10 Property Rights – Part 2 (Hindu Law)

Radhika Gupta

Learning Objectives:

• To have in depth knowledge of the various succession and inheritance laws in India.
• To have knowledge about the observation and recommendation by 174th Law Commission Report
• To understand the customs and laws related to ownership of private land and property
• To have an overview of the changes that have been brought about in the inheritance laws to make it gender neutral.
• To understand the existing discrepancies after the amendment.

Introduction:

This chapter carries forward the discussion started the module titled-“Property Rights-1.” It has already been emphasized in the earlier module that property rights in India which governed largely by personal laws are discriminatory in nature. However, there have been several attempts by deliberative bodies to remedy the issues related to discrimination. In this module, an attempt has been made to highlight the steps taken by the legislature and key developments that sought to end the discriminatory elements of property rights.

174th Law Commission Report

Discrimination against daughters with respect to right in property was removed in certain states by state amendments to HSA, 1956. The 174th Law Commission was set up in the year 2000 to propose amendments to the Hindu Succession Act, 1956 to remove the gender disparity.

The introduction of the 174th Law Commission states as follows:

“Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it has placed women at the receiving end. Recognizing this the Law Commission in pursuance of its terms of reference, which, inter-alia, oblige and empower it to make recommendations for the removal of anomalies, ambiguities and inequalities in the law, decided to undertake a study of certain provisions regarding the property rights of Hindu women under the Hindu Succession Act, 1956.”

The Law Commission also observed that despite the constitutional guarantee of equality, there was still discrimination against women which was prevalent and not only her husband’s family but also her natal family discriminated on the basis of gender. The Law Commission also observed that a large number of fraudulent partitions took place right before the State amendments to HSA, 1956 was passed so as to defeat the purpose of the amendment and no coparcenary property was available to the daughters.

The Law Commission recommended various revolutionary changes analyzing the existing laws and the various State amendments to the HSA, 1956. It suggested a drastic reform in the law so as to resolve the gender inequalities. It combined the Kerala and the Andhra Pradesh model. It noticed that the Andhra Pradesh model still excluded daughters married before the commencement of the Act from the purview of coparcenary property. After much deliberation, the Commission came to the conclusion that daughters married before the Act must have already received gifts on marriage and to prevent tension amongst the family, daughters married before the enactment of the Amendment Act were suggested to be excluded from the purview of the Act. The Law Commission also suggested that Section 23 of HSA that places restrictions on the daughter to claim partition of the dwelling house should be deleted completely.

Hindu Succession Amendment Act, 2005 (“HSAA, 2005”)

Based on the recommendations of the Law Commission Report, the Hindu Succession (Amendment) Bill was introduced in the Parliament on December 20th, 2004 and was passed by both the Houses in August 2005. The Bill received presidential assent in September 2005, and the bill came into force on 9th September 2005.

Although it was recommended by the Law Commission to exclude daughters married before the enactment of the amendment Act from getting a right in coparcenary property, the Parliament wanted to achieve equality in every sense, and hence daughters were given the same position irrelevant of the marital status on the date of enactment.

The most important change that the Hindu Succession brought was to amend Section 6 and to give a daughter the same right by birth as was given to the son. It also brought the female line of descent at par with the male line of descendants by giving children of a predeceased daughter the same rights of representation as the children of a predeceased son.

Another change that the HSAA, 2005 brought was the abolition of the doctrine of survivorship in case of male Hindus. Notional partition of the male’s undivided share before the amendment was restricted to a condition of him leaving behind a Class-I female heir or a son of a predeceased daughter. The 2005 Amendment has done away with the condition and effects a notional partition in every case, i.e. if a male Hindu dies intestate, his undivided share would not pass to the surviving coparceners but will devolve by testamentary succession or rules governing intestate succession.

Moreover, Section 4(2) which prevented the applicability of HSA, 1956 to agricultural land has been abolished by the amendment to create gender just laws. This aim to have gender equal laws create an anomaly as agriculture and transfer and alienation of agricultural land are under the State list, but intestacy and succession are under concurrent list.

The HSAA, 2005 has further repealed Section 23 which prevented the female heir from demanding a partition of the dwelling house as long as the male heirs were alive. Now a female heir can demand partition of a dwelling house as well. It also repealed Section 24 which disqualified widow of a predeceased son and widow of a predeceased son of a predeceased son if, at the time of opening of the succession, the widows had remarried. Hence widows even if they have remarried have a right to inherit.

Section 30 permitted a male Hindu the power to make testamentary disposition of his property including his undivided share has been extended to include a female Hindu as well. Now even a female Hindu can make a testamentary disposition of her property including her share in the coparcenary property.

Although HSA, 1956 after its amendment has brought about radical changes in the structure of a Hindu Joint Family certain anomalies remain. The Act does not define coparcener, coparcenary property, partition but uses the term in the devolution of property. The Act has altered the very concept of ancestral property and coparcenary property. Ancestral property before the enactment of HSA, 1956 included property inherited by a male from ancestors in which his son, grandson or great grandson had right by birth but after enactment property inherited from ancestors no longer gives right by birth to the descendants of the person inheriting the property. When coparceners are all members of the same joint family, an anomaly exists in case of a daughter who has been made coparcener in her natal family but after marriage, she remaining coparcener in her natal family becomes the member of her husband’s family. It is still unclear if the doctrine of survivorship is still applicable for a female Hindu or if her children form a coparcenary with her after partition when s. 14 of the Act expressly grants her absolute right in all properties. Land Rights In rural India, the land is the most valuable asset and source of income. Many studies have shown a direct correlation between land ownership and the status of women in their society or community. Women in rural India contribute towards 80 percent of the work on agricultural lands. However, it is rare for women own agricultural lands. Even after tremendous changes that have been made to the inheritance laws, women rarely claim their right of inheritance.

In agricultural societies and other societies as well, jewellery and cash were given to the daughters at the time of marriage was considered to be a way of compensating the female and considered to be her share of the property. Very few instances were seen where land was gifted during the marriage. These few instances were restricted to very rich families. The value of the jewellery, cash and clothing given to the daughter at the time of marriage was in no way comparable to the value of land.

Customs associated with ownership in Land and property

Some communities in India recognized a women’s right to land ownership. The matrilineal societies or the bilateral inheritance were evident in the southern states and the North-eastern states among tribal groups. In the Garo tribe in Meghalaya, all property passes from the mother to the daughter, but the major portion of property including land passes on to only her youngest daughter (Nokna) who is chosen to receive such property. It is usually the youngest daughter. The male moves in with his in-laws after marriage. No male member inherit property. Even the self-acquired property of an unmarried man on his death is owned by his mother and would pass on to the female descendants, and after marriage, the self-acquired property belongs to his wife and would pass on to her descendants. Although it might seem like females own property to the exclusion of all males, actually the husband exercise effective control, and he has the power to override the wife’s decisions in the management of properties.

Lands in the Garo hills generally belong to specific clans. These lands are mostly forested land. These lands are known as A’king lands. The land is not individually owned but is held in custody by the husband of the inheritress of the founding household. The husband (A’king) is given the power to manage and control the land, but he could not dispose or sell off the land without the consent of the wife.

Amongst the Khasis, the land is classified as community owned land known as the Ri-Raid land and privately owned land known as Ri-Kynti land. Ri- Raid belongs to all the clans comprising of the village community. Even under the privately owned land, the ancestral land under the customs could not be sold or purchased and is primarily under the control of the clan and could not be alienated without the consent of the clan. The youngest daughter is the primary heir to the ancestral property. If the youngest daughter dies without any female descendant, then the property devolves on the next elder sister.

In the Southern India, The Nayyars were a prominent matrilineal community. The joint family concept existed in these communities which held the ownership to land. Land could not be inherited individually. Inheritance was through a female line, but they had little control over the property.

Customarily in Hindu patrilineal families, women were seldom gifted land at the time of marriage which would amount to their Stridhan. Only in a situation where she was actually given land would she have absolute control over the land.

Laws related to ownership of private land

Before amendment of HSA, 1956 in 2005

Before the amendment of HSA, 1956 in 2005 the Hindu Succession Act, 1956 exempted agricultural land from the purview of the Act by virtue of Section 4(2). It said 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.”

The HSA, 1956 before its amendment did not touch upon the most valued form of property in rural India which is agricultural land and left it for the State laws to decide the order of devolution of such form of property. There is a multiplicity of laws governing devolution of agricultural property as agriculture is on the State list. There were three brackets of laws which could apply to agricultural land; first the Hindu Succession Act, 1956 before its amendment, secondly the personal laws and thirdly the tenurial laws which specify the order and mode of devolution. Some of the tenurial laws do not state the mode of devolution. In these cases, as they did not conflict with the provisions of the HSA, 1956, the rules of devolution under the HSA, 1956 applied. Some of the tenurial laws specify the order in which devolution of the agricultural land would occur and hence these laws, given the effect of Section 4(2) of the Act took precedence over the personal laws and rules of devolution under the HSA, 1956. Some tenurial laws specified HSA, 1956 or personal laws would apply.

Most of the state level land reform legislations and the land ceiling laws are gender unjust. The laws give preference to the male lineage. Some of these laws in addition to giving preference to agnatic succession also exclude females. There is a vast difference in the State laws governing ceilings on agricultural land holdings which gives additional benefits to families with sons over those families without sons. Families with adult sons are allowed to own additional land. There are also some laws which treat adult sons as a distinct unit and are allowed to keep land as much as a single family. Daughters are not treated at par with sons and are not treated as a distinct unit. Families with daughters are not even allowed to retain additional land. Even states like Andhra Pradesh and Tamil Nadu which made a daughter a coparcener did not treat daughters as a separate unit to possess land but treated an adult son as a separate unit. It is only in the Kerala Land Reforms Act, 1963 that a daughter is treated as a separate unit to receive land.

After amendment of HSA, 1956 in 2005

The Hindu Succession Amendment Act, 2005 deleted Section 4(2), i.e. the non-applicability of the Act to agricultural land. It does not explicitly amend the Act to include agricultural land under its purview. This deletion has led to series of confusion as to whether now agricultural land which is a state subject will be covered by the HSA, 1956.

Article 31(b) of the Constitution states that “Validation of certain Acts and Regulations Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force”. All the major tenurial laws are under the Ninth Schedule and hence protect the validity of land reform legislation from being challenged.

Therefore, there is still some ambiguity over devolution of the agricultural land as land and agriculture are state subjects while succession and inheritance laws form a part of the concurrent list of the Constitution.

Conclusion

There have been major changes in the inheritance laws and overriding effects of the Hindu Succession Act, 1956 as amended by the Hindu Succession Amendment Act, 2005 have managed to bring about equality and to treat a daughter at par with a son. Despite the progressive legislations, questions regarding their successful implementation continue to subsist. A study conducted by Landesa on the implementation of the Hindu Succession (Amendment) Act 2005 reflects that women are not enjoying the benefits of the progressive amendments. The report also shows that there are some cultural practices that have defeated the intention of the amendments. For instance, findings of the report showed that women did not want to inherit land from the parents as they were wary of the strain caused by their act of wanting land and also being looked down upon by the community as going against the norms. Additionally, the report found that women were uncertain about their legal

Reference

1. Field of One’s Own by Redefining Family Law in India by Archana Parashar & Amita Dhanda, (New Delhi: Routledge India, 2007)
2. Prem Chowdhry (ed.), Gender Discrimination in Land Ownership (Sage, New Delhi, 2009)
3. Poonam Pradhan Saxena, “Succession Laws & Gender Justice” in Archana Parasar, Amit Dhanda et.al.(eds.), Redefining Family Law in India, p. 289 (Routledge, New Delhi, 2008)
4. Debarati Halder and K. Jaishankar, “Property rights of Hindu Women A Feminist review of succession laws of Ancient, Medival and Modern India”, Journal of Law and Religion Vol. 24, No. 2 (2008-2009), pp. 663-687
5. Prakash Chand Jain, “Women’s Property Rights under Traditional Hindu Law and the Hindu Succession Act, 1956: Some Observations” 45 JILI (2003) p. 509
6. 174th Report – Law Commission of India, on “Property Rights Of Women: Proposed Reforms Under The Hindu Law”, May, 2000
7. 204th Report – Law Commission Of India, on Proposal To Amend The Hindu Succession Act, 1956 As Amended By Act 39 Of 2005, February 2008
8. 207th Report – Law Commission Of India, on Proposal To Amend Section 15 Of The Hindu Succession Act, 1956 In Case A Female Dies Intestate Leaving Her Self Acquired Property With No Heirs, June 2008
9. 208th Report – Law Commission Of India, on Proposal for amendment of Explanation to Section 6 of the Hindu Succession Act, 1956 to include oral partition and family arrangement in the definition of “partition”, July 2008