by Ishita Sethi

Women’s inability of acquiring land and property is a sheer barbaric and misogynistic representation of India’s age-old ethos. It has been ardently argued by various sections of society that ownership and control over land is a major stepping stone towards attaining greater gender equitability. The orthodox mindsets of people cause these huge gender gaps between men and women—a huge part of society still believes in the age-old concept of the unitary household where the property should be owned by a man. This concept is institutionalised to the extent wherein it is presumed that such power in the hands of the male members of the family benefits the entire household. This notion has adversely affected the legality of the property rights of women, which will be explored by the author in the following article.

Of the several schools of Hindu law that existed across different subcontinents; Mitakshara and Dayabhaga were the most significant. In Bengal and Assam, Mitakshara recognized property rights only for male lineage for three generations—so upon birth, a son was deemed co-heir and had full rights. At Dayabhaga School, the father was in full control of the property until his death. Upon his death, only his sons would inherit his property and not his daughters. Dayabhaga School’s rules and regulations were preferred by the British Privy Council during the British rule over India.  On the other hand, the women at Mitakshara School were not permitted to request the partition of the property, but only to receive a share for their sons. Having no property of their own, women were left destitute after the death of their fathers. Maintenance was the only benefit. She received only moveable property during her marriage, such as jewellery, clothes, and utensils, known as Stridhan.

Then, the Women’s Estate and Hindu Women’s Right to Property Act, 1937 was passed. According to the Privy Council’s judicial committee, Stridhan evolved into a limited estate for Hindu women; this limited estate led to the rule that a woman can possess two types of property:

1. Stridhan: Stridhan was recognized as a woman’s estate—women had an absolute right over it, and had the complete right to dispose of it. 
2. Woman’s Limited Estate: Usually, her share of the property was obtained through the partitioning of her deceased husband’s coparcenary share or by inheriting the estate of her father. Various schools disagreed on the nature of the women’s property inherited from the father. Some considered it to be Stridhan, while others considered it a women’s estate. However, all schools agreed that the widow’s estate included the deceased husband’s property.

The Hindu Women’s Right to Property Act, 1937 recognized women’s limited estates; however, parliament abolished the concept in 1956. By the Hindu Women’s Right to Property Act, 1937, Hindu widows were granted equal rights to their husband’s property in an equal division within their son(s). The Act gave women rights previously reserved for men, such as the right to demand partition. Despite the fact that the Act introduced reforms in coparcenary, however, it further damaged women’s property rights. Women were not allowed to serve as coparceners, but they were allowed to succeed in the positions they inherited from their deceased husbands, so the operation of the coparcenary could be put off until her death.

In the aftermath of India’s independence, Hindu succession laws underwent a radical change, one of which was the Hindu Succession Act, 1956. It was the first uniform law regarding inheritance under the Hindu religion since it covered both Mitakshara and Dayabhag schools, as well as sections of southern India that were previously governed by a matriarchal system of Hindu law. The 1956 Act freed women from ancient Hindu legal restrictions, as well as granting them the right to inherit. Furthermore, the concept of women’s estates was removed, and stridhan was redefined to include both moveable and immovable property. The legislation gives Hindu women the same rights as male heirs to inherit property. 

This Act, however, has its own limitations. For example, the Act does not give the daughter the right to be a coparcener, nor does she hold the same right by birth to the coparcenary property as the son. Section 6 of the Act provides that if a male Hindu dies intestate, his interest in the coparcenary property is to be devolved to the other members of the coparcenary. The devolution of property would occur via testamentary or intestate succession in the case of a surviving female relative of the deceased coparcener. It is important to note that the term notional partition was interpreted very narrowly, which resulted in little to nothing being allocated to female heirs in the partition process.

Ultimately, the Supreme Court cleared the position by interpreting the section in such a way as to give the woman equal rights in the property of a coparcener, according to Gurupada v. Heera Bai. The court determined that the share of the successors should be determined in such a way that each individual should receive the same amount that he would have received if there had been a partition during the deceased’s lifetime. During the division of the deceased person’s interest, the heir will receive a share in addition to the share he or she would receive if a rational partition were to occur.

Additionally, Section 14 of the Act eliminated the concept of a women’s limited estate, granting women the right to acquire and hold property as absolute owners. Regardless of whether the property is moveable or immovable, any limited right she had becomes absolute. Parliament clarified any ambiguity that might have arisen in Subsection (2) by stating that this rule does not apply to wills, gifts, or otherwise restricted estates, as prescribed by civil court decrees. However, when the Act came into effect at the end of the Parliament, despite all these efforts, this section remained controversial. According to the Act, property acquired prior to the commencement of the Act shall be regarded as absolute property. Accordingly, it can be argued that the Act is retrospective in nature, although the extent to which the Act is retrospective was not specified. The Act was interpreted differently by various High Courts. Some ruled that the property in which she had limited ownership would become her exclusive property, even if it had been alienated previously. Nevertheless, some courts argued that the Act was not completely retrospective, since if a limited ownership property had been disposed of in the past, it would not become an absolute property. 

In the case of Kotturuswami vs. Veeraava, the Supreme Court decided that the property was in full ownership by a female Hindu, which was acquired before or after the Act was enacted. While this line certainly made the Section retroactive, the Section should remain applicable only if the property was in the possession of a female Hindu at the time of its enactment.

By amending Section 6 of the Hindu Succession Act, 1956, the classical notion of coparcenary, which previously included only male members, was changed in 2005 to include daughters as coparceners and to grant them the right to inherit ancestral property by birth. Prior to the Hindu Succession Act, 1956, it was felt that the daughters ought to have the right to act as coparceners. As a result of fury during that period, stridhan was scrapped. Eventually, stridhan became a dowry and the daughter lost control over it. Secondly, the Indian parliament determined that it was necessary to grant the title of a coparcener to Hindu women so that Articles 14 and 15 of the Constitution would be effective at eliminating gender-based discrimination.

After the 2005 amendment was adopted, women became able to become Kartas of joint family properties, which were previously only available to male heirs. Due to this, women have now been able to fully enjoy the property, regardless of whether they inherited it from their parents or their in-laws. Further, due to the amendment, the property will no longer pass by survivorship, and only her children will inherit in the event of her death intestate. An estimated partition was used to determine her share if she died intestate. 

-Ishita Sethi is a Second-year law student pursuing BCOM LLB (Hons.) from Jindal Global Law School 

Image source: Citizen Matters