Inheritance by women

Inheritance By Women Under Traditional Hindu Law

Introduction The difference between the succession of property between the oriental and western worlds can be aptly summed up in the following phrase- “ Individual property is the rule in the West; corporate property is the rule in the East.” The ownership of property in the West is based on the individual's caliber and extends primarily to property acquired during the lifetime of the individual. He is free to dispose off his property in any manner that he chooses and is the absolute owner of his property. On the other hand, the concept of the “joint family” in Indian society restricts absolute ownership of property. “ The joint family system comes first in the historical order.” Then came the Hindu traditional laws governing succession of property. It is said that “the joint family property is like a big reservoir into which property flows in from various sources and from which all members of the joint family draw out to fulfil their multifarious needs.”   The rules of inheritance given by the ancient law givers are meager probably because property was held invariably by the members of a joint family and separate acquisitions were inconsiderable. The germs of inheritance are to be found in the unit of the coparcenary which consisted of oneself and his son, grandson and great-grandson.   Among the schools of Hindu law, the Mitakshara and the Dayabhaga schools figure as the two most prominent schools. The Dayabhaga system prevails in Bengal, while the Mitakshara system is applicable to the other parts of India. The Mitakshara school has four offshoots-namely the Mithila, Benares, Bombay and Dravida schools. The law of inheritance of the Dayabhaga school is based on the same texts as the Mitakshara school but primarily on the text of Manu instead of Yajnyavalkya.   The Hindu law of succession in its traditional form remained in application in the country without any reform until the middle of the nineteenth century. It was only from the middle of the nineteenth century that the British enacted progressive laws to codify the Hindu traditions and customs governing succession. Taking a cue from the British initiative, the Indian legislature seeks to keep the statutes governing succession of property abreast with changing societal norms and the perception of women as respectable members of society.   The objective of this paper is to study the traditional system of inheritance of property by women and to compare the situation to the present legal position of women to inherit property. For the purpose stated, the researcher intends to study the two main systems of inheritance by Hindus-namely the Mitakshara and the Dayabhaga systems. Customary or regional schools of inheritance will also be looked into as the rules of inheritance by female heirs vary. Finally the statutes which codify the Hindu systems of inheritance will be briefly dealt with.   The researcher intends to answer the following questions in the course of this project:     Q.1 Under the traditional Hindu law, what was the scheme of inheritance of property by women? Q.2 How was the scheme of inheritance discriminatory? Q.3 What is the current position of law regarding women's right to inherit property?           Female Heirs Under The Traditional Scheme

  • Mitakshara and Dayabhaga systems

  • Female heirs in these systems

  • Absolute and Limited Ownership

  • Women's Estate and Stridhan

  There are two systems of inheritance amongst the Hindus in India namely, the Mitakshara system and the Dayabhaga system. The difference between the two systems stems from the fact that while the doctrine of religious efficacy is the guiding principle under the Dayabhaga school, there is no such definite guiding principle under the Mitakshara school. Sometimes consanguinity and at other times religious efficacy has been regarded as the guiding principle.   There are two fundamental difference between the Mitakshara and Dayabhaga systems of inheritance. The first relates to the ruling cannon in determining the order of succession which is propinquity in case of Mitakshara and religious efficacy in case of Dayabhaga. The other is that there is only one course of succession in Dayabhaga while in the Mitakshara property which is joint will follow one while property which is separate will follow another course of succession. The main point of distinction between the Dayabhaga and the Mitakshara doctrine of succession was that according to the Dayabhaga, cognates were not (always) postponed to agnates.   The law of inheritance governing female heirs is not uniform according to the different schemes of inheritance prevalent in India. According to the Bengal, Benares and Mithila schools there are only five females who can succeed as heirs to a male, namely (1) the widow (2) daughter (3) mother (4) father's mother and (5) father's father's mother. Males succeeding as heirs, whether to a male or female, take the property absolutely while females succeeding as heirs, whether to a male or female, take a limited estate in the property inherited by them. The estate conferred on women reverts to the heirs of the last full owners at her death or to the heirs of the last female owner in the case of stridhana property. A woman never becomes a fresh stock of descent.   The right of the widow to succeed as heir to her husband was recognized at least two thousand years ago by Vriddha Manu, Yajnavalkya, Vishnu, Brihaspati, Katyayana, Sankha Likhita and Devala. However Narada has not recognized her right. Vijnanesvara's conclusion is that the widow is entitled to inherit to her husband, if he died separated and not reunited and left no male issue.   According to the Dayabhaga a widow inherits to an issueless husband whether he dies divided of undivided since each coparcenar during his lifetime held a definite though unascertained share. According to the Mitakshara however a widow could never inherit unless her husband had been a separate owner. This was so because as long as a husband was undivided, he did not have a share in the property but a right to obtain a share by partition. If he died without exercising his right, his interest merged and went to enlarge the shares of the survivors. The result is that in Bengal, property falls far more frequently under female control than it does in other parts of India.   “ In Hindu law, the identification of the wife with her husband is not so complete as the identification of the son with the father.” The wife is only a half of her husband and not his whole, which a son is. The theory on which a widow succeeds is not the right of representation but because she was the partner of her husband during his life and is believed to become his partner in the next world. She is called his “ardhangini”. “ A widow under the Hindu law takes a special and qualified estate, and she has a limited power of disposition of her husband's property.”   The estate taken by a Hindu widow from her husband is called “widow's estate” or “woman's estate”. The widow can dispose of the whole estate vested in her in certain cases. The proprietary rights of a Hindu widow are slightly peculiar in the following ways:  
  • She is considered to be the owner of the property except that she cannot sell the corpus of the property or mortgage it, or make a gift of it, or grant leases thereof for a long term, or otherwise alienate it, unless it be for legal necessity or for the benefit of the estate or with the consent of the next reversioners. She is entitled to rents accruing from the estate.
  • Subject to the above restrictions on alienation, she holds the property absolutely and she completely represents it. She may, therefore, institute suits in respect of that property and she may be sued in respect of it as well. If she is dispossessed of any portion of the property by a third person, she can sue to recover it.
  • She can sell her life interest in the property or mortgage it or make a gift of it to anyone she likes. She can spend the income in any way that she likes and is neither bound to pay her husband's estate nor is she bound to maintain the members of her husband's family or to perform their marriage ceremonies out of the income.
  Besides the widow, the Mitakshara also recognized other female heirs. “ We find from the earliest writings, that when a partition took place, the daughter, the mother and the grandmother were recognized as heirs to one who died without a male issue.” The first among the gotrajas to inherit is the paternal grandmother. Sisters comes in as heirs to a deceased Hindu immediately after the grandmother. The mother is not mentioned as an heir by Gautama, Baudhayana, Apastamb or Vasishtha. Narada, however, states her right to a share on partition by the sons after the death of their father, but does not refer to her as an heir. The Mitakshara gives preference to the mother to inherit the property of the son over the father on grounds of greater propinquity.   Manu has recognized the rights of appointed daughters to inherit the property of her deceased father. The status of the appointed daughter even from Vedic times was undoubtedly very high. As early as Kautilya's Arthashastra, in the absence of sons, the daughters born to a man of approved marriage took his estate. Under the Mitakshara law, an unmarried daughter was preferred to a married daughter in matters of succession to the estate of the father. According to the text, only the unendowed or nirdhan daughter has a prior right of inheritance. Where there is no such daughter, succession devolves on the endowed or enriched daughters.   Daughters succeeding to the estate of the father or mother take only a limited estate as joint tenants with rights of survivorship. They are in the same position as widows inheriting the estate of their husbands. When daughters of the same class exist, all of them take jointly in the same manner as widows with survivorship.   A step-sister is an heir in Bombay both under the Mitakshara and the Mayukha. In Madras also, she would come in as a bandhu after marriage though before marriage she would only be a sagotra sapinda. The Hindu Law of Inheritance (Amendment) Act, 1929, confers upon the half-sister as upon a full sister rights of succession in cases governed by the Mitakshara in all states. The conflict of decisions of the several High Courts in India on this question has been set at rest by the decisions of the Privy Council in Mt. Sahodra v. Ram Babu and in Mt Besar Kuer v. Bishndeo Singh.   It is settled in Bengal that a widow succeeds to her husband's share when he is undivided just as she would to the entire property of one who held as separated. But this did not apply in case of the widow of a son who died before his father, undivided, and leaving no property; because in Bengal the son is not a co-sharer with his father, and therefore has no interest which can pass to his widow.   In default of the widow, the daughter succeeds as an heir. Her right was put upon the ground that she produced sons who could present oblations. Jimutavahana therefore laid down that no daughter could inherit unless she had, or was capable, of having male issue and the logical result was the exclusion of daughters who were sonless widows, or barren. According to the Bengal school, the unmarried daughter is first entitled to the succession.   In modern Hindu law the term “stridhana” denotes not only the specific kinds of property enumerated in the Smritis, but also other species of property acquired or owned by a woman over which she has absolute control. It is now settled beyond doubt under Mitakshara as well as Dayabhaga law that property inherited by a woman from a male is not her absolute property and it passes on her death not to her stridhana heirs, but to the heirs of the male from whom she inherited it. It is equally well-settled that the property which a woman has taken by inheritance from a female is not stridhana for the purpose of inheritance; she does not take it for an absolute and alienable estate, but for a qualified estate with reverter after her death to the heirs of the female who was the last full owner.   According to the Mitakshara, a woman's stridhana or separate property falls under two heads- property over which she has absolute control and property which is subject to control of her husband. The succession to stridhana varies according to the marital status of the deceased woman and if her marriage was an approved or unapproved one. It also varies according to the species of stridhana and is different according to the different schools of law.       Female Heirs Under The Madras And Mayukha Scheme  
  • Madras and Mayukha systems

  • Greater number of female heirs

  • Greater ownership rights

Among the four schools of the Mitakshara, the Madras and the Mayukha systems of inheritance stand out as they confer the right to inherit to a relatively greater number of females heirs and also give relatively greater autonomy to them to exercise their will over their inherited property. Besides the five kinds of female heirs in the Mitakshara , the Madras school also recognizes the brother's daughter, sister's daughter and brother's son's daughter as heirs. The Bombay school goes a step further and admits several other female relatives into the scheme of succession. Female heirs under the Bombay school are divided into two classes for the purpose of inheritance from males:  
  1. those who come into the gotra of the deceased owner, by marriage i.e. the wife of the deceased and the wives of the deceased and the wives of his sapindas and samanodakas
  2. those who are born in the gotra of the deceased owner, but pass by marriage into a different gotra, and their daughters. This class includes a daughter, son's daughter, daughter's daughter, sister, niece and the like.
  Females under class (i) take a limited estate in the property of the males and on their death, the property passes to the next heir of the male from whom they inherited it. Females under class (ii) take the property inherited by them from males absolutely which become stridhana in their hands and it passes on to the stridhana heirs. A female inheriting property from a female takes it absolutely and it becomes stridhan in her hands. Under the law in Bombay, the widows of gotraja sapindas as such are entitled to inherit as collaterals and are to be preferred to male gotrajas in a more remote line. This proceeds on the view that succession goes in the order of sapindaship.   The sister's right of inheritance is a matter of controversy. In Bombay, however, a sister's right to succeed is now beyond dispute. She is considered to be a sapinda by virtue of her affinity to her brother and also a gotraja sapinda since she has been born in her brother's family and that she does not lose her position as a gotraja on her marriage outside the family. According to the Mitakshara law as administered in Bombay, after the paternal grandmother, the sister comes in as an heir. And sisters of the half-blood succeed immediately after sisters of the full blood where the Mitakshara governs. Sisters take equally inter se without any such preference for the unendowed over the endowed, as exists in the case of daughters.   In Madras also, it has long been settled that the sister is an heir in the case of Lakshmanammal v. Thiruvengada Mudali. The reasoning of this judgement is unassailable and applies equally to daughters of all descendants, ascendants and collaterals within five degrees. This view was reaffirmed by Subramania Aiyar and Davies, J.J., in Venkatasubramanian v. Thayarammal. Accordingly it has been held that a father's sister, a son's daughter, a daughter's daughter, a brother's daughter, a sister's daughter and a brother's son's daughter are bhinnagotra sapindas or bandhus within the meaning of the Mitakshara and are in the line of heirs, although they would be postponed to male heirs more remotely connected with the deceased owner. Of these, the rights of the son's daughter, the daughter's daughter and the sister have been placed by legislation beyond dispute in all Mitakshara succession.   In the State of Bombay, in accordance with the text of the Mayukha, it is settled that daughters take not a limited estate jointly, but absolute estates in severalty. Each takes an equal share in her father's estate as her stridhana and on her death it passes to her own heirs as her stridhana property and not by survivorship to her co-heiress. So also other daughters in the family, such as the sister, the father's sister and the brother's daughter, take absolutely. In Bombay the daughters of descendants, ascendants and collaterals within five degrees inherit as bandhus in the order of propinquity. The father's sister, however, is a gotraja sapinda and comes in before bandhus but after all the gotraja sapindas.   In Bombay property inherited from a male by a woman other than widow, mother, paternal grandmother, or the widow of a gotraja sapinda is her stridhana. They take the property inherited by them from males absolutely. Property inherited by a female from a female is stridhana. The Modern Position Of Inheritance
  • Hindu Law of Inheritance (Amendment) Act, 1929

  • Hindu Women's Right to Property Act, 1937

  • Hindu Succession Act, 1956


In the area of intestate succession no reform was made for the Hindus until 1928. In 1928, the traditional rules of Hindu law that disqualified heirs on the ground of certain bodily and mental diseases and deformity were partly modified by the Hindu Inheritance (Removal of Disabilities) Act, 1928. Next year, the Hindu Law of Inheritance (Amendment) Act, 1929, modified the traditional law of inheritance relating to son's daughter, daughter's daughter, sister and sister's son.

The Hindu Law of Inheritance (Amendment) Act, 1929, added three more heirs to the list of 5 namely the son's daughter, daughter's daughter and sister. By the Hindu Law of Inheritance (Amendment) Act, 1929, a son's daughter, daughter's daughter and sister have been admitted as heirs under the Mitakshara law and placed immediately after a father's father and before a father's brother. Section 31 of the Hindu Succession Act has, however, repealed this Act.

Eight years later, the Hindu Women's Right to Property Act, 1937 sought to improve the legal position of the following survivors of male Hindus under the laws of succession and joint family:

  1. widow

  2. predeceased son's widow and

  3. widow of predeceased son's predeceased son

Under the Hindu Women's Right to Property Act of 1937 the widow of a predeceased son and the widow of a predeceased son of a predeceased son are among the heirs to a Hindu's separate property in all the schools.

In all properties of males governed by Dayabhaga law, and in the separate property of males governed by the Mitakshara or customary law, it gave them specified shares. In the joint family property of males governed by the Mitakshara law it created an interest for the widows of deceased coparcenars. The rights of all three were restricted by the Act to limited interest known as “ Hindu woman's estate” though it gave them equality with men in respect of right to claim partition.

The Hindu Succession Act of 1956 introduced radical changes in the scheme of inheritance. Through its various provisions it did the following:

  1. wholly repealed the traditional Mitakshara and Dayabhaga laws of inheritance and replaced them by a new scheme of intestate succession;

  2. significantly restricted the scope of the law relating to Mitakshara joint family;

  3. indirectly abrogated the laws of Malabar joint families

  4. amended the old law relating to testamentary succession

  5. expressedly repealed the Hindu law of Inheritance (Amendment) Act. 1929 and the Hindu Women's Right to Property Act, 1927 and

  6. indirectly modified the Hindu Inheritance (Removal of Disabilities) Act, 1928

Subject to certain qualifications, it confers full heritable capacity on a female heir in respect of all property acquired by her, whether before or after the commencement of that enactment. Its objective was the equitable distribution between male and female heirs of succession and that the women's limited estate should be enlarged into full ownership.

Therefore, the Hindu women's limited estate is abolished and any property possessed by a female Hindu, howsoever acquired, is now held by her as her absolute property and she has the full power to deal with it or dispose of it by will as she likes. The restraints and limitations on her power cease to exist even in respect of existing property possessed by a female Hindu at the date of the Act coming into force, whether acquired before or after the commencement of the Act.

Further under the previous law, succession to stridhana varied according to the woman being married or unmarried, and according to the form of her marriage. It also varied according to the source of the stridhana. The rules of descent of the different schools also varied. The Act abolishes all this and propounds in s. 15 a definite and uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of this Act. This section groups heirs of a female intestate into five categories described as Entries (a)-(e).

It is evident that the Hindu Succession Act introduced sweeping changes in the law of succession for women in view of the fact that women are considered equally respectable members of society as men. In fact, in some sections, it tilts more towards female heirs. Out of the twelve heirs in Class I eight are females. In Class II twelve out of twenty-three heirs are women. “ A woman can, in fact, inherit property at least thrice in her husband's family- should her husband, his father and his grandfather die in that order.”

Certain aspects of the Act, however, appear discriminatory. Section 14 declares that property inherited by a woman under this Act would be her absolute property. However in the same breath, it says that when she dies leaving no child or grandchild succession to her property will be governed by different rules depending on whether she had inherited it from her own parents or from her husband or his father or had obtained it otherwise. On the other hand, property inherited by a man, from whomsoever it has been inherited or obtained, is treated as his own property which is regulated by a uniform scheme of succession.

Under Section 15(2)(a) property which a deceased woman had inherited from her father devolves on her father's heirs even where the mother is alive. Similarly property which she had inherited from her mother devolves on her father's heirs even if the father himself is alive.

However, the future of women's rights of inheritance looks sanguine. Appraisals of the law by legal experts and social workers alike have resulted in the amendment to the law in 2005 which furthers the cause of women's rights further. Section 6, stipulated by a new section, stipulates that a daughter would be a coparcenar from her birth, and would have the same rights and liabilities as a son. These changes sought to be made on the touchstone of equality seeks to remove the perceived disability to which a daughter was subjected.

Section 24 of the Act, dealing with the disability of a widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother, to succeed to the property in case of such widow remarriage, has been deleted, thus removing the disability and permitting succession to the property to which she is entitled. Section 30 of the Act has been amended by inclusion of a female Hindu, thus recognizing her right over disposal of property that she is capable of disposing off. The schedule in Class I has been amended by inclusion of son of a predeceased daughter of a predeceased daughter; daughter of a predeceased daughter of a predeceased daughter; and daughter of a predeceased daughter of a predeceased son.

The laws relating to women's rights of inheritance have come a long way. The legislature has assumed the role of a champion of the rights of women to keep the laws abreast with the changing societal norms. In today's world, women are considered no less than men and the laws relating to their rights have, therefore, altered their position considerably.


The law of inheritance comprises rules which govern devolution of property on the death of a person, upon other persons solely on account of their relationship to the former. The fundamental conception of the Hindu joint family is a common male ancestor, with his lineal descendants in the male line. It is rather strange that while it is the women progenitors who sustain the lineage of a male, they were altogether ignored, disrespected and oppressed by them in ancient India.

According to some authors “ no undue importance should be attached to the omission in the Smritis to name all female relations as heirs, as the rules of inheritance were themselves very scanty.” It has been argued that as the normal condition of the family was undivided, occasions would seldom arise for recognition of the rights of women. The dictum in Manu that the wife, a son, and a slave are declared to have no property merely meant that they were not independent for Manu himself enumerates six kinds of stridhana.

The early importance of stridhana is by itself sufficient to show that women had substantial rights though their position was inferior to that of men. For the purpose of inheritance to stridhana, the first acquirer at least was considered a fresh stock of descent and women were preferred to men. Probably, the explanation is that in the case of inheritance to the property of men, males were preferred to women as heirs, while in case of inheritance to women's property, women were preferred to men as heirs, but neither were completely excluded from inheritance to the other's property.

Mere omission of female heirs does not imply disqualification of female heirs from the succession of property. It is unfortunate that omission has been interpreted as disqualification throughout the centuries and has been a basis for discriminating against the lot of women. While the discrimination against women in the past cannot be undone, what is heartening to note is that the future appears bright for women's rights indeed.

Times have changed in the wake of the noble ideals of human rights and equality. In the realm of succession the principal reform that was called for, and one which became a pressing necessity in view of changed social and economic conditions, was that there should be equitable distribution between male and female heirs and the Hindu womens' limited estate should be enlarged into full ownership.

The Hindu Women's Right to Property Act of 1937 introduced important changes in the law of succession by conferring new rights of succession on certain category of females. Although better rights were given to women in respect of property, it was found to be incoherent and defective in many respects and gave rise to a number of anomalies which resulted in an uncontrollable mass of floating case-law.

The need of the hour was a uniform and comprehensive system of inheritance recognizing equable distribution between male and female heirs and contained in a series of coherent propositions carefully considered and authoritatively stated. The Hindu Succession Act thus came into force on 17 June 1956. It amends and codifies the law relating to intestate succession among Hindus and brings about some fundamental and radical changes in the law of succession.


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