AUTHORED BY – Khyati Relan

INTRODUCTION

From ‘Alien daughter’ to ‘once a daughter is always a daughter’ scenario changed in India. Today women are given equal rights as men. India once was the male dominating society; the women always remained a victim of gender injustice from the pre-independence era. But now the mentality of people is changing, also the judiciary system in India is trying to uplift the uprooted section of the society. In the judgment of Vineeta Sharma v. Rakesh Sharma, the Supreme Court cleared the legal entanglement related to the rights of daughters in the ancestral property. ARUN MISHRA, J. stated that a daughter is a daughter throughout her life, so she should also get equal rights to those of the son from the ancestral property. This article discusses the evolution of the inherent property rights of a daughter from Pre-independence till now. The Hindu Succession Act (amended) 2005 took a step forward in covering the gender gap by providing women with the right to inherit and to remove miscarriage of justice done in so many years. The Hindu Succession Act 2005 was successful in bringing effective change in Indian society, but the glitches of the previous Act of Succession 2005 are covered by the latest amendment in 2020.

Pre-independence Period

There was a time where societies were patrilineal due to which the position of women remained subjugated. She had limited property rights due to which she remained inferior in society. The women’s rights to property were very ostensible, that too hedged with some limitations. Broadly women’s property was classified into two categories one is Stridhan and the other is women’s estate. According to the Smritikaras like Manu defined Stridhan as “Adhyagni (whatever has been given at the time of the nuptial fire), Adhyavahanika (whatever has been given at the time of departure of wife), Dattamprite karmani (given out of love and affection) and given by the Father, Mother of the brother”. In these properties, she didn’t have absolute ownership but with time many judgments came and she got absolute ownership over her Stridhan. She had the right to alienate her property received in the form of Stridhan. Even after the death of the women, the Stridhan was inherited by women’s descendants. A woman had limited rights over the property in respect to women’s estate. She can alienate that property only in case of any legal necessity, the benefit of the estate, and legal duties. Also after the death of women, this property is inherited by the descendants of the male. Though women were treated as members of a joint Hindu family she was not vested with ownership of the property and also was not considered as Coparcenary, thus was excluded from inheritance. Some improvements were made in the pre-independence era by the introduction of Hindu Woman’s right to the property act 1937 and the Hindu law of Inheritance 1929. After the implementation of these acts, the widow of the deceased coparcener had the same interest in property that her deceased husband had. In fact, she was entitled to claim partition as a male owner but her rights of ownership were limited. Hindu females were also given inheritance rights but only up to three generations, however, it could not alter the basic division of women’s property, also she was not a coparcener.

Post-independence Period

After independence, the constitutional makers focused on inequality which deprived women of social-economic justice. The constitution of India clearly states that everyone has the right to equality in every aspect of life and for ensuring that the Hindu Succession Act 1956 was enacted. India is a country where different cultures and customs are followed so in order to ensure uniformity in property rights this succession act was applicable to all Hindus which included Buddhists, Jain, and Sikhs. Though it didn’t provide equal and absolute property rights to the women it somewhere tried to blur the concept of Patriarchy. Two major reforms were brought firstly the property which women held as life estate will become their absolute property (Section 14), the rule of survivorship was restricted to some extent. If a female of class 1 heir mentioned in schedule 1 of Hindu succession act is alive or a male claiming through such female of class 1 heir is alive then the rule of survivorship will not apply. Even after so many reforms, it could not completely follow the concept of equality. Karta of the family could also grant some of the property rights to the female for the satisfaction of her claim of maintenance. The aforesaid property would be considered as the absolute property of the female if she is not the trespasser of the property. If the Hindu female was in actual possession of the estate but as a trespasser, then her possession will not be enlarged into absolute ownership. In the case of Palchuri Henumayyayya v. Tadikamalla Kotlingam, it was held that the wife can enjoy the property given to her in lieu of her maintenance till her death and after that, that property will be divided between her daughters. Section 14 (1) widened the scope of full ownership right over the immovable property of the widow of an illegitimate son in lieu of the maintenance. The position of women’s rights in the property was somewhere improved but still, there were some limitations. Under section 6 of the Hindu succession Act 1956, the representation of the heirs went only up to one degree in the case of females whereas in the case of males it can exceed up to two degrees. Apart from this, Section 23 of the 1956 Act the women did not have any right to residence in the parental property unless she was divorced or widowed. She was not entitled to seek partition unless her husband asked her to do so.

Hindu Succession Act, 2005

The 17th report of the law commission of India recommended the removal of all ambiguities with regard to property rights of women under the Act of 1956. It also recommended that daughters should have the right to participate in Coparcenary property ownership. Thus the act of 1956, went through a lot of changes by the virtue of the Hindu Succession Amendment Act 2005. Full-fledged rights were given to the daughters in the ancestral property along with the son. The rule of survivorship was abrogated. Also, the interest of deceased Hindu dying after the commencement of the Act of 2005 had given an opportunity to devolve either by testamentary succession or by intestate succession. (Section 6). Sections 23 and 24 of the Hindu Succession Act 1956 which discriminated against women was omitted by the amendment Act of 2005. Section 23 laid down some special provisions for the dwelling house where a female heir was entitled to claim her rights of residence if she was unmarried or had been deserted or separated from her husband or was a widow. Section 24 disqualified widows of a predeceased son, widow of predeceased son of a predeceased son, or brother’s widow if they remarry on or before the date of intestate succession. This was a great step to remove the anomalies with regard to the property rights of women but it doesn’t mean that there was a total departure of female inequality from the Hindu succession act. The daughter was given Coparcenary rights by birth but there was a conflicting interpretation of amended section 6 of Hindu Succession Act that the father must be alive at the time of commencement of the Hindu succession act 2005, only then the daughter can claim her Coparcenary benefit.

This confusion was resolved by the latest Amendment in Section 6 of the Hindu Succession Act in 2020. According to this, daughters can claim equal rights of inheritance, irrespective of whether the father was alive or not at the time of commencement of the Hindu Succession Act 2005. However, daughters won’t be able to question the alienation of ancestral properties by the existing coparceners prior to December 20, 2004. This was the major victory of women ‘s rights over property. The main aim of this amendment was to promote equality as envisaged in the constitution.

CASE ANALYSIS

Pre-independence Era

Bhagwandeen v. Maya Baee [(1867) 11 M.A.I. 487]

During pre-independence as women, the property was divided into two parts Stridhan and Estate. In this case, it was held that the property which women inherited from their male would not be considered as Stridhan, which means she did not have the absolute right to alienate, mortgage her inherited property.
The concept of Stridhan was abrogated by the Hindu Succession Act of 1956

Pratibha Rani vs. Suraj Kumar [AIR 1985 SC 628]

In this case, the Supreme Court held that whatever gifts, dowry articles women get in their marriage would be regarded as her absolute property. There is no interference of the husband in that property; it would be considered as her Stridhan, so she has the right to alienate or mortgage the same. The mere fact that she is living with her husband and both are jointly using that property does not mean that husband can claim right over that property.

Post-Independence Era

Mahabir v. Shashi Bhushan [AIR 1981 Cal 74, 85 CWN 357]

In this case, it was held that as Section 14 of the Hindu Succession Act states that the female will get absolute right over her property which she has acquired, along with this she has absolute power to alienate her property except the property mentioned in subsection 2 of Article 14. The aforesaid rule will also be applicable to the daughters also. Therefore the limited interest of the daughter in the property right would also be enlarged.

Hindu Succession Act of 2005

Kesharbai v. the State of Maharashtra 1981 Bom.115

Here it was held that Old Hindu Law and Customary law schools of Succession would be abrogated and the uniform rules of succession which came into existence with the Hindu Succession (Amendment) Act 2005. Also, Mitakshara and Dayabhaga’s rules of succession which created complications will also follow uniform laws of succession. Though tribes like Chudabanth will follow their own rules of succession, it means that customary rules of succession still prevail in the society.

Prakash v. Phulwati [Civil Appeal No.7217 of 2013]

In this case, an issue was raised whether the father should be alive at the time of commencement of the Hindu Succession Act 2005. The Supreme Court enunciates that it is mandatory that the father should be alive at the time of commencement of the act. It was stated that the rights of Coparcenary will be given to the loving daughter of the living father

Panama v. Amar (2016) 2 SCC 36

The judgment in Prakash v Phulwati was overruled and it was held that it is not necessary that the father should be living at the time of the commencement of the act. The daughter can claim Coparcenary right even if the father is not alive

Vineeta Sharma v. Rakesh Sharma [Diary No.32601 OF 2018]

Both the aforesaid judgments were conflicting so the three-judge bench, in this case, decided that the right of a daughter in the ancestral property would not be affected by the mere fact that the father is alive or not. It was also stated that once a daughter, always a daughter so she should be given equal rights as the son by birth.

Conclusion

The succession rights for Hindu women have overcome many issues related to equality but there are some other hurdles that need to be solved as soon as possible so that not only the Hindu women but every woman in the can enjoy absolute right over the property. Patriarchy is still present in society. Along with that, no uniform civil code is present due to which women of different religions are facing problems and are still deprived of their rights in the property. Most of the states follow the Hindu Succession Act but still some states like Uttar Pradesh, Haryana, and Punjab are still governed by the tenancy laws which are still male-biased. So in order to remove gender injustice, there is a need to change the mentality of people and some new acts should be made in the society so that not only in property rights but in another field also gender equality can sustain. Not only this the women should also remain aware of their rights and should raise their voice to claim the same.