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This article is written by Arya Mittal from Hidayatullah National Law University. The article deals with the evolving rights in holding and disposition of property to Hindu women under Hindu laws. 

Introduction

“A daughter always remains a loving daughter. A son is a son until he gets a wife. A daughter is a daughter throughout her life.”

-Justice Arun Mishra

The above-mentioned quote is an excerpt of the recent landmark case (discussed later) which accorded equal status to daughters in comparison to sons in coparcenary rights. Since time immemorial, women in India and abroad have had struggles to gain their most basic rights. One such right is the right to property. In ancient Hindu society, it was presumed that the daughter would one day be married and sent to a different household. Therefore, in case of partition or division of property, it was only the male Hindu members of the family who would get a share. The only time women would get property was when they were married (stridhan) and on other auspicious occasions in public gatherings. Women did not have any other source of income and thus, were not given a share in the property.

With the evolution of time, women have come at par with men. They have their independent source of income and property. In such a scenario, the laws needed to evolve with society. Therefore, different laws have been enacted in the past few decades, some of which include the Hindu Women’s Right to Property Act, 1937, Hindu Succession Act, 1956, Hindu Succession (Amendment) Act, 2005, and many more. There have even been various judicial pronouncements to clear the ambiguities in the law and bring out the correct interpretation. All of these laws and judgments have been discussed further.

Hindu woman’s right under classic Hindu Law

Holding of property

There are adequate proofs in the historical Vedas and commentaries which justify that women were capable of holding the property. However, practically, they were not given any such rights. Moreover, transactions done by them were considered to be invalid. Their property was bifurcated into stridhan and non-stridhan. The former was further divided into saudayika and non-saudayika.  

Saudayika property: Women had absolute ownership over saudayika property. Such property included gifts by her husband, parents, or other family members.

Non-saudayika property: Women had limited ownership over their non-saudayika property after marriage and consent of husband was necessary for alienation. Such property included gifts by non-relatives.

Non-stridhan property: These included gifts or property inherited by her through a male or female relation. She had limited rights over it as she could only use such property but had no right to alienate it. Such property would devolve on her death.

Introduction of the Hindu Women’s Right to Property Act, 1937

With the introduction of the Hindu Women’s Right to Property Act, 1937, the widow of the deceased husband now had a right over her husband’s property after his death. Unlike previously, where the property was divided among the surviving coparceners by the doctrine of survivorship, now, it was the widow who had the sole right over such property. However, she had limited rights over such property which remained with her till her death.

Disposition of property

As regards the rights of disposition, a woman had an absolute right to dispose of her saudayika property irrespective of their marital status. However, in the case of non-saudayika property, her absolute right would extinguish after marriage and she needed the consent of her husband to alienate or dispose of such property. The non-stridhan property was inalienable nor did she have any right to dispose of it to anyone. After her death, such property would be divided among her heirs.

As regards her deceased husband’s property, she had no right to dispose of such property and it would be disposed of by rules of inheritance and survivorship in case of self-acquired property and ancestral property respectively.

Hindu woman’s right after the Hindu Succession Act, 1956

Holding of property

Section 14 of the Hindu Succession Act, 1956 states:

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

In the explanation, it explicitly states all types of property by whatsoever name it may be called. It states, ““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 a gift from any person, whether a relative or not, before, at or after her marriage, or by her skill or exertion, or by purchase or by prescription, or in any other manner whatsoever and also any such property held by her as stridhana immediately before the commencement of this Act.

Thus, with the introduction of the Hindu Succession Act, 1956, a Hindu woman now had absolute ownership of any property that she possessed. This meant that now, there was no difference between her saudayika property, non-saudayika property, and non-stridhan property. Thus, even in cases of property other than saudayika property, she no longer needed her husband’s consent or to follow any restriction.

Punithavalli Ammal v. Ramalingam and Anr. (1964)

The Supreme Court, in this case, held that Section 14(1) gives an absolute right to women and it cannot be curtailed in any manner by making any presumption or interpretation of the law. It further held that the date of possession of such property is irrelevant as women in possession of the property before the enactment of the provision would now be given absolute rights which were previously limited.

Radha Rani Bhargava v. Hanuman Prasad Bhargava (1966)

The Supreme Court, in this case, reiterated its stand and held the woman to be the absolute owner. Such ownership cannot be challenged on any basis. However, it can be challenged if it can be proved that the widow transferred or alienated the property before the enactment of Section 14 and such transfer or alienation was made without any reasonable cause or legal necessity. Thus, this is the only situation in which the absolute ownership rights of the woman can be challenged. 

Pratap Singh v. Union of India (1985)

Section 14(1) faced a lot of criticisms wherein the Hindu men stated it to be unconstitutional on the ground that it infringes the right to equality guaranteed under Article 14. However, the Supreme Court in Pratap Singh held that the provision was, in no way, a violation of either Article 14 or Article 15(1). It was constitutional since the rights of women need to be strengthened.

Amendment in four states

In 1985, Andhra Pradesh became the first state to bring a tremendous amendment in the succession laws by providing the status of a coparcener to unmarried daughters. Thus, Andhra Pradesh succeeded in bringing this law two decades ahead of other states. Inspired by this amendment, other states including Tamil Nadu, Maharashtra and Karnataka also accorded the status of a coparcener to unmarried daughters. These states became an inspiration and a similar suggestion was then given by BP Jeevan Reddy in his Law Commission Report for changes in centrally enacted law.

Disposition of property

Since Hindu women now had absolute ownership of all the property they had, there was no question regarding the disposition of such property. Women could freely transfer or sell such property and appropriate money gained through such sale as per their wish. As regards the testamentary disposition, she had a right to dispose of her self-acquired property by way of a will. Enactment of Hindu Succession Act, 1956 gave way for intestate and testamentary disposition of property. However, as regards the coparcenary property, it was only men who could dispose it by a will whereas women were not entitled to do so.

Agasti Karuna v. Cherukuri Krishnaiah (2000)

The Court held in this case that women had absolute right over the property of the deceased husband under Section 14. Any transfer or alienation of such property by the wife after the commencement of the Act cannot be challenged by any of the heirs.

Hindu woman’s right after Hindu Succession (Amendment) Act, 2005

Holding of property

One of the most revolutionary changes brought in by the 2005 Amendment Act is that now even daughters were eligible to be coparceners in the Joint Hindu Family of his father. Moreover, her marital status would be irrelevant in this regard. It substituted Section 6 of the 1956 Act and now states:

“On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

  1. by birth become a coparcener in her own right in the same manner as the son;
  2. have the same rights in the coparcenary property as she would have had if she had been a son;
  3. be subject to the same liabilities in respect of the said coparcenary property as that of a son”

Thus, daughters are now considered at par with sons in terms of coparceners and now have an equal right to hold coparcenary property. Thus, with the 2005 Amendment, the following incidents are now possible:

  1. A Hindu woman has an equal right to become the Karta of Hindu Undivided family if she is the senior-most member in the family, which was previously not possible.
  2. Secondly, she can now put her self-acquired property in the family fund which was earlier not allowed by the Act.
  3. In the case of the deceased father, a daughter has an equal right over his property whether she is married or unmarried.
  4. Daughters now have an interest in the coparcenary property and can even demand partition for the same.
  5. Women can now not only start their coparcenary but also their own joint family.

Thus, Hindu women have now been brought at par with men and have all the rights as those granted to sons in terms of the coparcenary.

Prakash & Ors. v. Phulavati and Ors. (2016)

In the case of Phulavati, the daughter acquired the property from her deceased father who had acquired it from his adoptive mother. The appellant in the present case contended that the respondent had a right over only the self-acquired property of the father. However, at this time, the 2005 Amendment was introduced and the respondent now claimed share as per the amendment.

The Supreme Court held that “only living daughters of living fathers could become coparceners” and no remedy would lie if the father died before the commencement of the Hindu Succession (Amendment) Act, 2005. Therefore, no retrospective effect could be given to the Act and in the case of a pre-deceased father, the property would devolve as per the rules of survivorship. Therefore, such a daughter whose father died before the date of commencement of the Act could only have a right in his self-acquired property and not coparcenary property.

Danamma v. Amar Singh (2018)

The facts of Danamma were that a man died in 2001 leaving behind a wife, two sons, and two daughters. After the death, the grandson of the deceased grandfather sought partition. However, they denied any share to the two daughters claiming that they were born before the enactment of the Hindu Succession Act, 1956. The contention was upheld by both the trial court and High Court, though, by then, the 2005 Amendment had already come into being.

On appeal to the Supreme Court, the Supreme Court held that daughters could be treated as coparceners and be given a share in coparcenary property if the case had been pending before the 2005 Amendment Act. Moreover, the date of birth of the daughter was irrelevant, the only condition being, she should be alive on the date of partition.

The above two cases added to further conflicts as both the cases were contradictory. The dispute was finally settled in 2020.

Vineeta Sharma v. Rakesh Sharma & Ors. (2020)

Overruling Phulavati and partly overruling Danamma, the Supreme Court, in this case, stated that the right in coparcenary is accorded by birth. Thus, the birthdate of a daughter is immaterial in this regard. Moreover, it stated that the father need not be alive as on commencement of the 2005 Amendment Act. It held that the Act will be effective retroactively. That is, daughters will be given a share in the coparcenary property even if the father died before 2005. The Supreme Court pointed to the object of the Act which was to remove gender discrimination regarding rules of the coparcenary. Thus, the object could be fulfilled only if the Act was applied retroactively.

Disposition of property

As mentioned before, the 2005 Amendment substituted the former Section 6. Section 6(1) deals with the right of Hindu women to hold the property whereas Section 6(2) and Section 6(3) deal with the disposition of the property.

The former gives the authority to a female coparcener to dispose of her coparcenary property as per her will. It has also been stated above that with the amendment, daughters have been brought at par with sons. As a result, they were even entitled to hold the coparcenary property as well as ask for partition in such property. Thus, in such a case, a woman should even have the right to dispose of her property as per her wish i.e. make a testamentary disposition of such property. Section 6(2) which has been inserted allows this and says that a female coparcener can dispose of her coparcenary property by way of a testamentary disposition.

Section 6(3) deals with the incidents of devolution of property in case of the death of a Hindu. It states that it will be treated as if a partition is taking place and property will be divided as per rules of intestate or testamentary succession. Moreover, it explicitly states that female coparceners are entitled to an equal share as other male coparceners. Also, in the case of a predeceased son or daughter, their heirs would be entitled to such a share in the property.

Section 30 earlier allowed for testamentary disposition of coparcenary property for only male Hindus since females were not previously part of the coparcenary. But since, with the 2005 Amendment, they also have a right to be the part of coparcenary, they even have the right to dispose of the coparcenary property by the way of a will, as also stated in Section 6(2).

Conclusion

The law is now finally settled and Hindu women have been accorded equal rights in the property as Hindu men. Thus, Hindu women have led a long way from the classic Hindu law which gave them very limited rights to the Hindu Succession (Amendment) Act, 2005. In the process, they even got absolute ownership of the property they possessed from the limited ownership which earlier hindered their absolute enjoyment of property. Moreover, they have been accorded coparceners in the Hindu Joint Family. With this, they even got the right to ask for partition as well as dispose of such coparcenary property as per their own will or through a testamentary disposition. Additionally, the role of the judiciary in this regard is also commendable as, without its assistance, the right would have merely existed in legal statutes but not in the Hindu society practically.

To conclude, there has been tremendous development relating to the rights of Hindu women in holding and disposing of their property. Lastly, this has been possible only with the help of the proactive role of the judiciary, that the Hindu women have gained their rights in a true sense. 

References

  • Mulla Hindu Law by Dinshah Fardunji Mulla and Satyajeet Atul Desai
  • Family Law II Lectures by Poonam Pradhan Saxena
  • Supreme Court on Family Property, Partition, Succession, Will and Inheritance by Surendra Malik and Sudeep Malik

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