Parth Jaisinghani ~ Symboisis Law School, Hyderabad
Granting women property rights will enable them to live their life with dignity. Their economic interest will be secured, and the social status will be intact. Crudely speaking, if a woman gets the right to a property, then she can maintain herself and won’t face exploitation. One can visualize the journey for this basic right of property that is necessary for her dignified living. The earliest discussion of this widow’s right can be seen in the Rig Vedic Period, Middle Ages, Pre-Independence, and Post-independence. This article attempts to analyse the journey of the continuous struggle by women to get equal rights in the property. This article broadly discusses few commentaries- Mitakshara and Dayabagha, legislations such as Hindu Women Rights to Property Act, 1937; Hindu Succession Act, 1956; Hindu Succession Act (Amendment), 2005 along with relevant case laws. Also, this article will discuss what the widow’s estate is. This will give a holistic comprehension of this topic and help us understand the status quo.
WHAT IS HINDU WOMEN’S PROPERTY RIGHTS – LIMITED ESTATE vs. ABSOLUTE ESTATE?
The Hindu Women’s Right to Property act came into force on 14th April 1937. But due to some defects, this Act was amended as Hindu Women’s Right to Property (Amendment) Act XI, 1938 having retrospective effect from 14th April 1937. This Act applies to any Hindu who dies intestate. Also, this Act primarily covers only separate property and not coparcenary property or the property belonging to Hindu females. Further, this Act covers three categories of the widow- intestate’s widow, son’s widow, widow of predeceased son of a predeceased son. According to Section 4 and Section 5 of this Act, if a Hindu man belonging to the Mitakshara or Dayabhaga School dies, the widow will inherit the separate property along with the son. If a Hindu man dies, leaving many widows, then all the windows will acquire the share in totality as it would be if only one widow was there. This is independent of the fact that partition is entered or not. In the case of joint family ownership, the women will have the same right as that was present with the man. This Act helped to decrease the gap between Mitakshara and Dayabhaga Schools. Earlier, in the case of Dayabhaga School, the widow was expected to be chaste and shouldn’t have remarried at the time of succession. Now due to this Act, such restrictions have been removed from the Dayabhaga School. While, the change in Mitakshara was that, due to the enactment of Act, the widow, son’s widow, and grandson’s widow were given the right to be considered as heirs. The widow was not given the right to be a coparcener, but she was only entitled to the limited estate in the property. The Act raised the status of women in society; however, there exist some problems in this Act. Such as various terms for the first time were not defined, e.g. separate property, Hindu, etc. Also, the Act doesn’t explicitly discuss the quantum of interest, i.e. how much share will be given to the widow? So these were the lacuna of this Act. If the Act was able to discuss all these grey areas, then there was no need for any new act.
EVOLUTION OF HINDU SUCCESSION ACT 2005
After the eminent person law lacuna in the 1937 Act, they came up with a way to uplift the status of women. To uplift a society, one must have to uplift the conditions of women in society. Before the Hindu Succession Act, 1956 the classification of the property of women was done under two parts, the first part is “stridhan”, and the other is “Hindu women’s estate”. Stridhan, which is considered as her absolute property, provides an absolute right to her after the death of her husband. And in case, the widow dies, the property will be transferred to her heir according to Stridhan. The basic meaning of stridhan is “The property or wealth given to a girl before the nuptial fire or at the time of marriage procession, as a token of love and affection, by her brother, by her mother, and by her father, constitutes the stridhan of that person. (Manusmriti Chapter IX verse 194)”. So as stated over here, according to Manu stridhan can be classified into two parts; store and dhana where stri in Hindi means women or lady and dhana in Hindi means money or wealth. So when we combine both the terms, the meaning of stridhan is a property owned by a woman. But in case of Hindu Women Estate, the property given to the women was limited estate and her power over her property was also limited, it was not absolute like in the case of stridhan; also such property was not transferred to her heirs as in case of stridhan, but the property was transferred to the last owners next heirs.
But after the commencement of section 14 of the Hindu Succession Act, 1956, both the divisions, stridhan and Hindu women’s estate were banned, and women were given absolute ownership to the property which all she had acquired legally. Adopting customs of Dayabagha School was a significant change made in the Act. Apart from this, if we critically see the Act, we can see that four changes were made to this Act for the upliftment of women status that are listed as follows:
Firstly, the status of all members in the family became equal that is status of “widow, the daughter and the widow of the predeceased son” got the same status as equivalent to the status of the son in her father’s property.
The second significant change was that the Act increased the number of female hires in the property as compared to any of the two schools.
The third significant change was that after the commencement of the Act, there would not be any discrimination in female heirs that is no discrimination based on their financial and religious status.
Lastly, after the death of the father, his property was transferred to his son directly without going to his wife, but this practice was changed after the commencement of the Act that is after the husband’s death the property was transferred to his widow first and then it will go to his son. So these were the essential changes that were made after the enactment of the Act. All these changes were quite useful for the upliftment of widow status.
The Act also converted the right of the estate of women from limited to absolute. It also declined the right of reversionary that before the Act the reversioners used to claim the estate of the widow after (1) her remarriage or (2) if she died, but this practice was abolished.
So the primary purpose of the act was to remove discrimination from society. Apart from this, the 174th law commission report gave two crucial points:
(a) Firstly, continuing the Mitakshara coparcenary system. This system was declined by a committee headed by Rau.
(b) Secondly, before these Acts, only males had the right to become coparcener and inherit the property, but after this legislation was passed, both males and females had equal rights.
The foremost aim of the act was to make and abolish the necessary change in the joint family system.
“Property of a female Hindu to be her absolute property.―
(1) 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.
(2) 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.”
This section is applicable for both the types of possession – immovable and movable; also, the act had a retrospective effect.
But in the case of Eramma v. Veerupana[a1]  hindered this sec.14. Here a man had three wives, and it was put in question that after his death how his property was going to be divided between them, so the court said: “Section 14 is of no benefit because when the possession was being taken, she had no ownership right over the property and therefore was no less than a trespasser.”
Furthermore, in the case of Mangal Singh v. Smt. Rattno[a2]  the main question before the court was to tell what are the rights and possession of a widow, but later the court said that women have absolute possession of her deceased person estate. After this, there was another case Jaganathan Pillai v. Kunjithapadam Pillai where the court gave more justice to the widow and had very well interpreted sec.14 and also they had uplifted the situation of a widow in this judgment. In this case, the court said that women have absolute and unqualified rights over her property, and she is not the limited owner of her property.
Coparcenary “includes only those persons who acquire by birth an interest in the joint or coparcenary property and only male up to four generations in unbroken male descent, i.e. excluding all females from being coparceners.”
So why am I talking about it right now is because after the amendment of the Hindu Succession Act, 2005, the daughters have been conferred the right to be treated as coparceners. This means that after the amendment, both the sons and daughters have equal rights in the property owned under the Hindu Undivided Family. Recently in 2020 Supreme Court said that this act will now have a retrospective effect. However, the widow of the deceased Karta won’t be allowed to be a Karta. In case, the male Karta dies, leaving behind a child who is a minor, the widow can be the manager of HUF but not a Karta.
CURRENT SCENARIO OF WOMEN RIGHTS OVER PROPERTY
However, recently on Aug 11, 2020, the Apex Court said that daughter would have equal property rights, and these rights will have retrospective effect. That means she will have equal rights in the property after as well as before the commencement of this Act. So because of this decision of the Supreme Court, now there will be no discrimination and property will be divided equally between children irrespective of their gender. In India rights over property was transferred in two ways first, a testamentary succession which means property transfer by will and second is intestate succession through the law that is after the death of the owner but without his will. So the ambit of this decision will cover the intestate succession of property through law.
The formula for calculating the property rights-
Before this Act- suppose a father was having 100 units of property which include ancestral – 50 units and acquired – 50 units. Let us assume that in a family there are mother, son and daughter, so the property will we divided in the following as 50/2 + 50/3 where 50/2 means ancestral property divided between mother and son and 50/3 means acquired property divided between all three. So after this son will get 41.6 units of property, and in case of daughter it was 0 (as no rights over the ancestral property) + 50/3 as she had rights over acquired property, so in total, she will get only 16.6 whereas the son will get 41.6 which is more than double. But this discrimination was removed after the amendment of an Act, and now the property irrespective of it being acquired or ancestral will be equally divided so that all three will get 33.33 units of share in the property.
Also in the case, Vineeta Sharma v. Rakesh Sharma, Justice Arun Mishra said: “a daughter remains a daughter throughout life”.
The article explored the struggle of women to gain rights related to property. The Constitution makers were well aware of the low status of women in society and the prevalent patriarchal mindset during the time of independence. These several provisions were made against discriminatory practices and to protect women from exploitation which is covered under Article 14, Article 15 (2), Article 15(3), and Article 16 of the Indian Constitution. The Hindu Succession Act, 1956 widened the rights of women, and the women have conferred the right to the absolute estate, unlike the Hindu Women Right to Property Act, 1937 where she was given only the right to the limited estate. The coparcenary consisted of different male members of the family that is his “father, son, grandson and great-grandson” and after the death of any male member in the family his property was transferred to the person who was just behind him, for example, if the father died in the family, the property was transferred to his son, or if the son died, the property is transferred to his son that is the grandson of the family, and this practice goes on without the property getting transferred to the deceased persom’s wife. But a change was observed in 1956. It was stated that the right of the estate is absolute, and the estate should only be transferred to the widow and her children after her husband’s death rather than going to the joint family. This custom was adopted in the Hindu Succession Act, 1956.
Despite the constitutional guarantee of equal rights to women, there were several discriminatory practices in granting property rights to women. After the Hindu Succession Act (Amendment) 2005, the right to women to be constituted as a coparcener was guaranteed and the formula was laid down in Guru Pad Khandappa Magdum v. Hirabai Khandappa Magdum. But still, the widow although can be treated as a coparcener, the current law doesn’t allow her to be Karta of the family. This is still a massive drawback in the law. And it is an urgent need of the hour to deal with this lacuna otherwise there can’t be equality in our country. But this step taken by Supreme Court has somewhat helped in the upliftment of women status.
 R.S. Shrinivasacharya, A Note on Hindu Women’s Right to Property Act, 1937 (1937) 46 LW (JS) 59.
 The Hindu Succession Act, 1956, §14, No.30, Acts of Parliament, 1956(India).
 Eramma v. Veerupana, AIR. 1966 SC 1879.
 Mangal Singh v. Smt. Rattno, AIR. 1967 SC 1786.
 Jagannathan Pillai v. Kunjithapadam Pillai, AIR 1987 SC 1628.
 Savita Singh and Devendra Deshmukh, Basic Tenets of Hindu Undivided Family, Mondaq (July 29, 2020), https://www.mondaq.com/india/family-law/518126/basic-tenets-of-a-hindu-undivided-family.
 Divi Dutta and Anant Gupta, Article on Hindu Undivided Family, Mondaq (July 29, 2020 https://www.mondaq.com/india/family-law/585206/article-on-hindu-undivided-family-huf#:~:text=On%20the%20demise%20of%20a,adult%20coparcener%20in%20the%20family.&text=A%20widow%20therefore%2C%20cannot%20act,the%20death%20of%20her%20husband.