9 Property Rights – Part 1 (Hindu Law)

Radhika Gupta

Learning Outcomes:

1. To have in depth knowledge of the various succession and inheritance laws in India.
2. To understand the inequalities in the laws.
3. To have an overview of the changes that have been brought about in the inheritance laws to make it gender neutral.
4. To understand the existing discrepancies after the amendment.

Introduction to Inheritance Laws in India

Inheritance laws in India are multiple and varied. The religious, personal laws govern various religious communities in terms of matters of succession and inheritance. There is no one common code governing all the people of India. Devolution of property among Hindus is governed by Hindu Succession Act, 1956 (HSA, 1956) The Indian Succession Act, 1925 (ISA, 1925) is referred to the law of the land, but its application is limited to the rules governing the devolution of property of all except Hindus and Muslims. Tribal communities are governed by their specific customary laws. Even amongst the Christians, certain classes of Roman Catholic Christians of Latin rite and certain Protestants are not governed by ISA, 1956. Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 which has replaced Portuguese Civil Code of 1867 applies to all her citizens without distinction of caste, creed or sex.

It is observed that the Hindu inheritance laws are gender biased giving more importance males than to females. The Hindu laws of inheritance were codified by Hindu Succession Act, 1956 and after approximately 50 years, amendments were brought in by (Hindu Succession (Amendment) Act, 2005 (“HSAA, 2005”)) to make a daughter a coparcener. Source of property in the hand of female is still considered to be relevant factor for determination of her heirs. Relations through males (agnates) are preferred over relations through females (cognates). A study conducted by Landesa, a Rural Development Institute, in 2013 showed that even after eight years of the enactment, women still do not inherit land equally2. Ownership of property and land is a major aspect of women’s empowerment movement and which is why it is necessary to analyse laws relating to inheritance and succession.

Hindu Law of Inheritance

There are two systems of inheritance governing the Hindus in India, the Mitakshara School and the Dayabhaga School The Mitakshara School, prevails in most of the country and the Dayabhaga School prevails in Bengal, Assam and parts of Orissa.

The mode of devolution of property under the Mitakshara School depends on the type of property. The two types of properties under Mitakshara school are – coparcenary property and separate property. Coparcenary property could be the property inherited by a male member from his ancestors (called ancestral property) (before HSA, 1956), or property acquired by the joint efforts of the coparceners or new property acquired with the help of coparcenary property or separate property of a coparcener when blended with the coparcenary property. On the death of a coparcener, his share in coparcenary property devolved by survivorship to the surviving coparceners (devolution by survivorship has been removed by HSAA, 2005 whereas separate property which includes self-acquired property or property received by way of gift or will, devolves by rules of succession. Dayabhaga school of law recognized only separate property which devolves by way of succession.

Hindu Joint Family and Coparcenary Property under the Mitakshara School

The Hindu Joint Family consists of all the male members descended lineally from a common male ancestor together with their wives or widows and unmarried daughters. An unmarried daughter on marriage became a member of her husband’s joint family and ceases to be a member of her natal family. Hindu Coparcenary is a much narrower body than a Hindu joint family as it includes only those persons who acquire by birth an interest in the coparcenary property. Before Hindu Succession Amendment Act, 2005 only males within the four degrees from the last holder of the property had an interest by birth.

The devolution of coparcenary property was based on the doctrine of survivorship hence the undivided interest in the coparcenary property of deceased coparcener devolved on the surviving coparceners. Females as non-coparceners only had a right of maintenance and residence out of the joint family property. Women could not start a joint family but could continue the joint family. Women also could not act as the Karta (manager of the Hindu joint family) even if she was the senior most member of her family, as only a coparcener could become the Karta of the family. The other incidents of being a part of the coparcenary body such as the right to challenge alienation and right to demand partition were also not available to the female member of the Hindu Joint Family.

Hindu Joint Family and Coparcenary under the Dayabhaga School

The Dayabhaga Joint family is very distinct from the Mitakshara School as sons do not have any interest in birth in the ancestral property held by the father. Sons inherit father’s property only after father’s death. Thus under Dayabhaga school sons get right by death in father’s property. While the property is still joint in the hands of the son, they form coparcenary. The sons hold the property in joint possession until the time actual partition of the property takes place. If any coparcener dies before actual partition his share of the property devolves on his heirs and not on the other surviving coparceners. The rule of survivorship does not exist in Dayabhaga School.

For example, if A, B and C are three brothers who form a Dayabhaga coparcenary after the death of their father. A dies to leave behind his wife and daughter. The wife and the daughter step into the shoes of A and represent him in the coparcenary. Therefore the Daybahaga coparcenary could consist of female members as well. The female members could also demand partition and would get the share of A.

Share on partition to certain female members under Mitakshara school

In general, only coparceners can demand partition and get a share in the property on the partition. However, there are three categories of females (except in southern India) who get a share on the partition of the Joint family property although they do not have a right to demand partition. They can also ask for a reopening of the partition if they were not allotted a share on the partition. They are– father’s wife, who is entitled to a share equivalent to that of the son when partition takes place between the father and his son/sons; widowed mother, who is entitled to a share equivalent to that of the son when partition happens between the brothers and paternal grandmother, who is entitled to a share equivalent to that of a grandson when partition takes place between the grandsons.

Nature of partition property in the hands of a Hindu female before HSA, 1956

Before the enforcement of HSA, 1956 the right to the share given to a female at partition out of the joint family property was in the nature of limited interest. She did not take it as an absolute owner. She had the right to possess the property and enjoy it, but she had no right to transfer the property by way of gift or sale and passed on the heirs of the last owner of the property than to her own heirs.

Concept of Stridhana

Stridhana consists of two words – ‘Stri’ meaning Woman and ‘Dhan’ meaning wealth. Therefore, Stridhana means Women’s wealth or property. Unlike other properties in her hand, she has absolute right over Stridhan. She is free to transfer Srtidhan property by way of sale, gift or will and on death descended to her own heirs. According to the Smritis (ancient texts), Stridhana included gifts made at the time of marriage before the nuptial fire, gifts made at the bridal procession, gifts made by the parents and the brother, gifts made by the father-in-law, gifts made by husband’s relations. Different schools had different interpretations of what Stridhan included. Many sub-schools of Mitakshara and Dayabhaga hold that the property received on a partition or by way of inheritance was not Stridhana. The woman had full power to alienate her stridhan before marriage. After marriage, in certain properties such as gifts from strangers during coverture and property acquired by self-exertion and mechanical arts as a married woman, she enjoyed limited ownership and had no right of alienation without the consent of her husband.

Hindu Women’s Right to Property Act, 1937

The Act conferred new rights on the widow of a deceased Hindu coparcener. The Act recognized the rights not only the widow of deceased coparcener but also gave rights to the widow of predeceased son and widow of the predeceased son of a predeceased son. Before this Act came into force, the share of the deceased coparcener in an undivided family would pass on to the surviving coparceners, and such widows had no right to claim it. They could have claimed only maintenance and right of residence out of the estate of the deceased.

The Hindu Women’s Right to Property Act, 1937 diluted the concept of the ‘doctrine of survivorship’. After passing of Act, widow of the deceased coparcener represented the deceased coparcener and the share of deceased coparcener instead of passing to other surviving coparcener passed to his widow. As she represented her deceased husband, she was also given the right to demand partition.

However, after partition, the widow did not have absolute ownership over the property and took it as a limited owner. She did not have any right to sell or gift her share of property but only had a right to possess and enjoy the property. The only exceptions where a widow could alienate the property were for religious and charitable purposes, for the spiritual welfare of her deceased husband. After the death of the widow, the property reverted to the heirs of the deceased husband.

Hindu Code Bill

The background of the Hindu Code Bill can be understood in the context of movement around the need to codify the Hindu personal laws and come up with a unified legislation. A Hindu Law Committee was set up under the chairmanship of B.N. Rau to work on the codification of the Hindu Personal Laws. The committee submitted a report favoring the codification of the Hindu personal law. The committee drafted two separate Bills, one which dealt with matrimonial laws and the second which dealt with inheritance and succession. The bills were referred to another committee for review, and the Joint Committee advised that one single piece of legislation was required at this point covering all the aspects of Hindu Personal law. The B.N Rau committee was revived to draft one piece of legislation covering all aspects of the Hindu personal laws. The BN Rau Committee submitted its first draft in 1944 and thereafter submitted a revised draft in April 1947. The revised draft Bill received approval from only a few states, and the rest of the states remained silent and uncommitted. After vetting of the bill by the Ministry of Law, it was then referred to the Select Committee headed by Dr B.R Ambedkar. The Ambedkar Committee made significant changes to the draft, and finally, a third bill was drafted by Dr B.R. Ambedkar which led to a controversial era in the history of Indian Parliament.

In Dr B.R Ambedkar’s opinion, the law should grant women equal rights and equal ownership in the property. Ambedkar was against the notion of customs that were prevalent in India at that time. In defense of the Hindu Code Bill, he said that the Bill was trying to raise the status of daughters.

Most of the members of the Parliament were unhappy with the changes that the Hindu Code Bill sought to bring. According to them, it was a destruction of the traditional joint family structure to give daughters ownership rights over joint family property. There were also economic arguments to the effect that this will result in fragmentation of land and hence would diminish the economic value of land. Parliamentarian Seth Govind Das said, “women should undoubtedly be given the right to share in the property, but that should be restricted to her father-in-law’s property only and not that belonging to her father”. Another parliamentarian argued, “a dwelling house is something which is almost sacred, and that dwelling house must be preserved in the family.”

Hence eventually a daughter was not made part of the coparcenary body and the Hindu Code Bill drafted by Dr B.R. Ambedkar was modified to cut down its essence. It also leads to the resignation of Dr Ambedkar from the position of a Law Minister. What arose from the Hindu Code Bill in matters of inheritance and succession was the Hindu Succession Act of 1956.

Hindu Succession Act, 1956

The HSA, 1956 was passed to lay down rules for devolution of property of a Hindu. Later it was amended by Hindu Succession Amendment Act, 2005. HSA, 1956 retained the concept of the Hindu Joint Family and the Coparcenary.

Section 6 of HSA, 1956 introduced the concept of notional partition and further diluted the concept of survivorship in the Mitakshara joint family. Gender biasness continued under HSA, 1956 as daughter was not made a coparcener even under HSA, 1956. The daughter became coparceners after the amendment of HSA, 1956 in 2005.

Devolution of property of Hindu male before amendment of HSA, 1956

Under HSA, 1956, there were three modes of devolution of property of the deceased – devolution by way of will (testamentary succession), devolution of separate property of a person when he died without making a will (intestate succession) and survivorship for devolution of share in Mitakshara coparcenary. The concept of survivorship was diluted by HSA, 1956. Section 6 introduced the concept of notional partition which means that if a Hindu male died as an undivided member of the Hindu Joint Family leaving behind a Class- I female heir or a son of predeceased daughter, it would be deemed as he had asked for partition from the joint family right before he died and his share would devolve by testamentary succession or on his heirs by the rules governing intestate succession.

For example, if a joint family consisted of a father, daughter and a son. Before the HSA, in a situation where the father died, his undivided share would pass only to the son by survivorship and the daughter would only have a right of maintenance and residence. After the enactment of HSA, as the father is leaving behind a Class-I female heir, the notional partition will take place, and the ½ share of the father would devolve according to his will if he executed one or by intestate succession rules meaning the son and the daughter will equally divide the share of the father. However, the son has already got his share of the coparcenary property ( ½ ) and hence his total share would be ( ½ + ¼ = ¾ ) whereas the daughter will only get ¼, i.e. half of the father’s share.

Since Section 30 of HSA, 1956 gives a Hindu male the power of disposing of his undivided share in the coparcenary property by a will he could disinherit the daughter of her share by making a will of his undivided share in other’s favour.

The other anomaly was that Section 4(2) of HSA, 1956 stated that this Act would not be applicable to agricultural land (though deleted by HSAA, 2005). It stated that: “For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.” Succession rules to agricultural land were hence governed by State laws which were not uniform and did not portray a sense of gender equality. Particularly in states such as Jammu & Kashmir, Himachal Pradesh, Delhi, Haryana, UP and Punjab, the laws pertaining to agricultural land are very gender biased, and preference is given to male descendants over women.

HSA, 1956 lay down different rules for devolution of property of male dying intestate and female dying intestate. The property of Hindu male dying intestate passes to his consanguine relations, i.e., blood relations based on the basic principle of succession but this basic principle is compromised in case of devolution of property of Hindu female where her heirs are primarily determined on the basis of her affinity, i.e., marriage. If she dies without her husband and children, in the presence of the relatives of her husband, howsoever distant, they are entitled to succeed to her property than her own parents. Even in respect to her self-acquired property, husband’s relatives are preferred over her own father and mother. This results in biasness towards the husband’s family, giving them a right to succeed to the wife’s property no matter how remote the relationship may be.

Source of the property is still a relevant factor for determination of her heirs. If she inherits property from her father or husband and dies issueless the property passes on to the heirs of father or husband respectively as is she was the temporary owner of the property.

In case of intestate succession of the property of male four categories of heirs – Class I, Class II, Agnates and Cognates inherit his property in hierarchical order. Agnates are relatives connected through males and Cognates are the ones connected through females. Cognatic heirs are disentitled to inherit in the presence of agnatic heirs of the deceased male Hindu. The Act makes explicit discrimination between heirs related through males and ones related through females.

Section 23 of HSA, 1956 before its amendment in 2005 also created a gender unequal situation by putting a restriction only on the female members from demanding partition of the inherited dwelling house. This was done to protect the male members from being homeless, and hence a demand for partition by her of the dwelling house was to be put in abeyance till the sole surviving male heir of the deceased chose to separate his share or ceased to occupy it or had rented it out. Hence a right was given only to the male to partition the dwelling house but not to the female even when she was entitled to a share as an heir of the deceased.

Landmark change was brought in by HSA, 1956 by giving woman absolute rights in the property. Before 1956, except for property of some kinds, all the property that a woman acquired was in the form of limited ownership. Section 14 states that:

“(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation:- In this sub-section “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhan immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or another instrument the decree, order or award prescribe a restricted estate in such property.”

By virtue of Section 14 of the Act, women have been given absolute ownership over the property irrespective of the way of acquisition of property – be it by inheritance, a share given to her on the partition, property given in lieu of maintenance etc. Section 14 is also retrospective in its operation which means that a woman has absolute ownership over any property acquired lawfully even before the commencement of the Act.

In the case of Pratibha Rani vs. Suraj Kumar, AIR 1985 SC 628 it was held that by enacting Section 14, the intention of the legislature was to abolish the concept of limited ownership of property held by females and any limitation on the property even acquired before the commencement of the Act was dissolved. In the same case, it was also held that misappropriation of the woman’s property even by her husband amounted to the offence of Criminal Breach of Trust under Section 406 of the Indian Penal Code.

State Amendments to the Hindu Succession Act, 1956

There were two ways in which the disparity amongst the sons and the daughters could be settled. One was to abolish the distinction between the joint family property and the separate property, hence repealing the entire joint family concept and the other was to give the same right to a daughter in the joint family. The previous option although would diminish the disparity in case of intestate succession as the son and the daughter, both were Class- I heir and would succeed to the property of the deceased simultaneously, the main concern was that by abolishing the distinction and making all the property in the nature of separate property, a greater right would be given to the father to dispose by will and he also has the power to completely disinherit the daughter. It must be kept in mind, also looking at the economic argument given by the Parliamentarians during the discussion over the Hindu Code Bill that daughters were never considered to be a permanent part of the family. Hence to give daughters a share in the property meant that such property would lead to fragmentation of land and would not remain within the family on her marriage.

The State of Kerala abolished the joint family system all together by enacting the Kerala Joint Hindu Family (Abolition) Act, 1975. It applied to both the matriarchal families and families governed by Mitakshara law. It abolished the right by birth and also abolished the pious obligation of the sons to repay the debts of the paternal ancestors.

In order to grant the right to daughters in coparcenary property, the State of Andhra Pradesh in 1985 enacted the Andhra Pradesh Hindu Succession (Amendment) Act, 1985. It introduced unmarried daughters as coparceners in the Hindu Joint Family. It stated: “On 5th September 1985, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son”. If the daughter was dead at the time of partition and was survived by children or children of her predeceased children, such children would step into her shoes, and her share would be allotted to them. The daughter was also given a preferential right to acquire the share of a fellow coparcener in case he decided to sell it at a consideration.

The States of Tamil Nadu, Karnataka and Maharashtra also followed the AP model and hence conferred a right by birth on the unmarried daughter in the coparcenary property.

Conclusion:

India does not have common code governing all the people in India in terms of inheritance and succession but follows different religious, personal laws which govern respective religious communities. Hindu Inheritance law has been criticized for being gender biased for 50 years before it was amended by Hindu Succession Act 2005. But Despite the progressive legislations, questions regarding their successful implementation continue to subsist because women still do not inherit land equally and have to face a lot of social barriers. Parliamentarians during the discussion over the Hindu Code Bill gave economic argument that daughters were never considered to be a permanent part of the family but did not consider the fact that ownership of property and land is a major aspect of women’s empowerment and which is why it is necessary to analyze laws relating to inheritance and succession.

Reference

• Devolution of Property of the Hindu Female: Autonomy, Relationality, and the Law by Archana Mishra: https://academic.oup.com/lawfam/article-lookup/doi/10.1093/lawfam/ebv003