The property/ Inheritance rights of Hindu women can be studied under the

following headings:

A. Inheritance Rights of Daughters

B. Inheritance Rights of widows

C. Rights of women under Customary Laws.

A) Inheritance Rights of Daughters: The inheritance rights of daughters can be

studied under the following headings:

I) Ancient Position:

The Vedic period can be regarded as ―Swarna Yuga‖ or golden age for the status and
rights of women in general. The social or familial status of the daughter was fairly
satisfactory in the Rigvedic period. They were educated like boys and had to pass
through a period of Brahmacharya by wearing a sacred thread (Upavita Dharana).
After this Upavita ceremony, the Vedic women carried on the study of the Vedas,
recited Vedic mantras, performed Vedic rites and rituals, under took Vedic vows and
did whatever was necessary for the proper performance of Yagayajna, just like a
son1. Thus during Vedic period we have reasons to believe that so far as education
was concerned the position of women was generally equal to that of men. Women
had similar education as man; she took part in philosophic debates like man and with
men, she practised penances like man. This shows that man and woman were
regarded as having equally important status in the social life of the early period
2
.Ordinarily daughters did not have any right to hold, acquire or dispose of property.
But the daughter living in her father‘s house throughout her life got a share of his
property 3. But she could not claim any share with her brothers for it is clearly laid
down in the Rigveda that ―a son born of the body does not transfer wealth to sister4‖.
Married daughters living with their husbands could inherit from their father only
when they had no brother5. The general opinion of Hindu society at that time was
that sisters got no share in the patrimony if they had brothers.

1
Dr. A.S. Altekar, The Position of Women in Hindu Civilisation, Motilal Banarsidass, 1983, pg 338.
2
Pandharinath. H. Prabhu, Hindu Social Organisation, Popular Prakashan Bombay, 1979, pg 258.
3
Rigveda II, 17.
4
Rigveda III, 31-32.
5
Rigveda III, 31-32.

21
 During the Smriti period, considerable change of popular feeling regarding
the proprietary position of the woman was reflected and Manu, Yajnavalkya,
Brishpati, Narada and other smriti writers admitted certain female heirs in the order
of succession. Manu 6 expressly admitted the widow, the daughter and the mother in
the order of succession. Brishpati 7 emphasized a daughter‘s right of succession.
Narada8 did not recognize a widow‘s claim but accepted the right of the daughter9
Vishnu10 mentioned the wife, daughter and mother as successors. Devala11 included
the daughter, mother and wife as inheritors of property. Apastamba also included the
daughter12 as heir in its enumeration of heirs, but it served no practical purpose. He
included the daughter as heir at the end of a long list of kin and strangers, such as
spiritual brother, teacher, pupil or a priest. In practice, it could never happen that the
deceased would be a person who never belonged to a spiritual brotherhood or never
had a teacher or a pupil or a priest.

Property acquired by a woman by her own exertions was her stridhana

according to the Bombay, Benaras and Dravida Schools13 and daughters were given
a right to succeed to it. Under Mitakshara, after woman‘s death, it devolved firstly
on the unmarried daughter, and then on the married daughter, who is not provided
for, followed by the married daughter who is provided for. Next in line was
daughter‘s daughter followed by the daughter‘s son. The woman‘s own son could
inherit it only in the absence of heirs in the female line 14. The Privy Council, also
through its decisions expressed that a daughter should be subject to limitations and
restrictions of the same description as was applicable in the case of a Hindu widow
in estate inherited from her husband15. But an exception to this rule prevailed in the

6
Manu IX, 130 217.
7
Brishpati, quoted in Mitakshara, Chap II, S.II, 2.
8
Narada XIII, 25-26, 28-29.
9
Narada, XIII, 49 quoted in Dayabhaga, Chap.XI, S.11.1.
10
Vishnu, XVII 4-13.
11
Devala, quoted in Mitakshara, Chap-II S.1., 50.
12
Apastamba, II, 6, 14.
13
S.T.Desai(ed), Mulla‟s Principles of Hindu Law, Bombay: N.M.Tripathi (1994) (16thedn) pg 163-
169.
14
Ibid, pg 172-173.
15
Chotay Lall v Chunno Lal and others (1878) ILR 4 Cal 774 (P.C.). See also; Mussumat Thakoor
Dehyee v Rai Baluk Ram (1866) 11 MIA 139; Bhugwan Deen Doobey v Myan Baee (1867) 11
MIA 487; Sheo Shankar Lal v Debi Sahai (1903) LR 30 IA 202 at 206; Lal Sheo Pertab Bahadur
Singh v Allahabad Bank, (1903) LR 30 IA 202.

22
Presidency of Bombay, where the estate inherited by a daughter from her father or
mother devolved on her absolutely16 and without any restrictions.

II) Legislations on Daughter’s Property Rights

i) The Hindu Law of Inheritance (Amendment) Act, 1929

The Hindu Law of Inheritance (Amendment) Act, 1929 was the first
legislation in the direction of extending daughter‘s property rights. The provision of
the Act introducing the female heirs reads as follows: -

A son‘s daughter, daughter‘s daughter, sister and sister‘s son shall, in the
order so specified be entitled to rank in the order of succession next after
a father‘s father and before a father‘s brother, provided that a sister‘s son
shall not be included, if adopted after the sister‘s death17.

The Act was very limited in its scope and did not make any radical change in
Hindu Law in favour of women. By this Act neither daughters nor widows were
provided with the right of inheritance. The Act only emphasized that certain degrees
of remoter male heirs should be postponed in favour of the nearer degrees of female
heirs and nothing more. So the provisions of the Act were not particularly radical in
support of women‘s right to property18. Further, Act II of 1929 was limited in the
sense that it regulated succession only in the case of the separate property of a Hindu
male dying intestate. Its aim was not to alter the law in respect of the property of a
female, but only to ensure that when a husband succeeded to his wife‘s stridhan
property, it descended in the same way as if it had belonged to the husband himself,
after her death. If at such time, Act II of 1929 was in force, it was that Act which
governed succession and the property could not be deemed to be the property of a
female19. Thus, the legal position of women, according to Act II of 1929, was far
from satisfactory. Realizing this, the legislators continued to fight for greater
inheritance rights for women.

With the Hindu Women‘s Right to Property Bill, Dr. G.V. Deshmukh, hoped
to achieve equality between Hindu men and women in respect of their property.
Clause 3 of the Bill stipulated that no person should be excluded from inheritance

16
Bhagirathi Bai v Kahnujirav (1887) ILR 11, Bom 285 (F.B.).
17
The Indian Council Act, 1929, Section 2.
18
Monmayee Basu, Hindu Women and Marriage Law, Oxford Publication, 2002, pg126.
19
A.K. Bakshi, Women‟s Right to Property, pg 30, Dacca, 1939.

23
and partition on the basis of sex. Regarding the devolution of the property of a
Hindu dying intestate, Clause 4 of the Bill specifically provided that it would
devolve upon the wife, mother, daughter and wife of a predeceased son along with
the sons and all would have equal share in the property. Clause 5 equated the status
of women to that of men and made them absolute owners of the property20. The Bill
met with a great deal of hostility and thus the provision granting daughters a share in
the parental property was excluded.

ii) The Hindu Women’s Right to Property Act, 1937

The Hindu Women‘s Right to Property Act, 1937 was passed and a serious
defect of the Act was that it affected the daughters. The Hindu Law-givers expressly
laid down that the maiden daughter‘s maintenance till her marriage, and her
marriage expenses were to be paid out of her father‘s estate. By the Act of 1937 and
its amendment, a predeceased son‘s widow was placed before the daughter in the
order of succession; but she was not liable to pay any amount to anybody out of the
estate which devolved on her. Consequently, the maiden daughter could not enforce
her claim to maintenance or her marriage expenses from the predeceased son‘s
widow21. Infact, there was no justification in placing predeceased son‘s widow and
the widow of a predeceased son of the predeceased son before the maiden daughter.
Any of these widows might turn the daughter out into the street, since her rights
were not protected in the Act or its amendments 22 . After the attainment of
Independence, the entire perspective changed, the nature of old human values
assumed a new complexion and the need for emancipation of womanhood from
feudal bondage became all the more imperative. The Constitution of India has given
new dimensions to the Indian society in certain spheres. The distinction and
discrimination on the basis of sex, colour, creed etc. have been done away with, and
all the laws inconsistent with or in derogation of the fundamental rights have been
declared void23. In the same strain, there is removal of prohibition or discrimination
on the ground religion, race, caste, sex or place of birth etc and also gives a direction
to the state to make provisions for women and children24. Further there were many

20
Kulwant Gill, Hindu Women‟s Right to Property in India, Deep & Deep Publications (1986), pg
105-107
21
The Indian Council Act no. XI of 1938.
22
Calcutta Weekly Notes, XCIX.
23
See; Article 13, The Constitution of India.
24
See; Article 15, The Constitution of India.

24
voices advocating the need for reforms in the Mitakshara system of holding property.
Also modern thinking did not favour continuance of the old concept of joint family
and Mitakshara coparcenary. The retention of the Mitakshara coparcenary is a
constitutional discrimination against daughters. The progressive development of
Indian society can be accelerated if the laws are uniformly applied to all Indians.
This is also constitutional directive to the state25.

iii) The Hindu Succession Act, 1956

In pursuance of the constitutional directive to the state, The Hindu

Succession Act, 1956 was enacted to confer better proprietary rights upon women in
general and consequently upon daughters. The Act did not merely codify the
existing Hindu Law of Succession but in reformative spirit made fundamental
changes and it may be justly called the Hindu female‘s magnacarta of property rights.

Reforms introduced by The Hindu Succession Act, 1956

Some of the reforms introduced by the Hindu Succession Act, 1956 regarding
the proprietary rights of daughters are as follows:

 The Act introduced the principle of concurrent succession under which the heirs
of different categories could succeed to the property of the deceased at the same
time. Under traditional Hindu Law, the son took the whole of the property and
excluded all others heirs, but under the said Act, the son, the daughter, the
widow, and other could inherit the property of the deceased concurrently and the
father got excluded as he belonged to Class II category and heirs26.

 Equality of sexes was the cardinal principle underlying the Act 27. It removed the
distinction between the son and the daughter in the matter of their right to inherit
the property, the share to be allotted to them and the nature of property they
could obtain. Thus under the Act -

25
Prakash Chand Jain, Women‘s Property Rights under Traditional Hindu Law and The Hindu
Succession Act, 1956: Some observations, Journal of Indian Law Institute, vol 45 no‘s 3 & 4, p
525, 2003.
26
M.P. Jain, Outlines of Indian Legal History, Wadhwa & Company Law Publishers, 2001, p 641.
27
Ibid.

25
 a) The daughter took simultaneously with the son, widow and
other heirs specified in Class I of the Schedule28.

b) The daughter could inherit the interest of her father in the

Mitakshara coparcenary property29.

c) The property inherited by the daughter became her absolute

property30.

d) The daughter‘s right over the dwelling house of the father was
subject to Section 23 of the Act.

 Many more females were introduced to the order of succession. Apart from the
mother, widow and daughter, many females31 were made heirs of Class I in the
Schedule and these females could inherit simultaneously along with other Class I
relatives of the deceased32.

 Similarly twelve females33 were introduced as heirs in Class II of the Schedule.

These female heirs inherited the property of the deceased only in the absence of
any heir of the Class I in the Schedule. These heirs were further classified under
nine entries. The heir coming into an earlier entry excluded all heirs in the latter
entries. The heirs coming into one entry took simultaneously between them and
took per capita34.

 In the definition of agnates35 of the deceased, all females who were related to
him by blood or adoption wholly through males were also included and thereby
made heirs as agnates of the deceased. These females‘ agnates could inherit only
in the absence of any heirs of Class I and II in the schedule.

 Apart from the female heirs included in Class I and II, females who were related
by blood or adoption to the deceased not wholly through males, that is, through
28
The Hindu Succession Act, 1956, Section 8 deals with general rules of succession of males dying
intestate, read with Section 9&10.
29
The Hindu Succession Act, 1956, Section 6.
30
Ibid, Section 14.
31
They were widow of a predeceased son, daughter of a predeceased son, widow of a predeceased
son of a predeceased son, daughter of a predeceased son of a predeceased son, daughter of a
predeceased daughter.
32
Id. Section 9.
33
They were son‘s daughter‘s daughter, sister, daughter‘s son‘s daughter, daughter‘s daughter‘s
daughter, brother‘s daughter, sister‘s daughter, father‘s mother, father‘s widow, brother‘s widow,
father‘s sister, mother‘s mother, mother‘s sister.
34
Id. Section 9 and 11
35
Id. Section 3(1), read with section 8.

26
 one or more females were also entitled to succeed as female cognates. They
succeeded it only in the absence of the heirs of Class I, Class II and agnates.
When there were more agnates than one, they inherited in accordance with the
rules of preference36.

In addition to a share in the self acquired property of the father, a daughter

could inherit the interest of her father in the Mitakshara coparcenary property. The
provision was laid down in Section 6 of the Act which indicated that when a male
Hindu dies having at the time of his death an interest in Mitakshara coparcenary
property and is survived by a female relative specified in Class I of the schedule of
the Act or a male relative specified in that class who claims through such female
relative, the interest of the deceased in the Mitakshara coparcenary property shall
devolve by testamentary or intestate succession and not by survivorship37.

Devolution of the property belonging to intestate female38

Under the Hindu succession Act, 1956 a female intestate‘s self- acquired
property, a gift or property received under a valid will devolve as follows39

a) Firstly, upon the sons and daughters (including the children of any
predeceased son or daughter) and the husband;
b) Secondly upon the heirs of the husband;
c) Thirdly upon the mother and father;
d) Fourthly upon the heirs of the father and
e) Lastly, upon the heirs of the mother

36
Id. Section 3(1), read with Section 8, 9, 10, 11 &12.
37
The Hindu Succession Act, 1956, Section 6 of dealing with the devolution of interest to
coparcenary property states-
―When a male Hindu dies after the commencement of this Act, having at the time of his death an
interest in a Mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
provided that, if the deceased had left him surviving a female relative specified in Class 1 of the
Schedule or a male relative who claims through such female relative, the interest of the deceased in
the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the
case may be, under this Act and not by survivorship.
Explanation 1- For the purposes of this section, interest of a Hindu Mitakshara coparcener shall be
deemed to be 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 of or not.
Explanation 2- Nothing contained in the proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the deceased or any his
heirs to claim on intestacy a share in the interest referred to therein.
38
The Hindu Succession Act, 1956, Section 15(1).
39
Id. Section 15(1).

27
Hence, patrilineal assumptions of a dominant male ideology are clearly reflected in
the laws governing a Hindu female who dies intestate. The law in case of female in
this regard is different from those governing Hindu male. The property is to devolve
first to her children and husband, secondly to her husband‘s heirs, thirdly to her
father‘s heirs and lastly to her mother‘s heirs. The provision of Section 15(2) of
HSA is indicative of a tilt towards the male as it provides that any property she
inherited from her father or mother should devolve, in the absence of any children,
to her father‘s heirs and similarly any property she inherited from her husband or
father-in-law, to her husband‘s heirs. These provisions depict that property continues
to be inherited through the male line from which it came either back to her father‘s
family or to her husband‘s family. Therefore the basis of inheritance of a female
Hindu‘s property who dies intestate would thus be the source from which such
female Hindu came into possession of the property and the manner of inheritance
which would decide the manner of devolution. The legislature while framing this
scheme was very much influenced by the whole Mitakshara law, its concept of
stridhana and inheritance by a female in a double capacity. This reversion of the
once-inherited-property back to her father‘s or her husband‘s heirs shows a
desperateness on the part of the legislature to treat her only as a temporary
occupier40.‖

Hence, the scheme of devolution of property under Section 15 is a pointer

towards gender bias as in the absence of sons, children and husband, the property
belonging to intestate female devolves upon her husband‘s heirs and then upon her
parents. Once again, concepts of gender equality give way to patriarchal
considerations that treat women as extensions of their husbands by favouring their
husband‘s heirs.

Special rules for females governed by Marumakkattayam and Aliyasantana

Laws

The primary difference between the Mitakshara system of inheritance and

the Marumakkattayam and Aliyasantana laws lies in the former following the
patriarchal system and the latter adhering to the matriarchal system i.e. tracing

40
Poonam Pradhan Saxena, Succession Laws & Gender Justice in Redefining Family Law in India ,
Archana Parasar, Amit Dhanda (ed), Routledge, New Delhi, 2008).

28
descent from a common ancestress41. Under this system, a lady and all her children
constitute a ‗tarwad‟ an institution of joint family similar to the one followed by the
Mitakshara Hindus) in which every member has a right by birth 42 . The rules of
survivorship govern the devolution of property of any member of tarwad. The basis
of determination of heirs is propinquity. The rules for devolution of the separate
property of male and female intestates are different. Like the rule under general law,
the source of acquisition of property in case of female intestates is still material
though the categorisation has been reduced here from three to two43 (i.e. the general
property of a woman and property inherited from her husband and father-in-law. For
succession to the separate property of male intestates, the principles are same as
under the general law, with one exception i.e. treatment of remoter agnates and
cognates on par44. For female intestates, the mother and her heirs are preferred to the
husband and her heirs respectively45.

Anomalies in The Hindu Succession Act, 1956

The Hindu Succession Act, 1956 gave women:

1. The right to hold property as absolute owners46;

2. The status of co-heirs with brothers in the father‘s property47 and

3. Made a daughter‘s inheritance share equal to that of a son48.

In spite of above mentioned achievements, some of the basic principles

which contribute to gender inequality in the Hindu law of succession were left
untouched by the HSA, 1956.

The following were the demerits of the Hindu Succession Act, 1956:

a) The Mitakshara coparcenary

Hindu law recognises two distinct types of joint families: Mitakshara and
Dayabhaga. In Mitakshara joint family coparcener‘s wives and unmarried daughters

41
Mayne, Hindu Law and Usage, (ed. Kuppuswami), 1986, p 972.
42
Kalliana Amma v Govinda Menon, (1912) 35 Mad. 648; Kabakani Kama v Siva Sankaran (1910)
20 MLJ 134.
43
The Hindu Succession Act, Section 17.
44
Ibid, Section 17(i).
45
Ibid, Section 17 (ii) (a) to (e).
46
The Hindu Succession Act, 1956 Section 14.
47
Id, Section 8.
48
Ibid.

29
of a coparcener are treated as members of the Mitakshara joint family which is a
broader body than the coparcenary. A stranger on adoption becomes a coparcener in
the family but not a daughter who took birth in the family. The Mitakshara
coparcenary was not abolished by the Hindu Succession Act, 1956; it was retained
under Section 6 of the Act which provided that the interest in the coparcenary
property shall devolve by survivorship. However the section also provides that if the
deceased left him surviving a female relative or a male relative who claims through
such a female relative, the interest of the deceased in the Mitakshara coparcenary
property shall devolve by testamentary or intestate succession and not by
survivorship49. The rules laid down in Section 6 were a compromise having some of
the merits and all the demerits which attended such adjustive legislation50. The result
of Section 6 of the HSA was that the father and sons (among other possible
combinations) hold the joint family property to the total exclusion of the daughters
and mother. Unlike the son, the daughter could not get an immediate interest in the
joint property at birth. She was only entitled to inherit a part of the property that
constituted the share of the father once he died. The son, in addition to being the
joint owner of the coparcenary property, took an equal share with the daughter and
the widow in the self acquired property of the deceased. Thus the quantum of a
daughter's share in inheritance was not the same as that of her brother51.

Moreover another area where inequality had been allowed to prevail by the
HSA was the inability of women to become Kartas of the coparcenary. The Karta is
the manager of the joint family who represents the family and acts on its behalf; and
is usually the senior most male member of the joint family. The old Hindu law did
not recognize a woman as a Karta by the logic that a woman could not be a
coparcener and thus could not be the manager of the joint family. This had also been
held by the Courts in several cases52. By retaining the Mitakshara system, the HSA
left a very grave lacuna in the Hindu Law of succession, because by doing so, it
ignored a very vital need for reform of Hindu Law. However, some of the courts

49
The Hindu Succession Act, 1956, Section 6.
50
Sunderlal T. Desai, Mulla Principles of Hindu Law, N.M. Tripathi Pvt. Ltd., 1982, p 926
51
Maitrayee Mukhopadhyay, Legally Dispossessed: Gender, Identity and the process of Law,
Calcutta : Stree, 1998, p 99.
52
Seetha Bai v Narsimha Shet, A.I.R 1945, Mad. 306; Radha Ammal v Commissioner of Income Tax,
A.I.R 1950, Mad. 538, Commissioner of Income Tax v G.S. Mill, A.I.R 1966 SC 24; Ram Avadh v
Kedar Nath, A.I.R 1976, All. 283.

30
indeed took a liberal view and held that the women could be Karta or managers of
the Joint family53.

b) Separate Schemes for Male and Female Intestates

The Hindu Succession Act, 1956 also retained two separate schemes of
succession for men‘s and women‘s property. Section 15 54 of the Act reflects the
patriarchal assumption of a dominant male ideology. After her own children and
husband who are Class I heirs, the property of a female Hindu dying intestate
devolves not on her own heirs but upon the heirs of her husband. Thus, it is not her
father or brother or sister or other relatives specified in Class II who would get the
property but her husband‘s father, brothers, sisters, nephews, nieces and other
relatives. Even though mother is a Class I heir under the Schedule, a daughter‘s
property goes to the mother only in the absence of her (daughter‘s) children,
husband and heirs of the husband. Thus, whilst in the case of the property of a male
dying intestate, his mother is entitled to an equal share along with his wife and
children as Class I heirs, the position is completely different and unfair in the case of
female‘s property; her father and mother are relegated to a lower position as they
come only after the husband‘s heirs.

Besides, as between the heirs of the father and the mother, the father‘s heirs
are above the mother‘s heirs. Another point of gender bias is noticed in clause (2), of
Section 15, viz, any property inherited by a female Hindu from her father or mother
devolves, in the absence of her children, upon the heirs of her father. Thus even
when a property is inherited by a female from her mother, the same shall devolve
after her death not on the heirs of the mother but on the heirs of the father. This
again is a discriminatory provision and may give rise to anomalous situation.

It is certainly strange that the legislature felt the need to devise different
schemes depending upon the source when the source is immaterial in case of male
intestate. Also, the legislature seems to be entirely oblivious to the concern of
establishing independent heirs of female rather than devolving her property upon the
heirs of her husband or father. The intent of the legislature seems to be the concern

53
Keshao Bharati v Jagannath, A.I.R 1926 Nag. 81; Pandurang Dhake v Pandurang Gorle, A.I.R
1974 Nag. 178.
54
The Hindu Succession Act, 1956, Section 15 of deals with general rules of succession in case of
Hindu female dying intestate.

31
to conserve the property and revert it to its source. However, if it was the intent of
the legislature, it does not meet its purpose, it only mentions property inherited from
her parents which will go to the heirs of her father. For property which has been
gifted or given on bequest or through any other means would be devolved as per
section 15(1). It was held in Balasaheb v Jaimala 55 that when a female inherits
property from her brother, it will be governed under section 15(1). This seems to be
rather an attempt to control her property after her death, suspiciously a trace of
women‘s estate. It totally defeats the purpose of succession if women die issueless.
The purpose of the succession law is to, in absence of any express or specific
instructions, to devolve the property in the way the intestate normally would have
done, i.e., to make provisions for people borne out of love and affection. Normally,
a woman would therefore prefer her blood relations to her husband‘s relations. In the
scheme of succession contemplated in the Act, even remote heirs of the husband
would take preference over her mother and father, who might be depended on her.
Also, the Act quite goes against the reciprocity of inheritance, the entire heirs of her
husband howsoever remote have been her heirs even though she is not their heirs.

The present scheme of succession can result in extremely unreasonable and

unfair kind of situation which revolts against every sense of justice and equity.

Different provisions for succession to female and male intestate has been
challenged as being violative of Article 14 and 15 of the Constitution and as being
totally arbitrary and irrational in Somubai Yeshwant Jadhav v Bala Govinda Yadav56,
In this case, upon the death of the husband, the wife had inherited his property and
when she died, her husband‘s male cousin‘s son laid claim to her property as her
heirs. The Court dismissed the suit while upholding the constitutional validity of the
impugned provisions. The Court reasoned that laws are made to solve specific
problems and achieve definitive objectives and hence absolute equality or total
uniformity is impossible. It held that Article 14 allows classification and different
treatment based on the classification on the basis of the personal law would not
result in discrimination. The Court further reasoned that marriage is based on unity
between husband and wife. It is in recognition of this unity that succession opens to
the wife‘s property, the heirs of the husband when no other immediate heirs are

55
AIR 1978 Bom 44
56
AIR 1982 Bom. 156

32
available are permitted to succeed. The Court further stated that conferment of full
ownership of property on a female Hindu is not intended to affect the position she
held as ―wife‖ in the family. The Court also justified the scheme on the basis that
although it mentioned ―heirs of husband‖ it was being left for family members and
classification is not based upon sex preference.

It is rather surprising that the Court very conveniently overlooked the fact on
construing unity between husband and wife when wife‘s devolution of property is
concerned so as to justify wife‘s leaving property to her husband‘s heir quite natural,
the same unity is not envisaged while inheriting to the property of her husband‘s
relatives. A female is an heir to very few of her husband‘s relative, only to father in
law and brother in law, which comes at very low level in the line of succession.

The decision almost defeats the purpose of succession. One purpose of

having succession law is primarily to provide for those who have been dependant on
the intestate. For in absence of the children or children of her own, a female intestate
property would devolve on her husband‘s heirs, howsoever remote they might be
before it comes to her own mother and father and siblings. In the modern time, as
many women are financially independent, they are sharing their responsibilities in
looking after their parents and siblings if they are in need of help. Women are no
longer always the one who needs maintenance; they are now also the one who are
providing maintenance in many households. Married daughters have duty as well as
right to maintain her parents, and on their death, her property should go to them
before it goes to any remote relatives. A marriage does not snap all ties a woman has
with her natal family formed out of blood ties and natural love and affection. It is
unnatural for law to presume that just because a woman is married she owes more
duty of care to her husband‘s relative, howsoever remote they are, than to her own
immediate family. (Especially after 2005 amendment, where she is given full right
as the son, she should be allowed to perform her duties as well, it is unfair that she
should succeed from her natal home and her property should devolve on her in laws)
Self Acquired Property: - A Grey Area

The term ‗property‘ though not specified in this section means property of
the deceased heritable under the Act. It includes both movable and immovable
property owned and acquired by inheritance, by devise or at a partition, by gift, by
her skill or exertion or by purchase or prescription. The Section does not

33
differentiate between the property inherited and self-acquired property of a Hindu
female. The HSA was enacted in 1956, when in the structure of Hindu society
women hardly went out to work. But there has been a vast change in the social scene
in past few decades and women have taken a stride in all spheres. The consequence
is that women own property earned by their own skills. Probably at that time
legislators might had not contemplated that Hindu women in later years would be
having self-acquired property and that in certain cases where her heirs in the first
category fail, the property would devolve totally upon her husband‘s heirs who may
be very remotely related as compared to her own father‘s heirs. However, any
property inherited by a female Hindu from her father or mother57 shall devolve, in
the absence of any son or daughter of the deceased (including the children of any
predeceased son or daughter) not upon the heirs stated above, but upon the heirs of
the father and any property inherited from her husband or her father in law 58 shall
devolve in the absence of heirs stated above i.e. son etc. upon the heirs of the
husband. So far as the order of the succession and manner of the distribution among
the heirs is concerned, it is to be stated that the heirs in one entry shall be preferred
to those in any succeeding entry and those included in the same entry take
simultaneously59. Children of any predeceased son or daughter shall take between
them the share which such son or daughter would have taken if living at the
intestate‘s death 60 . The devolution of the property on the husband‘s, father‘s or
mother‘s heirs, as the case may be, shall be as if the property belonged to them and
that person had died intestate in respect there of immediately after the intestate‘s
death.61 The other rules with regard to female‘s property are the same as that of a
male62.

In one of its judgment 63 , Supreme Court has focused attention on gender

discrimination in the Hindu Succession Act. Narayani Devi had been married for
just three months when her husband died of a snake bite. Her in-laws promptly
accused her of being a woman who brought ill luck and threw her out of the house.

57
The Hindu Succession Act, 1956, Section 15(2) (a).
58
Id. Section 15(2) (b).
59
The Hindu Succession Act, 1956, Section 16, Rule 1.
60
Id. Section 16 Rule 2.
61
Id. Section 16 Rule 3.
62
Id. Section 8-13.
63
Om Parkash v Radha Charan, 2009(7) SCALE 51.

34
Narayani was only 15 years old at the time. With the help of her parents in Madhya
Pradesh‘s Bhind district, Narayani decided to concentrate on her education, and after
almost a decade joined a government school as a teacher and continued in that
position until her death, at the age of 56, in 1996. Through this period she had never
been in touch with her in-laws. Narayani, who died without leaving a will, left
around Rs 20 lakh in her bank accounts and provident fund. But when her mother,
Ram Kishori, filed an application for the grant of a succession certificate to take
possession of her money, she was in for a shock. The sons of Narayani‘s dead
husband‘s sister had filed a similar petition. After more than a decade of legal battle
between the two parties Supreme Court, ruled in favour of Narayani‘s in-laws. Many
legal experts and women‘s activists are outraged by the apex court‘s decision to
award Narayani Devi‘s property to her deceased husband‘s family, especially
because they had treated her so badly. According to the Hindu Succession Act, a
woman‘s property is inherited by her husband‘s family in case she dies childless and
intestate and not by her blood relatives. This is sheer injustice because her self
acquired property does not go to her own brothers and sisters but upon her in-laws
side. This judgement is an eye opener and the government needs to change this
archaic law64.

c) Preference of Agnates over Cognates

Section 8 of the Hindu Succession Act, 1956 gives preference to agnates65over

cognates 66 in matters of succession of a Hindu male dying intestate. A father‘s
brother‘s daughter is an agnate but a father‘s sister‘s son is a cognate. Moreover,
there are no degrees of relationship beyond which kinship is not recognized, so that
an agnate howsoever remotely related to the intestate is entitled to succeed as an heir.
The consequence of this will be that an agnate will be able to succeed to the intestate
property no matter how remotely connected he/she is and no matter how closely
connected the cognate is.

64
Kumara V. Swamy, Unfair Deal, The Telegraph, Calcutta, 20 May, 2009.
65
The Hindu Succession Act, 1956, Section 3 (1)(a) states that one person is said to be an ‗agnate‘
of another if the two are related by blood are adoption wholly through males.
66
Ibid Section 3 (1) (c) states that one person is said to be ‗cognate‘ of another if the two are related
by blood are adoption but not wholly through males.

35
d) Discrimination in respect of Dwelling House

One more very glaring example of gender-based discrimination was

Section 2367 of the Act. The discrimination was on two counts:

i) her right to claim partition

ii) her right to residence

S. N Das, justifying the inclusion of the Section 23 in the Act stated68:

―We know that the son and the daughter both are the citizens of India
and should have equal rights, but at the same time we should also see
whether their duties and obligations are also equal. In accordance with
our social pattern, the duties of the daughter are towards her husband‘s
family after marriage and are negligible towards her parents, so the
moment she marries and goes to her husband‘s family her right in
father‘s property should cease‖.

But such justification favouring the existence of Section 23 of HSA was

fought tooth and nails by many women organizations who stressed there upon a
change in that social attitudes and laws too. If under Section125 of the Code of
Criminal Procedure, 1973 as also under Section 18 of the Hindu Adoptions and
Maintenance Act, 1956, a daughter has the same duty to maintain her parents as the
son, why to debar her from claiming equality in succession. Even the apex Court has
clearly conceded in Vijay v Kashirao69 that both married and unmarried daughters
have a duty to maintain their parents. As to the right of the daughter, even to reside
in the dwelling house, was available only if she was unmarried, separated from her
husband or widowed. It appeared so strange that a female who was legally the
owner of a part of the property was not only debarred from asking her share unless
the male heirs decide to divide their own shares, but also a right to reside there in.

67
Ibid, Section 23 of the Act states that ―Where a Hindu intestate has left surviving him or her both
male and female heirs specified in class one of the schedule and his or her property includes a
dwelling house wholly occupied by members of his or her family, then, notwithstanding anything
contained in this Act, 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 shares there in; but the female
heir shall be entitled to a right of residence there in.
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‖.
68
Lok Sabha Debates, Pt II, vol. 4 at cols 8221-8222.
69
A.I.R. 1987 SC 1100.

36
Thus, even if a married daughter was living with torture or in cruelty in her
husband‘s house but at the same time, for whatever reasons-social, economic, etc.
she did not want to legally break the marriage, she had no where else to go except to
put up with the unhappy situation in her husband‘s house70.

In this context, the following remarks of the Karnatka High Court 71 ,

justifying the denial of a married daughter‘s right to reside in the dwelling house (in
the context of the Section 23) are distressing:

―The object of this proviso would be defeated and it will encourage the
married daughters to desert their husbands if it is held that the daughter, who
held that the daughter, who deserts her husband or lives on her own accord
separately from her husband, is entitled to residence in a family dwelling
house‖.

Such an agreement is highly insulting and against the dignity of daughters as

it meant as if entitlement to live in the natal dwelling house- that too after parent‘s
death- would encourage married daughter to become deviant towards her husband!
Not even a single moment was spent to realize that the disentitlement could
encourage married daughters in distress to seek sanctuary in the streets or commit
suicide. Although the ‗Act‘ ostensibly proclaimed to improve the position and social
status of Hindu females, yet a keen observer would easily see that whatever was
incorporated in it was only an eyewash and the old wine put into the new bottle.

To conclude and summarize the position of daughter in the Hindu Succession

Act 1956, it may be said that Hindu women‘s inheritance rights as guaranteed by the
Hindu Succession Act were at best compromised ones, positioning them as family
dependants and reiterating their ―natural‖ location as being the marital family and
not the natal one. The oft repeated claim of parity between men and women‘s
inheritance shares guaranteed by HSA was limited to that aspect of the property
which was acquired by the father (or mother) and which excluded from its ambit
most property that was tied up in coparcenaries. The right to shelter in her parental

70
Kusum, Towards Gender-Just Property Laws, Journal of Indian Law Institute, vol. 47, 2005, p. 98.
71
Kalamma v Veramma, A.I.R 1992 Kant 362 at 363-364.

37
home for a daughter was also a mediated one, dependent to a large extent on the
good will of her brothers72.

To overcome the lacuna and in order to make gender equality, the States of
Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu amended Section 6 of
Hindu Succession Act in 1986, 1994, 1994 and 1989 respectively declaring
daughters to be a coparcener in a joint Hindu family. Besides with the enactment of
Kerela Joint Hindu Family System (Abolition) Act in 1975, this State abolished
fully the right to property by birth by males and put an end to the Joint Hindu
Family system. Likewise all the members became tenants-in-common of the joint
family property and became full owner of their share. The states of Andhra Pradesh,
Karnataka, Maharashtra and Tamil Nadu removed the discrimination inherent in
Mitakshara coparcenary.

The expressions of the provisions in Hindu Succession Act are almost

similar with each other. Only difference poses is that Karnataka in respect of
property rights of women inserts sections 6A, 6B and 6C and the states of Andhra
Pradesh, Maharashtra and Tamil Nadu insert sections 29A, 29B and 29C in the
Hindu Succession Act of 1956, the Central Act. Another clarity in the provision is
that the daughter can also dispose of the property in the form of will or other
testamentary disposition because the property shall be held by her with the incident
of coparcenary ownership. Moreover, the daughter can have double property rights.
Firstly she became coparcenary property right owner in her natal joint family and
secondly after her marriage she shall also be a member of her marital joint family.
Hence it can be said that these four States73 have altered the system of Mitakshara
joint family coparcenary.

The Law Commission, for recommendations74 on the removal of anomalies,

ambiguities and of property rights of Hindu Women under the Hindu Succession Act,
1956, took up the subject suo motto in view of the pervasive discrimination
prevalent against women in relation to laws governing the inheritance vis-à-vis

72
Purva Chadha, Hindu Family Property Law in India and Gender Inequality: An Analysis of the
Hindu Succession Act, 1956, Supreme Court Journal, vol. 2, pg 17-18, 2002.
73
See for details; The Hindu Succession (Andhra Pradesh Amendment) Act, 1986; The Hindu
Succession (Karnataka Amendment) Act, 1994; The Hindu Succession (Maharashtra Amendment)
Act, 1994; The Hindu Succession (Tamil Nadu Amendment) Act, 1989.
74
174th Report on ―Property Rights of Women: Proposed Reforms under the Hindu Law‖, under the
Chairmanship of B. P. Jeevan Reddy vide D.O.No. 6(3)(59) / 99-LC(LS), dated 5th May,2000.

38
succession of property amongst members of a Joint Hindu Family. The Commission
worked out the provisions of women‘s right to property on the ground of social
justice 75 in one aspect and the amendments made by some states like Andhra
Pradesh, Karnataka, Maharashtra and Tamil Nadu on the other. The aim of the
Commission was to recommend for the equal distribution of ancestral property
among both male and female heirs. Thus the Law Commission‘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 recommendation made by it are
implemented by the government 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 in August, 2005,
assented on 5th September, 2005 and came into force from 9th September, 2005.

iv) The Hindu Succession (Amendment) Act, 2005

Making Daughter a Coparcener in the Mitakshara Coparcenary property

The Hindu Succession (Amendment) Act, 2005 is an attempt to remove

gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the
following rights to daughters under Section 676.

a) The daughter of a coparcener, by birth becomes a coparcener in her own

right in the same manner as the son.
b) The daughter has the same rights in the coparcenary property as she would
have had she been a son.
c) The daughter shall be subject to the same liability in the said coparcenary as
that of a son, and any reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a coparcener.
d) The daughter is allotted the same share as is allotted to a son.
e) The share of a pre-deceased son or a predeceased daughter shall be allotted
to the surviving child of such pre-deceased son or pre -deceased daughter.
f) The share of the pre-deceased child of a pre-deceased son or a pre-deceased
daughter shall be allotted to the child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter.

75
Equal partner in economic and social sphere
76
Substituted by Act 39 of 2005, Section 3.

39
 g) But this provision shall not apply to daughters married before the
commencement of the Hindu Succession (Amendment) Act, 2005. However
the above provisions shall not affect or invalidate any disposition or
alienation including partition or testamentary disposition of property which
had taken place before 20th of December, 200477.

However, the property to which a daughter becomes entitled to by virtue of

the 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 will and other
testamentary disposition 78 . It is also provided that where a Hindu dies after the
commencement of the amendment Act, 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 79 . In Pravat
Chandra Patnaik v Sarat Chandra Patnaik 80 it was held that daughter whenever
born to be treated as a coparcener from the year 2005. It cannot be said that
daughters who are born only after 2005 will be treated as coparceners. The
Amendment Act is prospective in as much as partition prior to amendment cannot be
reopened. In Smt. Bagirathi & Ors v S. Manivanan & Anr81it was held that even
though the intention of amended provision is to confer better rights on the daughters
but it cannot be stressed to the extent of holding that succession which had opened
prior to coming into force of the amended Act are also required to be reopened.
Section 6 amended by The Hindu Succession (Amendment) Act, 2005 cannot be
given retrospective effect.

Property Right of Married Daughter

As to the right of a married daughter, in Subbayyajoga Naik v Narayanai82, it

was held that daughter being Class I heir is entitled for share in the property of
father and marriage before twenty years back is immaterial. The solitary question
involved in Naraini Bai (Smt.) v State of Haryana 83 , was as to whether the

77
The Hindu Succession Amendment Act, 2005 (Proviso to Section 6).
78
Ibid, Section 6(2).
79
Ibid, Section 6(3).
80
A.I.R. 2008 Ori. 133(D.B.)
81
A.I.R. 2008 Mad. 250.
82
A.I.R. 2004 Karn 430.
83
A.I.R. 2004 P&H 206.

40
Government could deny payment of compensation in relation to parents who were
killed during 1984 riots to their married daughter? The High Court found that in
section 8 of the HSA, the Parliament has not made any distinction between an
unmarried daughter and a married daughter Thus, the High Court held that a married
daughter is also a Class I heir entitled to succeed to the property of her deceased –
Father who had died intestate in terms of section 8 of the Act. Section 15(1) (a) of
the Act also categorically shows that property of a female Hindu dying intestate
shall devolve firstly upon the sons and daughters (including the children of any
predeceased son or daughter) and the husband. Thus, the petitioner, though a
married daughter, is entitled to succeed to the property of her deceased mother. The
Amending Act also added84 in the schedule of the Hindu Succession Act,1956, new
heirs viz. son of a pre-deceased daughter of a pre-deceased daughter; daughter of a
pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of
a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son.

Rights in respect of the dwelling house

The Amending Act omitted Section 23 of the Hindu Succession Act, 1956 which
denied a woman the right to seek partition of an inherited ‗dwelling‘ unit or house if
other male heirs are residing in it and further restricts her right to reside in the
inherited residence unless she is widowed, deserted or separated from her husband.
Interpreting the Amendment Act in Rathnakar Rao Sindhe v Leela Ashwath85 with
respect to partition of the dwelling house, the court held that a female heir can claim
partition against male heir and the restriction put on the right of a female heir to
claim partition in respect of the dwelling house ceased to be effective from 9-9-2005
in the light of omission of Section 23 by the Amendment Act, 39 of 2005. The effect
of omission of Section 23 of the Act would apply to all proceedings whether original
or appellate involving adjudication of rights of parties and pending as on 9-9-2005
or initiated after that date.

Eligibility of female coparceners to make a testamentary disposition

The introduction of daughters as coparceners and creation of rights in their favour

that is same as that of the son has been recognised in Section 30 of the amending Act

84
Added by Act 39 of 2005, Section 7(w.e.f.9-9-2005).
85
A.I.R. 2007 (NOC) 941 (Karn). See also; Santosh Kumar v Baby, A.I.R. 2007 Ker 214;
Kaushalaya Bai Biharilal Pateriya v Hiralal Bhagwandas Gupta, A.I.R. 2007(NOC) 136 (Bom.).

41
as well. A female coparcener is empowered to dispose of her undivided share in the
Mitakshara coparcenary through a will86. Under the classical law, a coparcener was
not empowered to make a testamentary disposition of his undivided share in
Mitakshara coparcenary and it went by survivorship to the surviving coparceners.

Coparcenary right of daughter: Prospective or retrospective effect of Section 6

of HSA, 1956 as amended by Amendment Act, 2005

The prospective or retrospective operation of Section 6 of the HSA, 1956, as

amended by the Amendment Act, 2005, had been an issue with different High
Courts but has now finally been settled by the decision of the Supreme Court‘s two-
judge Bench, AK Goel and Anil R Dave JJ, in Prakash v Phulavati 87 . While
discussing the operation of the amendment the Court made it clear that the text of
the amendment expressly provides for prospective application as the right conferred
on a ―daughter of a coparcener‖ is ―on and from the commencement of Amendment
Act, 2005‖. Further, the Court held that there is neither any express provision for
giving retrospective effect to the amended provision nor necessary intention to that
effect. Speaking about retrospective application, the Court ruled that even social
legislation could not be given retrospective effect unless so intended by the
legislature. In the present case, the Court noted that the Amendment Act, 2005 had
expressly made the amendment applicable on and from its commencement, and the
proviso keeping dispositions, alienations or partitions prior to 20 December 2004
(the day the Bill was tabled for the first time in Parliament) unaffected, did not lead
to the inference that the daughter could be coparcener prior to the commencement of
the Amendment Act, 2005. The Court stressed the need to read harmoniously the
―Explanation‖ with the substantive provision being limited to a transaction of
partition effected after 20 December 2004. It categorically laid down that the object
of giving finality to transactions prior to the said date was not to make the main
provision retrospective in any manner. The ―Explanation‖ could not be permitted to
reopen any partition88 which was valid when effected. Finally it has settled the issue
that the rights under the amendment are applicable to surviving daughters of living
coparceners as on 9 September 2005 – the day of commencement of Amendment

86
Section 30 of the Hindu Succession (Amendment) Act of 2005 specifically provides for
substitution of words ‗disposed of by him or her‘ in place of ‗disposed of by him‘.
87
Prakash and others v. Phulavati and others, AIR 2016 Supreme Court 769.
88
Meaning a redistribution of coparcenary property.

42
Act, 2005 – irrespective of when such daughters were born. Disposition or alienation,
including partitions which had validly taken place before 20 December 2004 as per
law, is to remain unaffected but the partition effected thereafter is only to be
governed by the ―Explanation‖.

Thus the Supreme Court has finally settled for the prospective application of
the Amendment Act, 2005. It has further ruled that statutory notional partition89 is
not required to be registered as it does not fall within the traditional concept of
partition. The literal interpretation of the Court, though it appears to be logical, has
resulted in giving limited rights to daughters in coparcenary property. A daughter
born after 9 September 2005 becomes a coparcener by birth in ancestral property
where property has not been partitioned. A daughter born before 9 September 2005
does not become coparcener in ancestral property if property had been validly
partitioned in accordance with accepted modes of partition before 20 December
2004. The accepted modes of partition under classical Hindu law were by way of
notice, filing of suit, appointment of arbitrator, oral partition, family arrangement,
making a will of undivided share, etc. As per the Amendment Act, 2005, after 20
December 2004 only those partitions are recognised which have been done either by
way of registered deed or by decree of Court, i.e. after the said date, a daughter
having a right in coparcenary property could claim reopening of a partition if the
partition has not been done either by way of registered deed or by decree of court.
The issue of the prospective or retrospective effect of Section 6 had also come
before the single judge of the Bombay High Court in Ashok Gangadhar Shedge v
Ramesh Gangadhar Shedge 90 Due to doubt about the correctness of the decision
rendered by the Division Bench of the Bombay High Court in Vaishali Satish
Ganorkar v Satish Keshavrao Ganorkar 91 , the single judge Bench in Ashok
Gangadhar Shedge requested that the matter be referred to a larger Bench. The issue
was then referred to a larger Bench in Badrinarayan Shankar Bhandari v
Omprakash Shankar Bhandari92. The issue involved in Vaishali Satish Ganorkar
was whether a daughter, who was born before 9 September 2005 could claim to be
coparcener when her father remained alive on and after 9 September 2005. The

89
Notional partition means the assumption that partition had taken place before the death of a
coparcener and that a share is reserved for him which passes by rules of intestate succession.
90
Ashok Gangadhar Shedge v Ramesh Gangadhar Shedge, 2014 (4) BomCR 797.
91
2012 (5) Bom CR 210.
92
AIR 2014 Bom 151.

43
Division Bench comprising of Mohit S Shah CJ and Mrs Roshan Dalvi J held that
on and from 9 September 2005, the daughter of a coparcener would become a
coparcener by virtue of her birth in her own right just as a son would be, and she
would have the same rights and liabilities as that of a son. Emphasising the words
used in the provision such as ―shall be‖, ―on and from‖ and that vested rights could
not be unsettled by imputing retrospectivity upon legislation by judicial
interpretation or construction, the court ruled in favour of prospective application.

Disagreeing with the view expressed by the Division Bench of the Bombay
High Court in Vaishali Satish Ganokar the single judge RG Ketkar J, in Ashok
Gangadhar Shedge went on to hold that even if the daughter of a coparcenar has by
birth become coparcenar in her own right and she has the same rights in the
coparcenary property as she would have had if she had been a son, the same shall
not affect or invalidate any disposition or alienation including any partition which is
duly registered under the Registration Act, 1908 or effected by the decree of a court
or testamentary disposition of property which had taken place before the 20
December 2004. Considering that the Amendment Act, 2005 is for giving equal
rights to daughters in the Mitakshara coparcenary property as those of sons, the
Court observed that by excluding a daughter from participating in the coparcenary
ownership not only contributed to discrimination against her on the ground of
gender, but also has led to oppression and negation of her fundamental right of
equality guaranteed by the Constitution. An appeal against the order of the Division
Bench in Vaishali Satish Ganokar was dismissed by the Supreme Court but at the
same time the Supreme Court held that the question of law would be kept open for
consideration. The Full Bench consisting of MS Shah CJ and MS Sanklecha and MS
Sonak JJ, was constituted in the case of Badrinarayan Shankar Bhandari on the
reference in the Ashok Gangadhar Shedge case. The questions of law which were
referred before the Full Bench were: Whether Section 6 of the HSA, 1956 as
amended by the Amendment Act, 2005 is prospective or retrospective in operation;
and whether it applies to daughters born before the commencement of the HSA,
1956 or is limited in application to daughters born after the commencement of the
amended Act. The Full Bench went into the history and development of Hindu Law,
the Law Commission Report, the Report of the Standing Committee of Parliament
and the Statement of Objects and Reasons of the Bill introduced in Parliament to

44
find out the true intent of the Parliament in amending Section 6 of HSA, 1956 by the
Amendment Act, 2005. The court ruled that a bare perusal of the first part of the
new provision showed it to have prospective application to grant coparcenary rights
by birth only to daughters born on or after 9 September 2005, whereas the later part
of the provision showed the retroactive intent of the legislature by granting rights to
daughters who were born before the amendment but were alive on the date of
coming into force of the amendment. Hence, if a daughter of a coparcener had died
before 9 September 2005 she had not acquired any rights in the coparcenary
property and so her heirs had no rights in the property.

The Court laid down two conditions necessary for applicability of the
amended Section 6:

(a) The daughter of the coparcener (daughter claiming benefit of amended Section 6)
should be alive on the date of the amendment coming into force; and

(b) The property in question must be available on the date of the commencement of
the Amendment Act, 2005 as coparcenary property.

Before the Supreme Court ruling of Prakash, the Bombay High Court‘s
decision in Badrinarayan brought in some clarity and entitled daughters to enjoy
their coparcenary share. The progressive approach of the Bombay High Court was
considered by various High Courts for ruling in favour of daughters. The dilemma
about the applicability of Section 6 of the HSA, 1956 as amended by Amendment
Act, 2005 has now been settled after the decision of the Supreme Court in Prakash.
Even after the Supreme Court‘s ruling as regards a daughter‘s right in coparcenary
property, the question remains to be answered about the status and share of a child
of a living daughter, particularly when a share in coparcenary property is to be
reserved for a child of a predeceased daughter. If the right of a daughter is restricted
before a certain date then one fails to understand the significance of the birth right
given to a daughter born before 20 December 2004.

However, the Amendment Act, 2005 raises other issues. Neither HSA, 1956
nor the Amendment Act, 2005 has defined the meaning of the terms ―coparcenary‖,
―coparcenary property‖, ―survivorship‖, ―partition‖ etc. Continued reliance on the
classical meaning of the concepts of a coparcener and his rights and duties,
coparcenary property, partition, rules of devolution of coparcenary property on

45
partition etc, has brought in more ambiguity, particularly due to the inclusion of
daughters. The Court has also not emphasised the need to define the different terms
used under the classical Hindu law.

Thus the amending Act of 2005 is a total commitment for the women
empowerment and protection of women‘s right to property. This amending Act in a
patrilineal system, like Mitakshara school of Hindu law has opened the door for the
daughters to have the birth right in the family property like the son. But the changes
are not comprehensive and much needs to be done yet. For instance, the amendment,
making daughter a coparcener in joint family, is applicable only to the women who
are not married at the time of commencement of the Act. This is patently unjust.
Further, making daughters coparceners will decrease the shares of other Class I
female heirs such as deceased‘s widow; mother; since the coparcenary share of the
deceased male from whom they inherit will decline. Section 30 of the Act allows
any Hindu to dispose of his property including his share in the joint family property
by will. As has been pointed out by the women organizations and activist groups
that this section can be used to disinherit a daughter from her share, if a father gives
away whole of his property by will in favour of the son. Therefore, a limitation
should be placed on such unrestricted testamentary power.

Some defects are still there in Hindu Succession (Amendment) Act, 2005
which need to be rectified. They are as follows:

a) Over-Lapping in Class-I and Class-II Heirs: Need for Reconciliation

As per 2005 amendment in the aforesaid Act following relations viz:-

 Son of a predeceased daughter of a predeceased daughter (i.e. daughter‘s

daughter‘s son);
 Daughter of a predeceased daughter of a predeceased daughter (i.e.
daughter‘s daughter‘s daughter).
 Daughter of a predeceased son of a predeceased daughter (i.e. daughter‘s
son‘s daughter);
 Daughter of a predeceased daughter of a predeceased son (i.e. son‘s
daughter‘s daughter)

are added in the list of legal heirs under Class-I of the schedule provided
under the said Act. The above four now added in Class I are already in Class II prior

46
to the amendment and though they have been elevated to Class I, they have not been
deleted from Class II. However, the said relations were required to be omitted from
their entries present prior to 2005 viz under 2nd and 3rd Entry under Class- II heirs
which are still present under the aforesaid provisions only in different words93.

b) Father – Need for Relocation

Because of this amendment the persons in Class-II Entry II and III are
pushed up and take place with Class-I heirs. By this, these 3rd generation persons
remotely connected with the deceased person take preference over a very ‗close
relative‘, namely

―Father‖ the only heir in Class II Entry 1 and

―Brother‖ in Class II Entry II Item 3 and ―Sister‖ in Class II Entry II Item 4.

―Father‖, who is certainly a very close relative rather than any one coming in
the Class II Entry 2 and 3 list, assumes more importance in view of the recent
enactment of the Parliament to provide maintenance to parents in ―The Senior
Citizens (Maintenance, Protection and Welfare) Act, 2007‖ wherein it is now made
mandatory that every person should maintain his parents and failure will result in
punishment. While so, it is but natural and logical to expect that a father should be
given the right of inheritance of the property of his son like a mother. As such
pushing ―Father‖ beyond III generation ―Daughter‘s daughter‘s daughter‖ etc., has
no meaning. Why a preference to the more close relatives should be given-up, in
place of 3rd generation relatives who in our society may not have any contact with
the person dying intestate – is not known.

Further, almost all Class I heirs like sons, daughters and grand children have
the duty to maintain the parents or grand parents as per the 2007 Act. There is no
duty cast upon the great grand children to look after their great grand parents,
whereas they have been given equal right to share as Class I heirs. This is certainly
an anomaly. This can be rectified only by including the ―Father‖ in Class-I94.

c) Another point which needs consideration is that the expression ‗father‘s widow‘
needs to be clarified as referring to step mother (s) and not real mother, i.e. father‘s

93
The Law Commission of India, Report No. 204 titled Proposal to Amend the Hindu Succession
Act, 1956 as amended by Act 39 of 2005; submitted on 5th February, 2008, p13.
94
Ibid, p16.

47
widow other than real mother. But this entry may be upgraded to the level of Entry 2
and father‘s widow other than real mother be placed after ‗brother and sister‘ in
Entry 2 under class II in the Schedule.

Compensation cases not to be guided by Succession Law

The payment of compensation to families of people who have died in natural

disasters also raises questions about women‘s rights. For example, should death
compensation be distributed according to the notified policy or devolve according to
the law of succession governing the deceased? These were some of the questions
which came recently before the Bombay High Court in Gitabai v Anusayabai95. The
Government of Maharashtra had notified surviving relatives of those who had died
in an earthquake about financial assistance. It had specifically set out the manner of
payment, amount of compensation and persons entitled to claim compensation. An
amount of compensation/financial assistance of Rs 50,000 per deceased person was
payable to the surviving mother or father. The deceased, along with her husband and
all their children had died. The mother-in-law of the deceased claimed the entire
compensation as her legal heir, whereas the mother of the deceased submitted that
the law of inheritance would not be applicable as compensation could not be equated
to the estate of the deceased. The mother-in-law of the deceased claimed as legal
heir in respect of the devolution of property of a Hindu female because the HSA,
1956, in the absence of the husband and issue, grants preference to heirs of the
husband before the parents of the deceased 96 . Heirs of the husband include his
mother or mother-in-law of the deceased. Thus, statutorily, the mother-in-law of a
deceased woman has better rights in the property of the deceased than the deceased‘s
own mother. The issue before the court was whether death compensation could be
treated as part of the estate of the deceased capable of devolution by the rules of
intestate succession?

The Court considered the rationale as laid down by the Delhi High Court in
Smt Ganny Kaur v The State (NCT) 97 which related to the apportionment of
compensation given to a riot victim. The Delhi High Court had concluded that the
compensation awarded in respect of the death of riot victims could not be equated

95
Gitabai v Anusayabai, High Court of Bombay (Aurangabad Branch), Second Appeal No 476 of
2004 decided on 9 April 2015.
96
The Hindu Succession Act, 1956 , Section 15.
97
AIR 2007 Delhi 273.

48
with the estate of an intestate. Since the compensation was never part of the property
held by the deceased, there could not be any question of inheritance in respect
thereof. The Court was of the view that personal law of the citizen operates mostly
in the domain of citizen versus citizen contests and has little or no relevance
whenever the relationship between the state and a citizen is in issue. Compensation
awarded by the state does not function under any personal law. In the instant case of
Gitabai, the Court, while endorsing the view of Ganny Kaur, and after considering
the government‘s circular, came to the conclusion that the mother of the deceased
was rightly entitled to the compensation as being the surviving mother of deceased.
The decision of the Bombay High Court not to rely on personal law on succession
seems to be justified, as the ex-gratia amount of compensation provided by the state
is not under the personal law of the victim but under the secular law of the state. The
State for itself and its agency is under a duty to protect and prevent the loss of life of
its citizens. Compensation for death in a natural disaster by government is to provide
financial support to the dependents of the deceased; therefore, such compensation
could not be equated to the estate of the deceased. The strict interpretation of the
circular by the court, however, differentiates between mother and mother-in-law,
and indirectly rules against the assumption prevalent in Hindu society that a Hindu
wife, after her marriage, merges with her husband‘s family and his family becomes
her family for all purposes.

III ) Women’s Ability to Own Agricultural Land

Land as an asset is hugely coveted globally as it is a source of social security,

sustenance, economic power, dignity, and prestige. Access to land shapes the
distribution of wealth, power, and status in society. Hindu women traditionally have
had few opportunities to be landholding members of their families. This injustice
remains true in modern India and elevates the level of economic disparity between
men and women because land is an important source of economic and social power
in this predominantly agricultural society. Legislative reform institutionalized the
gender bias by giving male family members more access to land ownership and land
resources than female family members. Agricultural land comprises the bulk of real
property in India98. The Hindu Succession Act, 1956 did not govern the devolution

98
Government of India, Department of Social Welfare, New Delhi, Towards Equality, Report of the
Committee of the Status of Women in India 137 (1975) (hereinafter called Towards Equality).

49
of tenancies of agricultural land. 99 Agricultural land devolved according to the
legislation of individual states. 100 Land reform laws could not be challenged on
grounds of violating a fundamental right because they fell within the Indian
Constitution‘s ninth schedule.101 Furthermore, the lack of statutory definitions in the
Hindu Succession Act or the General Clauses Act of 1897 for terms such as
―tenancy rights‖ had given the states a great amount of discretion. The result had
been the enactment of many state laws that restricted a woman‘s interests in
agricultural land even though women constitute the majority of the labour force in
agricultural industries- a key sector of India‘s economy102.

Women‘s equitable and secure access to land is a necessary precondition for

their empowerment. Women‘s access to productive resources is a vital link between
food security, sustainable resource management, peace and security, and
consequently reduction of poverty103. Women with insecure land rights have low
bargaining power within the household and less ability to access other resources.
They are more vulnerable to poverty, ill-health, and food shortages 104 . Granting
women inheritance rights equal to men‘s increases their access to physical and
human capital and provides them with the means to access credit, technology and
other services105.

Apart from material benefits, especially for rural women, land rights have
tremendous social, cultural, and economic implications. Having ownership of land
allows women the capacity to challenge male oppression and domestic violence and
have a symbolic sense of identity. There is a strong link between improvement in
women‘s access to immovable property such as housing and land and reduction in
the risk of marital violence. There is, therefore, a strong rationale for focused

99
The Hindu Succession Act, 1956, Section 4(2) provides ―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.
100
Durga Das Basu, Constitutional Law of India, 1977, p 496.
101
Constitution of India, Article 31-B.
102
Supra note 91, p137.
103
Bina Agarwal, A Field of One's Own: Gender and Land Rights in South Asia. Cambridge
University Press, 1994.
104
E. Daley .,C. Flower, L. Miggiano, and S.Pallas, Women‘s land rights and gender justice in land
governance: Pillars in the Promotion and Protection of Women‘s Human Rights in Rural Areas.
International Land Coalition, 2015.
105
K. Deininger , A. Goyal , H. Nagarajan, Inheritance Law Reform and Women‘s Access to Capital:
Evidence from India‘s Hindu Succession Act, Policy Research Working Paper 5338, World Bank,
Washington, DC,2010.

50
attention towards enhancing property rights for women, among policy-makers,
lawmakers, academicians and civil society stakeholders. In India, a woman‘s, ability
to successfully claim a share in parental property depends on a multiplicity of factors,
which represent systemic and deeply entrenched barriers embedded within the socio-
legal structure106. These barriers can be identified as follows107:

 Existing inheritance laws (legal legitimacy)

 Women‘s literacy, including legal literacy (i.e. knowledge of legal rights)
 Social legitimacy of her claim i.e. whether the claim is considered a valid
one in the community of which the household is a part.
 Her access to government officials who administer land-related matters
 Her economic and physical access to legal machinery (lawyers, law
courts etc.)
 Her access to economic and social resources for survival outside the
support systems provided by contending claimants such as brother or kin.

Studies indicate that women shy away from taking recourse to law to claim
their inheritance. A variety of reasons ranging from considerations of ‗the prestige of
the family‘ to getting a ‗bad name among relatives and others are responsible. It is
also shown that there is a common belief that it is ‗wrong‘ for women to claim
property from their parents108. There is also a strong social norm against women‘s
ownership of property in India, linked particularly to rules around agricultural land.
A combination of various taboos such as those on women wielding the plough, on
sowing rice and climbing roofs, serves to disclaim women‘s property rights 109 .
Similarly, most social groups in India, are patrilineal, which means that women are
not heads of households. This also makes their ownership of land socially
unacceptable. In most tribes across the eastern, central and southern parts of India,
women have no rights over land. This is despite the fact that a large proportion of
the work is done by women, whether it is in agriculture, gathering forest produce,
daily wage labour, domestic chores, child-rearing, rearing cattle/livestock, selling

106
P.Chowdhry , Gender Discrimination in Land Ownership, Sage Publications, 2009.
107
L. M. Varghese, A Land of One‟s Own: Women and Land Rights in Literature and Society,
Cambridge Scholars Publishing, 2015.
108
A.K Sircar A.K. and S. Pal, What is Preventing Women from Inheriting Land, A Study of the
Implementation of The Hindu Succession (Amendment) Act 2005 in Three States in India,
Landesa 2014.
109
S.B. Mullick, The Status of Indigenous Women and Land Rights in Jharkhand in Kelkar G. and
Krishnaraj M. (ed.). Women, Land and Power in Asia, Routledge, 2013.

51
produce in market, etc. Women‘s concern for land rights also cuts across the use of
common land, used for grazing, and for collection of firewood, grass, fruits, roots,
and flowers for domestic consumption and sale. In the forest, common land is used
for gathering of minor forest produce such as tendu, sal, and mahua for processing
or sale. Whereas women gather these items, they are seldom in control of the sale, in
terms of identifying customers, negotiating price and collection of sale proceeds.
The women are the labourers whereas the men are in command when it comes to
control of money. A study in Madhya Pradesh found that women contribute more
than 70 per cent to agricultural activities and yet only 6.5 per cent of them have legal
ownership of any land. Women‘s contribution in harvesting is 65 per cent but a mere
28 per cent have control over the sale of the produce110.

In Ambika Prasad Mishra v State of Uttar Pradesh and Ors111, the Court not
only reiterated the general presumption of sacrifice of women‘s rights at the altar of
community welfare and family consolidation, but also held that agrarian legislation,
must be judged, not meticulously for every individual injury but by the larger
standards of abolition of fundamental inequalities, frustration of basic social fairness.
The Uttar Pradesh Zamindar Abolition and Land Reforms Act, 1950 was challenged
on the ground that it discriminated against daughters. Under the Act presence of son
enable the father to retain more land while the presence of daughters do not provides
it and hence daughters are left unprovided for. The Act also discriminate against
married women in land ceiling as only the husband is regarded as tenure holder even
when they are the owner. Justice Krishna Iyer rejecting any pleas held that no
submission can be accepted using sex discrimination as ground for what is socially
desirable as the entire holding goes to the father. He further justified exclusion of
women as tenure holders where their husband is also tenure holder stating that the
measure are all ‗legislative device for simplifying procedural dealings‘ and that
― when all is said and done, married women in our villages do need their husbands
services and speak through them in public spaces‖. In the face of such attitude,
presumably from one of the Hon‘ble Justice who has been considered as one of the

110
S. Galab & E. Revathi, Existing State Policies, Programmes, Interventions and Processes and
Their Impact on Women's Access to Land. Hyderabad: Centre for Economic and Social Studies,
2011.
111
1980 SCC 719.

52
pioneer of women‘s rights, it‘s not surprising gender discriminatory law continues to
be enacted, protected and flourished in one way or the other throughout.

In Atma Prakash v. State of Haryana112, which while testing the validity of

Section 15 of the Punjab Pre-emption Act, 1930, for the aforesaid reasons, the apex
Court held that the right of pre-emption based on consanguinity is a relic of the
feudal past. It is totally inconsistent with the constitutional scheme. It is inconsistent
with modern ideas. The reasons which justified its recognition, quarter of a century
ago, namely, the preservation of the integrity of rural society, the unity of family life
and the agnatic theory of succession, are today irrelevant. Classification on the basis
of unity and integrity of either the village community or the family or on the basis of
the agnatic theory of succession cannot be upheld. Due to march of history the tribal
loyalties have disappeared and family ties have been weakened or broken and the
traditional rural family oriented society is permissible. Accordingly, Section 15(1),
Clauses (1) to (3), violates fundamental rights and were declared ultra vires.

One of the most significant amendments in the 2005 Act is deleting the
gender discriminatory Section 4(2) of the 1956 Hindu Succession Act. Section
4(2) 113 of the HSA, 1956 denied women‘s claim over agricultural land through
succession to prevent fragmentation of land and avoid complications in fixing of
ceiling and devolution of tenancy rights. Based on medieval Hindu Mitakshara
system, it gave primacy to male linear descendants in the male line of descent. Being
lucrative property in rural areas, agriculture land was always a male privilege and
women though performed major agricultural work had little right over such property.
The situation was worse in States like Haryana, Himachal Pradesh, Uttar Pradesh
and J&K where tenurial laws were completely against women. The 2005 Act brings
all agricultural land on par with other property and makes Hindu women‘s
inheritance rights in land legally equally to men‘s across States, overriding any
inconsistent State laws. It is hoped that this much awaited amendment will bring
gender justice and improve women‘s socio-economic status. These amendments can
have far-reaching implications for women. First, gender equality in agricultural land
can reduce not just a woman‘s but her whole family‘s risk of poverty, increase her
livelihood options, enhance prospects of child survival, education and health, reduce

112
(1986) 2SCC 249.
113
Omitted by Act 39 of 2005, Section 2(w.e.f. 9-9-2005).

53
domestic violence and empower women. It may also reduce the risk of physical
violence from husbands. Land in women‘s hand can also increase agricultural
productivity, given male out migration and growing female- headedness. There is a
popular misconception that gender –equal inheritance laws can only benefit a few
women. In fact, millions of women- as widows and daughters–stand to gain114. The
risk of fragmentation is another oft-repeated argument. This argument is misleading
and cannot justify selectively disinheriting women. Fragmentation can occur even
when sons inherit. In practice, many rural families continue to cultivate jointly even
when parcels are owned individually. The same can hold for daughters.
Fragmentation per holding for all- India actually declined from 5.7 in 1961 to 2.7 in
1991. Another opposing argument is that women migrate on marriage. But one
might ask: if men retain their claims despite job-related migration, why shouldn‘t
women on marriage- related migration? They could lease out the land to their family
or someone else, or cultivate it cooperatively with other women. This would give
women some economic security. Another source of inequality lies at the time of
assessment of ceiling surplus land, the holding of the family land are aggregated to
assess ceiling, usually if any forfeiture is required, it is the husband who is consulted
and the wife‘s share which is usually forfeited. Notice is also usually given to
husband as interested person for such forfeiture. The need of the hour is uniformity
in ceiling and land laws, we also need codification of tribal laws, we need egalitarian
laws in agricultural rights as much as in any other area, equal property rights to
women would be meaningless if agricultural rights are excluded115.

There are a few judgments which have struck down restrictions on women‘s
ownership of land on the ground of unconstitutionality, discrimination and violation
of Article 15 of the Constitution116. But traditional distinctions between sons and
daughters have been upheld in Sucha Singh Biswas v The State of Punjab117, on the
basis that a daughter will leave her parental home to join another family after her
marriage. In the case of, Balwant Kaur & Others v Chanan Singh & Others118, it
was held that where the father bequeathed life interest in self acquired property to
widowed daughter with remainder interest to his brother, then section 14(1) is not

114
Bina Agarwal, Landmark step to gender equality, THE HINDU Magazine, September 25, 2005.
115
Ibid.
116
Pritam Kaur v State of PEPSU, AIR 1963 Punj 9.
117
AIR 1974, P&H 162
118
2000 (1) S.C.J., 617.

54
applicable, Hence the claim of daughter that she became absolute owner by virtue of
section 14(1) by taking the plea that she had pre-existing legal right to inherit estate
under section 8 was not accepted. Court held that she had a spes successionis and
not a pre-existing legal right. A positive judgment119 of Delhi High Court held that
the provisions of the HSA had an overriding effect over the Delhi Land Reforms Act
and that the rule of succession in HSA would apply. However state land laws
continue to apply to women of other religious communities and should in any case
be amended to ensure gender justice.

But by deleting Section 4(2), confusion has been created, as the legislature
has not provided any express provision that states or confirms the application of
Hindu Succession Act to agricultural property over and above any state law that also
deals with the same. These laws which provide for prevention of fragmentation of
agricultural land holdings, fixation of ceilings and devolution of tenancy rights,
apply to the inhabitants of the state uniformly, irrespective of their religion. For
example, the whole of the agricultural land (unless otherwise provided) would be
subject to a uniform law and the religion of the land owner and tenant, as the case
may be, will be of no consequence. The deletion of Section 4(2) and an implied
presumption that after the amendment, the Hindu Succession Act applies to all kinds
of property including rights in agricultural land, would mean that now a diversity
would exist state wise with respect to laws governing agricultural property. All
inhabitants of a particular state, to whom Hindu Succession Act does not apply,
such as non-Hindus would still be governed by the state laws while property of those
subject to Hindu Succession Act would devolve in a different manner. An exception
therefore would be created in favour of Hindus, generally diversifying the
application of laws governing agricultural property 120 . The second point of
confusion due to deletion of Section 4(2) and absence of a provision extending the
application of HSA over agricultural land, even if a parallel law enacted by a state
exists, is with respect to the conflict that may arise over central or state legislations
that are diverse in content. Inheritance and succession are subjects specified in list
III, entry (v), while land is a state subject. Whether the Centre is competent to
legislate on agricultural land is a matter of dispute. Normally, if there is a subject on

119
Nirmala and Ors v Govt of NCT of Delhi and Ors. MANU/DE/2717/2010
120
Poonam Pradhan Saxena, Family Law Lectures, Family Law II, Lexis Nexis Butterworths
Wadhwa, 2009, p 340.

55
which both the Centre as well as the state can legislate, in case of conflict, the
central legislation prevails. But as provided under Article 256 of the Constitution,
the Centre should be competent to legislate on it. This confusion is bound to crop up
paving way for immense litigation in this area.

Land is a source of security, food and livelihood for many women. Hence,
access to productive resources is critical in enhancing women‘s economic choice.
Ownership of property in women‘s name is strong evidence of women‘s economic
strength and offers a platform for her to exercise her agency. An independent
ownership is important in case of widowhood or divorcee. It helps women to
increase her status and dignity within the family, leading to an increased share in
household decision –making in matters such as child‘s education, credit and
agriculture related matters. It helps women in negotiating their role within the family.
Hence, such an amendment in the Hindu Succession Act is a step in right direction
strengthening women‘s economic rights.

B) Inheritance Rights of Widows

A marriage also gets dissolved by the death of either of the spouse to the marriage.
Thus, when a husband dies leaving behind a widow, she has two modes of getting
the proprietary benefits.

I) Intestacy Rights of Widow

II) Right to inherit property by will.

I) Intestacy Rights of Widow

i) Ancient Position:

Marriage in Rigveda period was considered as indissoluble. It was

considered to be a union between a man and a woman before the nuptial fire which
was held to be unbreakable and subsisting even after the death. Thus a wife, after her
husband‘s death, was not free to marry again and she was expected to lead a life of
piety and absolute self denial121. In the Vedic times it seems that the custom of
widow remarriage in the true sense of the term did not exist. But even then there are
some references of widow remarriage with the younger brother (niyoga) or with the
next kinsman of her deceased husband. A few references are found as to the life of

121
Rig Veda VIII, 31.8

56
the wife in case she had the misfortune of being a widow. Only glimpses of some
aspects of the life of the widow could be traced i.e. it can only be said that her life
was not bound by so many restrictions and austerities as it was in the later days. She
had not to ascend her husband‘s funeral pyre122.The burning of the widow on the
funeral pyre of her dead husband might have been the custom of early Aryans. But
in the reality in the Rig Vedic period the widow was made to lie by the side of her
dead husband and her brother- in- law and other near kinsmen raised her up from the
side of her dead husband, as is clear from the following verse:

―Rise, come into the world of life O woman‘! Come, he is lifeless by whose
side though liest. Wifehood with this, thy husband was thy position, who took thy
hand and wooed thee as a lover‖.123

During the Vedic times, the widow was not given any right of inheritance in
her husband‘s property 124 . But a childless widow was entitled to succeed to her
husband‘s estate125. At that time, the custom of niyoga was very common126 and
consequently widows without sons were very few. The importance given to a son
under Hindu society has given birth to the concept of niyoga127. In the middle ages
certain legislators included the widow, mother and daughter in the list of heirs. For
instance, Gautama128 included the widow, Apastamba129 included the daughter and
Sankha130 included the mother and the eldest wife as heirs. But the reality was that
Gautama and Apastamaba, who included the widow and daughter respectively in
their enumeration of heirs, did so with the greatest reluctance and it served no
practical purpose. They included the widow and the daughter as heirs at the end of a
long list of kin and strangers, such as spiritual brother, teacher, pupil or a priest. In
practice, it could never happen that the deceased would be a person who never
belonged to a spiritual brotherhood or never had a teacher or a pupil or a priest. In
the presence of any of these persons, the widow or the daughter could not inherit,

122
Shakuntala Rao Shastri, Women in the Vedic Age, Bharatiya Vidya Bhawan 1960, p 23-24.
123
Rigveda,IX,18-8.
124
Baudhayana Dharamsutra, II 2-3. 46; Taitiriya Samhitta 6.5, 8.27.
125
Apastamba Dharmsutra II 6.14, 2-3.
126
GautamaSmriti, XVIII, 4-8 Vasisthan Smriti XV, 19, Mahabharta Adiparva 95,103 &106.
127
Niyoga means appointment of a wife or widow to procreate a son on an appointed male,
preferably her younger brother-in- law or any sapinda relation.
128
Gautama, cited in Mitakshara, Chap II S.1, 18, Dayabhaga Chap XI, S.VI.25.
129
Apastamba, II, 6, 14.
130
Sankha, cited in Mitakshara, Chap II, S.1, 7.

57
Thus in the middle ages, even though the widow and the daughter were included in
the list of heirs, it was not intended to give property to a woman by inheritance.

During the Smriti period, considerable change of popular feeling regarding

the proprietary position of the woman was reflected and Manu, Yajnavalkya,
Brishpati, Narada and other smriti writers admitted certain female heirs in the order
of succession. Manu 131 expressly admitted the widow, the daughter and the mother
in the order of succession. Brishpati132 emphasized a daughter‘s right of succession.
He also recognized the wife‘s right of succession133but refused to extend it to the
fixed property. Narada134 did not recognize a widow claim but accepted the right of
the daughter135. Vishnu136 mentioned the wife, daughter and mother as successors.
Devala 137 included the daughter, mother and wife as inheritors of property.
Katyayana138 had also stated the wife‘s claim to inherit the property of a man. But
her heritable capacity was subject to certain conditions. A widow was ordained to
lead a life of chastity subject to the guidance and control of her husband‘s male
relations.

Katyayana139 said that a widow was entitled to inheritance so long as she was
chaste. She did not have full authority over her share, as she could not spend the
amount as her own. She was to seek the permission of her son and, in his absence, of
the king. If she led an unchaste life, she was to get maintenance only. Accordingly to
Yajnavalkya140 ―if such a widow is unchaste, she should be deprived of her rights,
left to remain dirty, despised and sleep on the dirty floor. According to Devala 141 ―a
wife who does act injuriously to her husband who is immodest, who wastes property
and who is given to adultery is not entitled to any wealth of her husband‖. The
widow inheriting the husband‘s estate did not become absolutely entitled to it but
took only what was called the widow‘s estate in the same. Regarding the widow‘s
proprietary right, Narada said that women were not entitled to make a gift or sale. A

131
Manu. IX, 130, 217.
132
Brishpati,quoted in Mitakshara, Chap II, S.II,2
133
Brishpati Smriti, XXVI, 93-94.
134
Narada XIII, 25-26, 28-29.
135
Narada, XIII , 49 quoted in Dayabhaga,Chap.XI,S.11.1.
136
Vishnu, XVII 4-13.
137
Devala, quoted in Mitakshara, Chap-II S.1., 50.
138
Katyayana, quoted in Mitakshara chap II
139
Katyayana Smriti, verse 921, edited and translated by P.V.Kane, 325.
140
Yajnavalkya I, 70
141
K.V. Rangaswami, Aiyangar, Vyavahara Kand (ed.) Krtyakalpatru of Laksmidhara, 668.

58
woman could only take a life interest while she was living together with the rest of
the family. Such transactions of women were valid only when the husband, had
given his consent. In default of the husband, the son or in his absence, the king142.
Brihaspati143 gave full authority to a woman on her husband‘s property, except for
immovable property. To whom that immovable property would go had not been
mentioned. With regard to the disposal of property by the widow, the view of
Katyayana was that ―When the husband is dead, his wife preserving the honour of
the family should get the share of her husband as long as she lives: she has no power
over it as regards gift, mortgage or sale 144. Thus, in the Smriti period, the widow,
the daughter and the mother were expressly named as heirs. But they could succeed
to the property of a man only in the absence of male heirs. Further, their heritable
capacity was made subject to certain conditions such as chastity, not marrying again
etc. also; their rights were not absolute in the inherited property. A woman could
neither spend the share as her own nor had power over it as regards gifts, mortgage
or sale. She took the inherited property as her widow‘s estate. Thus, her right was
not absolute during the Smriti period.

Yajnavalkya‘s name must be remembered for endowing women with the

right of inheritance. He heads the list of the heirs of a sonless deceased, with wife
and daughter. Without his law, daughters and widow could not have been heirs
today in this country145.The Smriti texts did not deal with the widow‘s power of
alienation of her husband‘s estate at her will and pleasure for the term of her life or
for any shorter period, but she was enjoined by these texts to restrain her personal
expenditure within the modest limits consistent with her bereaved condition. The
reasons assigned in the Smritis for such restrictions were that the property was
intended for the performance of religious ceremonies and that women were
pronounced incompetent to perform sacrifices, that hers was a dependent status and
thereby her right of having property was also treated with disfavour and that she was
duty bound to lead an ascetic life and that it was the policy not to allow the wealth of
one family to pass to another. Thus, a Hindu woman was always subjected to
restrictions in the matter of enjoyment of proprietary rights.

142
Narada, XIII, 28-30
143
Brihaspati quoted in Mitakshara Chap II S-II, 2.
144
Katyayana Smriti, VV, 924, 925.
145
Dr.U.C.Sarkar, Epochs in Hindu Legal History, Vishveshvaranand Institute Publications, Ist
Edition 1958, p 13.

59
 The Privy Council, through its judgments, gave birth to the concept of
women‘s estate. By judicial decisions a widow during her lifetime was allowed the
full beneficial enjoyment of the estate inherited by her from her husband. She was
given full liberty to use the income as she liked146. She was also given the right to
alienate the income of the estate for life147. It was further clarified that she did not
take a mere life interest in the estate that she did not take a more life interest in the
estate but the whole estate at the time vested in her absolutely for some purpose148.
She was treated as an owner so long as she was in possession of property. But in
spite of that, her estate was never more than that of a widow‘s estate in particular
respects and she was expected to act fairly to the expectant heirs maintenance from
their husbands and where they are earning and are asked to maintain their husbands,
husbands are in a position to appropriate the surplus labour of their wives. By
denying a share in the property of husband that he acquires during subsistence of
marriage and by not recognising wife‘s contribution to the career of the husband by
managing home and children, the law has paved the way for economic subordination
of women to men and reinforced the superior position of men over women. It also
makes women‘s work invisible by giving no value of it.

ii) The Hindu Women’s Right to Property Act, 1937

The aim of the Hindu Women‘s Right to Property Bill, introduced by Dr.
G.V. Deshmukh, was to set right the problems created by the judicial decisions of
the English Courts which had constrained the scope of Stridhan, during the later
phase of the nineteenth Century149.

While introducing the Bill in the Legislative Assembly on 4 February, 1937,

Deshmukh stated;

The British concepts like ‗reversioner‘, ‗surrender‘ etc. had caused a great
loss to women‘s right to property. The word ‗reversioner‘ reflected an English
notion peculiar to their own country. From that moment, the widow began to be

146
Cossinath Bysack v Hurroo Soondury Dossee, (1819) Morley‘s Digest, Vol II, 198. In this case
Lord Grifford, affirming the decision of the Supreme Court of Calcutta Stated,‖ but that she is only
entitled to enjoy it, according to the rights of a Hindu widow, which rights it appears to me
absolutely impossible to define‖. Cited in Durganath Pramanik v Chintamony Dassi, (1904) ILR
31 Cal 214 at 218.
147
Kamavadhani Venkatasubbaiya v Joysa Narasingappa (1866) 3 Mad HCR 116.
148
Janaki Ammnal v Narayan Swami Aiyer (1916) 43 IA 207 at 209.
149
Kulwant Gill, Hindu Women‟s Right to Property in India, Deep & Deep Publications,1986, p 485

60
infested by those pests called ‗reversioners‘. The reversioner could harass the widow
by challenging every act of hers in dealing with the property150. Deshmukh added
that due to the prevailing social conditions, the English judges had arrived at an
erroneous conclusion that the temperament of the Hindu society was such that it did
not want women to have an absolute right in the property. Through this Bill,
Deshmukh hoped to achieve equality between Hindu men and women in respect of
their property. Clause 3 of the Bill stipulated that no person should be excluded from
inheritance and partition on the basis of sex. Regarding the devolution of the
property of a Hindu dying intestate, Clause 4 of the Bill specifically provided that it
would devolve upon the wife, mother, daughter and wife of a predeceased son along
with the sons and all would have equal share in the property Clause 5 equated the
status of women to that of men and made them absolute owners of the
property151.The Bill met with a great deal of hostility and Deshmukh was ridiculed
for introducing this Bill. After much debate, a watered down version of the original
Bill was finally enacted. The provisions of the Bill granting women absolute right to
property were mutilated and widows were granted only a limited right of inheritance
through a concept called ―widow‘s estate‖. The provision granting daughters a share
in the parental property was excluded. The right of married women to separate
property under the scriptural notion of stridhan, which the Bill originally set to
restore was subverted. The women‘s right to property was confined within the
limited sphere of inheritance rights of widows152.

The main provisions of The Hindu Women‘s Right to Property Act (Act
XVIII) of 1937 were153:

i) The Act provided that where a man died leaving male issue, his widow would
inherit along with the male issue his separate property, if he was governed by
the Mitakshara law, or all his property along with the male if he was governed
by the Dayabhaga law: Infact the Act had made provision in respect of three
widows; intestate‘s own widow, his son‘s widow, and his son‘s son‘s widow

150
Id at p 104.
151
Id at p 105-107.
152
Flavia Agnes, Law and Gender Inequality, Oxford Publications, 1999, p 69.
153
The Indian Council Act No. XVIII of 1937

61
 and made them heirs along with the son ,grandson and great grandson and even
in default of them154.

ii) The Act gave the widow equal share as that of her son in the intestate‘s
separate property and in default of the son she could inherit the entire property.
With respect to the joint family property she was given ―the same interest as he
himself had‖155 , though she could not predict, until there was partition, the
particular fraction of her share because it was likely to be increased or
decreased by birth or death of the other coparceners.

Though the framers of the Act wanted to equate the status of the widow with
that of the men by giving her the absolute interest but their efforts failed and the
widow was given only limited interest. Subsection (3) of Section 3 of the Act
expressly declared that the interest devolving upon the widow under Section 3 was a
limited interest known as Hindu Women‘s Estate. However, she was given the same
right of claiming partition as a male owner had156, a remarkable achievement never
recognized before. In view of the peculiar status created for the widow under this
Act entitling her to claim in her own right, the son thereafter could not represent her
interest. So where a husband died pending a suit or appeal, his widow had to be
substituted as a party, along with other heirs in his place, failing which the suit or the
appeal would abate and where a coparcener died pending a suit brought against the
individual member of the joint family and not in a representative capacity, the
interest of the deceased coparcener could not be represented by the other members
alone and the widow had also to be brought on the record as one of the legal
representative of the deceased157.

154
Section 3 (1): When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate, his
property, and when a Hindu governed by any other school of Hindu Law or by customary law dies
intestate leaving separate property, that separate property shall, subject to the provisions of
subsec(3), devolve upon his widow along with his lineal descendants, if any, in like manner as it
devolves upon a son: provided that the widow of a predeceased son shall inherit in like manner as a
son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son‘s
son if there is surviving a son or son‘s son of such predeceased son provided further that the same
provisions shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
155
Section 3(2): When a Hindu governed by any school of Hindu Law other than the Dayabhaga
school or by customary Law dies intestate having at the time of his death an interest in a Hindu
joint family property, his widow shall subject to the provisions of sec. (3), have in the property the
same interest as he himself had.
156
Section 3(3) reads as: Any interest devolving on Hindu widow under the provisions of this section
shall be the limited interest known as a Hindu woman‘s estate, provided however that she will have
the right of claiming partition as a male owner.
157
Supra note 134 at p 113.

62
But this Act of 1937 was criticized on several grounds. Rishindra Nath Sarkar, an
advocate of Calcutta High Court, wrote an open letter to the Law Member, N.N.
Sircar, pointing out some of its defects, which are as follows:

 According to this law when a Hindu died intestate, his property would
devolve upon his widow along with his lineal descendants, if any, in like
manner, as it developed upon her son. Now the term lineal descendents was a
comprehensive term which meant direct descendants like sons, daughters,
grand sons and grand daughters by sons and daughters and so forth.
Consequently the property of a Hindu dying intestate would be liable to be
divided into an infinite number of shares. As such, the interest a widow
would get could never be deemed to better than what perhaps the Act
intended it to be, as she would merely get a share equal to that of each of the
numerous lineal descendants, instead of a share equal to that of a son158.

 This Act gave undue rights to a predeceased son‘s widow who got more
concrete rights than those of the widow of the deceased owner. Where as the
interest conferred upon the deceased person‘s own widow was expressly
subject to the provision of subsec. (3) which meant that interest would be
known as ―Hindu Woman‘s Estate‖, there was no such limitation in respect
of the interest conferred on the predeceased son‘s widow159. Besides, under
Section 2 of the Widow Remarriage Act 1856, the widow of a deceased
Hindu would forfeit the property on remarriage, but it could not be
concluded that widows other than the widow of the predeceased owner
would also be divested of the property vested in her on remarriage.

 Another serious defect of the Act, it affected the daughters. The Hindu Law-
givers expressly laid down that the maiden daughter‘s maintenance till her
marriage, and her marriage expenses were to be paid out of her father‘s
estate.

By the Act of 1937 and its amendment, a predeceased son‘s widow was
placed before the daughter in the order of succession; but she was not liable to pay
any amount to anybody out of the estate which devolved on her. Consequently, the
maiden daughter could not enforce her claim to maintenance or her marriage
158
The Modern Review, August 1937, vol. 62, p 220.
159
The Indian Council Act no. XI of 1938.

63
expenses from the predeceased son‘s widow160. Infact, there was no justification in
placing predeceased son‘s widow and the widow of a predeceased son of the
predeceased son before the maiden daughter. Any of these widows might turn the
daughter out into the street, since her rights were not protected in the Act or its
amendments161.

On the basis of some important judicial pronouncements the nature and

scope of the woman‘s estate is as follows:

a) Position of a woman was like an owner but her powers to dispose of the
property were of limited character162.
b) Her estate was an anamolous one, and had been compared to that of a tenant
in tail163.
c) It would be more correct to say that she held an estate of inheritance to
herself and the heirs of her husband164.
d) Upon the termination of the estate, the property descended to the heirs of the
husband as if he died at the moment of her death.
e) The widow could not of her own alienate the property except for special
purposes165.
f) ‗Special Purposes‘ meant for religious or charitable purposes, for spiritual
welfare of the husband etc166.
g) The restrictions on the widow‘s power of disposal of property did not
amount to the infringement of the fundamental right provided under the
Constitution of India167.

Hence, The Hindu Women‘s Right to Properties Act 1937 gave a death blow
to the doctrine of survivorship. Despite of being a progressive legislation, the
interpretation of the Hindu Women‘s Right to Property Act, 1937 gave rise to a
number of anomalies and uncertainties. To resolve these, the Government of India
constituted the Hindu Law Committee on January 25, 1941.This Committee
expressed itself in favour of codification of Hindu law by sages starting with
160
Ibid
161
Calcutta Weekly Notes, XCIX.
162
Janki Ammal v Narayana Swami (1915) 432, I .A. -207
163
Moniram Kolita v Kerry Kolitany (1880) 7 I.A. 115.
164
Lala Dhuni Chand v Anar Kali, (1946) 73 I.A.187.
165
Collector of Masulipatam v Cavaly Vencata (1861) 8 MIA 529, 550.
166
Kundan v Secretary of State (1926) 7 Lah. 543.
167
Hoshiar Singh v Kowla, A.I.R. 1952 H.P. 42.

64
succession and marriage and submitted two draft Bills in March 1942. The first
dealing with the law of intestate succession and the second with law of marriage.
There after the committee ceased to function168.

The Hindu Law Committee which was formed to prepare the Hindu Code in
1914 was revived in 1944.It was presided over by Sir Benegal Narsing Rau. The
original draft of the provisions relating to intestate succession contained in Rau‘s
Committee Bill underwent substantive changes in the hands of the Select Committee
which considered the Rau Committee Bill in 1948. Based on the scheme adopted by
the Select Committee the Hindu Succession Bill was introduced in the Parliament
and finally crystallised into the present form after lengthy, fiery and prolonged
debates in both the Rajya Sabha and Lok Sabha which reflected the deep seated
conflicts between the progressive and conservative forces in the Hindu society. The
Hindu Succession Bill having been passed by both the Houses of Parliament
received the assent of the President on 17th June, 1956. It came on the statue book as
‗The Hindu Succession Act‘, 1956 (30 of 1956)169.

iii) The Hindu Succession Act, 1956

This Act being a part of the Hindu Code was enacted by the Indian
Parliament over half a decade after the enforcement of the Constitution, among the
basic objectives whereof, among others, are equality and socio-economic justice170.
The Hindu Succession Act consists of only thirty sections-of which the last one (i.e.
section 30) deals with, and is supplementary to, some other laws on the subject of
testamentary succession171.Under Section 30, HSA, a Hindu is permitted to dispose
of any of his property by will or other testamentary disposition. Prior to this Act
there was no such right to a Hindu in respect of his interest in coparcenary property.

168
Anjani Kant, Women and the Law, A.P.H. Publishing Corporation, 2003, p 257.
169
P.K Das, Handbook on Hindu Succession (Property Rights of Women and Daughters), Universal
Law Publishing Co. Pvt. Ltd., 2007, p 31-32.
170
S.P Sathe, points out that even Nehru‘s government could not abolish in detail; joint family
property the source of discrimination against the daughter of a Hindu family. See his article in
Inequality and the Law by B.Sivaramayya in 30 JILI 507 (1988).
171
The Indian Succession Act of 1925.

65
 The Act, in its preamble, envisages, ―to amend and codify the law relating to
intestate succession among Hindus.” The Mitakshara law of coparcenary is,
therefore outside the scope and objects of the Hindu Succession Act172.

The Act, merely for reference sake, also takes note of agricultural properties,
succession to which is, substantially governed by different post-independence local
enactments pertaining to zamindari abolition and land reforms173. Under Hindu Law,
ancient and modern, no author except Vijnaneswara ever advocated and recognised
full proprietary rights to females. Infact Section 14 of the Hindu Succession Act
1956 is the literal reproduction of Vijnaneswara‟s 174 rule that all property,
howsoever acquired shall become the absolute property of Hindu female. Section 14
of Hindu

Succession Act 1956, after a gap of eight centuries again accords a similar
right to Hindu females as were advocated by Vijnaneswara in the twelfth century. It
shows the strength, merit and richness in ideas of Hindu Jurisprudence, which are so
relevant in modern era where a female is subjected to various infirmities and
capacities. Section 14 of the Act is mainly responsible for bringing about such a
revolutionary change in the status of the women175. The legislature makes the law,
the executive executes the law and the judiciary has the responsibility of interpreting
the law in the right direction. So that the will of the legislature expressed in the
statute is fully expanded and explored to the maximum extent and with the ideal that
a benevolent clause should get a lively interpretation from the judiciary. It was

172
Kiran B. Jain, ―A Review of the Hindu Succession (Andhra Pradesh Amendment) Act 1986‖, VIII
Islamic CLQ 225 (1988).
173
U.P., M.P., and Rajasthan have special rules for devolution of agricultural property. In U.P
bhumidhari rights devolve according to the special rules laid down in sec. 171 of the Zamindari
Abolition and Land Reforms Act 1951, under which there is a clear and marked preference for
males over females.
174
Mitakshara, ch. 2. S.11, paras 2-4.
175
Section 14--(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 there of and not as a limited owner.
Explanation: In the subsection ‗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 anyother manner
whatsoever, and also any such property held by her as stridhana before the commencement of this
Act.
(2) Nothing contained in subsection (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 other instrument or the decree, order or award prescribe a
restricted estate in such property.

66
expected that they should play a positive role in finding new vistas by their judicial
acumenship in widening the property rights of a Hindu female within a legal campus
enshrined in Section 14(1) of the Hindu Succession Act, 1956. In other words, the
movement has to derive its practical organic life by expected and anticipated
interpretation of Sec. 14, Hindu Succession Act. It may be observed that they got the
opportunity of interpreting Section 14 and showed the complete sincerity in handling
the job of emancipating her personality as owner of the property with right earnest.
From the first case to the cases decided by courts from time to time till date reflects
the mood of judiciary that they would not like to lose any effort and chance to
exploit and give full exposure to what has been the basic theme and jurisprudence
incorporated in Section 14176.

The law was thus laid down by the legislature in Section 14, Hindu
Succession Act and the task to execute the intention of the legislature was entrusted
to the judiciary. It was expected from the judiciary to interpret the law fully and
forcefully so that the pitiable conditions of Hindu female could improve
substantially and they could get the benefit of the law effectively. A positive
approach was required from them. This was possible only when a bold, liberal,
wider, broader, interpretation could be made by the Court in this regard. The
beginning was made in this regard by the Patna High Court in the case of Harak
Singh v. Kailash Singh177, which observed that the idea behind Section 14, Hindu
Succession Act was to ameliorate the conditions of Hindu female and this could be
achieved when Section 14 was interpreted in right earnest with the sense of
involvement. The Court emphasized the view that Section 14 had its own history
and it was incorporated in the Act with a particular purpose that is how it should be
interpreted and in what context so that the Hindu females might be brought at par
with males in respect of enjoying proprietary status. Her condition was to be
improved as she suffered a lot in traditional law and denied property right without
any rhyme and reason. Her sex was a disqualification in holding property fully as an
absolute owner in textual law. This was tolerated because she lacked support from
law. But once the law has been enacted, her condition must improve has been the

176
Harak Singh v. Kailash Singh. A.I.R 1958 Pat. 581; Bakhtawari v. Sadhu Singh, A.I.R 1959 Punj
558; Kotturuswami v Veeravva A.I.R 1959 SC 577; Eramma v Veerupana ,A.I.R 1966 S.C. 1879 at
p 1882.
177
A.I.R. 1958 Pat. 581.

67
intention of the legislature and this could find implementation only at the hands of
judiciary. This was to be well understood by the court and to be acted upon
accordingly. This positive approach to the problem could only improve her
proprietary status. Section 14, Hindu Succession Act was to be given a wider
interpretation so that she could get absolute ownership and lead an independent life.
The financial stability could alone make her independent178.

The observation of the Court thus was in the following words namely:

―The object of the Act, was to improve the legal status of Hindu women,
enlarging their limited interest in property, inherited or held by them to an absolute
interest, provided they were in possession of the property, when the Act came into
force and, therefore in a position to take advantage of its beneficial provisions179 ‖

Section 14(1) has in the beginning remained very controversial as to its

interpretation. The problems in its interpretation arose mainly as to its operation
whether the Act was retrospective or it was prospective or if retrospective the extent
to which it was so. It has been coming up before the courts for interpretation as to its
scope and ambit. The word ‗possessed‘ in subsection (1) of Section 14 of the Act
created two different approaches to the interpretation of this Section.

Total Retrospective

One view, taken by the Patna180 and Allahabad181 High Courts was that the
property acquired and possessed before the commencement of this Act as limited
property, will become her absolute property though the property which she
―possessed‖ sometime in the past and later on alienated would amount to become
her absolute property retrospectively with the result that the reversioners of her
husband would not be would not be entitled to question the alienation after the
commencement of Hindu Succession Act 1956, which would result in obliterating
the reversioners from the Statutes Book. This view was to regard Section 14 in total
retrospectivity. This interpretation resulted in giving benefit to the transferee who
took from the limited owner. The benefit which was to accrue to a Hindu female
ultimately went to the alienees from the limited owner, the Hindu female.

178
Anjani Kant, op. cit. at pg 261.
179
Harak Singh v. Kailash Singh. A.I.R 1958 Pat. 581. See also Bakhtawari v. Sadhu Singh, A.I.R
1959 Punj.
180
R.A.Missir v Raghunath, A.I.R 1957 Pat. 480.
181
Hanuman Prasad v Indravati, AIR All. 304.

68
Partial Retrospective
182
The other view taken by the High Courts of Andhra Pradesh ,
Madras 183 ,Calcutta 184 , Bombay 185 , Madhya Pradesh 186 , Punjab 187 ,Orissa 188 ,
Kerela,189 Gujarat190, Mysore191 was that the section does not purport to enlarge an
estate determined before commencement of the Act. It means that the property
which was ‗possessed‘ by a Hindu female as limited estate if alienated before the
commencement of Hindu Succession Act, to this property, as it is not ‗possessed‘ by
a Hindu female her rights would not be enlarged as to this property since the
property has already been determined, hence the reversioners are entitled to
challenge the alienation if made without legal necessity, otherwise the benefit of the
section will go to the alienees.

This controversy was set at rest, finally, in Kotturuswami v Veeravva192 in

which the essential question before the Supreme Court was as to how the words
― any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act‖ in Section 14 of the Act should be interpreted. Section
14 refers to the property which had been acquired either before or after the
commencement of the Act and also that such property should be possessed by a
female Hindu. Reference to property acquired before the commencement of the Act
certainly made the provisions of the section retrospective, ―but even in such a case
the property must be possessed by a female Hindu at the time the Act came into
force in order to make the provisions of the section applicable193‖.

The Supreme Court approved the opinion of P.N.Mookherjee J. in Gostha

Behari Bera v Hari Das Samanta194 as to the meaning of the word any property
‗possessed‘ by a female Hindu.

182
Venkayamma v Veerayya, A.I.R 1957 A.P. 280.
183
Marudakkal v Arumugha, A.I.R 1958 Mad. 255.
184
Gostha Behari v Haridas, A.I.R 1957 Cal. 557.
185
Ram chandra v Sakharam, A.I.R 1958 Bom. 244.
186
Lukai v Niranjan, A.I.R 1958 M.P. 160 (FB).
187
Amar Singh v Sewa Ram, A.I.R 1960 Punj. 530.
188
Sansir Patelin v Satyabati, Naikani, A.I.R 1958 Ori. 75.
189
Chandra sekhar v Sivarama krishna, A.I.R 1958 Ker. 142.
190
Kamala v Ochhavalal, A.I.R 1965 Guj. 84.
191
Damodar Rao v Bhima Rao, A.I.R 1965 Mys. 290.
192
A.I.R 1959 SC 577.159.
193
Id at 581
194
A.I.R 1957 Cal. 577

69
 ―As the opening words‘ property possessed by a female Hindu‘ obviously
meant that to come within the purview of the section, the property must be in
the possession of the female concerned at the date of commencement of the
Act. They clearly contemplate the female‘s possession when the Act came
into force. That possession might have been either actual or constructive or
in any form, recognised by law195.‖

The Supreme Court finally held that in its opinion, the view expressed above
was the correct view as to how the words, ―any property possessed by a female
Hindu‖ should be interpreted. Thus the term ‗possession‘ has very wide connotation.
It includes actual as well as constructive possession. Even when a Hindu female is
entitled to the possession of the property, such as when the property is in the
possession of a trespasser, it has been held that she is in its constructive
possession196. In the broader sense, the term ‗possession‘ is co-extensive with the
ownership197. Thus whenever the woman has the ownership of property vested in her
she will be deemed to be in its possession and if the ownership does not vest in her
even if she is in actual or physical possession, she will not be deemed to be in its
possession with in the meaning of the section198.

A Hindu female has no possession over the property when the Act came into
force, does that property retain the character of women‘s estate or does that become
absolute estate? Before the Supreme Court decision in Radha v Hanuman199, there
was an acute controversy among the High Courts. The Allahabad High Court200 and
some other High Courts201 took a view, which was attractive for its utter simplicity.
It was said that section 14 has been given retrospective effect with the result that
after 17-06-1956, there was nothing like woman‘s estate, there was also nothing like
reversioner after that date.

The other High Courts202 took a different view. They asserted that the basic
assumption underlying Section 14 is that the provision is meant to confer a benefit

195
Id at 559.
196
Mangal Singh v Smt. Rattno, A.I.R 1967 S.C. 1786.
197
Kottur swami v Veeravva, 1956 S.C.J. 537.
198
Eramma v Veerupana, A.I.R 1966 S.C. 1879.
199
A.I.R 1966 S.C. 216.
200
Hanuman Prasad v Indrawati, A.I.R 1958 All. 304.
201
R.A.Missir v Raghunath, A.I.R 1957 Pat. 480.
202
Amar Singh v Sewa Ram, A.I.R 1960 Punj. 530 (F.B), Ananth Bandhu v Chanchala Bala, A.I.R
1976 Cal. 302 Parmeshwar v Santokhi, A.I.R 1977 P. & H. 141 (F.B)

70
on the Hindu female and not on the alienee. Keeping this in view, the word
possessed was deliberately used in section 14(1). Only that women‘s estate stands
transformed into stridhan over which the Hindu female has possession when the Act
came into force. If she has no possession when the Act came into force, Section 14(1)
does not apply. If Section 14 does not apply, then the old Hindu law continues to
apply.

Hence, the controversy was resolved by the Supreme Court203 and following
postulates were laid down: a) Section 14 has qualified retrospective application; it
converts only those woman‘s estates into full estates over which she has possession
(possession is used in the widest possible sense, including actual and constructive
possession) when the Act came into force. If a Hindu female holder of woman‘s
estate alienated the property without any justifiable cause, after her death
reversioners could claim it. And that position holds good even after coming into
force of Hindu Succession Act 1956. b) Section 14 does not apply to those,
woman‘s estates over which Hindu female has no possession when the Act came
into force, in such a case old Hindu law continues to apply204.

In Eramma v Veerupana205 the Supreme Court said:

“The object of section 14 is to extinguish the estate called

‗limited estate‘ or ‗widow‘s estate‘ in Hindu law and to make a
Hindu woman, who under the old law would have been only a
limited owner, a full owner of the property with all powers of
disposition and to make the estate heritable by her own heirs and
not revertible to the heirs of the last male holder. Section 14 of
the Hindu Succession Act has only converted limited ownership
of a Hindu female into full ownership; it does not purport to
create title in a Hindu female where none existed. The section
could not be interpreted so as to validate illegal possession of a
Hindu female and it did not confer any title on a mere
trespasser.‖

203
Supra note 200.
204
Paras Diwan, Modern Hindu Law, Allahabad Law Agency, 1990, pg 360-365.
205
A.I.R 1966 S.C. 1879 at pg 1882.

71
 The word ‗acquired‘ occurring in the Section 14 has also been given a wide
meaning by the Supreme Court. ―The word ‗acquired‘ occurring in subsection (1)
has also to be given the widest possible meaning .This would be so because of the
language of the explanation which makes subsection (1) applicable to acquisition of
property by inheritance or devise or at a partition or in lieu of maintenance or arrears
of maintenance or by gift or by a female‘s own skill or exertion or by purchase or
prescription or in any manner whatsoever206.‖ In so far as the acquisition of property
is concerned, the provision is retrospective as well as prospective. Now the Hindu
female has got full right of disposal over the property possessed by her and she is a
fresh stock of descent207

Under the Hindu Succession Act, 1956 if a Hindu male dies intestate, all his
separate or self acquired property devolves in equal shares on his sons, daughters,
widow and mother as specified Class I heirs. However, the devolution of interest to
coparcenary property is set out in Section 6208. It indicates that when a male Hindu
dies having at the time of his death an interest in Mitakshara coparcenary property
and is survived by a female relative specified in Class I of the schedule of the Act or
a male relative specified in that class who claims through such female relative, the
interest of the deceased in the Mitakshara coparcenary property shall devolve by
testamentary or intestate succession and not by survivorship209.

Before the decision of the Supreme Court in Gurupad‟s210 case, the words
‗notional partition‘ in the proviso to Section 6 were construed narrowly which gave
little to the female heirs of Class I of the schedule. The interests of the Mitakshara

206
Badri Pershad v Kanso Devi, A.I.R 1970 S.C. at pg 1963.
207
Dr. B.N Mani, Laws of Dharmashastras pg 311, Navrang Publications, New Delhi, 1989.
208
Section 6 of the HSA, 1956 dealing with the devolution of interest to coparcenary property states-
―When a male Hindu dies after the commencement of this Act, having at the time of his death an
interest in a Mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
provided that, if the deceased had left him surviving a female relative specified in Class 1 of the
Schedule or a male relative who claims through such female relative, the interest of the deceased in
the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the
case may be, under this Act and not by survivorship.
Explanation 1- For the purposes of this section, interest of a Hindu Mitakshara coparcener shall be
deemed to be 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 of or not.
Explanation 2- Nothing contained in the proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the deceased or any his
heirs to claim on intestacy a share in the interest referred to therein.
209
The Hindu Succession Act, 1956, Section 6 read with proviso.
210
Gurupad v Hirabai, A.I.R 1978, S.C. 1239.

72
coparcener dying intestate required to be ascertained in the manner prescribed by
explanation 1 to Section 6. The explanation embodies a legal fiction and in order to
give effect to it, two views were possible. One view was that it is a rule of
interpretation, well settled that in construing the scope of a legal fiction it would be
proper and even necessary to assume all those facts on which the legal fiction can
operate 211 . The other view of interpretation of legal fiction is that it cannot be
stretched off beyond the purpose for which it was enacted212.

The Supreme Court in A. Raghavamma v A. Chenchamma213 laid down:

―It would be a question of fact to be determined in each case upon the

evidence relating to the intention of the parties whether there was a separation
amongst the other coparceners or that they remained united. The burden is certainly
on the person who sets up partition to prove the said fact.‖

The Supreme Court reiterated the same view in Girijanandini Devi v

Bijendra Narain 214 . Again, in 1975 the Bombay High Court in Shirambai v
Kalgonda Bhimgonda215 held that females are entitled to succeed to a share on the
death of husband and father and under Section 4 the rule of partition must be
deemed to have been abrogated216.The correctness of this decision was doubted in
the case of Rangubai Lalji Patil v Laxman Lalji Patil217. It was held that as a result
of the notional partition contemplated by proviso to Section 6 of HSA the shares of
persons other than the deceased coparcener also become fixed as if a partition had
taken place during the lifetime of the deceased coparcener is correct. Again,
Rangubai‟s218 case was considered by the Full Bench of the Bombay High Court in
Sushilabai v Narayanrao219.

After considering the opinions on the scope of the fiction in explanation 1 of

Section 6 of HSA, expressed by various High Courts and opinion expressed in

211
Commissioner of Income Tax, Delhi v Teja Singh, A.I.R 1959, S.C 352.
212
This view is based upon the decision of the Supreme Court in State of Travancore Cochin v
Shanmugha Vilas Cashew Nut Factory, A.I.R 1953, S.C. 333 at 343; Bengal immunity Co.Ltd v
State of Bihar, A.I.R 1955, S.C 661 at 680.
213
A.I.R 1964, S.C 136.
214
A.I.R 1967, S.C 1124.
215
A.I.R 1964, Bom. 263.
216
A.I.R 1975, Bom. 257 at 264.
217
A.I.R 1966, Bom. 169.
218
A.I.R 1975, Bom. 257 at 261.
219
Supra note 203.

73
Rangubai‟s case on the question whether the scope of the fiction is as wide as was
held in Rangubai‟s case220 the Bombay High Court held:

―As we have pointed out in our judgment it is not necessary for the purpose
of this case to express any opinion on this part of legal fiction. The whole of our
judgment is based upon the assumption that the fiction should be carried to a narrow
extent only with a view to implementing the purpose for which it was introduced.
Proceeding on that footing, having regard to the facts of this case as there were only
two coparceners and one of them died, then if any person other than the coparceners
is entitled to a share as a result of severance of the share of the deceased coparcener,
the share of such other person will become fixed221.

The question of the family of the deceased coparcener whose coparcenary

interest devolves on his widow after working out a notional partition remaining
undivided or partitioned has been debated. The Supreme Court in State of
Maharashtra v Narayan Rao222 examined this question in the light of Gurupad‟s223
case and held.

―A legal fiction should no doubt ordinarily be carried to its

logical end to carry out the purposes for which it is enacted but it
cannot be carried beyond that. It is no doubt there that the right of a
female heir to the interest inherited by her in the family property gets
fixed on the date of the death of a male member under Section 6 of
the Act but she cannot be treated as having ceased to be a member of
the family without her volition as otherwise it would lead to strange
results which could not have been in the contemplation of Parliament
when it enacted that provision224.‖

Applicability of Section 14 as to Nature of Property

Section 14 of the Hindu Succession Act, 1956 has application to all kinds of
property whether movable or immovable and the rights of the Hindu female to the
property which she acquired as a limited estate before the commencement of this

220
Supra note 217 at 269-270.
221
Supra note 217 at 269-270.
222
(1985) ASC 716
223
Supra note 210.
224
Kulwant Gill, op. cit. at 721.

74
Act are enlarged. It is immaterial whether acquisition was through inheritance devise,
gift, partition, in lieu of maintenance or its arrears.

The question of (i) enlargement of absolute right in the property given to a

widow in lieu of her maintenance, and (ii) the instrument by which it was recorded
that she would hold the property as limited owner, came up before the Supreme
Court in V.Tulasamma v Sesha Reddi225 where it was debated whether subsection (1)
or (2) of Section 14 would apply. The Supreme Court observed that ―When a
specific property was allotted to the widow in lieu of her claim for maintenance, the
allotment would be in satisfaction of her jus ad rem, i.e. the right to be maintained
out of joint family property. It would not be a grant for the first time without any
pre-existing right in the widow226.‖

Also, where the property was allotted to a widow under an instrument,

decree, order or award which prescribed a restricted estate for her in the property227,
subsection (2) of Section 14 would not be applicable228. Thus the Tulsamma case229
decided that sub sec (1) of Section 14 is attracted where the right in the property is
created not for the first time. On this principle subsection (1) of Section 14 has
application to a case where the life estate is given to the wife and daughter-in-law to
provide them maintenance. An interesting question arose in V. V. Subba Rao v C.S.
Ranganayakamma230. In this case the property which the Hindu female held as a life
estate formed part of the property which fell under the Land Reform Laws and
excluded the jurisdiction of civil courts. The Supreme Court reversed the judgement
of the High Court of Andhra Pradesh, where subsection (1) of Section 14 had been
applied to the property held by the Hindu female and enlarged her life interest and
limited estate into absolute property. On appeal the Supreme Court held the view of
the High Court as not correct and observed that the civil court could not unsettle the
patta which had become final in the decree now passed pursuant to the declaration231
The enlargement of the limited estate of a Hindu female into absolute estate is
applicable only in those cases where the limited estate was held by a Hindu female

225
A.I.R 1977, S.C 1944.
226
Id. at 1945.
227
See Nirmal Chand v Vidya Wanti, A.I.R 1969, S.C 1118
228
Supra note 225 at 1951.
229
Supra note 225.
230
A.I.R 1997, S.C. 3082
231
Id at 308.

75
with reference to her pre-existing right; and subsection (1) of Section 14 will be
applicable. But Subsection (2) of the Section 14 will be attracted where limited
interest to the Hindu female is given without any reference to her pre-existing right
namely where a husband bequeaths property to his wife under a will and gives her
limited interest in the property. Subsection (2) of Section 14 will apply because
although the husband has a duty to maintain his wife yet this right is a personal right.
Likewise where a daughter under the customary law of Punjab has no pre-existing
right in the property of her father, a gift or devise to the daughter with limited
interest will attract subsection (2) of Section 14. Section 14, clause (2) contains an
exception to the general rule as laid down in Section 14, clause (1) of Act . It says
that, if a Hindu female (for the first time) acquired any Restricted right in the
property under a gift, a will, a decree of the court, or an award of an arbitrator and
such transfer restricts her ownership (by transfer intervivos), she shall not become
the absolute owner of that property, but shall hold it in restricted rights.

Where a female got a restricted Estate under a compromise for the first
time232, she will not become its absolute owner. Section 14, clause (1) removed a
disability which was imposed under the Hindu Law. It did not remove a disability
where it was created by the act of the parties233 i.e. by transfer intervivos. Subsec (2)
was based on the principle of sanctity of contracts and grant 234. The Supreme Court
in Naraini Devi v Ramo Devi235 held that where by an award an interest was created
in favour of a widow and she would be entitled to rent out the property for her
lifetime, it amounted to a restricted estate by virtue of an instrument with in the
meaning of subsection (2) and not (1). The widow did not get absolute right in the
property.

The question whether a limited estate conferred under a will becomes a full
estate by virtue of Sec. 14(1), came for consideration before the Supreme Court in
Karmi v Amru236. A Hindu, under a registered will, conferred a life estate on his
wife Nihali, with the direction that after the death of Nihali, properties would
devolve on Bhagta and Amru; two of his collaterals, Nihali took possession of

232
Mali Bewa v Dadhidas, A.I.R 1960, Orissa 81; Ram v Director of Consolidation U.P., A.I.R 1975,
All. 151; Kunji v Meenakshi, A.I.R 1970, Ker. 284.
233
See Swaminathan v. Rao v Duggirla, A.I.R 1965, An. Pr. 367
234
Veddeboyina v Veddeboyina, 1977, SC 1944. See also Champa v Madho 1981 Pat. 103
235
(1961) 1 SCC 574.
236
1971 SC 745.

76
properties and died in 1960. On her death her heir claimed properties on the
assertion that after the coming into force of the Hindu Succession Act, Nihali‘s life
estate became her full estate. It was held that where only life estate was conferred
under a will Section 14 (2) would apply and the estate then would not be enlarged237.

Abrogation of Reversioners

The Hindu Succession Act, 1956 has abolished the practice of the reversion.
Under the scheme of the Act the reversionary rights which were for so long
recognised by the Hindu law stand abrogated. It may be recalled that one of the
characteristic features of a Hindu woman‘s estate was that the female owner had no
independent stock of descent in respect of it. On her death the estate reverted to the
heirs of the last full owner as if the latter had died when the limited estate ceased238.
Such heirs could be male or female. These reversioners had only a spes successionis
during the lifetime of the owner of the woman‘s estate or till termination of such
estate by others means like remarriage, surrender, etc. Now the rights of the
reversioners cannot be enforced. Hence, a suit by a reversioner challenging the gift
of the property by such widow is not maintainable under the Act. The section is
expressly retrospective in character and there is no vested interest in a reversioner in
the property inherited by a Hindu widow. Her erstwhile limited interest ripens into
absolute interest but those woman‘s estate over which the Hindu female had lost
possession by alienating it, retain the character of woman‘s estate and reversioners
can challenge such alienation. Once they are able to establish that alienation was
invalid, it is they who would be entitled to the property 239 . Among other
achievements, the major achievements of Hindu Succession Act 1956 with regard to
widow‘s property rights were as follows:

 The concept of Hindu widow‘s limited estate got abolished by the HSA,
1956 as it provided that whatever property is inherited by a woman, whether

237
See also Appasami v Sarangapani 1978 SC 1051; Poosarla v Unoin of India 1977 A.P.
237; Chanan Singh v Balwant Kaur 1984 P&H 203; K.S Sabramani v E.S.R. Packirisami 1989
Mad 69
238
Moni Ram v Kerry (1880) 7 I.A. 115.
239
Paras Diwan, Woman‘s Estate, Alienee and Reversioners, Journal of Indian Law Institute, vol. 35
(Part-1) no‘s 1&2, 1993.

77
 it be from a male or female by whatever school she is governed, would be
taken by her as an absolute owner240.

 The Act made the widow entitled to succeed not only to the intestate‘s
separate property, but also to his interest in the coparcenary property241.
Further, she ranked at par with son.

 Disqualification on any ground whatsoever has been ruled out excepting242.

On the ground of the remarriage in case of any widow of a predeceased
son or the widow of a predeceased son of a predeceased son or the widow
of a brother of the husband,

 On the ground of the murder committed or abetted in furtherance of

the succession and on the ground of being children and descendants,
both to a Hindu after his conversion to another religion and not being
a Hindu at the time of the opening of the succession.

 An unchaste widow is not excluded from inheritance under the Act243.

The Hindu Succession (Amendment) Act, 2005:

Though Hindu Succession Act 1956 was a path breaking legislation

strengthening property rights of Hindu women still it contained certain gender
discriminatory provisions. In order to remove such provisions, The Hindu
Succession (Amendment) Act 2005 was passed.

Effect on widow’s Property Rights

The change effected by the Hindu Succession (Amendment) Act, 2005 could
not alter her (widow‘s) position as legal heir to her husband's share. But there are
fair chances that her husband's share would shrink to the extent that her daughter is
now given a share equal to that of her son. Earlier, the widow and daughter had a
share only on their father's share on deemed partition between the deceased father
and his sons. Where the widow has daughters, she would find, after the recent
amendment, that her husband's share would get reduced because of the rights of the
daughters to a share of the joint family, so that her share gets diminished. For

240
The Hindu Succession Act, 1956, Section 14.
241
Ibid, Section 6 read with Section 8,9,10.
242
Id. Section 24,25 & 26
243
Id., Section 28 read with Section 24, 25 and 26.

78
instance, if the deceased coparcener leaves a widow, a son and a daughter, the share
of the widow and daughter prior to amendment in 2005 would have been one-third
of half of the share of deceased coparcener, with son getting half share on deemed
partition between him and his father in the first round and further one-third of
balance in the second round as legal heir of the father along with his mother and
sister. After the amendment in 2005, where the death occurs on or after September 6,
2005, the husband's share will get reduced to one-third because of the right of the
daughter, so that widow will get only one-third of such one-third share with son and
daughter getting one-third share in he first round besides one-third of remaining one-
third along with mother.

The issue of devolution of the property of a Hindu widow who died issueless
recently came before Rajasthan High Court in Umrao Devi v Hulas Mal244 . The
widow had inherited property from her husband on his death; who had died prior to
the passing of the HSA, 1956. Under uncodified classical law prevalent before the
HSA, 1956, women enjoyed only limited rights in the inherited property. Once the
HSA, 1956 came into force, the limited rights of property in the hands of a widow
under classical law before 1956 were immediately converted to absolute rights. The
HSA, 1956 lays down separate rules for the devolution of property for Hindu males
and females dying intestate. According to the rules of devolution for a woman dying
intestate, in the absence of her husband and children, the heirs of the husband inherit
her property as if the property belonged to him. The HSA, 1956 lays down different
categories of heirs for males dying intestate as: Class I, Class II, Agnates and
Cognates. The order of succession is hierarchical and the heirs under Class I and
Class II are mentioned expressly in Schedule of the present Act, the agnatic and
cognatic heirs are not expressly mentioned. The widow in Umrao Devi had become
the absolute owner of the property upon the coming into effect of HSA, 1956, but
died issueless. In the absence of her husband‘s Class I and Class II heirs, the other
relatives of her husband – two relatives related to her husband by blood and another
relative related to his brother‘s family by marriage – claimed rights in her property.
Referring to the definition of agnates and cognates, the order of succession among
agnates and cognates, computation of degrees and also the rules of devolution of
property of females dying intestate as mentioned under HSA, 1956, the Court held

244
Umrao Devi v Hulas Mal, 2015 (2) WLN 267 (Raj).

79
that only the two relatives related by blood to her husband fell within the definition
of agnate and thus were entitled to share in her property. In the matter of the
devolution of property of a Hindu female, the law still favours the husband‘s close
or distant relatives, whom wife may have never seen in her life, over her own
parents, to have legal claim over her property. The legislature needs to re-examine
the law in this regard as it is illogical and discriminatory.

Property with restricted interest given in lieu of consent for second marriage:
Whether limited estate or absolute estate

The issue of whether an allotted property with restricted interest, given to a

wife in lieu of her consent for her husband‘s second marriage, was enlarged into an
absolute estate by virtue of Section 14(1) of the HSA, 1956 came before the Madras
High Court in Jayalakshmi Ammal v Kaliaperumal245. In that case, the husband,
married to his first wife for 26 years, had no issue from her, and wanted to marry for
a second time but with the consent of his first wife. After consent was given, the
husband executed a settlement deed including recitals that the allotted property was
settled in the first wife‘s favour as he wanted to lend support to her. She was to
enjoy the property only for her lifetime and, upon her death, the property would
revert back to the husband if no issue was born to her. Contrary to the terms of the
settlement deed the first wife alienated the property by way of sale. The High Court
took note of various constitutional provisions prohibiting discrimination on the basis
of sex and provisions that provide protective discrimination in favour of women. It
ruled that social justice demands that a woman should be treated equally both in the
economic and the social sphere. The High Court laid down the following principles
under Section 14 of the HSA, 1956:

a). That the provisions of Section 14 of the HSA, 1956 must be liberally construed
in order to advance the object of the Act which is to enlarge the limited interest
possessed by a Hindu widow which is in consonance with the changing temper
of the times;

b). That Section 14(2) does not refer to any transfer which merely recognises a
pre-existing right without creating or conferring a new title on the widow;

245
Jayalakshmi Ammal v Kaliaperumal, AIR 2014 Mad 185.

80
c). That the HSA, 1956 has made revolutionary and far-reaching changes in the
Hindu society and every attempt should be made to carry out the spirit of the
Act which has undoubtedly addressed a long-felt need and tried to do away
with the individual distinction between a Hindu male and female in matters of
intestate succession; and

d). That Section 14(2) is merely a proviso to Section 14(1) and has to be
interpreted as a proviso and not in a manner so as to destroy the effect of the
main provision.

Applying the principles to the facts of the case, the Court held that taking a
second wife during subsistence of first marriage was certainly a matrimonial injury
and cruelty to the first wife who had been with him for 26 years. The Court was of
the view that the act of the husband gave a right to the first wife under law to seek
maintenance and even divorce. Conferment of property could not lessen her distress
or her feelings of neglect. Consent of his wife, whether voluntary or not voluntary,
would not exonerate her husband from paying her maintenance, observed the Court.
It also went further by holding that even if consent was voluntary, there could not be
consent for the punishable illegal act of bigamy and the conferment of property with
limited right to enjoy could only offer solace to a minimum extent that the woman
need not beg for food. The Court emphasised that since the allotment of property to
the first wife was towards her maintenance, she became absolute owner after the
commencement of the HSA, 1956, despite the limitations and restrictions contained
in the instrument, i.e. the settlement deed, and therefore she had every right to
dispose of the property. The sale was thus held to be valid. The High Court was of
the view that if the alternative interpretation, that the settlement deed only conferred
limited rights, was accepted, then that would promote and encourage more men to
create broken families and indulge in illegal activities and also bring women back
from the ‗e-age to the stone-age‘. Property with limited rights given to a Hindu
woman in lieu of her maintenance under classical law enlarged into an absolute
estate on the date of coming into force of the HSA, 1956. Various Supreme Court
decisions have consistently held that a wife‘s right to maintenance against her
husband is a pre-existing right and it does not depend upon the possession of the
property by the husband. A husband, under personal obligation, is duty bound to
maintain his wife irrespective of his possession of property. The High Court in

81
Jayalakshmi Ammal was justified in establishing the rights of women through
various social principles and giving preference to the maintenance rights of a wife
rather than strictly interpreting the words of the settlement deed.

Hindu widow’s partition right in husband’s ancestral property

Women were not recognised as coparceners in the family under ancient

Hindu law. The object of not giving such rights to a widow under Shastric Hindu
law was to avoid division of property and separation of joint family. Under Shastric
law a woman was entitled to an equal share on partition between sons or between
father and sons but she had no right to claim partition. The Hindu Women‘s Right to
Property Act, 1937, which was passed with the object of uplifting the status of
widows, for the first time statutorily gave an enforceable right to a widow to demand
partition of her deceased husband‘s share, but it was only ―limited estate‖. Property
on her death did not pass on to her heirs but reverted back to the family of her
husband. HSA, 1956 promoted the limited estate right of a woman in property to
absolute property27 and a widow is a Class I heir of the husband in the Schedule of
the HSA, 1956. Parliament amended HSA, 1956 to grant a coparcenary right to a
daughter but the same principle was considered for granting such a right to a widow
or mother. The right of a widow to claim partition of her husband‘s ancestral
property was questioned recently in Santosh Popat Chavan v Sulochana Rajiv246.
The issue was whether the widow could file a partition suit to claim partition of her
husband‘s share in ancestral property. Chaudhari J of the Bombay High Court in
that case looked into the Shastric Hindu law and various other statutory laws with
respect to a widow‘s right to claim partition of joint family property belonging to her
husband‘s family. The Court noted that the HWRPA, 1937 gave a widow a right to
claim partition in order to provide her with some source of income for her survival
and maintenance; but the progressive reason behind the HSA, 1956 was to provide a
full right to a widow in her husband‘s share in ancestral property. It further held that
by virtue of a widow being a Class I heir in the Schedule under the HSA, 1956, she
is entitled to succeed to the entire joint family property share of her deceased
husband with the same magnitude of estate which her husband would have received
had he been alive, i.e. her right to receive an estate after the death of her husband,
246
Santosh Popat Chavan v Sulochana Rajiv, High Court of Bombay, Second Appeal Nos 119 and
405/2013 decided on 12 December 2014.

82
like that of other coparceners in the family, has been fully recognised and accepted
by the HSA, 1956. It observed that since the HSA, 1956 has abolished the concept
of limited right or the concept of reversion, a widow could deal with the property of
her husband without any threat of reversion. Referring to the Latin phrase sui juris,
which means ―one‘s own right‖, in terms of rights under the HSA, 1956, the Court
opined that the right of a widow under the HWRPA, 1937 was of a limited nature,
but under the HSA, 1956 she has an absolute right and, hence, she can act sui juris.
It further held that the HSA, 1956 does not impose any prohibition on her from
filing the suit independently. Applying the other doctrine – ubi jus ibi remedium – to
the HSA, 1956 the Court held that when there is a right there is a remedy, therefore
if she has a right in property then she also has a right to claim her share and is
independent of other coparceners to demand partition. The Court further pronounced
that the right having been given to a woman under the HSA, 1956, she cannot be
told that although she has a right to receive a share, she is not entitled to file a
partition suit. The Court concluded by holding that it would amount to a retrograde
step if a contrary interpretation was given.

II) Right to inherit property by Will

The origin and growth of the testamentary power among Hindus has always
been a puzzle to lawyers. Wills were wholly unknown to Hindu Law. Apparently
there was no name for them either in Sanskrit or in the vernacular languages247. The
first legislative dealing with the execution as well as their interpretation was the
Indian Succession Act, 1865. It did not however, apply to Hindus. In 1870, the
Hindu Wills Act248 was enacted. It extended the provisions of the Succession Act of
1865 to some specified Hindu Wills and codicils only. Act VI of 1881 i.e. the
Probate and Administration Act allowed the granting of Probate and Letters of
Administration to the estate of a deceased person to whom the Indian Succession
Act, 1865 did not apply. That Act therefore, applied to wills made by Hindus.

247
Mr. Colebrooke refers to ‗Sankalpa‘ as explained by Jagannatha as signifying the nearest term for
a will, and thinks that testament was unknown to Hindu Law, Dig. II 193, Note; 2 Stra, HL418,
420,431. The Tamil Lexicon (Madras University) gives „maranasanam‟ as signifying the ―last will
and testament‖ but as a modern usage. (vol., p.3084).
248
Act 2 of 1870.

83
 In 1925, the Indian Succession Act was passed repealing the 1865 and 1870
Acts but incorporating the provisions thereof in it249. In 1926, the Act was amended
and the provisions of Section 63 of the Indian Succession Act, 1925 were extended
to all Hindu wills and codicils which were made on or after 1-1-1927. In 1929 it was
further amended and the provisions of the 1925 Act specified in Schedule III to the
Act were made applicable to all Hindu wills and codicils made on or after 1st
January, 1927. Some of the provisions of Indian Succession Act, 1925 specified in
the III Schedule are applicable to wills and codicils of Hindus250. The general rule
before the passing of the Hindu Succession Act of 1956 was that a Hindu could not
dispose of any interest by will which he could not transfer inter vivos. This rule was
done away with after the above enactment which authorised a Hindu to dispose of
his interest in ―any property‖ of which he is capable251. Even a coparcener was given
the right to dispose of his interest in the coparcenary property, which he could not do
under the law before 1956 252 . However, even now a Hindu cannot dispose of
property to defeat the legal rights of the wife or any other persons whom he is
legally bound to maintain253.

At one time the question of a wife‘s capacity to obtain property under a

legacy was treated as a highly controversial matter. But it was subsequently settled
that a woman who accepts property under an ambiguous will holds it not as a limited
owner for life but as an absolute owner. Even under the old law, if the husband
passed to his wife an absolute estate in the movable or immovable property, either
by will or gift, the same devolved after her death on her heirs as her stridhana254,
and during her lifetime the same could be disposed of either intervivos or by will255.
After the enactment of 1956 a wife may become an absolute owner of a variety of
property and under the provisions of that Act she is empowered to dispose of her

249
Vide Section 57 (a) and (b) Schedule III.
250
They are Sections 59, 61 to 64, 68, 70, 71, 73 to 90, 95, 96, 98, 101 to 117, and 119 to 190.
251
As a general rule, disposition by testament was unknown among Hindus; under the old Hindu Law
one could dispose of only interests in property which were capable of being made the subject of a
gift. With statutory authorisation this position has now been entirely changed. See. Tagore v.
Tagore (1872)9 Bengal Law Reporter 377, and the Hindu Succession Act, 1956, Secs. 14, 30.
252
Explanation of the Hindu Succession Act, 1956, Sec. 30.
253
The Hindu Adoptions and Maintenance Act, 1956 Secs 18, 29.
254
Ramasami v. Papaya I.L.R (1893)Mad.466; Basant v. Kamikshya (1906) 33 Cal. 23. These cases
indicate the validity of a gift made by a personto his female relations.
255
Surajmani v. Rabinath I.L.R (1903), 30 All. 84; Fateh Chand v Rupchand AIR (1916) P.C.20;
Ram Chandra Rao v. Ram Chandra Rao I.L.R (1919) 42 Mad. 283, Janki v. Bhairon I.L.R. (1907)
29 All. 217; Damodar v. Purmanand das I.L.R (1883), 7 Bom. 155.

84
separate property by will to her husband or to any other person 256 . There are
absolutely no fetters on this valuable right of the married woman. With respect to
those properties which she owns jointly with her husband, it appears that she can
dispose of them by will only to the extent of her interest. In this respect her position
can be compared favourably to that of a co-owner. Today she neither takes a limited
interest under a will, nor is she incapacitated to dispose of the property belonging to
her by testament. A wife stands on an equal footing with her husband in respect to
her testamentary power over property; she can alienate it and it is heritable by her
heirs.

Under Indian law, a will always takes priority over the devolution of
property through an intestacy statue 257 . Both a husband and a wife have full
testamentary powers over their property 258 . Although there is no prima facie
discrimination, such unrestricted testamentary power is determined to women in a
patrilineal and patriarchal society. Because property normally passes to male heirs,
the female heirs often lose all rights to property, except the right to be maintained in
some cases. The propounder of the will has the burden to remove all reasonable
doubt surrounding suspicious circumstances regarding the execution of the will,
such as shaky signature, a feeble mind or unfair and unjust disposition of property259.

In Khushbir Singh v The State260, the Delhi High Court did not consider the
total disinheritance of the wife and daughter by will in favour of a son as an unfair or
unjust disposition of property. The court in Singh‘s case highlighted the fact that the
father ―could have well thought that he will solemnize the marriage of his daughter
during his lifetime and that may have led him to disinherit her 261. The court further
stated that ―it is not unknown of Indian parents to deprive their daughters of any
share in their estate‖262. This reasoning illustrates the traditional belief that a father‘s
obligation consists of conducting his daughter‘s marriage and transferring his own
remaining property to his male progeny.

256
The Hindu Succession Act, 1956, Sec. 14.
257
The Hindu Succession Act, 1956, Section 30. The Indian Succession Act governs all questions
regarding the validity of a will.
258
Ibid.
259
Venkatarama Aiyar v. Thimmajamma, 1959 AIR 443, 444 (S.C)
260
A. I. R. 1990, (Del.) 59.
261
Id at 64.
262
Id.

85
 Like the Indian Succession Act, the Hindu Law places no restriction on the
power of testation. During the debates in Lok Sabha on the bill263 , the fear was
voiced that this may lead to the rights of a female heir being defeated. But the Law
Minister had brushed aside these fears by saying, ―I believe that a normal father will
never do any such thing and if at all he has to do it for any reason, he will surely
make a provision for his daughter when he is going to deprive her of her share by
will‖264.

But this is an over simplification of the question and as was pointed out
during the debate in the Constituent Assembly ―an analysis of the inmates of the
rescue homes in this country will prove hoe many of these women are those who
have been turned out of the joint family265. The Committee‘s own experience in
many places, but particularly in Banaras more than proves the point that there are
many women who have been reduced to destitution and beggary because their
families have deprived them of all support. There is no restriction on the
testamentary power of a Hindu male. This unrestricted power can be used arbitrarily
to deprive a woman/wife of her share in the husband‘s property. As there is no
restriction on the testamentary power, a husband can will away his entire property to
any other person, be it a stranger leaving the wife as a helpless destitute. She has
neither any share in the matrimonial property recognized by law nor she has any
remedy against this unrestricted bequeath of property.

Thus, a restriction should be imposed on the testamentary power of a Hindu

on the times of Muslim Law where a person is restrained from giving away all his
property by will. A Muslim can will away a maximum of one-third of his property
and the rest has to be divided among the agnatic and Koranic heirs. This provision
similar to Muslim law placing restriction on testamentary power may serve the
purpose.

C) Rights of Women under Customary Laws

Scriptural law received ascendance during the colonial period and was
projected as the law of the Hindus. But despite this, a large section of the Indian

263
The Hindu Succession Bill came on the Statute book as the Hindu Succession Act, 1956 (30 of
1956).
264
5 Lok Sabha Debates, Col. 8379.
265
Constituent Assembly of India Debates dated 25th Feb. 1949.

86
population was governed by community based customary laws, both during pre-
colonial and colonial period. In spite of the codification of Hindu laws, many tribes
and castes continue to be governed by customary laws to the present day. There are
several tribes and castes which follow their customary practices in every region in
India. While tribes and castes designated as ‗Schedule tribes and castes‘ 266 are
provided constitutional protection for safeguarding their customs, rituals and laws,
even those that are not similarly protected follow their own customary practices and
this forms a vibrant part of personal laws.

The South Indian, predominantly Dravidian regions followed various pro-

women practices of property inheritance even under Smriti law. The historical
evidence from South India, especially the Tamil region, suggests that women had
considerably stronger rights to property than indicated in the legal texts and the
jurists themselves were aware of the variance between the prescribed rights and
customary rights. Women clearly owned property and had the authority to alienate
this property—money or land--- through gifts or sales. Two tenth century
inscriptions which refer to land gifted to women to form their property or
stridhanam can be cited to establish that women‘s rights to own land were well
recognized. One refers to the gift of land by a man to his wife, a ‗brahmani‘[South
Indian Inscriptions xiii: no 251] and the other to a brahmani‟s stridhanam land
[ South Indian Inscriptions xix: no 280] . While most of these property- owning
women were from the royal families, or other ruling elite classes, working women
(like temple dancers, maidservants) and women from other non-elite castes and
communities are often mentioned in the inscriptions as the owners of property
making donations to the temple267. Though the two inscriptions cited above refer to
Brahmin women, the custom of passing on a small amount of land as stridhanam to
a daughter on her marriage was prevalent among all land –owning castes in Tamil
Nadu. A custom of handing over piece of land to the daughter at the time of her
marriage prevailed within the Madras Presidency. The income from this land was
meant for the woman‘s exclusive use. This was her stridhana and devolved upon the
female heirs and passed from mother to daughter. Known as manjalkani, the land

266
The Constitution of India, Article 342(1) read with Article 366(25); Article 341 read with Article
366(24).
267
Kanakalatha Mukund, ‗Women‘s Property Rights in South India: A Review‘, Economic and
Political Weekly, vol. XXXIV, No. 22, 1999, p 1354.

87
was perhaps meant to provide an independent income to the daughter, which would
be sufficient to provide for her personal expenses manjal (turmeric) and
kumkum(vermilion) while in her husband‘s house 268 . The practice of giving
stridhanam to a daughter also extends to castes that are not land based. The
nattukottai chettiars or nagarattar are a premier trading community. Chettiar
women normally receive large dowries (in cash), jewellery etc. when they get
married. Nishimura states that the part of the dowry which is the ‗sirdanam‟( or
stridhanam) is kept in the name of the woman and remains her property until her
death and is often saved, along with whatever she can save through her frugal
management of the housekeeping and other incomes to constitute, in turn the dowry
of her daughters269. However, the stark reality is that women never really controlled
this stridhanam, which was managed and invested by their fathers 270 . In all
communities of Tamil Nadu women continue to have a close relationship with their
natal households even after they get married. In addition to stridhanam, they
continue to receive gifts from their families, especially in the first year of marriage
on various occasions and during the first pregnancy and childbirth. These continue
even until the marriage/s of their daughter/s. Among chettiars, the woman‘s natal
family generally provides for her and her children when she lives in a joint family,
and continues to give considerable financial support even when she sets up her own
home. These duties are taken over by the brother on the death of the parents. Also,
unlike most other upper class castes groups, chettiar women have always engaged in
economic transactions in their own right, which also become their own property,
passed down to their daughters, thus making their status very high271.

A similar custom of providing a piece of land for the daughter‘s personal

expenses also prevailed in Maratha region of Bombay Presidency by the name
bangdi-choli (which literally means bangles and blouse)272. A woman‘s right to one-
third of her husband‘s property upon her husband‘s remarriage was also recognised
within certain lower castes of Madras Presidency and was termed as
268
K. Mukund, ‗Turmeric Land: Women‘s property Rights in Tamil Society since Medieval Times‘,
Economic and Political Weekly, vol. XXVII, No. 17,1992, p WS3.
269
Yuko Nishimura , Marriage Payments in among Nagrattars in South India, Contributions to Indian
Sociology, vol. 28, no.2,1994, p 243-272.
270
Yuko Nishimura, Gender, Kinship and Property Rights, Nagarattar Womanhood in South India,
Oxford University Press, Delhi, 1998, p 114.
271
Supra note 267 .
272
See the decision in Yadeorao Jogeshwar v Vithal Shamaji, AIR 1952 Nag. 55, where a reference
to this custom is made.

88
patnibhagam273.Among some castes in coastal Andhra Pradesh, a custom of giving
land to the daughter at the time of her marriage prevailed. This was known as
katnam274. In another study of Virasaiva women from Karnatka, it was observed that
12 percent of the women inherited property in the form of land from their mother
and this property customarily passed on only to daughters, even when boys did not
inherit from their fathers 275 . The Lingayat women of Dharwar region, who were
categorized as ‗sudras‟ in various judicial pronouncements, also had rights of
divorce, remarriage and property ownership. An illegitimate son was recognized as
an heir, which is a marker of the status enjoyed by women in informal alliances.
Buddhist literature also indicates that women could own and gift property in their
own right276.

Among various castes and tribes along the Malabar Coast, there were women
headed joint family households and matrilineal inheritance patterns 277. Of these, the
marumakkathayam and aliyasanthana received judicial recognition during the
British period. These systems were in existence until recently and were brought to
an end through specific state intervention in the form of legislations in the post-
independence period 278 . Under these systems, specifically amongst the Nairs,
women contracted loose marriage alliances which were called sambandham (literal
meaning, relationships) which would be easily terminated with the consent of the
parties279.

The basis of the family system was the matrilineal tharvad which comprised
a central woman character, her sisters, daughters and sons. Though the husband in a
position of authority was missing, the effective control of the tharvad and its
property vested with the mother‘s brother. Even though the control remained in male
hands, since property devolved along the female line, there was no premium on the

273
This principle was upheld in Palaniappa Chetiar v Alaganchetti, 1921, 48IA 539.
274
Carol Bayok Upadhya, Dowry and Women‘s Property in Coastal Andhra Pradesh, Contributions
to Indian Sociology, vol. 24, no. 1, 1996. p29-59.
275
L. Mullati, The Bhakti Movement and the Status of Women: A Case Study of Virasaivism, New
Delhi: Abhinav Publications, 1986.
276
M. Talim, Women in Early Buddhist Literature, Bombay: Popular Prakashan, 1972.
277
According to Mayne, marummakkathayam was practiced by Warriers, Unnis, Padvals, Chakkiars,
Thiyas, Nambiars( Brahmin), and Mopillas (Muslim). The aliyasanthana was prevalent in south
Kanara region, among the Billavas, Bunts, Maraveers, etc. (Juppuswami 1903: 1209).
278
The Hindu Succession Act, 1956, and the Kerela Joint Hindu Family System (Abolition) Act,
1975.
279
Through the Malabar Marriage Act, 1896, sambandham marriages were granted legal recognition.

89
sexual purity of women 280 . The Malabar Marriage Act, 1896 clearly shows the
manner in which legal interventions in the colonial period prepared the ground for
the later development of patrilocality and the development of the patrilineal
individual family. Similar matrilineal systems were, and still remain, prevalent
amongst the Garos and Khasis of Meghalaya. In Garo society, the tribe is divided
into phratries, which are further divided into many sibs. These sibs and phratries are
matrilineal. Each married couple chooses one daughter to become the heiress of the
household and property. The heiress need not be the youngest daughter though
usually the youngest one is chosen. The heiress and her husband are expected to take
care for the old couple as long as they live. The young couple resides in the house
and after the death of the elder couple; the chosen daughter becomes the head of the
family281. In Khasi society, descent is matrilineal; a person is a member of his or her
own matrilineage from birth. Khasis follow a matrilineal system of inheritance.
While among the Garos there is a choice as to which daughter can be appointed as
heiress, among the Khasis there is no choice and only the youngest daughter, or the
Ka Khadduh, who is eligible to inherit the ancestral proerty. If Ka Khadduh dies
without any daughter surviving her, her next elder sister inherits the ancestral
property, and after her, the youngest daughter of that sister. Failing all daughters and
their female issues, the property goes back to the mother‘s sister, mother‘s sister‘s
daughter and son.

Contrary to popular perceptions, denying customary laws in favour of

statutory law has not always been beneficial to women. In a case decided by the
Himachal Pradesh High Court, Rattan Devi v Padam Singh282, a non-tribal man,
who had a spouse living, married a tribal woman according to tribal customs. While
a bigamous marriage is invalid under Hindu Law; according to the custom of the
community to which the wife belonged (i.e. amongst tribals), bigamy was accepted
and her marriage was valid. Later, the husband abandoned the tribal wife and the
wife filed for maintenance under Section 125 Cr.PC. Her claim for maintenance was
rejected both by the Sessions Court as well as the High Court as the Courts held that
the validity of the marriage would have to be decided by the law applicable to non-

280
K.E. Gough, Rural Society in South East India: 1950‟s to 1960‟s, Oxford University Press, 1989.
281
D.N. Majumdar, Culture Change in Two Garo Villages, Calcutta: Anthropology Survey of India,
Govt Of India, 1978.
282
1981 Cri LJ 1422.

90
tribals, that is, the Hindu Marriage Act, 1955. Since bigamy is not recognized, the
Court held that the marriage between a woman, who is the second wife and a man
whose first marriage was subsisting, is invalid. The Court rejected the tribal wife‘s
claim to maintenance.

However, in another case decided by the Orissa High Court, Anupama

Pradhan v Sultan Pradhan283, the decision is in contrast to the first. Here too the
wife (from a bigamous marriage) had filed for maintenance. In response, the
husband pleaded that since the woman was his second wife, he was not obliged to
pay her maintenance. To protect the woman‘s right the Court took recourse to
uncodified Hindu law and held that since the couple is governed by ancient Hindu
law which permits bigamy and not by the reformed Code the second wife is entitled
to maintenance. The case of Jordan Deigdeh284 is another instance of a statutory
provision discriminating against a tribal woman. A non-tribal Christian married a
Christian woman from the Khasi tribe of Meghalaya. Under the tribal law, she could
have divorced her husband alleging any fault ground. Under statutory law applicable
to Christians at that time, the grounds of divorce were extremely discriminatory
against women. Faced with this problem, Chinnappa Reddy J. of the Supreme Court
berated the legislature and the State for not introducing changes in divorce laws
applicable to Christians but declined to grant any relief to the women concerned. An
obsession with statutory laws even on the part of activist judge is clearly visible,
even when the statue is discriminatory against women and customary laws would
provide a remedy which is beneficial to women285.

The general assumption is that the customary practices of tribal communities

must necessarily be favourable to women, but there are several customs followed by
tribes and castes, particularly in the realm of marriage and inheritance which
discriminate against women. For instance, among some tribal communities, women
do not have inheritance rights. Under some customary practices, if a tribal woman

283
1991 Cri. LJ 3216 Ori. …..
284
Jordan Deigdeh v S.S. Chopra, AIR 1985, SC 935.
285
Lotika Sarkar and B. Sivaramayya, Women And Law, Contemporary Problems, New Delhi,
Vikas Publishing House,1994.

91
marries a non-tribal, she is not entitled to inherit. This rule is observed to save tribal
land from usurpation by non -tribals or outsiders286.

Inheritance rights granted to tribal women in ancestral property

In a landmark judgment, the Himachal Pradesh High Court in Bahadur v

Bratiya287 has observed that tribal women could inherit property. It has set aside
age-old customary law that allows only males to inherit ancestral property. Rajiv
Sharma J, while dealing with the inheritance right of daughters, held that daughters
in the tribal areas in the State of Himachal Pradesh shall inherit the property in
accordance with the Hindu Succession Act, 1956 and not as per customs and usages
as laws must evolve with time if societies are to progress. This was required to
protect the women from social injustice. The plaintiff had filed a suit for declaration
that the attestation of mutation288 by the Assistant Collector, wherein the property
was mutated in favour of the defendants (the plaintiff‘s sisters), was null and void
because under the customs governing their Schedule Tribe289 the daughters did not
inherit the property of the father.

The Court looked into the consistency of the impugned custom in the Gaddis
tribe which did not give rights to daughters to inherit their father‘s property. The
plaintiff failed to prove conclusively, on the basis of oral or documentary evidence,
that the impugned custom was ancient, invariable, consistent and unbroken.
The High Court said that tribal belts have modernised with the passage of time, they
profess Hindu rites and customs and do not follow different gods. It added that their
culture may be different but customs must conform to the constitutional philosophy.
The Court considered a series of rulings of the Supreme Court and State High Courts

286
N. Rao,. Kinship Matters: Women‘s Land Claims in the Santal Parganas, Jharkhand, The Journal
of the Royal Anthropological Institute, Vol. 11, No. 4 (December), 2005,p. 725-746.
287
Bahadur v Bratiya and others, ILR 2015(III) HP 1, p 1259.
288
Mutation of property is the recording in the revenue records the transfer of title of a property from
one person to another.
289
Clause (1) of Article 342 of the Constitution of India provides that the President may with respect
to any State or Union Territory and where it is a State, after consultation with the Governor, by
public notification, specify the Tribes or Tribal communities or parts of or groups within tribes or
tribal communities which shall for the purposes of the Constitution deemed to be Scheduled
Tribes in relation to that State or Union Territory as the case may be. According to clause (2),
Parliament may, by law, include in or exclude from the list of Scheduled Tribes specified in a
notification issued under Clause (1) any tribe or any tribal community or part of or a group, within
any tribe or tribal community but save as a notification issued under the said clause shall not be
valid by issuing subsequent notifications. 16. Clause (25) of Article 366 of the Constitution of
India reads as under: ―Scheduled Tribes‖ means such tribes or tribal communities or parts of or
groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled
Tribes for the purposes of this Constitution.‖

92
on the issue of the overriding effect of the Hindu Succession Act, 1956 290 over
custom which deprives daughters of inheritance rights. Giving due weight to the
constitutional requirement of equality of status to be given to womenfolk and
recognising the conversion of restricted or limited rights of women to absolute rights
under the Hindu Succession Act, 1956 the Court ruled that daughters in the tribal
areas in the State shall inherit the property in accordance with the HSA, 1956 and
not as per customs and usages. It also clearly held that in tribal areas where
Hinduism and Buddhism are followed, the provisions of Section 2(2) of the HSA,
1956291 will not hinder the inheritance of property by daughters. The High Court,
speaking about the constitutional commitment to prohibit discrimination on the
ground of sex and to provide socio-economic justice to women further opined that:

―Women have to be advanced, socially and economically, to bestow upon

them dignity; daughters in a society, who are Hindu, cannot be left and segregated
from the mainstream – they are entitled to an equal share in the property; and gender
discrimination violates fundamental rights guaranteed under the Constitution.‖

However, the Court concluded by holding that the observations which it

made only pertained to the inheritance rights of the daughters under the HSA, 1956
and did not confer other privileges enjoined by the tribe in the tribal areas.

290
The Hindu Succession Act, 1956, Section 4 – Overriding effect of Act:
(1) Save as otherwise expressly provided in this Act,–
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force
immediately before the commencement of this Act shall cease to have effect with respect to any
matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to
Hindus insofar as it is inconsistent with any of the provisions contained in this Act.
291
Hindu Succession Act, 1956, Section 2 – Application of Act:
(1) …
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall
apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of
the Constitution unless the Central Government, by notification in the Official Gazette, otherwise
directs.
Sub-section (2) of section 2 of the Hindu Succession Act reads is as under:- ― (2) Notwithstanding
anything contained in sub-section (1), nothing contained in this Act shall apply to the members of
any Scheduled Tribe within the meaning of clause (255) of Article 366 of the Constitution unless
the Central government, by notification in the official Gazette, otherwise directs.‖

93
Inheritance rights granted to tribal women in absence of customary law

In another historic judgment recognising the property rights of tribal women,

the High Court of Tripura in Smt Kajal Rani Noatia v Sri Raybahadur Tripura292
ruled that tribal women from all tribal groups or clans in the State of Tripura have
inheritance rights in property. The appellant in the case filed a declaration suit for
title and for permanent injunction in respect of the suit land. The appellant submitted
that he had purchased the land by sale deed from the daughters of the deceased. The
daughters had inherited the property from the deceased. The deceased had been
allotted said land by competent authority as recorded in the public record and the
respondents attempted to intrude into the possession of the appellant. On the other
hand, the respondents challenged the transfer on the ground that people belonging to
a Scheduled Tribe community were governed by their customary right whereby only
males inherited property and they were not governed by Section 2(2) of the HSA,
1956 until a notification to the effect was made by the Union Government. The
respondents did not adduce any evidence to show the existence of customary law but
the bar in Section 2(2) of the HSA, 1956 was not disputable as no notification of the
Union Government was brought to the notice of the Court. The major issue before
the High Court of Tripura in this case was whether the appellant, who was a member
of a Scheduled Tribe within the meaning of clause 25 of Art 366 293 of the
Constitution of India, had the right, title and interest to institute the suit to resist the
action of the respondents. Talapatra J made a significant observation that the
absence of an existing law both at Union and State level cannot mean that the
property of the deceased male of a Scheduled Tribe community would become the
property of the State while the daughters of the deceased are alive. Property in such
cases will automatically devolve on the daughters, in the absence heirs by the law of
inheritance, who shall have every right to dispose of the property as per their
customary laws. The High Court agreed with the finding of the trial court, being in
conformity with the principles of justice, equity and good conscience that in the

292
Smt Kajal Rani Noatia v Sri Raybahadur Tripura, High Court of Tripura, RSA No 38 of 2009
decided on 26 February 2015.
293
Article 366 of Constitution of India, 1950 – Definition:
In this Constitution, unless the context otherwise requires, the following expressions have the
meanings hereby respectively assigned to them, that is to say…
(25) ―Scheduled Tribes‖ means such tribes or tribal communities or parts of or groups within such
tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the
purposes of this constitution;

94
absence of the male successor the land would devolve to the female heirs of the male
deceased ―in terms of the customary law‖.

The High Court relied on the Supreme Court judgment in Madhu Kishwar v
State of Bihar294 where the Supreme Court analysed the provisions of Section 2(2)
of the HSA, 1956 from the constitutional vantage point and from the perspective of
human rights. The Supreme Court in Madhu Kishwar observed:

―The human rights for woman including girl child are

inalienable, integral and indivisible part of universal human rights.
It is imperative for the State to eliminate obstacles, prohibit all
gender based discriminations as mandated by Article 14 and 15 of
the Constitution of India. Law is an instrument of social change as
well as the defender for social change. Customs which are immoral
are opposed to public policy, can neither be recognized nor be
enforced. It is essential that the customs inconsistent with or
repugnant to constitutional scheme must always yield place to
fundamental rights. The State has to step in to set right the
imbalance and the directive principles, though not enforceable;
mandate of Article 38, to restructure social and economic
democracy, enjoins to eliminate obstacles and prohibit
discrimination in intestate succession based on sex‖.

Guided by the principles of the changing social order as laid down in Madhu
Kishwar, the High Court in Kajal Rani clearly declared that the Scheduled Tribe
women would succeed in the estate of their parent, brother, husband, son et al who
dies intestate as their lineal heir and inherit the property in equal share with other
male heirs with absolute right similarly to the general principles of the HSA, 1956 or
of the Indian Succession Act, 1925 which applies to the tribal Christians. The Court
concluded by holding that it is high time to recognise the property right of the tribal
women by inheritance as the lineal descendants of the male parent, brother, husband,
son in the manner as provided under the Hindu Succession Act or Indian Succession
Act subject to accomplishment what the Directive Principles of the State Policy
under Chapter IV of the Constitution, in particular, under Article44 cherishes.

294
(1996) 5 SCC 125.

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 These decisions, reinforcing the tribal daughters‘ inheritance rights, though
they meet the aspirations of hundreds of thousands of women in tribal districts, give
rise to new dilemmas about achieving a fine balance between the customary tribal
law and the rights as granted by the court. These judicial developments, granting
property rights to tribal women, whether on the basis of equity, justice and good
conscious, or by denying customs which have debarred women from rights in
property, show the firm approach of the courts to give previously denied inheritance
rights to tribal women. As these judgments, being given by different High Courts,
are concerned with their respective States, it is high time for the Supreme Court of
India to rule in favour of tribal women.

In Mary Roy v State of Kerala295 the Supreme Court had the opportunity to
consider the constitutional validity of the Travancore Christian Succession Act.. The
Supreme Court determined that the provisions of the Travancore Christian
Succession Act, were superseded by Indian Succession Act, 1925 on the technical
ground that, after independence, the laws enacted by princely states, which were not
expressly saved by the Part B State (Laws) Act 1951, had been repealed, and ISA,
1925 became applicable to the intestate succession of property of members of the
Indian Christian community in the territories of the erstwhile State of Travancore.
However, the Court declined to examine the provisions which affected the property
rights of women belonging to that State. In Madhu Kishwar v State of Bihar296,
challenging the constitutional validity of the Chhota Nagpur Tenancy Act, 1908 ,
which disentitled tribal women to inheritance rights, the Supreme Court upheld the
discriminatory provisions but allowed the women to assert their rights without
declaring that the custom of disinheriting the daughter offended Arts 14, 15, and 21
of the Constitution. The Supreme Court struck down Section 118 of Indian
Succession Act, 1925 as being unconstitutional on the basis that it violated Art 14 of
the Constitution even when the law was a pre-Constitutional personal law. Such an
approach from the Supreme Court is desirable, but the Court generally adopts a
cautious approach when considering the constitutional validity of personal laws and
is yet to give a definite ruling and declare that personal laws are ―laws‖ or ―laws in
force‖ under Art 13 of the Constitution of India. By engaging with the constitutional

295
(1986) 2 SCC 209.
296
. Supra note 294.

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validity of personal laws, the Supreme Court could have set a precedent for
examining gender discrimination under other personal laws.

Customary laws in India are, for the most part undocumented and uncodified,
and there is a strong view that codification of customary laws is essential to their
preservation and also because uncodified customs leave immense space for
interpretation and arbitrary action. Codification may not, however, be the silver
bullet it is often touted to be. It has been argued that customary law remains
customary only if it changes- as customs do- along with the times.

India is far from a comprehensive codification of customary laws and equally

far from a uniform civil code. Leaving customary laws to evolve without state
intervention would have its advocates. However, it has been argued that where
customary laws, in the face of modernization, are changing in a manner which
disturbs the traditional equilibrium and leads to a re-appropriation of roles, there is a
need for intervention in favour of women297.
The Indian state is far from its legislative objective of a uniform civil code,
which would not only harmonize various religious personal laws but would also be
able to replace the multiplicity of tribal customary laws under one common code.
While this may have the effect of providing the most gender sensitive legal
framework for women‘s property rights, a uniform civil code is a highly politicized
proposition which is likely to result in extreme opposition and agitation from
multiple quarters. The more nuanced question is about accommodation of cultural
relativism into a universalist ideal of equal rights for women. Any approach which
does not take into account tribal historical context and unique community practices
would only amount to an artificial and forced transplantation of foreign norms.
Codification may give greater legitimacy to tribal customary laws, but any process
which attempts to document custom, would need to be cognizant of the effects of not
only writing down, but also validating many gender inequitable practices. The
process of codification, if undertaken, would therefore, need to be a consultative one,
involving the community as well as other relevant stakeholders to ensure that the
appropriate balance between change and continuity, universal rights and cultural
sensitivities may be achieved.
297
P. Mukhim, Women‘s Entitlement to Land and Livestock in Matrilineal Meghalaya in Kelkar G.
and Krishnaraj M. (ed.). Women, Land and Power in Asia, Routledge ,2013.

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