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
- 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.
Madras and Mayukha systems
Greater number of female heirs
Greater ownership rights
- 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
- 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.
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:
predeceased son's widow and
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:
wholly repealed the traditional Mitakshara and Dayabhaga laws of inheritance and replaced them by a new scheme of intestate succession;
significantly restricted the scope of the law relating to Mitakshara joint family;
indirectly abrogated the laws of Malabar joint families
amended the old law relating to testamentary succession
expressedly repealed the Hindu law of Inheritance (Amendment) Act. 1929 and the Hindu Women's Right to Property Act, 1927 and
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.
Desai, S.A., Mulla on Principles of Hindu Law, 2005, LexisNexis Butterworths, Noida, 19th edition, Vol. I
Desai, S.A., Mulla on Principles of Hindu Law, 2005, LexisNexis Butterworths, Noida, 19th edition, Vol. II
Diwan, P., Family Law, 2005, Allahabad Law Book Agency, Faridabad, 7th Edition
Gour, Hari Singh, The Hindu Code, 1994, Law Publishers (India) Pvt. Ltd, Allahabad, Vol.1
Lal, Jagdish, Srinivasan's Codified Hindu Laws, 1978, R.G. Sagar for Law Publishers, Allahabad, Vol. I
Mahmood, Tahir, Studies in Hindu Law, 1997, The Law Book Company (P) Ltd, Allahabad
Misra, Ranganath, Mayne's Treatise on Hindu Law and Usage, 2003, Bharat Law House, New Delhi, 15th edition
Shuklendra, Acharya , Hindu Code, 2002, Modern Law Publications, India