the United Nations

Organisations points out that women constitute half the world populations,

perform nearly two third of work hours, receive one tenth of the world’s income

and own less than one hundredth percent of world’s property.

The women had enjoyed good respectable social status during Vedic and

Post-Vedic period. Although she did not possess any property right in that golden

era but, even then, she was treated like Devis and had a respectable and upper

place in the family.

In India almost half of the Indian population is women. They have often
been discriminated against and have suffered and are suffering discrimination

due to silence on their part in the civilized as well as the primitive society. Even

though self sacrifice and self denial are their nobility and virtue, yet they have

been made the victims of all inequalities, indignities, inequity and discrimination, 2

from time immemorial. Modern constitutional factors have prompted the

legislature to make various progressive laws to give the women their due share.

The Constitution of India prohibits any discrimination solely based on the ground

of sex in general and in the matter of public employment. The prohibition of

gender based discrimination has been given the status of a fundamental right.

Various other laws have been enacted to deal with the personal matters like

marriage, divorce and succession etc., of the women. Unfortunately only a few

such laws could be codified and made uniform. The criminal law also contains

numerous provisions to deal with the crimes committed against women;

enactments like The Dowry Prohibition Act, 1961 supplement the existing

criminal laws to combat the evil of dowry. Number of labour and industrial laws

provide for the protection and welfare of the women, which include maternity

benefits, prohibition of employment of women in dangerous activities and creche

facility for the children of working women. In order to curb the immoral and

antisocial practice of prostitution, The Immoral Traffic (Prevention) Act, 1956 has

been enacted and amended the Act in 1986. The female foeticide and infanticide

have assumed dangerous proportions and the determination of sex of the foetus

which became possible due to the advanced scientific inventions, abetted the

commission of these inhuman acts. The Parliament has passed the Pre-Natal

Diagnostic Techniques (Regulation & Prevention of Misuse) Act, 1994 to arrest

this undesirable trend. These legislative measures aforementioned are only by

way of illustrations and not at all exhaustive; nor our subject matter of research
requires that much of details thereon.

The Parliament of India has realized the importance and desirability of a

monitoring institution to examine and investigate all the matters relating to the

safeguards provided for women under the Constitution and other laws. This

realization has led to the enactment of the National Commissions for Women Act,

1990 which came into force with effect from 31/01/1992. Though this commission

which consists of a chairperson and five members nominated by the Central

Government, has been entrusted with the task of presenting to the Central

Government the problems of women, deprivation of women’s rights, and the 3

reports of the progress of the development of women under the Union and any

state, it has not been given a Constitutional Status so far. However, this body has

been burdened with the laborious responsibility of reporting to the government as

to the efficacy and effective implementation of the safeguards for improving the

conditions of women by the government, and for monitoring the socio-economic

development of women in all walks of their life. Unfortunately, the Commission

can make only recommendations and send the same to the respective authority

for necessary action. It has no judicial powers for making it an effective

instrument for providing relief to women in distress. Justice V.R. Krishna Iyer,

aptly remarked that a National Commission for women has “hardly any teeth or

nail”. It is high time that the commission has been given the judicial powers and

also conferred the Constitutional status.

The people power in general and the women-power in particular is said to

be the totality of democracy. Half of the world’s population is women, but their lot

is having terribly less power, to self and property than that should be due to them

for the full development of their stature and facilities and opportunities to uphold

their personality, notwithstanding the rhetoric in international instruments,

National Constitutions and statutory provisions in the corpus juris in many

countries of the world. It is we the people where the women as a gender had

rarely gained fair treatment from the pivotal male dominated culture of the

country.

The discrimination is writ large against womanhood and there is no high

priority to level up and to equalize their unjust disability. It is true that a

generation of great men is incomplete without the generation of empowered

women. Even if in the present era of human rights the women from womb to

tomb, suffer a status of submissiveness, a span of second class citizen, and the

injustice flag of female gender flies high as mothers, wives and household

everywhere lacking facility and opportunity, if one looks closer at the problems,

issues and social realization of unjust egalitarianism that belongs to womanhood,

and its victimization. The woman has right to life in its luminous amplitude, which 4

belongs to every woman. She has the freedom of discrimination inflicted in her

sex and she has the claim to preferential processes through the State’s

affirmative action to wipe out the vintage injustices in the scale of equity.

The United Nation’s Report in 1980 presented that:

“Women constitute half the world’s population, perform nearly two thirds of

its hours, receive one tenth of the world’s income and less than one hundredth

percent of the world’s property.”

Hence it can be envisaged that, though the women constitute half of the

world’s population they suffer even today, the course of the discrimination. The

minute study of world’s women specified records and statistics reveals that the

women comprise 66% of the world’s literacy and 70% of the world’s poor.

Therefore, the problem needs to be examined in the context of rights for

establishment of a just and equitable social order, where nobody can be treated
or exploited by another as unequal. The Convention on Elimination of All Forms

of Discrimination Against Women, 1979 (CEDAW)1

is the main foundation of

rights in respect of women to which 166 countries including India are members till

date. The convention recognized that the discrimination against women in these

areas, hampers economic growth and detrimentally hampers the society at large.

THE CONSTITUTION OF INDIA AND WOMEN:

“Half of the Indian population too is women, women have always been

discriminated against and have suffered and are suffering discrimination in

silence. Self sacrifice and self denial are their nobility and fortitude and yet they

have been subjected to all inequities, indignities, inequality and discrimination.”

Justice K.Rama Swamy in Madhu Kishwar vs. State of Bihar (1996)

The Indian Constitution adopted by the Constituent Assembly on 26th

November, 1949 is a comprehensive document enshrining various principles of

1 Adopted on 18th December, 1979 and came into force in 1981.5

justice, liberty, equality and fraternity. These objectives specified in the preamble

and elsewhere form part of basic structure of the Indian Constitution. The

fundamental law of the land assures the dignity of the individuals irrespective of

their sex, community or place of birth.

With regard to the women, the Constitution contains many negative and

positive provisions which go a long way in securing gender justice. While

incorporating these provisions, the framers of the Constitution were well

conscious of the unequal treatment meted out to the fairer sex, from the time

immemorial. The history of suppression of women in India is very long and the

same has been responsible for including certain general as well as specific

provisions for upliftment of the status of women in our constitution. The rights
guaranteed to the women are on par with the rights of men and in some cases

the women have been allowed to enjoy the benefit of certain special provisions

“in the interest of women and children” through state legislation and affirmative

action.

PROPERTY RIGHTS OF HINDU WOMEN:

The rights of women to succeed to any property vary from one religion to

other depending on the personal laws followed by them. The religion played a

very important role in the devolution of property on the woman in the earlier days.

Initially the entire law of succession was uncodified but with the advent of modern

governments and legislatures, most of the succession laws have been codified

and consolidated. However there is no uniformity in the succession law relating

to women following different religions.

In India the women enjoyed a secondary status with regard to the

succession. This unequal status was sought to be removed by certain

legislations governing different religions like The Hindu Women’s Rights to

Property Act, 1937, Cochin Christian Succession Act, 1902, The Hindu

Disposition of Property Act, 1916, , The Indian Succession Act, 1925, and The

Hindu Inheritance (Removal of Disabilities) Act, 1928.6

The law relating to testamentary succession among Hindus, Christians

and Parsis etc., is contained in the Indian succession Act, 1925. It does not make

any distinction between the rights of women and men under a will.

HINDU WOMEN AND SUCCESSION:

The Hindu law of intestate Succession has been codified in the forms of

the Hindu Succession Act, 1956, which bases its rule of succession on the basic

Mitakshara principle of propinquity, i.e., preference of the heirs on the basis of

proximity of relationship. Prior to 1956, there used to be two major schools of

Hindu law viz. Mitakshara and Dayabhaga which laid down different principles of

succession. There was no uniformity in the rights of the Hindus following different

schools to succeed to the property of a Hindu who died intestate i.e., without

leaving a will behind him.

(i) Position of Hindu Woman before 1956

Before 1956, the property of a Hindu woman was divided

into two heads viz. (a) Stridhan (b) Woman’s estate. Stridhan

literally means woman’s property. The Hindu Law interpreted

Stridhan as the properties received by a woman by way of gift from

relations. It included movables as well as immovables properties.

The texts relating to Stridhan except in the matter of succession are

fairly adequate and clear. Manu defined Stridhan as, that what was

given before the nuptial fire, what was given at the bridal

procession, what was given in token of love and what was received

from a brother, a mother, or a father.2

The property inherited by a

woman from a male or female was not considered as Stridhan and

it was not her absolute property for the purpose of inheritance.3

However Bombay school considered the property inherited by a

woman from a male (other than a widow, and mother etc.) as

2 Mayne, Hindu Law and usage, 13th Addition, 1995 at p. 875.

3 Mst. Devala vs. Rup. Sir, AIR 1960 MP 1959 Jab. L.J. 598.7

Stridhan. Under all schools of Hindu law, the property obtained by a

woman in lieu of maintenance, or by adverse possession and a

property purchased with Stridhan was considered as Stridhan.

(ii) Rights in respect of Stridhan

(1) The Hindu woman had full rights of alienating the “Stridhan”,

she being its absolute owner. She could sell, gift, mortgage,

lease or exchange the same in any manner she liked.

(2) On her death, all types of Stridhan passes to her own heirs and

not the heirs of her husband. Thus, a Hindu woman had

unlimited rights of enjoyment, alienation and possession in

respect of “Stridhan” as its absolute owner.

The Supreme Court has explained the meaning and nature

of “Stridhan” in recent judgment.4

The properties gifted to her

before the marriage, at the time of marriage or at the time of giving

farewell or thereafter are her Stridhan properties. It is her absolute

property with all rights to dispose at her own pleasure. He has no

control over her Stridhan property. Husband may use it during the

time of his distress but nonetheless he has a moral obligation to

resort the same or its value to his wife. Therefore, Stridhan property

does not become a joint property of the wife and the husband and

the husband has no title or independent dominion over the property

as owner thereof.

(iii) Women’s Estate

The other type of property that could devolve upon the Hindu

woman was called woman’s estate. It was also called widow’s

estate. A Hindu woman could be the owner of woman’s Estate in

the same way as any individual subject to two basic limitations.

4 Rashmi Kumar vs. Mahesh Kumar Bhada (1997) 2 SCC 397.8

(a) She could not alienate the property and

(b) On her death, it devolved upon the next heir of the last full

owner.

In other words, she had only ‘limited estate’ in respect of this kind of

property. She had full powers of possession, management and enjoyment of

such property but she had virtually no power of alienation or transfer. However

she could alienate the property in certain exceptional cases like (a) legal

necessity i.e., for her own needs and for the need of the dependents of the last

full owner, (b) for the benefit of estate and (c) for the discharge of indispensable

religious duties such as marriage of daughters, funeral rites of husband, his

‘Shradhha’ and alms to poor for the salvation of his soul. In other words she

could alienate the property for the spiritual benefit of the last full owner but not for

her own spiritual benefit. So the rule in Hanooman Parsad v. Babooeee Mumraj5

applied to alienation of woman’s estate also. The women’s estate was normally

taken by the woman either by way of property obtained by inheritance or as

share obtained on partition.

The foregoing brief discussion makes it amply clear that the position of

Hindu woman in relation to property and succession was not satisfactory and

uniform. The rights varied depending on the school to which she belonged and

the nature of property that devolved upon her. The Hindu Women’s Right to

Property Act, 1937 made some changes in succession in respect of separate

property of a Mitakshara Hindu and in respect of all properties of a Dayabhaga

Hindu. It provided for right of survivorship and right of partition to a Hindu widow

of Mitakshara school in coparcenary property. However, she was not accorded

the status of a coparcener. The uncertainty was put to rest by codifying and

amending the entire Hindu law of Succession of 1956.

5
(1856) 6MIA393. Also see Hari Satya vs. Mahadev, AIR, 1983 Cal. 769

Position after the Hindu Succession Act, 1956:

The preamble of the act signifies that it is an act to amend and codify the

law relating to intestate succession among Hindus. The Act aims to lay down an

uniform law of succession whereas attempt has been made to ensure equality of

inheritance rights between sons and daughters. It applies to all Hindus including

Budhists, Jains and Sikhs. It lays down an uniform and comprehensive system of

inheritance and applies to those governed by the Mitakshara and Dayabhaga

schools as well as other schools. The Hindu Succession Act reformed the Hindu

personal law and gave women greater property rights, allowing her full ownership

rights instead of limited rights in property.

The daughters were also granted property rights in their father’s estate. In

the matter of succession of property of Hindu male dying intestate, the Act lays

down a set of general rules in sections 8 to 13. Sections 15 and 16 of the Act

contain separate general rules affecting succession to the property of a female

intestate. Under section 8 of the Act three classes of heirs recognized by

Mitakshara law and three classes of heirs recognized by Dayabhaga law which

cease to exist in case of devolution taking place after coming into force of the act.

The heirs are divided into four classes viz:

(i) Heirs in class I of the schedule

(ii) Heirs in class II of the schedule

(iii) Agnates and

(iv) Cognates

Of course mother, widow, son and daughter are primary heirs. In the

absence of class I heirs, the property devolves on class II heirs and in their

absence first on agnates and then on cognates.

Still some sections of the Act came under criticism evoking controversy as

being favourable to continue inequality on the basis of gender. One such 10

provision has been the retention of Mitakshara coparcenary with only males as

coparceners.6

As per the law Commission Report, coparcenary constitutes a narrower

body of persons within a joint family and consists of father, son, son’s son and

son’s son’s son.

Thus, ancestral property descends only through the male line as only the

male members of a joint Hindu family have an interest by birth in the coparcenary

property, in contradiction with the absolute or separate property of an individual

coparcener, which devolve upon surviving coparceners in the family, according to

the rule of devolution by survivorship. Since a woman could not be a coparcener,

she was not entitled to a share in the ancestral property by birth.

Section 6 of the Act, although it does not interfere with the special rights of

those who are members of a Mitakshara coparcenary, recognizes, without

abolishing joint family property, the right upon death of a coparcener, of certain

members of his preferential heirs to claim an interest in the property that would

have been allotted to such coparcener if a partition of the joint family property

had infact taken place immediately before his death.

Thus section 6 of the Act, while recognizing the rule of devolution by

survivorship among the members of the coparcenary, makes an exemption to the

rule in the proviso. According to the proviso, if the deceased has left a surviving

female relative specified in class I of the schedule I or a male relative specified in

that class who claims through such female relation, the interest of a deceased in

Mitakshara coparcenary property shall devolve by testamentary or intestate

succession under the Act and not as survivorship.7

The case of Amar Kaur v. Raman Kumari,8

is best case to test the right of

women in ancestral property, likewise, if the parties were governed by customary

th Report of Parliamentary Standing Committee dt. 13th May, 2005.

th Report of Parliamentary Standing Committee.

8 AIR 1985 P & H 86.11

law, then the widow could succeed to widow’s estate. Similarly, under the Hindu

law widow could succeed in preference to daughters but to limited estate.

Similarly, on the death of widow, the daughters could succeed as limited owners.

The direct interest in the coparcenary held by male members by virtue of

birth remains unaffected. It affects only the interest they hold in the share of

deceased. A son’s share in the property in case the father dies intestate would

be in addition to the share he has on birth. A man has full testamentary power

over all his property, including his interest on the coparcenary.

Thus non-conclusion of women as coparceners in the joint family property

under the Mitakshara system as reflected in section 6 of the Act relating to

devolution of interest in coparcenary property, has been under criticism for being

violative of the equal rights of women guaranteed under the Constitution in

relation to property rights. This means that females cannot inherit ancestral

property as males do. If a joint family gets divided, each male coparcener takes

his share and females get nothing. Only when one of the coparceners dies, a

female get share of his interest as an heir to the deceased.

Further as per the proviso to section 6 of the Act, the interest of the

deceased male in the Mitakshara coparcenary devolve by intestate succession

firstly, upon the heirs specified in class I of schedule 1. Under this schedule there

are only four primary heirs, namely son, daughter, widow and mother. For the

remaining eight, the principle of representation goes upto two degrees in the

male line of descent. But in the female line of descent, it goes only upto one

degree. Thus the son’s son’s son and the son’s son’s daughter get a share but a

daughter’s daughter’s son and daughter’s daughter’s daughter do not get

anything.

Again as per section 23 of the Act married daughter is denied the right to

residence in the parental home unless widowed, deserted or separated from her

husband and female heir has been disentitled to ask for partition in respect of

dwelling house wholly occupied by members of joint family until the male heirs 12

choose to divide their respective shares therein. These provisions have been

identified as major sources of disabilities thrust by law on woman.

Another controversy is the establishment of the right to will the property. A

man has full testamentary power over his property including his interest in the

coparcenary.

On the whole the Hindu Succession Act gave a weapon to a man to

deprive a woman to the rights are earlier in certain schools of Hindu law than the

Indian Succession Act, 1925.

Effect of state amendments:

Certain states in India like Andhra Pradesh, Tamil Nadu and Maharashtra

have realized the difficulty that arises by excluding the daughter’s right to claim

partition in coparcenary property. In order to confer equal rights on Hindu women

along with the male members in the coparcenary under the Hindu Mitakshara
law, these state legislatures have amended the Hindu Succession Act, 1956 to

achieve the Constitutional mandate of equality.9

A clear perusal of the Andhra Pradesh Amendment inserted by Andhra

Pradesh Act 13 of 1986 shows that, in the state of Andhra Pradesh.

(i) The daughter of a coparcener shall become a coparcener by birth in her

own right and her status is equal to that of a son. She enjoys the same

rights in the coparcenary property as a son. She is entitled to all the rights

of coparceners including the right of survivorship. She will be subject to

the same liabilities and disabilities in respect of coparcenary property as

the son.

(ii) She becomes the absolute owner of the property inherited by her as a

coparcener.

(iii) When a female Hindu dies after coming into force of this amendment (i.e.

after 5-9-1985), having at that time interest in Mitakshara coparcenary, her

9 G.B. Reddy’s Women and the Law, 2nd edition, 1998 page 49.13

interest will be devolved by survivorship upon the other coparceners. But if

the deceased dies leaving behind any children or children of pre-deceased

child at the time of death, the devolution will be in accordance with the

provisions of the Hindu Succession Act and not by survivorship.

Similar amendments are made in Tamil Nadu by the Hindu Succession

(Tamil Nadu Amendment) Act, 1990 (1 of 1990) w.e.f. 25-03-1989, and in

Maharashtra by the Hindu Succession (Maharashtra Amendment) Act, 1994 (46

of 1994 w.e.f. 22-06-1994). These legislations are beneficial to the women who

form part of vulnerable effect to them.10

On the basis of recommendation of Law Commission, The Hindu

Succession (Amendment) Act, 2005 has been passed for the empowerment of
women. We have to discuss the effects made by this Act and to make necessary

suggestion in this regard.

Thus the law commission of India’s 174th Report contributed to

overcoming the oppression of women by creating a legal order for women on

equal footing. Interestingly, the law commission drafted the Hindu Succession

(Amendment) Bill, 2000 so that recommendations made by it are implemented by

the govt. and this bill was embodied in the Hindu Succession (Amendment) Bill of

2004 which became the Hindu Succession (Amendment) Act, 2005 passed by

both the Houses of Parliament on August, 2005, assented on 5th September,

2005 and came into force from 9th September, 2005. During this process the

Joint Committee of Rajya Sabha had an important role to expedite the

amendment.

Changes brought by The Hindu Succession (Amendment) Act, 2005:

The amending Act of 2005 is an attempt to remove the discrimination as

contained in the amended section 6 of the Hindu Succession Act, 1956 by giving

equal rights to daughters in the Hindu Mitakshara coparcenary property as the

10 Sai Reddy vs. Narayan Reddy, (1991) 3SCC64714

sons have. Simultaneously section 23 of the Act as disentitles the female heir to

ask for partition in respect of dwelling house wholly occupied by a joint family

until male heirs choose to divide their respective shares therein, was omitted by

this Amending Act. As a result the disabilities of female heirs were removed. This

is a great step of the govt. so far as the Hindu Code is concerned. This is the

product of 174th Report of the law commission of India on “Property Rights of

Women: Proposed Reform under the Hindu Law.”

According to the amending Act of 2005, in a Joint Hindu Family governed

by the Mitakshara law, the daughter of a coparcener shall, also by birth become
a coparcener in her own right in the same manner as the son heir. She shall

have the same rights in the coparcenary property as she would have had if she

had been a son. She shall be subject to the same liabilities and disabilities in

respect of the said coparcenary property as that of a son and any reference to a

Hindu Mitakshara coparcener shall be deemed to include a reference to a

daughter as well.

This provision shall not affect or invalidate any disposition or

alienation including partition or testamentary disposition of property which had

taken place before 20th December, 2004.

Further any property to which female Hindu becomes entitled by virtue of

above provision shall be held by her with the incidents of coparcenary ownership

and shall be regarded, as property capable of being disposed of by her will and

other testamentary disposition. The provision was also made that where a Hindu

dies after the commencement of the Hindu Succession (Amendment) Act of

2005, his interest in the property of a joint Hindu Family governed by the

Mitakshara law, shall devolve by testamentary or intestate succession under the

Act and not by survivorship, and the coparcenary property shall be deemed to

have been divided as if a partition had taken place.

Further the daughter is allotted the same share as is allotted to a son.15

The provision was also made that the share of the predeceased son or a

predeceased daughter as they would have got, had they been alive at the time of

partition, shall be allotted to the surviving child of such predeceased son or of

such predeceased daughter.

Further the share of the predeceased son or of a predeceased daughter

as such child would have got, had he or she been alive at the time of partition,

shall be allotted to the child of such predeceased child of the predeceased son or
a predeceased daughter.

The most important fact is that the interest of a Hindu Mitakshara

coparcener shall be deemed to be the share in the property that would have

been allotted to him if a partition of the property had taken place immediately

before his death, irrespective of whether he was entitled to claim partition or not.

This amending Act of 2005 has also clear provision that, after

commencement of the amending Act of 2005, no court shall recognize any right

to proceed against son, grandson, or great grandson for the recovery of any debt

due from his father, grandfather or great grandfather (on the ground of the pious

obligation under the Hindu law), of such son, grandson or great grandson to

discharge any such debt. But if any debt contracted before the commencement

this amending Act of 2005 the right of any creditor, to proceed against son,

grandson or great grandson, shall not affect of any alienation relating to any such

debt or right shall be enforceable under the rule of pious obligation in the same

manner and to the same extent as it would have been enforceable as if Hindu

Succession (Amendment) Act of 2005 had not been enacted.

Further for the purpose of creditors right stated above the expression son,

grandson or great grandson shall be deemed to refer to the son, grandson or

great grandson who was born or adopted prior to the commencement (9th

September, 2005) of the Amending Act of 2005.

Such provisions shall not apply to a partition which has been done before

20th December 2004. By this amendment Sections 23 and 24 of the HSA have 16

been omitted. Likewise special provisions relating to rights in respect of dwelling

house and the disentitlement rights of widow’s remarrying, respectively omitted

from the Act. The Amending Act has also introduced in the schedule of the Hindu

Succession Act, 1956 new heirs viz, son of a predeceased daughter of a

predeceased daughter of a predeceased daughter, daughter of a predeceased

daughter, son of a predeceased daughter, daughter of a predeceased son.

Thus, the Amendment of Hindu Succession Act of 1956 in 2005 is a total

commitment for the women empowerment and protection of women’s right to

property. This amending Act allows partition if a daughter so desires, like

Mitakshara school of Hindu law, and, as such, has opened the door for the

women, to have the birth right in the family property like the son. The women

were vested the right of control and ownership of property beyond their right to

sustenance.

The researcher has discussed in detail, women’s property, its nature and

growth of position of women’s right to property under Hindu Law prior to and after

the amendments made in the Hindu Succession Act, 1956 in succeeding

chapters.