By Shreyasi Godse ~ Law College Dehradun, faculty of Uttaranchal University
Equal protection of law flows from the very fundamental right of the Constitution of India. To ensure that it is guaranteed to every citizen, amendments in legislations become necessary to fit in the other laws under the constitutional scheme. Women are a fundamental part of our society, and the protection of their basic rights is inescapable. Women empowerment also roots from the social and economic standing of a woman, which should be in parity with men, to nurture equality in society. This article aims to show the evolution in the legislation regarding the women’s right over the ancestral property.
Before the enactment of Hindu Succession Act, 1956 the Shastric and customary laws differed from region to region. Different schools governed it, Dayabhaga in Bengal, Marumakkattayam or Nambudri in Kerala, Mayukha in Bombay, Konkan and Gujarat and Mitakshara in other parts of India. Sometimes the laws varied in the same region on a caste basis. To put an end to this difference, we saw the emergence of the Hindu Law of Inheritance Act, 1929, and this was the first legislation recognising women in the inherited property. It was followed by the act of Hindu Women’s Right to Property Act (XVIII of), 1937. This legislation proved to be a landmark as it conferred ownership rights on women, not only that but it also brought changes in the law of partition, alienation of property, inheritance and adoption. However, these legislations stand repealed now, due to some significant defects.
The Constitution of India enshrines provisions that protect and encourages women upliftment. Article 14, 15(3) and Article 16 emphasizes on equality and positive discrimination for women for they were oppressed by society for a long period. The fundamental duties also state that it shall be the duty of every citizen of India to renounce the practices derogatory to the dignity of women.
The Hindu Succession Act, 1956 is governed by Mitakshara law; the property under this law is inherited through the coparcenary. To understand the mechanism of inheritance, it is crucial to understand the meaning of the term coparcenary. Coparcenary is a narrower body of persons within the Joint Hindu Family which consists of three lineal descendants’ son, grandson and great-grandson. It can also be explained as the heirship of property. Under the Mitakshara Law, the son acquires right in the family property by birth. Female members of the family are devoid of this right by birth in the inherited property, as they are not the coparceners, but just the members of the family. The coparceners have equal right over the property, as mentioned above. Suppose a father has two sons, then the share of every coparcener would be 1/3rd, and if a grandson is born then the share of each coparcener would reduce to 1/4th, this is the rule of survivorship. The ancestral property in the Joint Hindu Family was devolved by survivorship according to the Hindu Succession Act, 1956 before the 2005 amendment.
POSITION BEFORE 2005 AMENDMENT
The devolution of property under the Mitakshara law is mentioned under Section 6 of the Hindu Succession Act, 1956 as – when a Hindu male dies after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not per this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara Coparcenery property shall devolve by testamentary or intestate succession.
It can be understood through an illustration, a father A, who has two sons and two daughters, dies after the commencement of the Act. As he has two sons, the inherited property would be devolved by the rule of survivorship, which means it would be divided according to the share of the coparceners, who are the male descendants of the individual. The daughters would be denied the share in the ancestral property as they are not the coparceners.
If A has two daughters or female relative of Class I of the schedule that maybe the wife or a male relative specified in that class who claims through such females, such as the husband of the daughter and no surviving male descendant, then the inherited property would devolve by testamentary or intestate succession. The testamentary succession means making of a will by the deceased, if the deceased dies intestate, then intestate succession takes place where Class I heirs make a claim over the assets and get the equal share of the same.
The Hindu women, due to such laws under the Hindu Succession Act, 1956 were denied the rights of an equal share in the ancestral property, and this continued for 50 years. Due to such laws, the women of our society felt the menace of inequality, starting from their own respective family.
POSITION AFTER 2005 AMENDMENT
The discrimination against women seemed to come to an end after the commencement of this amendment. The survivorship rule was abolished, and now the devolution of the property was to be done through the testamentary or intestate succession whatever the case may be. Section 6 was amended of the Hindu Succession Act, 1956; the following changes were made:
- The daughter became a coparcener from the birth and in the same manner as the son.
- Not only did it give it right in the property but also made the daughter subject to liabilities similar to those of sons.
- The property inherited by the daughter through coparcenary is capable of being disposed of through testamentary disposition.
- The share of daughter and son would be equal.
- The share of the pre-deceased daughter or son would be given to the surviving child of such pre-deceased daughter or son, the same share as they would have been given had they been alive.
In this way, the amendment made daughters the coparceners and subject to an equal share in the property at the time of devolution of property.
However, the struggle of claim in the property did not end here; several questions arose regarding the application of the Act. The courts observed the conflict between the prospective and retrospective application.
In the case of Prakash &Ors v. Phulwati &Ors it held that the rights under the amendment apply to living daughters of living coparceners as on 9th Sept 2005 irrespective of when such daughters are born. The court also made the basis on the view that an amendment of a provision of substantive law is always prospective unless either expressly or by necessary intendment, it is retrospective, observed in the case of Shyam Sunder v. Ram Kumar.
The conflicting view of the court was seen in the case of Danamma Suman Surpur & Anr v. Aman &Ors, the issue, in this case, was whether daughters of Gurulingappa Savadi could be denied their share as they were born before the enactment of the Act, thus cannot be treated as coparceners.
The court, in this case, emphasized that part of the amended Section 6, which mentions that daughter shall become the coparcener by birth. Therefore, it held that the coparcenary flows from birth, and partition comes at a later stage. So, the coparcenary is created by birth and is irrespective whether the amendment act is retrospective or prospective.
Due to the conflicting verdict rendered by the division bench in the two cases Prakash v. Phulwati and Danamma Suman Surpur & Anr v. Amar & Ors regarding the interpretation of Section 6 of Hindu Succession (Amendment) Act, 2005, it, therefore was referred to a larger bench. The court reiterated the view in the case of Danamma Surpur and held that it is not at all necessary that the father should be living as on the date of the amendment. Also, the daughter will step into the coparcenary irrespective of the fact that she takes birth before or after the Act. The Act will hence apply retrospectively.
Women are self-sufficient and are now capable of raising their individual property, but when they are deprived of their ancestral property which is the family property, then it poses a serious question on them concerning equality. Property is the fulcrum for patriarchal bargains; it allows them to make choices about livelihood, advocates autonomy and provides security against poverty. It holistically empowers women. Women have fought a long battle to get a status of coparcener in the joint Hindu family and after amendments and interpretations have achieved the same.
 Article 51A(e), The Constitution of India
 Section 6, The Hindu Succession Act,1956
 (2001) 8 SCC 24
 Supra note 3
 Supra note 5