“DAUGHTER FOR A LIFETIME”: DAUGHTERS HAVE EQUAL BIRTHRIGHT TO INHERIT PROPERTY.

March 5, 2021, 12:20 a.m.   singhsakshi142211  
Pens of Law students    


INTRODUCTION

The constitution of India provides that every person is entitled to equality before the law and equal protection of the laws and thereby prohibits discrimination based on caste, creed and sex.

It is seen that Indian society is predominately patriarchal in its nature. Women are always seen as inferior to men. Preferential rights are always given to men when it comes to the property be it movable or immovable.

In the Vedic era, women were treated at par with men, economically. Wives had equal rights over their husband’s property. But a sharp contrast can be seen in Manu’s perspective regarding the property. Manu believed that property should not be granted to the wife, the slave or the minor son.

This article focuses on the rights and responsibilities concerning property rights of Hindu women. This article will throw light on various Acts, amendments and changes brought about in the past as well as recent times and their claims in giving equal property rights to women.

WOMEN’S PROPERTY RIGHTS UNDER ANCIENT HINDU LAW

Section 14, Hindu Succession Act, 1956 has introduced fundamental changes in the Hindu law of women’s property. Before 1956 the property of a woman was divided into two heads: a) Stridhan b) woman’s estate. Section 14 of the Hindu Succession Act 1956 has abolished the women’s estate and has virtually introduced Vijnaneshwara’s interpretation of Stridhan means ‘woman’s property. [1]

According to Smiritikars, the stridhan included those properties which she received a gift from relations which mostly included mostly movable property.

THE HINDU WOMEN’S RIGHT TO PROPERTY ACT 1937

This Act deals with the separate property of Mitakshara and in respect of all properties of Dayabhaga Hindu.

The Act introduced three widows as heirs along with son, grandson and great-grandson, as also in their default. The widow took equal share to the share of the son and in default of the son took the entire property. If there were more than one widow all of them together will take one share. [2]

In the case of the Mitakshara joint family property, the widow of the deceased coparcener took the same interest in the property which her deceased husband had in the joint family property at the time of his death.

For example – if a Hindu die leaving behind his separate and his widow, son’s widow and grandson’s widow, each of these widows will take 1/3 share of his property. [3]

Its effect on the Mitakshara coparcenary- This Act introduced remarkable changes in Mitakshara coparcenary.

Section 3(2)- in the section it is mentioned that in the joint family property, the widow of the deceased coparcener would have “the same interest as he himself had”. This was regardless of the fact whether the deceased coparcener left behind a son or not. [4]

This provision led to some controversies among the High Courts. The problem is now resolved by the Supreme Court (Shatrughan v. Sabjpuri,1967 S.C. 272) [5]

CHANGES BROUGHT ABOUT BY HINDU SUCCESSION ACT 1956 regarding WOMEN’S RIGHT TO PROPERTY

Pre- Act Women’s Estate

Section 14 has given a retrospective effect (Jamunabai v.Bholaram AIR 2003 M.P. 40). it converts existing woman’s estate into stridhan or absolute estate.[6]

Two conditions are necessary-

  • Ownership of property must vest in her,
  • She must own the estate when the Act came into force (Deendayal v. Raju Ram 1970)

But she has no rights in her deceased husband’s property except the right of maintenance that property cannot become her absolute property mention in the case Suraj Mal v. Babu Lal, 1985. [7]

Section 14 of the Hindu Succession Act 1956

Subsection (1) of S.14 of the Hindu Succession Act runs as under-

“Any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner”. [8]

Post – Act women property

In the post act, it is mentioned that any property acquires by a female Hindu after the Act came into force will be her absolute property unless the property is given to her with limitations. Thus, the property obtained on succession or partition becomes her absolute property (Panchi v. Kumaran, 1982). [9]

The sub-section (2) of section 14 of the Hindu Succession Act 1956 laid down the limitations on

“Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or a decree or order of a civil court or an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.”[10]

CHANGES BROUGHT ABOUT BY HINDU SUCCESSION (AMENDMENT) ACT 2005 REGARDING WOMEN’S RIGHT TO PROPERTY

The Hindu Succession Act 1956 gone through a lot of changes by the virtue of the Hindu Succession (Amendment) Act, 2005. Section 6 of the Act completely replaced by a new provision.

The amendment that took place was based on the 17th Report of Law Commission of India, under the Chairmanship of Justice B.P Jeevan Reddy dated 5th May 2000. [11]

This commission aim at removing anomalies and ambiguities regarding the property rights of Hindu women under the Act of 1956.

This amending Act gave full rights to daughters in the ancestral property along with the sons which were previously not given by the reason of their sex. [12]

Under Mitakshara dual-mode of devolution of the property has been done away with. In the interest of the deceased Hindu dying after the commencement of the Act of 2005 will be dissolved according to testamentary or intestate succession and not by survivorship, this was mentioned in section 6 (3) of the Act of 2005.[13]

Section 23 and section 24 which was discriminatory in nature against women have been omitted by the Amending Act of 2005. [14]

MODERN HINDU LAW 2015

It was made clear in the previous Act that a daughter whose father was alive at the time of Amendment i.e., on 9.9.2005 would become coparceners. If the father dies before the date then she does not become a coparcener (Prakash v. Phulwati, 2015) [15]

There was a different interpretation regarding the above-mentioned judgement. Confusions were created regarding its interpretation. Finally, there came the Supreme Court’s decision in Prakash & Ors. V. Phulavati & Ors., where the Supreme Court held that the amended section has a prospective effect.

The property right is vested on the daughter of a coparcener ‘ on and from the commencement of the amendment”. The daughter and her father should be alive on the date of coming into force the amended section (9.9.2005 being the relevant date) for the operation of this provision.

LANDMARK JUDGEMENT of 2020 ON DAUGHTER’S EQUAL RIGHT TO PROPERTY

A three-judge bench headed by Justice Arun Mishra in a landmark judgement, the Supreme Court held that a daughter is entitled to equal property rights even if the coparcener died before the commencement of the Hindu Succession (Amendment) Act 2005. Justice Arun Mishra ruled in favour of the rights of daughters to have a share in a Hindu Undivided Family property.[16]

SOME IMPORTANT JUDGEMENTS ON PROPERTY RIGHTS TO WOMEN IN INDIA

  • Danamma @ Suman Surpur & Anr.v. Amar & Ors [17]

A two-bench judge Bench of the Supreme Court in 2018 gave two legal propositions on the rights of daughters on coparcenary property.

The amended Act of 2005 applies to live daughters on the date when the Act came into force.

Daughters become coparceners by birth itself just like the sons.

  • S.R Batra & Anr .v. Smt. Taruna Batra [18]

In this, the Supreme Court defined a “Shared household” under the Domestic violence Act. The Supreme Court in this case stated that the wife can only claim residence in the shared household.

(Shared household means the house is taken or belonging to the husband who is apart of the joint family.)

  • Prakash & ors. V. Phulavati & ors. [19]

The property right is vested on the daughter of a coparcener ‘ on and from the commencement of the amendment”. The daughter and her father should be alive on the date of coming into force the amended section (9.9.2005 being the relevant date) for the operation of this provision.

CONCLUSION

Indian society is predominately patriarchal in its nature. Women were always given or regarded as inferior to men in society. Women were never used to get property rights just because they are women. Throughout the years it is seen that there were various judgements stated to provide property rights to women. The most recent one is the judgement that took place in 2020, where women are given equal property rights like men even if the coparcener died before the commencement of the Act.

Even today it is seen that there is one in ten women who knows their rights and exercise them. Several women in society don’t know their rights. It is due responsibility of legally aware citizens to cure this deficiency so that status of women in society gets uplifted.

[AUTHOR ANUSHKA DUTTA IS A 1ST YEAR BA.LLB STUDENT OF UNIVERSITY LAW COLLEGE, GAUHATI UNIVERSITY, GUWAHATI ASSAM]

[EDITED BY - SAKSHI ARYA]


[1] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 389, 24th edition, 2019

[2] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 396, 24th edition, 2019

[3] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 396, 24th edition, 2019

[4] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 396, 24th edition, 2019

[5] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 397, 24th edition, 2019

[6] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 399, 24th edition, 2019

[7] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 403, 24th edition, 2019

[8] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 398, 24th edition, 2019

[9] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 403, 24th edition, 2019

[10] Dr Paras Diwan, Modern Hindu Law, chapter 17 Woman’s property, page 403, 24th edition, 2019

[11] Dr Paras Diwan, Modern Hindu Law, chapter 18 Succession, page 409, 24th edition, 2019

[12] Dr Paras Diwan, Modern Hindu Law, chapter 18 Succession, page 409, 24th edition, 2019

[13] Dr Paras Diwan, Modern Hindu Law, chapter 18 Succession, page 409, 24th edition, 2019

[14] Dr Paras Diwan, Modern Hindu Law, chapter 18 Succession, page 409, 24th edition, 2019

[15] Dr Paras Diwan, Modern Hindu Law, chapter 18 Succession, page 416, 24th edition, 2019

[16] Daughter’s equal right to ancestral property,https://theprint.in/judiciary/daughters-equal-right-to-ancestral-property-heres-what-landmark-sc-judgment-says/479728/, Accessed in August 2020

[17] Important judgement on property rights of women/daughters in India https://www.vakilno1.com/legal-news/important-judgments-on-property-rights-of-women-daughters-in-india.html, Accessed in August 2020

[18] Important judgement on property rights of women/daughters in India https://www.vakilno1.com/legal-news/important-judgments-on-property-rights-of-women-daughters-in-india.html, Accessed in August 2020

[19] Important judgement on property rights of women/daughters in India https://www.vakilno1.com/legal-news/important-judgments-on-property-rights-of-women-daughters-in-india.html, Accessed in August 2020


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