This article is written by Advocate Nikita Pandit who is pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

Women’s position in society

In the earlier days, the society was dominated by the male population and their ideologies. Even today we can see considerable glimpses of patriarchy prevailing in the society. The marriage ends up in women leaving their maternal homes, they take up the surnames of their husband, their children take the surnames of the father, in several households the women are prohibited from working and making their own living and in some places society does not even let them have their own opinion. Several years have witnessed the domestic violence, dowry deaths, female feticide and infanticide and banishment from the estate of the father as the behavior meted out to women. The distribution and rights to the property was not less barbaric before the codification of the Hindu Personal Laws.

It was based on the Vedic knowledge and other ancient texts such as that of “Manu”. The main aim of this article is to understand the Gender-based discrimination that has been prevalent in Property rights and the rights of inheritance. There has been considerable evolution of law of property to incorporate women on equal footing with men. But are the provisions enough with the changing times?

Before Codification

• Women were controlled by the father and other male members of the family before the marriage and by the husband after the marriage.
• Due to this, women could neither hold the property in her own capacity, nor inherit it as her brothers would.
• Male were the only ones considered as legal heirs in the lineage of inheritance.
• No equal rights to property were given to men and women. 
• The laws of succession were based on customs of different schools of thought such as Mitakshara and Dayabhaga.
• Mitakshara school of thought prevailing in India in areas other than Bangal and Assam recognized the property rights in the joint family only of the male lineage of 3 generations and the son, on his birth itself acquired the right in the ancestral property and thus was a co-parcener from the birth.
• In Dayabhaga School, the father had the right and full control over the property till his death. However, after his death, only the sons had the rights over his property and not the daughters.
• In Mitakshara School, therefore, the male descendants of 3 generations could therefore challenge the disposal of the property by the father or grandfather, however in Dayabhaga School, as the right only accrued on death of the father, the same couldn’t be challenged.
• Whatsoever, the women hardly had any right over the property, whether joint property or separate property of the father.
• Mitakshara School did not allow the women to ask for the partition of the property, but only get an interest in the property by demanding it for her sons. In Dayabhaga, the partition itself is not possible in the livelihood of the father.
• Women were left destitute in case of the death of the fathers and the husbands as they could not hold or own any property of their own. They could only get maintenance out of it.
• Women however were the owners of the movables like jewelry and ornaments and could also get the property if it was gifted to them by their husbands, father, mother, etc. out of affection. Husband had no right on this property of the wife except in emergencies. This was called Stridhan. 

Codification

A revolutionary thought evolved in the society and a need for checking and rectifying the custom-based discriminatory laws was felt as the Western culture had a significant impression on the people in India. Women started demanding their rights based on equality and recognition. 

The Hindu Women Rights to Property Act, 1937

This act was passed in the pre-independence period. It was passed with an intention to improvise the rights given to women in the property. In this act, the provisions were meant to override the prevailing customs and Hindu widows were given a right in the property of her husband in equal division with the son/s. Also, apart from Dayabhaga School, the other widows were given a right to the widows of the deceased husbands to ask for the share that her husband could have received if he was alive. She could also ask for partition in such a case. 

Hindu Succession Act, 1956

This Act was the first legislation that codified the succession and devolution of the property amongst the Hindus. To some extent, the gender equality in the Hindu Property Law was addressed. This act overrode all the previous customs and laws that prevailed in the society related to the provisions covered by the statute. In case of the intestate succession the women got an equal share as that of the men. The object of the act itself lays down that: “An Act to amend and codify the law relating to intestate succession among Hindus” 

Section 3 (f) of the Act that defined the heir included the females along with males to inherit the property in case of intestate succession. 

Section 6 of the act however left the devolution in the coparcenary property as per the customs prevailing in the Hindu Law and not as per the statute. However the interest of the male would transfer to the female survived by him by succession (after death) and not survivorship (birth right). Which meant the females had no coparcenary right in the Joint Property. They only got a share from their father/husband which was not by birth right like that of the male members, which reduced their share significantly lower than the males in the family. The females could only receive the property on death of the male whom she survived by the virtue of Class 1 heirs mentioned in the Act.

Section 14 gave the women the right to hold and own the property received by her in absolute ownership and a right to deal with it as she likes. This included movable and immovable acquired in any manner. However, if she received the property by vitue of an instrument such as will or gift and it restricted her right, the same instrument prevailed over the provisions of the absolute ownership.

So the position under this Act was as follows:

Coparcenary division by birth

However, in event of death of the abovementioned father his 1/3rd share would be divided between the 3 children.

The daughter received only a part of father’s share and not the coparcenary share that sons got.

Hindu Succession (Amendment) Act, 2005

This Amendment was made to rectify the prevailing discrimination by the Hindu Succession Act of 1956. Though certain rights were given to women, the same were not based on equality with the males. This was after considering the 174th Law Commission Report that Amendment was made to the statute in 2005.

Section 6 of HAS, 1956 was amended and its clause (1) included the female members of the lineage as the coparceners in the joint family giving them the birth right equal to that of male members. Clause (2) of the section permitted females to have such property in her ownership and she could dispose it as she wants.

Section 23 of the 1956 Act was omitted which prohibited female heirs from asking for partition till the males demand partition. After abolition both married and unmarried daughters got equal rights to ask for partition of the property. 

Certain Females such as daughter’s daughters, daughter’s daughters, daughter’s son’s daughters, son’s daughter’s daughter were added to class I heirs. 

So the Current Position is that women get share in the joint property by survivorship (by birth) as well as in separate property by succession (after death of male/female member) same and equal to that of the male members. 

Important Judgments

V Tulasamma v. V Shesha Reddy

Tulasamma’s (Appellant) husband was the brother of Shesha Reddy (Respondent). The  Appellant’s Husband died and she filed a case for maintenance. Respondent entered into a compromise with her that she shall be given certain properties which she can enjoy in her lifetime, but not own and dispose. On her death, the same shall go back to the Respondent. Respondent argued that the said interest cannot be converted to an absolute one and the district Munsiff upheld his view. 

Tulasamma appealed to the District Court which held that she has got absolute interest in the said property due to Section 14 (1) and Clause (2) of the Hindu Succession Act did not apply as she had got this right by succession and not by any instrument. 

The same was challenged in High Court which gave an opposite view that she got this property by a compromise and the same was instrument and that it was before the HAS Act was passed, so she had no absolute right. 

However, the Supreme Court final held that she was the absolute owner of the said property taking into consideration Section 14(1) of the Act and not 14(2) even when the compromise has been entered into.

In Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva

The Supreme Court, in this case interpreted the meaning of the words “possessed by a female” in Section 14 (1) of the HAS, 1956 (2005). It was mentioned as a state to own or have at one’s own power. The possession need not be actual and physical. It, also need not be personal possession by that female. It should be the possession in law. It can be actual, constructive or any other legal possession.

Danamma @ Suman Surpur v. Amar

2 sisters anted to claim a share of property of the father (Gurulingappa Savadi) and the brother denied the same. It was denied to them on the basis of being born before the HAS, 1956 came into force and other that they were married and had no right in the father’s property. The Supreme Court held that the purpose of the Act was to bring about the gender equality in property sharing on death of a Hindu Member. It was made to remove the disabilities and prejudice attached to the daughters. The daughters hold the property in ownership equal to that of the son and has equal coparcenary rights by birth and the same cannot be denied. 

LGBTQ Rights in Property and succession

Decriminalization of Section 377 of IPC

Lesbian, gay, bisexual, transgender and queer are though age old concepts, are socially new to India. It was only on 6th September, 2018, that the 5 judges’ bench of the Supreme Court of India decriminalized consensual adult gay sex. Section 377 of the IPC penalized Unnatural offences. It said that whoever voluntarily had carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or with imprisonment for a term which may extend to ten years and also levied fine. This section was decriminalized in the case of Navtej Singh Johar v. Union of India. 

Property Rights

The rights of LGBTQ were recognized with certain limitations. There has been no clarification of marriages between the LGBTQ and the laws regarding their inheritance, succession, maintenance, divorce and child custody. The common provisions may govern them, however the special circumstances are left untouched by the law. 

The coparcenary rights remain similar in case of persons being male or female by birth, however, some gender-specific laws pose a problem in case of transgender such as the Hindu Succession Act. In 2016, the Transgender Protection Bill was passed in 2019. The Bill defined “transgender” as a person as one who is neither wholly female nor male or a combination of female and male or neither female nor male.

In addition, the persons were also included whose gender does not match the gender assigned to them at their birth. It included trans-men, trans-women, persons with intersex variations and genderqueers. This Act has given them the right to decide their identity as a male or female, in such cases, the coparcenary provisions could be applied to them, however there is no clarity as to the provisions if they want their identification as transgender itself. Section 3 (g) of the Act only provides for prohibition of denial of rights to reside, purchase, rent, or otherwise occupy any property. There is nothing provided for succession and inheritance.

Sections 24 to 28 of the Hindu Succession Act deal with the disqualification of heirs and the only disqualifications and murder and conversion of religion and no other event. This implies that the transgender are not disqualified under the Hindu Succession Act.

Conclusion

Though there has been a considerable inclusion of women in the property law, people are still ignorant about the legal provision making women equal coparceners and heirs as male counterparts. In case of self-acquired properties, it is still evident in the society that mothers and fathers put sons as their beneficiaries in their Wills and fail to put daughters by the reason of them, being married and consider them no longer a part of their family.

There is also lack of awareness in women that they are equal coparceners as that of men. Law has also been dormant in considering the social changes, with the people, being more vocal about being LGBTQ, which was supressed in the earlier times. With the acceptance of the marital relations of LGBTQ, it is necessary that their property rights and other civil rights are clarified and codified in a very specific manner.

References

• https://www.ilo.org/ – Bare Act
• Indiankanoon.org – Bare Act
• Paper, S. Narayanan (2016) Historical Background of Gender Equality and Succession Right of Hindu Women’s Right of Property in Tamil Nadu, Intellectual Property Rights: Open Access
• Egazette.nic.in – Bare Act
• 1977, SCC,(3),99
• Supp. 1 SCR 968
• Civil appeal Nos. 188-189 of 2018
• WRIT PETITION (CRIMINAL) NO. 76 OF 2016
• http://socialjustice.nic.in/ – Transgender Protection Act 2019

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