Hindu Woman's Limited Estate

“Hindu Woman’s Limited Estate Is Abolished And Any Property Held By A Female Hindu Howsoever Accquired Is Now Held By Her As Absolute Property”- Discuss In Light Of Hindu Succession Act

Introduction

The right to property is important for the freedom and development of a human being. Property rights of Hindu women vary depending on the status of the woman in the family and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the kind of property one is looking at: whether the property is hereditary/ ancestral or self-acquired, land or dwelling house or matrimonial property. Prior to the Hindu Succession Act, 1956 ‘Shastric’ and customary laws that varied from region to region governed the Hindus. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal in eastern India and the adjoining areas; Mayukha in Bombay, Mitakshara in other parts of India, etc with slight variations. The Hindu Succession Act enacted in 1956 was the first law to provide a comprehensive and uniform system of inheritance among Hindus and to address gender inequalities in the area of inheritance – it was therefore a process of codification as well as a reform at the same time. Prior to this; the Hindu Women’s Rights to Property Act, 1937 was in operation and though this enactment was itself radical as it conferred rights of succession to the Hindu widow for the first time, it also gave rise to lacunae which were later filled by the Hindu Succession Act (HSA). Under the old Hindu Law only the “streedhan” (properties gifted to her at the time of marriage by bothsides of the family and by relatives and friends) was the widow’s absolute property and she was entitled to the other inherited properties only as a life-estate with very limited powers of alienation, if at allThe multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even more complex. A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. In a matrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son. The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights. Despite these enactments having brought important changes in the law of succession by conferring new rights of succession on certain females, these were still found to be incoherent and defective in many respects and gave rise to a number of anomalies and left untouched the basic features of discrimination against women. .HSA was the first post- independence enactment of property rights among Hindus – it applies to both the Mitakshara and the Dayabhaga systems, as also to persons in certain parts of South India previously governed by certain matriarchal systems of Hindu Law such as the Marumakkatayam, Aliyasantana and Nambudri systems.

The main scheme of the Act is:

1. The limited estate given to women was converted to absolute one.

2. Female heirs other than the widow were recognized while the widow’s position was strengthened.

3. The principle of simultaneous succession of heirs of a certain class was introduced.

4. In the case of the Mitakshara Coparcenary, the principle of survivorship continues to apply but if there is a female in the line, the principle of testamentary succession is applied so as to not exclude her.

5. Remarriage, conversion and unchastely are no longer held as grounds for disability to Inherit.

6. Even the unborn child, son or daughter, has a right if s/he was in the womb at the time of death of the intestate, if born subsequently.

In this research paper, the researcher shall discuss in detail the difference brought about by the Hindu succession Act of 1956 and how it is different from the Hindu women’s property Act of 1937.

Women’s Right To Property Under Hindu Succession Act, 1956

During the British period social reform movements raised the issue of improvement of women’s position in society. The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. Son’s daughter, daughter’s Daughters and sister (thereby creating a limited restriction on the rule of survivorship). During this period another landmark legislation conferring ownership right on a woman was the Hindu Women’s Right to Property Act XVIII of 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and affected not only the law of coparcenary but also the law of partition, alienation of property, inheritance and adoption.

The Act of 1937 enabled the widow to succeed along with the son and to take the same share as the son. This widow was not a coparcener even though she possesed a right akin to coparcenary interest in the property and was a member of the Joint Family. However, under the Act, the widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights at all. But, both enactments largely left untouched the basic features of discrimination against women and were subsequently repealed.

After the advent of the Constitution, the first law made at the central level pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956 (hereinafter called the HSA). This Act came into force on 17th June, 1956. The HSA lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by Mitakshara and Dayabhaga Schools as also to those in certain parts of southern India who were previously governed by the Murumakkattayan, Aliyasantana and Nambudri Systems of Hindu Law. The Act applies to any person who is a Hindu by religion in any of its forms or developments or a follower of the Brahmo Prarthana or Arya Samaj or to any person who is a Budhist, Jain or Sikh by religion. In the case of a testamentary disposition this Act shall not apply and the interest of the deceased would be governed by the Indian Succession Act, 1925.

The Hindu Succession Act came into force with a view to confer absolute ownership on Hindu female in property which was in her possession when the act came into force. The concept of limited estate of Hindu female ceased to exist and reversionary rights were abolished.

The Act also abolished the ancient Hindu laws of succession. With the enactment of the Hindu Succession Act the three classes of heirs recognized by Mitakshara, namely the sapindas, Samanodakas and bandhus and the three classes of heirs recognised by the Dayabhaga School namely, Sapindas, Sakulyas and Bandhus ceased to exist in case of devolution of property. There heirs were divided by the act into four classes, namely,

1. 1. Heirs in the Class I of the schedule,
   2. Heirs in the Class II of the schedule,
   3. Agnates and
   4. Cognates.

This good feature of this scheme was that it gave equal share in devolution of property to son, daughter, widow and the mother of the deceased. Eight other categories of heirs also come into the scheme of simultaneous succession. They are all included in the Class I of the schedule. On the principle of representation of the predeceased son or daughter, the male and female heirs are treated as absolute equals. The distribution of property among the heirs of class I is according to the rules aid out in S. 10 of the Act

There is no doubt that it reformed the Hindu personal law and gave women greater property rights, allowing women full ownership rights instead of limited rights in the property they inherited from their husbands under Section 14 with a fresh stock of descent under sections 15 and 16 of this Act. Daughters were also granted property rights in their fathers’ estate. The attempt to bring about reforms and a comprehensive codification of Hindu Law was resisted by the certain sections of Hindus.

Under the HSA 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 6 of the HSA.

The provision above noted indicates when a male Hindu dies having at the time of his death an interest in a 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.

The Interest of the deceases in the Mitakshara coparcenary property devolves by testamentary or intestate succession and not by survivorship. The Act lays specific emphasis on the “interest of the deceased” and provides that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. The Supreme Court in Gurupada v. Heerabai, reaffirming the decision in State v. Narayanaro had examined Section 6 of the HSA and is of the view above expressed.

Case Discussion Related To Absolute Property Of Hindu Women

V.Tulsamma v .Shesha Reddy

This case arose from the facts where, under a compromise in a suit for maintenance filed by the appellant Tulasamma, against her deceased husband’s brother, who was in a state of jointness in the ownership of properties with her husband at the time of husband’s death, Tulasamma was allotted certain properties, but as per the written terms, she was to enjoy only a limited interest in it with no power of alienation at all. According to the terms of the compromise the properties were to revert to the brother after the death of Tulsamma. Subsequently Tulasamma continued to remain in possession of the properties even after coming into force of the HAS and after the HSA was enacted Tulsamma alienated her shares to some one else. The alienation was challenged by the husband’s brother on the ground that she had got a restricted estate only under the terms of the compromise and her interest could not be enlarged into an absolute interest by the provisions of the HSA in view of exception to

Section 14 of the Act. In declining the challenge by the brother, the Supreme Court upheld the absolute right of Tulsamma. In fact the relevant observations in the judgment deserve to be extracted in extenso (sub para (1) of in para 62):

“The Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognized and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained there from. If a charge is created for the maintenance of a female. The said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognizing such a right does not confer any new title but merely endorses or confirms the pre-existing rights.”

This principle has subsequently been reiterated and expanded in several later decisions.

Observation- the right of widow to be maintained is of course not just in rem., it doesn’t give her any interest in Join Family Property(JFP), but it is certainly jus ad rem, i.e. a right against JFP. Therefore, when specific property allotted to the widow in ‘lieu of her claim for maintenance’, the allotment would be in satisfaction of her jus ad rem- the right to be maintained out of JFP. It would not be a grant for the first time, without any preexisting right in widow. The instrument giving the property is merely a document effectuating a pre-existing right

Thus J. Fazal Ali concluded, provisions of S. 14 must be liberally construed so as to advance the object of the Act, which is to enlarge the limited interest of widow. S. 14(2) doesn’t refer to any transfer which merely recognizes a pre-existing right). S. (2) to S. 14 is merely a proviso to Ss. (1) of S. 14 and has to be interpreted as a proviso and not in manner so as to destroy the effect of main provision. The explanation to S.s. (1) has expanded the notion of ownership and includes all types of property. The use of express terms like property acquired by a female at partition or in lieu of maintenance or arrears of maintenance in explanation to S.s. (1) clearly makes S.s. (2) inapplicable to these categories, which have been expressly excluded from operation of S. s. (2). The Act of 1956 has made revolutionary changes in The Hindu society and every attempt should be made to carry out the spirit of the Act, i.e. to emancipate women in India.

The court thus held that the widow is the absolute owner and the restrictions mentioned in the decree to be ignored.