INTRODUCTION

It is common knowledge that the Indian society is predominantly patriarchal and the preferential
rights given to men with respect to property, both movable and immovable. In the Vedic era,
women were treated at par with men, economically. Wives had equal rights over their husbands
properties. In stark contrast to the Vedic scenario is Manus declaration that property should not
be granted to the wife, the slave or the minor son. Widows were no better off in their matrimonial
homes. Even if women were allowed ownership of property, it was only a life interest, which
reverted back to the source on their deaths. Fro example: women were given th e right to their
separate stridhan they didnt enjoy complete control over it, they needed their husbands consent
to dispose off a certain part of their stridhan. This paper shall focus broadly on the various rights
and responsibilities, concerning property, of widow. The three broad classes into which women
shall be classified for the purpose of this study are Wives and Daughters, Mother. While studying
daughters right to property I shall take into account married daughters. The issues that shall be
highlighted in this paper are as follows.

Whether or not widows have the right to inherit property?

If they do, how much is their share in comparison to their male counterparts?

If the right to property accrues to a woman, is it absolute?

THE HINDU WOMENS RIGHT TO PROPERTY ACT, 1937.

Prior to 1937 there were no codified laws to deal specifically with the Hindu womens right to
property, where disputes arose, they were settled in accordance with the customary practices. In
1937, the Hindu Womens Right To Property Act was passed after much voicing of discontent
over the unsatisfactory condition of womens rights. In the prevalent socio-legal atmosphere of
that time this Act came as a breath of fresh air for supporters of female empowerment. However,
it was by no means enough to achieve the lofty target of gender equality. Under the said Act a
widow was entitled to a limited interest over the property of her husband what was to be
termed as Hindu widows estate. Under this Act, a Hindu mans widow, his widowed daughter
in law and widowed granddaughter in law are entitled to inherit to his estate, not only in default
of, but along with, his male issues. The widow in a Hindu coparcenary succeeds to her
husbands claim irrespective of the existence of male heirs. The right of survivorship of his
collaterals is hence defeated. However, the claim granted to the widow is a limited one and it is
such a limited interest that has come about to be called as a Hindu womans estate. A Hindu
widow in possession of the estate is entitled to its complete beneficial enjoyment and is
answerable to no one as long as shes not guilty of willful waste. The peculiarity of this estate is
that on the death of the widow, the estate does not pass onto her heirs but to the heirs of the last
male owner or the last full female owner with regard to stridhan property.

THE HINDU SUCCESSION ACT, 1956.

The idea of limited estate as propagated by the Hindu Womens Right to Property Act was
abolished in 1956 by the introduction of the Hindu Succession Act. The Supreme Court declared
that as under section 14 of the Act, the disability of women to hold property absolutely was
removed. In addition to this, it converted the limited estate of a female owner to an absolute
estate irrespective of the fact that the creation of the estate occurred at a point of time before the
enactment of the said legislation, which was retrospective in nature. No woman can be denied
property rights on the basis of any custom.

Section 14 of this Act provides, if she gets property from her husband she can sell it and the
purchaser gets absolute right in the property, which prior to this Act, she could sell it only for the
necessities of the family or to perform religious ceremonies for the benefit of her deceased
husband.

+The property includes both movable and immovable property acquired by a female by
inheritance, partition, in lieu of maintenance, arrears of maintenance, gift from any person, a
relative or not, before or after marriage or by her own skill, exertion, by purchase or by
prescription or in any other manner whatsoever and also any such property held by her as
stridhanam immediately before the commencement of the Act. Prior to the enactment of this
legislation, women were deprived of the right to alienation of property.

EXCEPTION:

Despite the improvements brought about by the Act, it remained predominantly gender
discriminatory, especially where inheritance rights of daughters were concerned.

The right accrued to a daughter in the ancestral property, by virtue of the Amendment Act, 2005
is absolute, except in the circumstances provided in the amended Section-6. The excepted
categories to which new Section-6 is not applicable are two, namely, (1) where the disposition or
alienation including any partition which took place before 20-12-2004 and (2) where
testamentary disposition of the property was made before 20-12-2004.

Widows inheritance rights as daughter:

Dear Varsha if the parties are hindu then section 6 of the Hindu Succession act will be applicable
along with section 10 of the act

6. Devolution of interest of coparcenary property.- 1[6. Devolution of interest in coparcenary

property. (1) On and from the commencement of the Hindu Succession (Amendment) Act,
2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener
shall, (a) by birth become a coparcener in her own right in the same manner as the son; (b)
have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener

no pious obligation:

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall
recognise any right to proceed against a son, grandson or great-grandson for the recovery of any
debt due from his father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such
debt: Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect (a)
the right of any creditor to proceed against the son, grandson or great-grandson, as the case may
be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such
right or alienation shall be enforceable under the rule of pious obligation in the same manner and
to the same extent as it would have been enforceable as if the Hindu Succession (Amendment)
Act, 2005 had not been enacted.

Objectives of Section 6 of the Act deals with devolution of interest of a male Hindu in
coparcenary property and recognises the rule of devolution by survivorship among the members
of the coparcenary. The retention of the Mitakshara coparcenary property without including the
females in it means that the females cannot inherit in ancestral property as their male
counterparts do. The law by excluding the daughter from participating in the coparcenary
ownership not only contributes to her discrimination on the ground of gender but also has led to
oppression and negation of her fundamental right of equality guaranteed by the Constitution
having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil
Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to
daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the
Kerala Joint Hindu Family System (Abolition) Act, 1975. It is proposed to remove the
discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights
to daughters in the Hindu Mitakshara coparcenary property as the sons have. State Amendment
Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted,
namely: "6A. Equal rights to daugher in co-parcenary property.

Kanna Gounder v. Arjuna Gounder , AIR 2003 Mad 157. Partition of coparcenary property (i)
The contention of the petitioners that there was automatic partition amongst the heirs of the
deceased Karta on his death has been negatived because it is only when the deceased had left his
surviving female heirs as provided in proviso to section 6 of the Act, a notional partition is
deemed to have taken place in the joint family property for the purpose of ascertaining the share
of the deceased in the joint family properties which comes to the share of the female heirs. If
there are male heirs there is no automatic partition;

Shivgonda Balgonda Patil v. Director of Resettlement, AIR 1992 Bom 72. (ii) The heirs will
get his or her share in the interest which the deceased had in the coparcenary property at the time
of his death in addition to the share which he or she received or must be deemed to have received
in the notional partition;
Gurupad v. Hirabai, AIR 1978 SC 1239. (iii) The fiction in the explanation of section 6 of the
Act should be carried to a narrow extent only with a new point to implement the purpose for
which it was introduced. When there were only two coparceners and one of them died, then if
any person other then the coparcener is entitled to a share as a result of severance of the share of
the deceased coparcener, the share of such other person will become fixed;

Distribution of property among heirs

sec 10. Distribution of property among heirs in class 1 of the Schedule. - The property of an
intestate shall be divided among the heirs in class I of the Schedule in accordance with the
following rules:- Rule1.- The intestates widow, or if there are more widow than one, all the
widows together, shall take one share. Rule 2.- The surviving sons and daughter and the mother
of the intestate shall each take one share. Rule 3.- The heirs in the branch of each pre-deceased
son or each pre- deceased daughter of the intestate shall take between them one share. Rule 4.-
The distribution of the share referred to in Rule 3- (i) among the heirs in the branch of the pre-
deceased son shall be son made that his widow (or widows together) and the surviving sons and
daughters get equal portions, and the branch of his pre-deceased sons gets the same portion. (ii)
among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving
sons and daughters get equal portions.

Exception:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken place
before the 20th day of December, 2004.

WIDOWS - ABSOLUTE RIGHT UNDER SEC 14:

The right to maintenance of a Hindu widow is not a "mere formality" but a spiritual and moral
right that can be judicially enforced upon by claiming "absolute right" on the property given to
her for sustaining herself, the Supreme Court has ruled.

A bench, headed by Justice M Y Eqbal, while upholding a Andhra Pradesh High Court verdict in
favour of a widow who had transferred the property willed to her by her husband for her lifetime
to a relative, said it was the woman's "absolute right" and she was free to bequeath the property.

"It is well settled that under the Hindu Law, the husband has got a personal obligation to
maintain his wife and if he is possessed of properties, then his wife is entitled to a right to be
maintained out of such properties. It is equally well settled that the claim of Hindu widow to be
maintained is not a mere formality which is to be exercised as a matter of concession, grace or
gratis but is a valuable, spiritual and moral right," the bench, which also comprised Justice C
Nagappan, said.

Referring to various judicial pronouncements, it said that though the right of a widow to be
maintained does not create a charge on the property of her husband but she can certainly enforce
her right by moving the Court for passing a decree for maintenance by creating a charge.

Discussing the details of the case at hand, the bench said, "In our opinion in whatever form a
limited interest is created in her favour who was having a pre-existing right of maintenance, the
same has become an absolute right by the operation of Section 14(1) of the Hindu Succession
Act."

The apex court's verdict came on an appeal filed by one Jupudy Pardha Sarathy, who had
purchased a house from the son of Andhra Pradesh resident P Venkata Subba who had three
wives. Subba had in 1920 willed one of his properties to his third wife, Veeraraghavamma, who
did not have a child. Veeraraghavamma executed a will in 1971 and transferred the property to
Pentapati Subba Rao. After her death in 1976, Subba's son from his second wife sold the
property to Sarathy.

The trial court had upheld the sale to Sarathy saying the woman had a limited right to enjoy the
property and after her death, it would pass on to the male heirs.
However, the Andhra Pradesh High Court had reversed the trial court findings, saying the case
fell under Section 14(1) of the Hindu Succession Act and "Veeraghavamma became the absolute
owner of the suit property and she had every right to bequeath the said property in favour of the
first defendant P Subba Rao."

widow have rights in her husbands property

Does a widow have rights in her husbands property?

Section 10 in The Hindu Succession Act, 1956 talks about the distribution of property in situation
husband dies intestate and says that distribution of property shall take place among the
heirs in class I of the Schedule wherein the Rule 1 specifically states that the intestates widow,
or if there are more widows than one, all the widows together shall take one share.

For instance, if husband dies intestate and is survived by two widows and a son, heirs in Class I
shall take the property simultaneously and to the exclusion of all others. Here according to the
provisions of Rule 1 of section 10, both the widows of the husband shall take one-half share in
the property of the husband and the other half shall go to his son.

In situation a husband dies intestate leaving two widows and no sons, both of them shall inherit
the property equally, i.e. both of them shall be entitled to one-half share, there being no other
Class I heir.

A remarried widow can keep the share of her dead husbands property NO STATUS
WILL BE CONSIDERED

A WIDOW WHO REMARRIES HAS RIGHTS IN HER FORMER HUSBANDS

PROPERTIES
The brother of the deceased relied on the provisions of Section 2 of the the Hindu Widows' Re-
marriage Act, 1856, which reads as under:

2. Rights of widow in deceased husband's property to cease on her remarriage

On the strength of this provision, limited right and interest which a widow had in her deceased
husbands property would cease to exist if she remarries without express permission, and the
next heirs of her deceased husband, or other persons entitled to the property, shall thereupon
succeed to the same.

Section 8 of the Hindu Succession Act, 1956 which provides the general rules of succession in
case of males which reads as under:

8.General rules of succession in the case of males

The property of a male Hindu dying intestate shall devolve according to the provisions of this
Chapter

In 2008, the Supreme Court of India decided that widow who remarries cannot be deprived of a
share in her dead husbands property as according to it the widow becomes an absolute owner of
the deceased husbands riches to the extent of her share as the provisions of the Hindu
Succession Act 1956 would prevail over the earlier Hindu Widows Remarriage Act 1856.

The Supreme Court of India did not concur with the provisions of the Hindu Widows
Remarriage Act 1856 which says that all rights and interests which any widow may have in her
deceased husbands property by way of maintenance, or by inheritance, shall cease upon her re-
marriage and set it aside.

The apex court based its decision on the fact that since the Hindu Marriage Act provides for
absolute ownership for a widow over her deceaseds husband property; she cannot be deprived of
the same. The change in her marital status thereafter does not matter, particularly after the
tremendous changes brought in by the Hindu Succession Act.
The Supreme Court in its decision observed that the Hindu Succession Act had brought about a
sea change in Shastric Hindu law and made Hindu widows eligible and equal in the matter of
inheritance and succession along with male heirs.

The Apex court held that section 4 of Hindu Marriage Act would have overriding effect over the
text of any Hindu law including the Hindu Widows Remarriage Act.

SCOPE AND OPERATION OF THE ACT: The Act has no retrospective operation6 . It has no
application to properties situated in foreign countries7 , or to properties which did not belong to
the deceased in his own right but were vested in him as a trustee8 . The Act does not apply to the
property of a Hindu female9 . The Act applies only when a Hindu dies intestate either partially or
wholly.

12 APPLICABILITY OF THE ACT: Section 1- Hindu Women's Right to Property Act, 1937
applies only to the separate property left by a Hindu male. It does not apply either to the
coparcenary property or the property of a Hindu female

13 OBJECT OF THE ACT: The interest of the widow arises neither by inheritance, nor by
survivorship, but by statutory substitution. 11 Bondhu vs. Ramdayal, AIR 1960 M.P. 51 (F.B.) 12
Krishna vs. Ammalu, 1971 Ker. L.T.599: 1972, Ker. 91 13 Shamlal vs. Amarnath, AIR 1970 se
1643: (1970) 1 sec 33: (1970) 1 SCJ 803: (1970) 2 Mad LJ (SCL: (1970) 2 Andh WR 5 81 same,
interest which her husband had at the time of his death in the property of the coparcenary. She is
thereby introduced into the coparcenary, and between the surviving coparceners of her husband
and the widow so in traduced

Sub-section (2) of Section 3 of the Act further conferred on the widow the right to demand
partition and on partition she was entitled to get the same share as her husband. Thus the position
appears to be that a Hindu widow was introduced for the first time into the Hindu coparcenary
having the same rights as her husband and became as it were a' member of the Hindu
coparcenary with two qualifications, viz.; (1) that she had only a limited interest; and (2) that she
could not be a coparcener because having regard to the nature of her entry into the family after
marriage with her husband

WIDOWED DAUGHTER IN LAW POSOTION:

SECTION 3 (3): The right to claim partition which a male owner may exercise is conferred upon
a Hindu widow by Section 3(3).

The Act gave the widow equal share as that of her son in the intestates separate property and in
default of a son she inherited the entire property. With respect to joint family property she was
given the same interest as he himself had. If there were more widows than one, all of them
together took one share.

Secretary of State for India v Bank of India Ltd. (1938) 65 IA 286, 298; Maxwell, 7th ed. P. 71.
86 A widow or the widowed daughter-in-law can succeed to the property of a Hindu under the
Act freed from the restriction imposed by the Dayabhaga School that she should be .chaste at the
time the succession opens. On remarriage she forfeits the interest that she has taken, her share
then going to the persons who would be the heirs of the person as whose heir she had originally
taken the property. The same rule applies if she dies.

Provash Ch. Roy vs. Prokash, 50 C.W.N. 559 87 widowed grand-daughter-in-law as new heirs.
These widows succeed with the sons and before the daughter, the daughter's son and the parents

In Ramaiya Konar vs. Mottaiah Mudaliar45, a Full Bench of the Madras High Court held that a
Hindu married woman who is unchaste at the time of her husband's death is disqualified from
inheriting his interest in the joint family property under Section 3 of this Act.

Controller of Estate Duty vs. Alladi Kuppuswamy,

Nature of the widow's right to claim partition The interest which the widow takes is an alienable
right and the alienee can ask for partition and possession of her share.

EXCEPTION:

Ramaswami Cherry vs. Lakshmamma,57 Parappa vs. Nagamma,58 which consider the law on
the point contains the following passage on the question. Section 3(2) of the Act does not bring
about a severance of interest of the deceased coparcener. Certainly the widow is not raised to the
status of a coparcener, though she continued, to be the member of the joint Hindu family as she
was before the Act.

The Andhra High Court has in Saryanarayana vs. Sugunavathi,63 held that the widow of a
coparcener could not be deemed to be in a better position than her husband if he had lived and
that her right to a share should be determined as on the date of her demand for partition and not
as on the date of her husband's death because until a partition is demanded it is not possible to
predicate the share to which she would be entitled under Section 3.

In Manicka Goundar vs. Arunachala Goundar,64 the Madras High Court has held that where a
family consisted of the last surviving coparcener and the widow of a deceased coparcener, the
half share of the surviving coparcener goes to his own heirs and not to the widow.

A and B were brothers constituting a coparcenary. A died leaving a widow C and two days later
B died unmarried and leaving a sister D as his heir. D sold the property to the plaintiff and C sold
the same property to the defendant. In a suit for possession or in the alternative for partition it
was held: (i) that on the death of A his widow C succeeded to his interest in the family property
under the provisions of the Act; (ii) that though C's interest would be a fluctuating interest if
there was a 62 1956 Nag. 228; Harekrishna vs. Jujesthi, 1956 Orissa 73, Parappa vs. Nagamma,
1955 Mad. 576; GurDayalvs. Sarju, 1952 N. 43; Nagappa vs. Makumba, 1951 Bom. 309: I.L.R.
(1951) Bom. 442; Gangadharvs. Subashini, 1955 Orissa 135; Sitamma vs. Veeramma, 1950 M.
785 63 (1961) Andh. Pra. 393 64 (1965) Mad. 1 (F.B) 65 Bhondu vs. Ramdayal, AIR 1960 M.P.
51 (F.B.) 66 74 LW. 585: I.L.R. (1961) Mad. 1016: (1961) 2 M.U. 483 96 coparcenary, since
there was only one member of the coparcenary after A's death, namely B, on the latter's death his
interest did not augment the interest of C; (iii) that on the death of B his heir, namely, his sister
succeeded to his half interest and the plaintiff who was the purchaser of her share was entitled to
maintain the suit for partition of her half share in the suit property. It may be pointed out by way
of criticism that this decision ignores the right of C to take B's interest by survivorship of B's
death. It has been however held in a later case that where a joint family was reduced to only two
members the widow of a deceased coparcener and the last surviving coparcener, the death of the
latter would result in his interest devolving on his own heirs and not by survivorship on the
widow of the deceased coparcener

the Supreme Court in Lakshmi vs. Krishnaveniamma,68 where the Supreme Court points out the
fluctuating nature of the widow's interest in the joint family depending on the births and deaths
in the family and the changes in its fortune add the share of the widow at the partition being
determinable with reference to the conditions existing at the time when the share has to be
determined.

Section 3 (2) the widow gets the same interest as her husband had, that interest includes the right
to challenge an improper alienation by the managing member of the family without any necessity
or benefit, because she having the right to partition and to get a share of the property
undiminished except for proper reasons her right can be best protected only by her being
conceded the right of preservation of the property with the concomitant right of challenging a
non-binding alienation Potharaju Pappayamma vs. Gopalakrishnamurthy

EXAMPLE: a coparcenary consisted of S and his son L. L died in 1945 leaving behind a widow
LW. In 1946, S made a gift to his daughter of the major portion of the lands belonging to the joint
family. After the death of S, LW adopted P. LW and P filed a suit challenging the gift on the
ground that S was not competent to make a valid gift of the joint family property. It was held that
when the gift was made by S, LW had a share in the properties under the Hindu Women's Rights
to Property Act of 1937, and therefore S, although he was the sole surviving coparcener was not
entitled to make the gift. It was contended that the only effect of sub-Section (2) and (3) of the
Hindu Women's Rights to Property Act is in substance to give the widow a right to demand a
partition and that until this right was actually exercised by the Hindu widow, the sole surviving
coparcener could deal with the property in any manner he liked.
EFFECT OF THE ACT AS REGARDS THE COPARCENARY INTEREST OF DECEASED
HINDU: Position of the coparcener's widow On the death of a Hindu as a member of a
Mitakshara coparcenary, his widow takes his interest in the family property subject to the
coparcenary incidents of the right of survivorship, right to claim partition and right to
maintenance. She takes the same interest as her husband" and not "the same right as her
husband" The interest of the widow vis-a-vis her husband's undivided interest arises not by
inheritance nor by survivorship but by statutory substitution Satrugnan vs. Sabujitpari. Unless the
widow claims partition of the share to which her husband would be entitled had he been alive,
her predeceased son's wife will be preferred to her own daughters Anandi Devi vs. Shyam
Kishore.

EXCEPTION: WIDOWS LIABILITY

Widow's liability for her husband's debts The question of the widow liability for the husband's
debts in case he has died as a member of a coparcenary is beset with doubts and difficulties but
appears to depend for its determination on the circumstance whether he died leaving sons or not
and whether the debts is a simple debt or a mortgage debt. If the debt is a valid mortage debt then
his share is taken by his widow burdened with the debts and is therefore liable for its satisfaction.

In view of the decisions in Satrughan's case, the assumption that the widow takes under the Act
as the husband's heir and is therefore liable for his debts is not warranted. But if the husband has
left also sons, son's sons or son's son's sons, then her share must be held liable for the simple
debts in the same way as her sons' shares would be. The contrary construction would place the
widow in a more advantageous position, than that of the sons, for the sons would be liable for the
debts under the pious obligation but the widow would not be liable, a result which it is difficult
to hold is the intention of the Legislature. It may, however, be asked, why should a widow be in a
worse position when she has sons than when she has no sons? The answer is otherwise there
would be anomalies, and it is one of the fundamental canons of construction to interpret a statute
in such a way as to avoid anomalous results. The construction favoured in the discussion here
does not take away the rights of persons which they formerly possessed, and where possible
secures to the widow the benefit intended by the Act. The position that in the case the husband
died as a coparcener leaving a widow and no sons the Saradamban vs.Subbarama I.LR.
In Narayan Vadraj Katti vs. Belgaum Bank, it was held that when a Hindu died leaving sons and
a widow and his creditor filed a suit and obtained a decree as against the sons only in respect of
the assets of the father in their hands, the said decree would not be binding on the share of the
widow in the husband's property. Alienation by widow The interest which the widow of a
deceased coparcener takes in the share which she gets under the Act is the limited interest of a
female heir under the Hindu Law, and she can therefore alienate her share only for necessity or
benefit, the words necessity and benefit including spiritual purposes as considered

CONVERSION IS NOT A BAR:

Apostacy of the widow Under the strict Hindu Law the apostacy of the widow would operate as
a forfeiture of her right to succeed to the property of another Hindu, because by her conversion
from Hinduism she has ceased to be a Hindu so as to render that law inapplicable to her. But this
rule of Hindu Law was abrogated by the Caste Disabilities Removal Act and is no longer in
force. But that Act, while it removed a disability, did not confer any new right to the apostate.
The question then is whether this Act which confers new rights can be so construed as to permit a
widow who has become an apostate to Hinduism to claim such rights. The answer would appear
to be in the negative. The Act applies to Hindu women, or to be more accurate to Hindu widows.
If at the time the succession opens she has embraced some other faith, it is impossible to say she
is a Hindu for the purpose of the applicability of the Act. To hold that conversion of a widow
from Hinduism would not operate as a bar to her succession

Sasanka vs. Amiya,86 where a Christian woman who had married a Hindu under the Special
Marriage Act, 1872, was considered entitled to a share as a predeceased son's widow in her
Hindu father-in-law's property as heir under the Hindu Women's Rights to Property Act, 1937

KARTA HAS RIGHT TO FIX THE INTEREST OF WIDOW:

In the instant case there were three brothers S, L & K S died leaving a son SP from his first wife
and his second wife W1 SP died in the year 1939. W1 filed suit in 1950 against L claiming half
share in the entire property. It was held by the Supreme Court that her share did not get fixed at
the time of death of her husband in 1938, which was at that time as his son SP was alive) but
was one half when she claimed partition in 1950105 . S L K (died 1938) (died 1930) (W) W1
(SP) (died 1938) On the same principles the position of Karta in the joint family remains
unaffected so long as there is no partition and Karta had right to deal with the joint family
property including the interest of the widow. He was empowered to alienate the joint family
property including widows interest. Jadoabai vs. Puranmal (1944)

EFFECT ON LAW OF SUCCESSION: In respect of separate property of Mitakshara Hindu and

in respect of all properties of a Dayabhaga Hindu, the Act introduced three categories of widows,
viz, intestates own widow. His sons, sons widow and his sons widow as heirs along with the
son, grandson and great grandson, as also in default of them. The widow took a share equal to the
share of a son and, in default of the son took the entire property. If there were more than one
widow, all of them together took one share. example,

P dies leaving behind two widows, W1 and W2 and two sons S1 and S2. He leaves behind
separate property, S1 and S2 each will take 1/3 and W1 andW2 each will take 1/6(both widows
together taking onethird share. The deceased capaceners interest taken by widow, after her
death, reverted to the heirs of the last male holder. As to the devolution of the interest of the
daughter in-law and the grand-daughter-in-law, Mayne said: on the death of the daughter-in-
law and grand-daughter-in-law, her interest would pass to the whole of the male issue and the
surviving female heirs. Bhikabai VS. Mamta Bai AIR 2000 Bom 172

THE CONSTITUTION OF INDIA AND THE ENACTMENTS UNDER HINDU LAW:

In Bhagwan Kunwar vs. Nanhiduliya113, the Madhya Pradesh High Court has held that the
Hindu Women's Rights to property Act, 1937 applies to agricultural land in Vindhya Pradesh,
Article 246 (4) SCANNING OF THE HINDU WOMENS RIGHTS TO PROPERTY ACT,
1937: Hindu Womens Right to Property Act, 1937, though a reformatory measure was subjected
to a good deal of criticism. True, it was passed for removing some obvious anomalies and for
making progressive changes in Hindu law
the Bombay High Court in Nagappa Naryan vs. Hukambe14and Orisa High Court in Gangadhar
vs. Subhashini: It was said that the word "interest" did not woman right, and therefore, the same
interest would not include the same right. It: is thus evident that the phrases used in the Act
looked fair and beneficial to the widows but were not comprehensive or clear enough. For
example they did not provide as to: (i) Whether the widow could become Karta of the family in
case she happened to be the elder member of the joint family? (ii) Whether the interest of the
widow would fluctuate by births and deaths occurring in the family after her husband death?
(iii)What would be the rights of the co-widows inter se where the deceased left more than one
widow? (iv)Whether the interest in the joint family, property developed on the widow of a
coparcener by Survivorship or by inheritance or because of the continuance of her deceased
husbands personal in her? (v) Whether the Act brought about severance or disruption of the joint
family or merely provided for a statutory devolution of property?

. Some judges have observed that the provisions of the Act are obscure. And more charitable
minded judges have said that drafting of the Act was not happy". The learned Chief Justice went
on to say, Now, in construing this Act what has got to be borne in mind is that it was an Act
ameliorative in Character and intended to carry out an important social reform. Its express
intention was to give better rights to women in respect of property and therefore the various
provisions of the act must be construed in the light, of the intention which the Legislature had in
placing this piece of legislation upon the stature book. 116 Professor Derrett did not agree with
the view of the Orissa High Court in Kunja Sahu and others vs. Bagaban Mohanty and others117
and of the Bombay High Court in Dagadu BaIu vs. Namdeo118 that

the widow had the absolute right to alienate her undivided interest for legal necessity. Moreover,
the alliance was held entitled to partition of the joint family property even though he had
purchased only the widow's life interest in the presumptive share. The difficulty raised by the
Act. According to Professor Derrett, is that it gives the "same interest" subject to the statements
that the interest shall be the limited interest, known as the "Hindu women's estate"

The Bombay High Court in Dagadu Balu' s case faced by the realization that a "womens estate"
(i.e. a widow's estate in particular) is ,essentially different from a coparcener's interest, have said
in effect that the Act makes a gift of a mango provided that it shall be a sweet-lime, and have
implemented to Act by giving sweet-lime." According to the learned jurist the plain words of the
Act give a women's estate, which involves not only that a widow may alienate absolutely for
legal necessity, but she may alienate her interest without justification provided that it be for her
life. The Act seems to have given wider power to alienate to the widow in one respect as well as
narrower power in another as compared with the coparcener who cannot make a real or
camouflaged gift of coparcenary property.

Justice Divatia in Akoba Laxman Pawar vs. Sai Kom Cenu Pawar. "The position, therefore, is
that there is no authority for the proposition that any widow inheriting any kind of property must
be chaste, that the bar was confined to only one particular case, namely, the widow inheriting her
husband's property and even the bar is now removed by legislation.

Madras High Court in Ramaiya vs. Mottayya Mudaliar woman living in adultery at the time of
her husband" s death was disqualified by reason of her unchastity from succeeding to his interest
in the joint family property under section 3

A Bill was brought before the Legislative Assembly by Mr. Akhil Chandra Datta on November
22, 1940 for defining the rights of the daughters to their fathers and decided to appoint an
expert committee to consider the matter as a whole. The result was the enactment of the Hindu
Succession Act, 1956, which gave the rights to the widow, the mother, the daughter and the
sister, i.e., to the females of the family. The womans estate has now been converted into stridhan
by s. 14, Hindu Succession Act, 1956. Any property that a Hindu female will get after June 17,
1956, will be her absolute property unless specifically given to her with limitation. The womans
estate over which she has possession when the Act came into force (June 17, 1956) is converted
into her absolute estate.

a Hindu widow need not be in actual physical possession of property belonging to her husband in
order to become absolute owner of that property under the Hindu Succession Act, 1956.
Hypotheticalproblem: three sons of late Bhagwan Devi over 12 pieces of property in Hoshiarpur.
Family members of Devi had challenged her competence of executing a will as she was not in
physical possession of the property, belonging to her husband, who died in 1949.

The litigation is nearly 50 years old. The third generation of both the parties were contesting the
litigation.

Appearing on behalf of one of the sons, in whose name Bhagwan Devi had executed a will,
senior lawyer Anupam Gupta countered the challenge to the widow's right.

the Hindu Succession Act with the Hindu Women's Rights to Property, 1937, Gupta contended
that for the first time in history, Hindu women were given right to property in 1937. "However,
this right known as Hindu Widows Estate was limited to her lifetime. And the property reverted
to her husband's heirs after her death," Gupta had argued.

Relying upon judgments of the Supreme Court (Mangal Singh versus Rattano, 1967) and Madras
High Court, Gupta had claimed that even though the widow was out of possession, her mere
right to succeed to her husband's property expanded into an absolute right under the Hindu
Succession Act.

In Venugopala v. Union of India[4], SC observed as The Mitakshara concept of coparcenary is

based on the concept of birth right of son, sons son and sons sons son.

Under ancient Hindu Joint Family system, property rights were within the hands of male
members of family. Women had no rights and it was the duty of male members to administrate
the property of the whole family and women hasnt enjoyed any freedom for expression of
opinion regarding the property administration.

In Subhash Eknathrao Khandekar v. Pragyabai Manohar Birader[5], Bombay High Court has
stated that The widow of a son is not a coparcener.

In Commissioner, Income tax, Bihar II, Ranchi v. Sandhya Ram Datta SC ruled as A
coparcenary cannot be formed by the female heirs by entering into an agreement.

As per The Hindu Womens Right to Property Act, 1937,

 The undivided interest of a coparcener on his death did not go by survivorship to other
coparceners, but his widow took it as heir, though she took it as a limited estate.

In Sahadeo Singh v. Chhabila Singh[7], Patna High Court held that widow cannot be a Karta of
joint family as she is not a coparcener. She has no legal qualification to become Karta. Therefore,
the mother cant alienate share of a minor in Joint Hindu Family property. It is possible only with
the permission of court.

In Guramma Bhatar v. Mullappa Bhatar [8] , SC examined as it is competent to a father under

Mitakshara law to make a gift of immovable property to a daughter if the gift is of reasonable
extent having regard to the properties held by the family.

But in Kandammal v. Kandish Khevar [9] Madras High Court held that the gift made by the
father (Karta) in favor of his wife of an immovable ancestral property is void.

In Gangoji v. H .K Channappa[11], Karnataka High Court held that mother as a natural guardian
of her minor sons can manage Joint Family property.

HINDU WOMENS PROPERTY RIGHTS

Before 1956, there were two kinds of womens property,

1. STREEDHAN
2. WOMENS ESTATE

As per Section 14 of Hindu Succession Act, 1956, the womens estate has been abolished.

Similarly, Women Estate also has the following forms:-

1. Property obtained by inheritance

2. Share obtained on partition

The Above Stated Women Estate Has The Following Features:

It gives women an absolute ownership of property.

She has the full rights of its disposal or alienation.
She can sell ,gift, mortgage ,lease, exchange or if she chooses , she can put it on fire,
Her property can be passed on to her own on heirs on her death.
 In Janaki v. Narayana Swami[14] Privy Council observed regarding womens estate as her right
is of the nature of right of property, her position is that of owner; her powers in tat character are,
limitedSo long as she is alive , no one has vested interest in succession.

In another case, Kalawati v. Suraj[15], SC stated that in the context of section 14 women
does not mean any woman , but that woman who is the owner of womans estate. If the holder of
womans estate had alienated the estate to a woman, that woman is not the woman whose estate
is enlarged to full estate.

In Anandibhai v. Sundarabhai[18] , High Court has been observed as There are two conditions to
be fulfilled for the application of Section 14 of The Hindu Succession Act, 1956:

1. Ownership of the property must vest in her, and

2. She must be in the possession of the Estate when the Act came into force.

In Santosh v. Saraswathi[19], Court held the view that where property was given to the woman
by way of maintenance over which she had a right, her possession was accepted, it became her
absolute property. Even when the property is in the possession of a trespasser, it has been held
that she is in constructive possession.

RIGHT OF INHERITANCE OF PROPERTY FOR HINDU WOMEN

If a separated Hindu under Mitakshara or any Hindu under Dayaghaga died leaving a widow, and
brother the widow succeeded to the property as his heir but she being a female did not take the
property absolutely. She was entitled to the income of the property. She could not make a gift of
the property nor could she sell it unless there was some legal necessity. On her death, the
property would pass not to her heirs, but to the next heir of her husband, ie; his brother.

Illustrations: A AND B, TWO HINDU BROTHERS, GOVERNED BY THE DAYABHAGA

SCHOOL OF HINDU LAW, ARE MEMBERS OF A JOINT AND UNDIVIDED FAMILY. A
DIES LEAVING HIS BROTHER B AND A WIDOW. AS SHARE IN THE JOINT FAMILY
PROPERTY WILL GO TO HIS WIDOW AS HIS HEIR EXACTLY AS IF A AND B WERE
SEPARATE[22].

citation

[12] HINDU LAW OF MARRIAGE AND STREEDHAN BY DR.PARAS DIWAN

(3RDEDITION,280)

[13] FAMILY LAW BY PARAS DIWAN (2013 EDITION)

Inheritance and Succession, Rights of Women and Daughters under Personal Laws
Author Javed Razack, Advocate

The general law relating to the inheritance and succession can easily be referred to The Indian
Succession Act, 1925. Under this Act every Indian is entitled to equal shares on inheriting the
property on the death of a person. The exceptions are Hindus, Sikhs, Jains, Buddhists and
Muslims as they are governed under separate laws of succession. As for the persons of different
faiths than Hinduism and Mohammedan, the Indian Succession Act, 1925 applies.

We can easily segregate the laws of non-testamentary or intestate succession and inheritance as
would be applicable to Hindus, Sikhs, Jains and Buddhist and with Parsis, Christians and Jews
with that of Muslims and with persons of inter faith marriages.

Laws of succession applicable to Hindus, Sikhs, Jains and Buddhist; for the non-testamentary or
intestate succession/inheritance, the governing law is the Hindu Succession Act, 1956.

Laws of succession applicable to Parsis; for the intestate succession the governing law is the
Indian Succession Act, 1925 specifically under section 50 to 56 of the Indian Succession Act,
1925.

Laws of succession applicable to Christians and Jews; for the intestate the governing law is the
Indian Succession Act, 1925 specifically under section 31 to 49 of the Act.

Laws of succession governing Muslims; for non-testamentary succession the The Muslim
Personal Law (Shariat) Application Act, 1937 is applicable and where a muslim has died testate,
the issue has to be governed under the Indian Succession Act, 1925 where a Will relates to
immovable property situate within the State of West Bengal, and that of Madras and Mumbai
Jurisdiction.

Laws of succession in case of inter faith marriages, under Special Marriage Act, 1954.

Under Hindu Succession Act, 1956, the properties of a Hindu male dying intestate devolves, in
the first instance, equally on his sons, daughters, widow and mother and include the specified
heirs of predeceased sons or daughters. The widow of the deceased is entitled to inherit equally
with sons and daughters. The provisions of section 30 of the Act raise issues which are
questionable in nature whereby the deceased husband, if he so desires, may write a Will and
exclude his wife. The Will may contain bequeath of all his properties and no means of support to
the widow.

If there be a meticulous reasoning, the rights of the Women and Daughters under the Hindu
Succession Act can be resolved; the Gender inequalities in succession law proliferate
extensively. Another aspect which is equally complicated is The Streedhan Streedhan is the
property held by a woman in India and treating the Streedhan on the death of the husband is also
to be redressed by making suitable changes by the Parliament and address these and many other
issues in the biased inheritance law under the Hindu Succession.

The law applicable to India can be said to be unlike for the State of Maharastra where the women
and more particularly the daughters have dual advantage. A daughter is entitled to a share in the
fathers Hindu undivided family, generally regarded as (HUF) as well as a share in the husbands
HUF. This again is meager and notional shares which at times take unending time in the legal
foray in situations where the male heirs do not approach the court for the division of the property
of the deceased.

Under the Mitakshara teachings, the joint family property devolves by survivorship and when a
male Hindu dies after the commencement of this Act having at the time of his death an interest in
a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship
upon the surviving members of the coparcenery and not in accordance with this Act. The
concept however is viewed differently when the Mitakshara coparcener dies leaving behind a
female relative or male relative claiming through Class I, this undivided interest will not devolve
by survivorship but by succession as provided under the Hindu Succession Act, 1956. Class I
heirs are Son, Daughter, Widow, Mother, Son of a predeceased son, Daughter of predeceased
son, Widow of predeceased son, Son of a predeceased daughter, Daughter of predeceased
daughter, Son of predeceased so of predeceased son, Daughter of predeceased son of a
predeceased son, Widow of predeceased son of a predeceased son.

The Indian Succession Act, 1925, states that everyone is entitled to equal inheritance, barring
exceptions to Hindus, Sikhs, Jains, Buddhists and Muslims. Under the act, the daughter of a
person dying intestate would be entitled only to one-fourth of the sons share, or Rs. 5,000/-,
whichever is lesser, this amount is also termed as Streedhan and this entitlement excludes the
women from any further right in seeking a proper division of the properties of the deceased. The
bias and gender deprecation is the only factor that the Indian women and daughters are isolated
and remain dependent on the male heirs for their share and right in the seeking distribution of the
property and giving rise to differences in the families and long legal battles.

The concept of Mitakshara coparcenary, in a joint family is to be analysed in the light of the
current status of a women who is regarded equal to a man. This is unreal and the logistics with
regard to the shares in the property under the Hindu Succession Act, 1956 speaks all. A daughter
will get a small share of property compared to the son. The fathers property is equally shared
between brother and sister. In addition, the brother is entitled to a share in the coparcenary from
which the sister is excluded. A good example to explain this anomaly is to the right of a daughter
in the residence is only confined to the possession and not of ownership in the family owned
house.

In order to set at rest the long drawn legal battles and animosity among the heirs of the deceased,
the law of succession should be emphatically amended to provide and give equal inheritance to
all, irrespective of the gender discrimination and bias. Special emphasis to property distribution
among Hindus, the succession right by birth should be abolished and the Mitakshara coparcenary
should be converted into Dayabhaga, which means equal distribution of not only separate or self
acquired properties of the diseased male, but also of undivided interests in coparcenary property.
It should also consider a daughter of a coparcener in a HUF under Mitakshara law to be
coparcener by birth as of a son on the right of claim in the property in equal shares in the
coparcenary property.

I have learnt that there have been many representations to the Government on this issue of equal
rights to women under the Hindu Succession Act, 1956 have been made and soon a legislation to
amend the Hindu Succession Act will be made which will provide for giving daughters and sons
equal rights in the property. The Legislation will also consider the marital status of the woman
and irrespective of her status; the women shall have full right to inherit the ancestral property
like a son of the family. On the anvil of the legislation making its mark as a statue, the Hindu
Succession Act, 1956 may have to be completely abolished with regard to the rights to a
daughter in the Hindu Mitakshara Coparcenary Property as to that of the sons. The objective of
the amendment should be to curb any kind of dispute with regard to the shares in the property
and also in view of the amendment to the law in some States in India. It should however be clear
that during the lifetime of the parents the properties acquired and divided either by gifts or by
virtue of a Will, the equal and determinate shares, if any, would become ineffective. Therefore,
the changes in the law and amendments should also consider this aspect and lay a comprehensive
and good law of inheritance and succession without being partial and bias to the gender.

To answer these issues, some other States have amended the law. The Hindu Succession [Andhra
Pradesh] Amendment Act, 1985 is a classic example on achieving this feat of including daughter
as equally entitled to the share in the property as a son. This remarkable development on the
rights of a daughter equal to that of a son in all circumstances has gone without a challenge and
this has given a reason to correct the Mitakshara system as a violation of the fundamental right of
equality under the Constitution of India. Some more States like Tamil Nadu, Maharashtra and
Kerala have also amended the law by including women as members of the coparcenary, but to
the dismay that the applicability of the amendment is confined to the State in which the law is
amended and not the whole country.

Now coming to the Muslims, the law governing Muslims and Muslim women in India is under
The Muslim Personal Law (Shariat) Application Act, 1937. The Shariat is regarded as the
Custom or Usage for the purposes of division of all properties, except agricultural land. In the
earlier times Muslims were governed by the local customs, laws and practices where they were
domiciled which ran contrary to the Shariat in following the local customs and laws. The
customary laws were highly discriminatory and it excluded daughters and others like widow
were in the bottom line in the succession order, this practice runs contrary to the Shariat where a
daughter and widow cannot be excluded by any other heir and also have the protection from the
testamentary restrictions. The shares of the daughters and widows are lower than a man.

146 CHAPTER 4 WOMEN PROPERTY RIGHTS: A COMPARATIVE STUDY OF HINDU,

CHRISTIAN AND MUSLIM The seed for personal law was sown by the British with the Bengal
Regulation of 1772 providing that in disputes relating to family like inheritance, marriage,
divorce, adoption etc, the courts should apply the laws of Quran with respect to Muslims and for
Hindus, the Shastric law1 . As far as Christians were concerned, there was no specific law for
them. Hence disputes were settled as per English principles of Justice, Equity and Good
conscience. The British policy of non-interference with the personal laws of different
communities took its deep roots in the communities and the Government of India has been
continuing the policy of non-interference even though it has ratified the CEDAW convention2 .
So the Constitutional mandate of Uniform Civil Code under Article 443 of the Constitution went
into oblivion. This chapter proposes to examine the property rights of Hindu and Muslim women
in their personal laws. An attempt has also been made to compare the inheritance rights of
women in their respective personal laws. The chapter also highlights the drastic reforms brought
about in the Hindu womens right to property by the Hindu Succession (Amendment) Act 2005
that conferred birth right to Hindu women in the Mithakshara joint Hindu family property. The
property rights of 1 Gerald James Larson, Religion and Personal law in Secular India, A call to
Judgment, 272 (Indiana University Press, Bloomington, 2001) 2 Ibid at 273 3 Ibid at 274; Article
44 envisages Uniform Civil Code for the Citizens. The State shall endeavor to secure for Citizens
a Uniform Civil Code throughout the territory of India. 147 Muslim women are also analyzed to
bring forth the disparity in the property rights of women belonging to Communities. I. Hindu
womens Right to Property in the Pre-Constitutional Period A Hindu woman, whether a maiden,
a wife or a widow has never been denied the use of her property. Even in Manusmriti one can see
that right to hold property had been respected4 . Jurists like Yajnavalkya, Katyayana and Narada
further promoted the concept of womens right to property. Womens property rights improved
and defined during their time5 . The Smritikars created a unique type of property to women, the
stridhana. Since ancient times stridhana was treated as womens separate property6 .
Jimutavahana went to the extent of stating that woman has absolute control over her property
even after marriage7 . The ornaments, the wealth she receives at the time of marriage from her
father and relatives constitute her share. The gifts from her own and husbands family would also
be added to her own. It was Gautama Dharmasastra who first called womens property as
Stridhana share. Mayne also opined that the original bride price payable to the parents appears to
have become transferred into the dowry for the wife8 . Apart from this stridhana, a married
woman could receive gifts from strangers; she could also make her own contributions by doing
other skilled labor. Yet she had no absolute control over her property because her right to dispose
of the property is restricted. 4 Kanaka Latha Mukund, Turmeric Land, womens property rights
in Tamil society since early medieval times, XXVII/17,Economic and Political Weekly, WS-2
(1992) 5 Ibid. 6 Alladi Kuppuswami(ed.) Maynes Hindu law and Usage 840(12th edn., Bharat
Law House, 1986). 7 D Bh IV, I, 18. See also, supra note 6 at 840 8 See supra note 6 at 840 148
This was done to control her. If there was no control, she would become independent9 . So it is
clear that women did not enjoy property rights in the ancient period. Yet woman was allowed to
keep her Stridhana as her separate property10 . Manu also followed the tradition of Gautama and
recognized seven forms of stridhana that consisted of gifts from relatives, (1) gifts before the
nuptial fire (adhyagni), (2) gifts during bridal procession to her husbands house (adhyavahanika)
(3) gifts of love from father-in-law and mother-in-law (pritidatta) and gifts made at the time of
obeisance at the feet of elders (pada vandanika) (4) gifts from father (v) gifts made by her father,
mother and brother (5) gifts received from her husbands family and fathers family after
marriage (anvadheyaka) (6) gift on supersession (adhivedamika). A present made to a wife on
her husbands second marriage. (7) Gift by bandhus (bandhudatta) the gift made to her by her
fathers or mothers relations11 . The property she obtained before marriage or after marriage
from her fathers and husbands family constitute saudayika stridhana. A woman was given
absolute right over her properties in the sense that nobody including father, mother, brother,
husband and son can take the property away from her12. In case if the husband had borrowed
from her, he had to repay it with interest13. Hence it sets out a warning that the male members
should not touch upon the property of the women. The property earned by her through her own
skills was classified as asaudayika stridhanam on which husband has control. This was also
formed her separate 9 Ibid at.841. 10 Ibid. 11 Ibid. 12 Gill K, Hindu womens Right to Property
in India, 301(Deep and Deep publications, Delhi,1986). 13 Ibid. 149 property. The only
difference was that before disposing of it she had to obtain husbands consent. With regard to
enjoyment of her property she was absolutely free. 1. Womens Property Rights under Customary
law in the Southern India Certain customs existed in southern part of India among the Dravidians
to give a piece of land to the bride. The daughter can take this income and use it for her own
daily needs. This constituted her stridhanam and it was passed on to the daughter by the mother.
The land was named as manjalkani14. This would enable her to have an income for her needs
especially to purchase turmeric and vermilion after marriage. Similarly a custom of handing over
1/3rd of the property by the husband existed when he remarries. It was called patnibhagam. In
coastal Andhra Pradesh also a custom of giving land to the daughter at the time of marriage
existed. It was termed as Katnam15. The peculiar feature of this practice was that women could
exercise control over this property even after marriage. In the same way 12% of the Karnataka
Vira Saiva women also inherited property from the mother which would be passed to the
successive generations for daughters. It is pertinent to note that women inherit this property
where as even a boy could not inherit it16. The Sudra women from Dharwar region also enjoyed
property rights. In spite of all these womens right to property her freedom was restricted by way
of non- participation in decision making especially in financial matters and that it is a patriarchal
concept. 14 See supra note 4 at 2 15 Flavia Agnes, Law and Gender Inequality: The politics of
womens Rights in India, 19(Oxford University Press, New Delhi, 1999) 16 Mullati, L, The
Bhakti movement and the status of women: A case study of Virasaivism, 106 (Abhinav
publications, New Delhi, 1986) 150 2. Womens property rights in the Patriarchal Family A
Hindu father in patriarchal family enjoyed absolute power just as the Roman father in ancient
Rome. The scriptures undoubtedly contributed much to make the father, the head of the family a
despotic ruler. Manu said that three persons, a wife, a son and a slave are declared by law to have
in general no wealth exclusively their own; the wealth which they may earn is regularly acquired
for the man to whom they belong17. Similarly Narada held the view that a son could be
independent only if his parents are dead; during their lifetime he is dependent even though he is
grown old18. So in a patriarchal family women and children did not have property rights. The
wife was put into the group of chattels and slaves. They had an oppressed and subjugated life in
the traditional patriarchal families. Widows Estate A Hindu Joint family consists of males and
females. The married and unmarried daughters continued to remain as members of the joint
family. The male members are coparceners with right of survivorship19. The rules for
survivorship had been laid down by Narada. He said that if among several members, one
childless dies or becomes a religious ascetic, the other shall divide property excepting
stridhanam20. So widows are excluded from survivorship. However this old rule has been
repealed by the Womens Right to Property Act 1937. As per the Act the interests of male
coparceners devolve on their death upon widows. This constituted 17 Manu, VIII, 416. 18
Narada 1, 36, III. 19 See supra note 6. 20 Narada XIII, 25. 151 Hindu womens estate. They were
entitled to get their share by Partition21. This legislative reform was brought out by the British to
improve the status of widow. Following the abolition of Sati the number of widows increased. In
order to relieve them of their miseries the Hindu Womens Right to Property was enacted to
confer property rights to them; she could enjoy the property during the lifetime22 . Her legal
status had been improved. She no longer had to depend on the husbands family for her
maintenance. The object of the Act was to introduce equality between men and women. In fact
clause 3 of the Bill provided that no person should be excluded from inheritance and partition on
the basis of sex23. However when the Act came into force women were granted only a limited
right of inheritance the widows estate24. It was found that the 1937 Act was inadequate to
protect the interests of Hindu women and a committee was appointed to prepare a comprehensive
Hindu Code. Gender Equality: Reforms in Hindu Law The history of Hindu Law reform starts
with the Hindu Law committee (Rau Committee) set up in 1941. It was followed by second
Committee in 1944. The committee finally submitted its report to the Federal Parliament in 1947.
The recommendations of the committee were debated in the provincial Parliament. There was
strong opposition against the introduction of monogamy, divorce, abolition of coparcenery and
inheritance to daughters from the orthodox Hindu community. The 21 See supra note 6 at 528. 22
Ibid 23 Ibid. 24 Bina Agarwal, Redefining Family Law in India,306-354,(Routledge DelhI,2007)
152 Congress legislator from West Bengal argued that only women of the lavender, lipstick and
vanity bag variety were interested in the Bill25 . There were also fears among the orthodox
Hindu men that if women were given property rights families would breakup. In 1948 there was
an All India AntiHindu Code Convention. It was argued that the introduction of womens share
would result into disintegration of Hindu family system which had been working as a co-
operative system for ages for preservation of family ties and property. It was also pointed out that
the inclusion of daughter in the line of inheritance is due to European influence26 . Although the
top male congress leaders opposed the Bill, Jawaharlal Nehru and Dr.Ambedkar were committed
to the Bill. Nehru personally believed in womens claims to equal property rights27.
Dr.Ambedkar had to struggle much due to the strong resistance from the citadel of upper caste
Hindus28. In spite of the initial set back the Congress party could enact four separate Hindu
Codes29 . The most contested area was womens property rights30. As far as the State is
concerned unification of Hindu Law was paramount rather than womens inheritance rights. This
is reflected in the words of Archana Parashar. She said that the hidden agenda was unification of
the nation through uniformity in law. Establishing the supremacy of the State over religious
institutions was another important consideration. This could be best achieved by re-defining the
rights of 25 Ibid 26 Paras Diwan, Daughters Right to Inheritance and Fragmentation of
Holdings SC (J) 15. (1978) 27 See supra note 24 at 307 28 Ibid. 29 The Hindu Marriage Act
1955, The Hindu Succession Act 1956, The Hindu Adoption and Maintenance Act 1956 and The
Hindu Guardian and wards Act 1956. 30 Ibid. 153 women31.There was strong opposition among
the congress itself against conferring inheritance rights to daughters. Consequently the
coparcenery system under the Mitakshara law was left untouched32. As a result women were
denied rights in the ancestral property of a Hindu Joint Family. Only male members could
become coparceners and property devolves on them through survivorship. Women are totally
excluded from inheritance. So inequality continued in the matter of property rights even after the
commencement of the Constitution33 . The daughters had equal rights only in the separate or self
acquired property of their father. However the father can easily disinherit a daughter by
executing a Will. Section 30 of The Hindu Succession Act 1956 provides that any Hindu may
dispose of by Will or other testamentary disposition any property which is capable of being so
disposed of by him in accordance with the provisions of the Indian Succession Act 192534. Wills
were wholly unknown to Hindu Law according to Mayne. He says that there was no name for
them in Sanskrit or vernacular language. He is of the opinion that Wills were brought to India
during the Mughal rule and later by the westerners35. So the English concept of testamentary
succession found its way into Hindu Succession Act 1956 by making section 57 of The Indian
Succession Act 1925 to Hindus also. However the legislators ignored the protection granted to
the family members under the Inheritance (Provision for family and 31 Archana Parashar,
Women and Family Reform in India. 103(Sage Publications New Delhi, 1992) 32 Madhu
Kishwar,``Codified Hindu Law, Myth and Reality`` xxix/33,Economic and Political Weekly,
2145(1994), 33 Ibid. 34 The Indian Succession Act under section 57 provides: The provisions
of this part shall apply to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain. 35
Maines Treatise on Hindu Law and Usage , 1091(Bharat Law House, New Delhi1986) 154
dependents) Act 1975 in U.K36. During the Parliamentary debates, these lacunae were brought
to the notice of those who were vehemently opposing womens inheritance37 that it can be
circumvented through testamentary disposition. 3. Hindu Womens Property Rights under the
Hindu Succession Act 1956 Womens right to property has been substantially improved by the
Hindu Succession Act 1956. The concept of women being entitled to a limited estate when they
acquire property by inheritance is abolished and women are entitled to an absolute estate like
men when they inherit any property. Again the daughter of a predeceased son and the daughter of
a predeceased daughter are raised to a higher rank. They became Class I heirs and get a share
along with the son, and other Class I heirs. The daughters are included in the Class I in order
to remove the discrimination on the basis of sex. Similarly succession to a womens property or
stridhanam of whatever nature is made uniform irrespective of the nature of stridhanam. In the
same way the distinction between male and female heirs in the case of succession has been taken
away and now they are treated on equal basis if they belong to the same degree of relationship.
Women will no longer be disinherited on the ground of unchastity. Under Section 14 of The
Hindu Succession Act 1956, the limited interest of Hindu female is converted into absolute
rights. If she gets property from her husband she can sell it and the purchaser gets absolute right
in the property38 . 36 Under this law family members are entitled to inheritance legally. 37 See
supra note 32 at.2145 38 Prior to the Act, she could sell it only for the necessities of the family or
to perform religious ceremonies for the benefit of her deceased husband. 155 Formerly she was
not given the power of alienation39.The provision has been given retrospective effect.
Consequently the limited estate becomes absolute. Another important change brought out is to
the explanation Section 6 of the 1956 Act40 . Upon the death of a coparcener the property
devolves upon his mother, widow and daughter along with his son by testamentary or intestate
succession and not by survivorship. This rule confers on the women an equal right along with the
male members of the coparcenary41. It is to be noted that Section 6 still retains the Mitakshara
coparcenery excluding women from survivorship as a result father and sons hold the joint family
property to the total exclusion of the mother and daughter despite providing a uniform scheme of
intestate Succession. The stringent restrictions under the Shastric law on female inheritance were
finally taken away by the Parliament to make it conform to the Constitutional mandate of
equality. The disability of women in inheriting the fathers property was undone under Section 6
of the 1956 Act42 . 39 See Section 14 of the Hindu Succession Act 1956.Section 14 is wide in its
ambit. The legislation has defined womens property in the widest possible manner. The property
includes both movable and immovable property acquired by a female by inheritance, partition, in
lieu of maintenance, arrears of maintenance, gift from any person, a relative or not, before or
after marriage or by her own skill, exertion, by purchase or by prescription or in any other
manner whatsoever and also any such property held by her as stridhanam immediately before the
commencement of the Act 40 Section 6 of the 1956 Act provides: Devolution of interest in
coparcenery when a male Hindu dies after the commencement of this Act, having at the time of
his death an interest in a Mitakshara coparcenery property, his interest in the property shall
devolve by survivorship up on the surviving members of the coparcenery and not in accordance
with this Act: provided that if the deceased has 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 Mitakshara coparcenery property shall devolve by
testamentary or intestate succession, as the case may be under this Act and not by survivorship.
41 Sruthi Pandey, Property Rights of Indian Women. available at: http://www.
muslimpersonallaw.com (Accessed on 02.05.2010). 42 Amrito Das, Notional Partition, A
critique., Section 6 of The Hindu Succession Act 1956, J 149 AIR (2004) 156 Similarly section
15 is the first statutory enactment that deals with succession of Hindu females property when
she dies intestate before the Act the property of women dying intestate was governed by
customary Hindu law. She had only limited interest which would be terminated on her death. It is
heartening to note that the Act provides two different laws based on the sex of the intestate. This
double scheme is the traditional method intended to protect the family property43 . The property
of a female Hindu dying intestate shall devolve according to the rules set out under section16.
(a)Firstly sons and daughters (including the children of any predeceased son or daughter) (b)
secondly upon the heirs of the husband thirdly upon the mother and father (d) fourthly upon the
heirs of the father and (e) lastly upon the heirs of the mother. Again (a)any property inherited by
a female Hindu from her father or mother shall devolve in the absence of any son or daughter of
the deceased(including the children of any pre deceased son or daughter)not upon the heirs
referred to in sub section (1) in the order specified there in, but upon the father.(b)So also any
property inherited by a female Hindu from her husband or from her father in law shall devolve
in the absence of any son or daughter of the deceased (including the children of any pre-deceased
son or daughter)not upon the other heirs referred to in sub section1 but upon the heirs of the
husband. This separate scheme of succession reflects a strong patriarchal and orthodox outlook44
. 43 Section .15 of HSA provides general rules of succession in the case of Hindu females. 44
Ms.Indira Jaising, Mapping womens gains in inheritance and property rights under the Hindu
Succession Act,1956,Lawyers Collective, 12-13 157 Further Section 15(2) provides that the
property inherited from the father would revert to the heirs of the father when the Hindu female
dies without issues. The section also provides that the property inherited from the mother would
revert to the heirs of the father and not to the mothers heirs. The Legislative intent of
conservation of property becomes questionable here because if the object is to conserve the
family property, the property inherited from the mother should revert to the mothers heirs45. A
similar situation occurs in the Christian families where daughters are denied property rights on
the ground that it would result into disintegration and fragmentation of family property. The
Judiciary has also played a significant role to widen further the scope of Section 14 of the Hindu
Succession Act 1956. In Tulsamma v. Sesha Reddy, 46 the Supreme Court observed that the
shackles placed on the Hindu women over her property have been broken by this Act and her
status has been brought on par with men. In the instant case the trial court decreed the suit on the
ground that the appellant had a limited interest in the property allotted to her by the respondent,
her deceased husbands brother. The appellant was entitled to maintenance out of the joint family
property when she leased out her property. The respondent filed a suit for a declaration that she
had no absolute right over the property. Instead her right was only a limited interest. The
contention of the appellant that she had become the full owner of the property by virtue of
Section 14 of The Hindu Succession Act 1956 was upheld by the Supreme Court. 45 Ibid at 14
46 AIR 1977, SC 1944. 158 The Supreme Court through its judgment in fact went beyond
legislative language. The Court said that Section 14 is wide in its scope and ambit. It says that
any property possessed by a female Hindu whether acquired before or after the commencement
of the Act shall be held by her as full owner. The words any property are large enough to
include her stridhanam obtained immediately before the commencement of the Act. The Hindu
womens right to maintenance is not an empty formality or an empty claim being concluded as a
matter of grace and generosity, but it is a right against property which flows from the spiritual
relationship between husband and wife and is recognized and enjoined by the customary Hindu
law and had been strongly stressed by Hindu jurists starting from Manu to Yajnavalkya47. In the
instant case the Court further added that apart from right to maintenance a Hindu woman is also
entitled to right in the family property. A widow is also entitled to maintenance out of the
deceased husbands estate which is in the hands of male issue or other coparceners. The principle
enunciated by the Supreme Court in Tulsamma case48 had been applied in Pratap Singh v. Union
of India49 . The petitioner challenged even the validity of Section 14(1) of the 1956 Act on the
ground that it is unconstitutional and violates Articles 14 and 15(1) of the Constitution since it
favored one section of the community namely the Hindu women. Relying on Article 15(3), the
court rejected the contentions. Article 15(3) enjoins the State to make special provisions for
women and children. It overrides Article 15(1) which prohibits discrimination on the ground of
sex, race, caste, religion etc. The Court added that Section 14 is a special 47 Ibid. 48 See supra
note 46 49 (1985) 4 SCC 197. 159 provision enacted for the benefit of Hindu women50. These
two cases show that the Supreme Court has utilized every opportunity to uphold the true spirit
and intention of the legislators. Again in Komalamma v. Kumara Pillai and others51the Supreme
Court stated that maintenance includes a provision for residence also. The purpose of giving
maintenance is that the lady can live in a manner in which she was accustomed hither to. The
Court was of the opinion that the concept of maintenance is therefore must contain provision for
food and clothing and the like. It also includes provision for a roof over her head which is also a
basic need. Provision for maintenance can be made by giving a lump sum amount or property
The Court went on to add further rights like giving her additional amount for necessary
expenditure over and above maintenance52 . However the exclusion of women from a
coparcenery goes against the constitutional mandate of gender equality and it is left untouched
by the 1956 Act. The Hindu women were denied the coparcenery status which was given only to
the male members of the Hindu Joint Family. For that reason alone women could not become
Karta53. Moreover the 1956 Act still perpetuate the centuries old gender bias54 because (1) there
is a general preference to agnates, (2) restricts female heir to demand partition of the dwelling
house (3) retention of Mitakshara coparcenery 50 Ibid. 51 MANU/SC/8262/2008 52 Ibid at
8263-65 53 Purva Chadha, Hindu Family Property law in India and Gender Equality; Analysis
of the Hindu Succession Act 1956, Vol 2, SCJ J 16. (2002) 54 See supra note 37at 2145 160
under Section 6 of the 1956 Act. Even the Hindu law committee had recommended for the
abolition of Mitakshara coparcenery and its concept of survivorship55 . 4. State Amendments to
Hindu Succession Act 1956 Meanwhile some States took the progressive step to confer birth
right to Hindu women in the joint Family property. The Constitution permits Central and State
Governments to enact laws on matters of succession and hence the States can enact their own
variations of property laws within each Personal law. It is worth mentioning the land mark
amendments made by five southern States in India56 , namely Kerala, Andhra Pradesh,
Tamilnadu, Maharashtra and Karnataka. As per the law of these States except Kerala, in a joint
family governed by Mitakshara law the daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as son. The Andhra Pradesh Hindu Succession
(Amendment) Act 1986 thus raised the status of a daughter to that of a coparcener in a Mitakhara
Coparcenary. This has been eloquently reflected in its Preamble itself where it is stated that the
Constitution of India has proclaimed equality before law as a fundamental right; whereas the
exclusion of the daughter from participation in coparcenery ownership merely by reason of her
sex is contrary there to. Same model was followed by Tamilnadu, Maharashtra and Karnataka by
amending HSA 1956. However these Acts did not apply to partitions effected prior to the coming
into force consequently there was no retrospective effect to the Act. Hence in Tamilnadu it was
found that properties were partitioned between the 55 Shelly Saluja and Soumya Saxena,
Changes brought in the position of women after the 2005 (Amendment) available at:
http://www.legalservicesindia.com (Accessed on 21.05.2010). 56 The Kerala Joint Family
System (Abolition) Act 1976, the Hindu Succession (Andhra Pradesh Amendment) Act, 1986,
the Hindu Succession (The Tamilnadu Amendment) Act 1989, the Hindu Succession (Karnataka
Amendment) Act 1994, the Hindu Succession (Maharashtra Amendment) Act 1994 161
coparceners immediately before the Act came into force. The Law Commission has made a
reference to it in its 174th report as fraudulent transactions. Hence the Tamilnadu Act states that
partitions effected after 25.3.1989 will be deemed to be void although the Act came into force on
15.1.199057. Another striking feature of the Act is that the married daughters can continue to be
the members of the natal family. As per traditional law a married woman loses her connection
with the natal family. Her ties with the natal family were severed as a result she ceases to be a
member of that family and becomes a part of the husbands family. This novel concept in fact is a
peculiar feature unknown to Matrilineal or Patriarchal Joint families in India58 . However the
Kerala State Government passed the Kerala Joint Family System (Abolition) Act 1976. Kerala
stood first in abolishing the right by birth in the Joint Family there by eradicating the inherent
discrimination existed in the matter of Hindu womens inheritance rights59. In fact Kerala has
meticulously followed the Rau Committee set up in 1994.The Kerala Legislature completely
abolished the Joint Family System under Section 3 of the Act which provides that no right to
claim any interest in any property of an ancestor during his/her life time. The members of the
Joint Family cannot claim any birth right in their property and that no Court shall recognize that
right. Again Section 7 repealed all customs or usage with respect to joint family property. 57 See
supra note 44 at 11 58 B Sivaramayya, Coparcenary Rights to Daughters Constitutional and
Interpretational issues (J)25 SCC `(1997)3 59 B. Sivaramayya, Law of Daughters, Sons and
Widows, available at:www. indiatogether .org. (Accessed on 23.5. 2011) 162 174th Law
Commission Report of India 2000 Since the States brought about amendments to the HSA1956
conferring birth right to women in the joint family property Law Commission of India took the
initiative and submitted its 174th Report in 2000 pointing out that in the matter of property rights
of Hindu women, inequality and discrimination still exist in the 1956 Act. The Commission
hence made a recommendation for the amendment of the Hindu Succession Act 1956 in order to
provide Hindu women equal inheritance right in the ancestral property60. In the Mitakshara
coparcenary only the male members get property by survivorship. So the Mitakshara system
perpetuated patriarchal regime where in property descends only though male line. Since women
were not coparceners, they were not entitled to any share in the ancestral property by birth. Thus
law excluded women from participating in ownership only on the ground of sex. This is nothing
but an outright negation of her fundamental right61 . 5. Hindu Succession (Amendment) Act
2005 The object of amending the Hindu Succession Act 1956 is to strike at the root of patriarchy
that has been perpetuated through the Mitakshara coparcenery. Section 6 of the Act excluded
women from inheriting the ancestral property because women are not coparceners62. The
Amendment Act 2005 crushed the exclusive citadel of male coparcenery in order to give effect to
the principle of equality enshrined in Part III of the Indian Constitution. The gender
discrimination in the 60 Law Commission of India,174th Report on Property Rights of women:
Proposed Reform under the Hindu Law.2000(May, 5,2000) 61 Romit Agarwal, Whether
Amendments made to Hindu Succession Act are achieving gender equality, available at:
http://www.legalservicesindia.com (Accessed on 07.01.2010). 62 Manisha Garg and Neha Nagar,
Can women be Karta?,available at: http:// www. legalservicesindia.com (Accessed on
07.06.2010). 163 Mitakshara coparcenery has been completely wiped off by raising the status of
female members of the Hindu joint family equal to that of the male coparceners. The
Amendment made in 2005 was based on the recommendations made by the Law Commission in
its 174th Report on Hindu womens property rights. In fact the Commission had taken the subject
suomoto because of the glaring discrimination existed in the Mitakshara coparcenery63. It was
observed by the Commission that since time immemorial property laws were enacted for the
benefit of men. Property rights had been denied to Hindu women just to exercise control over
them and to make them subjugated and dependent on men64. In the Joint family women were
entitled only to maintenance. On the contrary a son acquires birth right in the ancestral property
since he is a coparcener. The retention of the coparcenery excluding females perpetuated the
traditional male dominance in the matter of inheritance. The Commission pointed out this
inequity and said that it is in fact a fraud on the Constitution. On the basis of these findings the
commission recommended for the amendment of Section 6 of the Hindu Succession Act
195665 . It is pertinent to note the objects and reasons for the 2005 amendment of Hindu
Succession Act 1956.It is stated that the Hindu Succession Act 1956 has amended to codify the
law relating to intestate succession among Hindus. It is further stated that social justice demands
that a woman should be treated equally both in economic and social justice. The exclusion of
daughters from participating in coparcenery property ownership merely by reason of their sex is
unjust. The Commission has also taken into consideration the changes carried out by way of 63
Section 6 of the Hindu Succession Act 1956 Act excludes women from inheritance. Only male
members are entitled to inherit property of the joint Hindu family. 64 See supra note 60 65 Ibid.
164 State enactments in the concept of Mithakshara coparcenery. The Act brought about changes
in the law of Succession among the Hindus and gave rights which were till then unknown in
relation to womens property66 . Amendment of Section 6 of Hindu Succession Act 1956 Act
Section 6 of the Hindu Succession Act 1956 deprives Hindu women the right to inherit ancestral
property. The property devolves only on male members. There is a blatant violation of the
equality principle guaranteed under the Constitution. When partition of joint family takes place
only male members get share of the family property. Women get nothing67. Approving the
recommendations of the Law Commission of India, Parliament enacted the Hindu Succession
(Amendment) Act 2005. The following notable changes are brought to Section 6 to 66 The
Section.6 of the 2005 (Amendment) Act provides devolution of interest in coparcenery property
(1) on and from the commencement of the Hindu Succession (Amendment) Act 2005, in a joint
family governed by Mitakshara law, the daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as the son. Have the same rights in the
coparcenary property as she would have had if she had been a son, Be subject to the same
liabilities in respect of the said coparcenery property as that of a son. And any reference to a
Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter as a
coparcener. Provided that nothing contained in this sub-section shall effect or invalidate any
disposition or alienation including any partition or testamentary disposition of properly that had
taken place before the 20th day of December 2004 (2) Any property to which a female Hindu
becomes entitled by virtue of subsection (1) shall be held by her with the incidents of
coparcenery ownership and shall be regarded, not withstanding anything contained in this Act or
any other law for the time being in force in, or property capable of being disposed of by her by
testamentary disposition.3) Where a Hindu after the commencement of the Hindu Succession
(Amendment) Act 20005, his interest in the property of a Joint Hindu family governed by the
Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under
this Act and not by survivor ship and the coparcenery property shall be deemed to have been
divided as if a partition had taken place and The daughter is allotted the same share as is allotted
to a son; The share of the pre-deceased son or a pre-deceased daughter, as they would have got
had they been alive at the time of partition, shall be allotted to the surviving child of such
predeceased son or of such pre-deceased daughter and(C) The share of the pre-deceased child of
a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she
been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of
the pre-deceased son or a pre-deceased daughter as the case may be 67 See supra note 62 165
remove the blatant discrimination. It provides that the daughter becomes a coparcener because of
her birth in the joint family just like the son68 . Section 6 of the 2005 Amendment Act Section 6
of the amended Act 2005 has completely wiped off all the in equalities in Section 6 of the 1956
Act at one stroke. The females in the joint families are elevated to the status of coparceners
having birth right in the ancestral property equal to that of a son. Thus women are given
coparcenery status. Some of the discriminations that existed in sections 23 and 4 (2), have been
omitted by the 2005 Act. It is another significant achievement of the 2005 Amendment. The
Northern States like Delhi, Punjab and Haryana followed inheritance rules that are highly gender
unequal. Here primacy is given to male lineal descendants in the male line of decent and women
come very low in the order of heirs69 . More over women get only a limited estate and lose the
land on remarriage. The Haryana government put forward to Central Government a
memorandum stating that a female instead of getting a share in her fathers property should get
in her father-in-law property. It is stated that on account of daughters share 70in the land there
has been a large scale fragmentation of holdings which Punjab, the granary of the country cannot
afford71. Thus tenurial laws pertaining to 68 See supra note 66 section 6 of the Hindu
Succession (Amendment)Act 2005 69 See supra note 26 at15 70 Ibid 71 Section 4(2) of HSA
prevents fragmentation of agricultural holdings or for the fixation of ceilings, or for the
devolution of tenancy rights introspecting of such holdings. 166 agricultural land passed by
different states pertaining to agricultural land prescribed different rules for succession and all of
them remained valid72 . Another notable achievement of the 2005 Act is the inclusion of all
daughters especially married daughters as coparceners in the Joint Family Property. Section.6 of
the 2005 Act removed the discrimination between married and unmarried daughters73. It took
away the notion that after marriage the daughter belongs only to her husbands family. If her
marriage breaks down, she can now return to her natal home as a matter of right and not on the
displeasure and mercy of the relatives. This will certainly enhance her self-confidence worth and
give her greater bargaining power for herself and her children, in both natal and marital families.
Further giving daughters right to ancestral property will also have an impact on changing the
inherently unequal power equations between the majority of the husbands and wives even today.
A research done by Bina Agarwal has shown that the incidence of violence decreases if women
own immovable property74 . The Law Commission has also addressed the discrimination
inherent in the Mitakshara coparcenery under Section 23 of the Hindu Succession Act 195675.
The 72 Even the Supreme Court has upheld the discriminatory provisions contained in sections 7
and 8 of the Chota Nagpur Tenancy Act 1908. These sections were challenged as being biased
against females by Madhu Kishwar. This Act was applicable to the scheduled Tribes in Bihar and
it denied the right of succession to females in favor of males. Surprisingly the apex court ruled
that the provision could not be held unconstitutional. The reason shown was that the right of the
male successor would remain suspended until the right to livelihood of the surviving female
members of the deceased male is satisfied. That means so long as the females are dependent on
the land, the right of male does not come into operation. However Js. J.K.Ramasamy in his
dissenting judgment took note of the Constitutional mandate of equality and observed that the
customs of tribals are also subject to the Constitutional mandate of gender equality. 73 Bina
Agarwal,`` Landmark steps to gender Equality``, The Hindu Sunday September 25, 2005. 74 Ibid
75 Section 23 disentitles a Hindu woman to ask for partition in respect of a dwelling house
wholly occupied by a Joint Family until the male heirs choose to divide their respective shares
therein. This section on the one hand recognized the qualified right of residence of class I female
heirs and on the other hand bars such female heirs from seeking partition of the dwelling house
until 167 Law Commission recommended for the omission of Section 23 from the 1956 Act. The
Commission advocated that daughters should get full right of residence in their parental home. It
was also viewed by the Commission that the bar on partition by female heirs could take away the
true spirit of coparcenery right. Therefore the Commission deleted Section 23 in order to
strengthen the coparcenery rights of the females76 . Consequently Section 23 of the 2005
(Amendment) Act was omitted to confer all daughters (including married daughters) the same
rights as sons to reside in or seek partition of the parental dwelling house77. By deleting Section
23 of 1956 Act, the amending Act (2005) removed the last remnants of discrimination against
women. The objective of the section is to prevent the fragmentation of a family dwelling house at
the instance of a female heir to the prejudice of the male heir78 . This section reflected one of the
ancient Hindu law tenets that treasured the dwelling house of the family an impartible asset79.
By the omission of section 23, the daughter can remain a daughter forever and she will not lose
her relations with her natal family even after marriage. the male heirs agree to divide their shares
in the house. Several scholars viewed this section as discriminatory as it provided male heirs
with absolute right to seek partition, while making right of female heirs contingent on the right of
male heirs. The expression until the male heirs choose to divide their respective share there in
perpetuates the ancient custom of preference of males over females. It not only debars the female
heir to claim partition but also postpone her substantive right may be till her lifetime. 76 174th
Report of the Law Commission of India.,2000 77 Adv..Jagadish Walmik Chavan, Progress in
Hindu Succession Law, available at: http://www.lawyersclubindia.com, (Accessed on 19-10-
09). 78 Adv.Mohan.V.``The Hindu Succession (Amendment)Act`` Vol.(2)2 Civil-4.5 MLJ 8
(2006) 79 TalhaAbdul Rahman and Gantavya Chandra(2005)SCC(J)9 168 Similarly the
Amendment Act (2005) removed the second discrimination between women themselves on the
basis of their marital status. The section was based in favor of unmarried daughters and granted
them the right to residence in the dwelling house but only till they were unmarried80. It is
pertinent to note here the Supreme Courts path breaking decision in Savitha Samvedi v. Union
of India as early as in 199781. It was held that the differentiation based on marital status is
wholly unfair, unreasonable and gender biased, and violates Article 14 of our Constitution. The
eligibility of a married daughter must be placed on par with an unmarried daughter so as to claim
the benefit referred to in the Railway Ministrys circular restricting the eligibility of married
daughter of the retiring official for regularization. It is worth quoting the common saying that a
son is a son until he gets a wife; a daughter is a daughter throughout her life. The apex court
hence passed an order issuing direction to the Railway Ministry to grant regularization of the
Railway Quarter in favor of the first appellant, the married daughter. Deletion of Sections 4(2)
and 23 of HSA 1956 The omission of Section 4(2) of The Hindu Succession Act 1956 is another
achievement of the 2005 amendment Act82. By the deletion of Section 4(2) of The Hindu
Succession Act 1956, a highly discriminatory clause of the Hindu Succession Act 1956 has been
removed. Now woman also has inheritance rights over agricultural lands just as men. The third
achievement of the Amendment Act 2005 (The Hindu Succession Act) is the omission of Section
23 of the 1956 Act thereby giving all daughters (married or not) the same rights as sons to reside
in or seek 80 Suchita Saigal Bangalore, Dwelling Houses, A Compromise on the Rights of the
Daughter(2007) SCJ(2) p.13 81 (1996) 2 SCC 380 82 See supra note 26 at 15 169 partition of the
family dwelling house. Section 23 denied residential rights to married daughters in their parental
home. Unmarried daughters are given residence rights but could not demand partition. The 2005
Act also deleted Section 4 of 1956 The Hindu Succession Act which barred certain widows of
predeceased sons, from inheriting the deceaseds property, if they had remarried. Now the
disability is removed and they can also inherit83 . An analysis of the Courts verdicts would
reveal that the courts have also favored the patriarchal concept of male preference over females
in the matter of dwelling house. The Kerala High Court held that as long as male heirs whether
alone or in plurality choose to live in the dwelling house, female heirs are not entitled to seek
partition84. Again the Madras High Court held that when there is just one male heir, the females
heirs cannot seek partition until that male heir decides to do so. The court added further that in
such a case the right to demand partition vested in the female heir vide section 23 of the Act
would be permanently postponed and ultimately frustrated. Such contingencies would cause
great hardship to the female heirs, but cannot be avoided85 according to the Bombay High
Court86 the section becomes defunct when there is only a single male heir, as the property ceases
to be a joint family property. It is strange to see that the Supreme Court refused to declare it as
unconstitutional in spite of the discrimination on the basis of sex. It was quite obvious that the
female heir just because of her being female heir is not allowed to 84 (1981) HLR 594, (Kerala)
pp.599-600. 85 AIR 1980 Mad.243 86 (1996) 3 SCC 644 170 claim partition87. Even though
grave injustice has been done to woman and a Section that was enacted to empower them has in
fact been used to subjugate them. In spite of the liberal opinions expressed by various High
Courts, the Supreme Court in Narasimha Murthy v. Susheelabai88 declared that though in the
words the male heirs choose to divide their respective shares suggest that at least two such male
heirs must exist and decide not to partition, the dwelling house in which the right of the female
heir is postponed and kept in abeyance until the male heir or heirs of the Hindu intestate decides
to partition it, it does not necessarily lead to the only in evitable conclusion that the operation of
Section 23 must stand excluded in the case of Hindu intestate leaving behind his/her surviving
only a son and a daughter. It is pertinent to note here that the Honorable Supreme Court took
note of the hardships of only the male heirs claim partition. It failed to see the opposite side. The
consequence of this ruling is that a woman cannot claim partition of the property that belongs to
her even if she wants to live separately. The patriarchal Court refused to declare it as
unconstitutional despite the discrimination on the basis of sex female heir is denied the right to
claim partition because of her gender alone. A section that was enacted to empower them has in
fact been used to subjugate them. Several scholars contended that Section 23 was per se
discriminatory as it provides male heirs with the absolute right to seek partition while making
right of female heirs contingent on the right of male heirs. The object is to prevent the
fragmentation of a family dwelling house at the instance of a female heir to the 87 Ajai
Kumar,``Gender Injustice Under Section 23 of the Hindu Succession Act 1956`.129 AIR
Journal/9. (1998) 88 AIR 1996 SC 1826 171 prejudice of the male heirs. The ancient Hindu law
considered the dwelling house as unimpartible asset. The Courts are also giving verdicts favoring
this strong patriarchal concept. The Kerala High Court held that as long as male heirs whether
alone or in plurality choose to live in the dwelling house, female heirs are not entitled to seek
partition. The Madras High Court89 has held that when there is just one male heir, the female
heirs cannot seek partition until that male heir decides to do so. The Court further added that in
such a case, the right to demand partition, vested in the female heir vide Section 23 of the Act
would be permanently postponed and ultimately frustrated. Such contingencies would cause
great hardship to the female heirs, but cannot be avoided. According to the Bombay High Court,
the section becomes defunct when there is only a single male heir, as the property ceases to be a
joint family property. The 2005 Amendment meticulously carried out the changes that are
recommended by the Law Commission in its 174th Report90. The omission of discriminatory
provisions removed the disabilities of the women in the matter of inheritance and have been
conferred a status equal to that of men as envisaged under Article 14, 15 and 16 of the
Constitution. Moreover when HSA was amended by the 2005 Act it was thought that Hindu
women would start litigation claiming their right in the coparcenery property. As in the case of
Christian women only very few women came forward asserting their rights. So Sheela Devi91
was one of them. The issue before the Court was whether the 2005 Act would supersede the old
Hindu 89 AIR 1980 Mad 243. 90 See supra note 60 91 Sheela Devi v.Lalchand and Anr.
(MANU/SC/4318/2006) 172 Law? The Court observed that the Parliament with a view to confer
right upon the female heirs even in relation to the joint family property enacted Hindu
Succession Act2005.The State of Andhra Pradesh had already enacted the same provision in
1987 itself. As per the State Act of 1987the daughter acquires right by birth in the Joint Hindu
Family governed by Mitakshara Law. Again in Sekar v.Geetha & Ors92 the Supreme Court made
it clear that the Parliament intended to achieve the goal of removal of discrimination not only as
contained in Section 6 of the Act but also conferring an absolute right to a female heir to ask for
a partition in a dwelling house wholly occupied by a joint family as provided for in terms of
Section 23 of the Act. It is also apt to look into the observation made by the Orissa High Court in
Pravat Chandra Patnaik and Ors v. Sarat Chandra Patnaik & Ano93 . In the instant case the Court
highlighted the intention of enacting the 2005 Act. The Court observed that it is to remove the
discrimination contained in Section 6 of the Act by giving equal right in the Hindu Mithakshara
coparcenery property as the sons have. So a daughter gets the right of a coparcener from the date
the amended Act came into force i.e.9.9.2005. The Court also made it clear that a daughter gets
the rights of a coparcener from 2005 even though they might have been born earlier. Thus there
is a gradual development in conferring property rights to Hindu women. However it remains as a
paper tiger and the implementation is very poor. 92 AIR 2009 SC 2649 93 AIR 2008 Orissa 133
173 II. Inheritance Rights of Muslim Women under the Muslim Personal Law Muslim women
rights have been a topic of discussion ever since the Constitution came into force in 1950.
Islamic law (Shariah) is considered by many as patriarchal and oppressive to women. However
the Quran has addressed womens issues fourteen hundred years ago by creating some reforms to
improve the status of women though these reforms do not seem to be practiced in Muslim society
today. Though Islam as revealed to the prophet Mohammed is not oppressive to women its
interpretation enacted in the family law, and every day living is patriarchal. In fact the oppression
of Muslim women is due to the conservative readings of Shariat which also include gender
discriminating customary norms that are presented as gods immutable words. Muslim feminists
trace the source of womens oppression to the same Shariah laws which interpret the divine laws
wrongly94 . Further Islamic law is saturated with pro-patriarchal interpretations. Although the
status of women improved during the time of the prophet it was only short lived Muslim masses
do not look beyond Islam and they view it as complete way of life. The law of Divorce has
become a tool in the hands of the husbands to oppress the Muslim women. The Muslim scholars
are of the opinion that the Muslim Personal law as practiced under the Shariat Act had brought
untold miseries to Muslims women and if Allah appears in person, he would roll his head in
shame over the plight of Muslim women95 . 94 Melanie P.Mejia. `Gender Jihad Muslim
woman, Islamic jurisprudence and womens rights.`` Vol-1, No.1 Kritike, 1-24 (June-
2007),available at: http://www.kritike.org (Accessed on 11-11-2009). 95 R.Upadhyay, ``Muslim
Personal Law Should it be Politicized``, available at: http:// www. imcindia.com,( Accessed on
10-11-2009) 174 India is a multicultural and multi religious society and its citizens are given an
opportunity for their complete development irrespective of their sex, caste, religion or race by
ensuring the various fundamental rights in part III of the constitution. In spite of constitutional
assurances, the status of Muslim women has not improved because of the religious ordain with
its conservative approach. The Muslim women could not benefit from the various welfare
legislations since they are still governed by their own Islamic laws. The centuries old principles
of Islam are still applicable on various matters concerning marriage, divorce and polygamy96 .
The Constitution of India the backbone of all national laws enshrines within it the very important
principle of justice, liberty, equality and fraternity for all citizens of the country. This
fundamental law of our land assures the dignity of individuals irrespective of their sex, religion
or place of birth97. While framing the Constitution, the framers were well aware of the various
discriminatory practices and suppression of womens rights by the male dominated society.
Therefore certain general as well as specific provisions were incorporated for the protection and
improvement of the women. Thus Article 15(3) declares that nothing in this article shall prevent
the state from making any special provision for women and children. The courts have also
upheld the validity of many special provisions favoring the interests of women. However in the
case of Muslim women the law is to be first tested on the touchstone of Muslim personal law. So
there are child 96 Dr.A.K.Srivastava ``Muslim Personal Law and Rights of Muslim women, A
Sociolegal Study` Vol.3.SCJ.18 (2007) 97 Article.15 (1) of the Constitution. 175 marriages,
unilateral divorce (Talaq) and polygamy in the Muslim community. The Muslim women get
maintenance only up to the iddat period and they are excluded from the purview of Section 125
of CRPC98. Therefore the Muslim women get neither the protection from the State nor are they
safeguarded by their own highly patriarchal personal law. While the Christian and Muslim
women are still being governed by their Canon and Islamic Laws,99 the progress of Hindu
women after independence was so rapid that they achieved complete gender equality in the
matter of property rights. The property rights of women belonging to other religions are unequal
and unfair. Hindus, Sikhs, Buddhists and Jain are governed by one code; Christians are governed
by another code enacted by the British for the British Christians in India. Muslims do not have a
code regulating property rights100 . 1. Origin of Islam in India Islam was brought to India by the
Arab Traders and the Muslim Sultans who invaded India101 in the 7th century. Some of the
traders from Arabia settled down along the Malabar Coast in the 8th century and adopted the
local customs and practices and they were called Mappilas who constituted the first community
who embraced Islam. Besides this, conversion to Islam took place enmass during the Mughal
Period. The Muslim invaders gave an option to Indians to choose between death and Islam. They
brought into their kingdom Muslim mercenaries, 98 Alka Singh, Women in Muslim Personal
Law, 1( Rawat Publications New Delhi 1992) 99 T.K.Rajalakshmi, ``Muslim women are more
vulnerable` `The Frontline, Vol.24, issue.2, 27-1-2007. 100 Shruti Pandey, `Property Rights of
Indian Women`` available at: http://indiannow.org (Accessed on 08.04.2011). 101 See note 15 at
31 176 businessmen and slaves from different parts of the world like Russia, Afghanistan,
Turkey, Arab countries and Africa. These people remained in India and married local Indians and
converted them to Islam. Since they were traders they mastered the Law of Contract. They
applied the basic principles of contract to marriage also. This led to the formation of definite
rights of women regarding their property102 . With the advent of British Rule in India, they
made distinct personal laws for the Hindus and Muslims. It was Hastings who reserved the law
of the Quran to the Muslims and the law of the Shastras to the Hindus: That in suits regarding
succession, inheritance, marriage and caste and all religions usages and institutions,
Mohammedan law with respect to Mohammedans and Hindu law with regard to Hindus are
considered as the general rules by which judges are to form their decisions103. This
classification is erroneously made on the belief that there existed only two religions in India, The
Hindus and the Muslims. The Muslims later were divided into two major divisions Shias and
Sunnis. Hindus also divided into different groups like Sikhs, Jains, and Buddhists104 . After
creating exclusive personal laws for the two major communities, they adopted the principle of
non-interference and kept themselves away from reforms of these religion based personal laws
because the British did not want to injure the religious sentiments of the community in India. The
Second Law Commission105 pointed out in its report that personal laws being religious in nature
should not be interfered by an outside agency. The State even after independence 102 Ibid at 33
103 M.P.Jain, Outlines of Indian Legal History, 530(4th edn, N.M.Triipathi, Bombay,1987) 104
Ibid at 531 105 Under the provisions of the Charter Act ,1853,a Law Commission was appointed
in England on 29th November 1853 177 continued the same non-interference policy towards the
personal laws of different Communities. Later in 1956 only the Codification of Hindu Law had
been done by the Parliament in a piece meal manner. However the first legislative reform was
made in the Muslim Law in 1913 by enacting the wakfs Act. This was to undo the effect of the
Privy Council ruling106 that wakfs which were founded for aggrandizement of family or gifts or
Charity which were illusory or wakfs which were merely nominal were void. The Muslim took
this dictum as inconsistent with the true view of Shariat. The Communities like the Khojas,
Memons, Vohras had followed the Hindu law and the courts also administered Hindu law to
these converted Muslims. Therefore in 1937 the second reform was introduced by enacting the
Shariat Act 1937 and all different factions of Muslims were brought under Shariat Act. 2. Shariat
and the Property Rights of Muslim Women The Muslim Jurists gave much significance to the
laws of inheritance and they were never tired of repeating the saying of the prophet. The Prophet
said that learn the laws of inheritance and teach them to the people for they are one-half of useful
knowledge and modern authors have admired the system for its utility and formal excellence107.
Macnaghten says that108 in these provisions we find ample attention paid to the interests of all
those whom nature places in the first rank of our affections and indeed it is difficult to conceive
any system containing rules more strictly just and equitable. The Muslim law of inheritance
consists of two distinct 106 Abdul Fata Mohammed Ishak, v. Russomoy Dhur Chowdhry 22 1.A
76, see M.P.Jain Out Lines of Indian Legal& Constitutional History,553 (Lexis Nexis Nagpur,
2009) 107 A.A.Fyzee. Outlines of Mohammadan Law, 387( 4th edn,. Oxford University Press,
New Delhi 1971) p.387. 108 Macnaghten, Preliminary Remarks, PV. See supra at 387. 178
elements, the custom of ancient Arabia and rules laid down by Quran and the Founder of Islam.
The Koranic reform came as a superstructure upon the ancient tribal law. Many of the prevailing,
social and economic inequalities were corrected for that reason Koran may be referred to as an
amending Act. With the advent of Islam and the teachings of prophet, the status of women slowly
improved. The prevailing notion that women were inferior to men had been dispensed. Quran
asserted the dignity of women and holds the view that man and woman are equal and they
complement each other109. The prophet insisted the followers that female children should be
treated exactly on line with the male issues. During the pre-Islamic period daughters were looked
upon with frown and they were treated as an economic and social burden110. Instead the male
members of the family enjoyed respect and there were glaring differences in the upbringing of
sons and daughters111 . It is in this respect that one should appreciate the contributions of Islam
to the well being of women. Islam removed all the yokes on women. The practice of burying
girls alive was looked upon as a crime. Quran also refers to the reactions of the parents up on the
birth of a girl and condemns the parents who become sad with inward grief112. The sayings of
the prophet also send the message that a girl should not suffer injustice or inequality. Moreover
he who has a daughter and does not bury alive or insult her and does not prefer son to her, Allah
will enter him into paradise. Unlike the Christian teachings, Islam does not blame women for
Eves 109 Mohammad Mazherddin Siddique, Women in Islam,14 (Adam Publishers, New Delhi
1992) 110 About a hundred years prior to the Prophet, Arabia was civilized and women were
treated favorably; they enjoyed certain rights and freedom. That civilization slowly disappeared
in course of time and their legal rights were down. 111 Alka Singh, Women in Personal Law,
1( Rawat Publications New Delhi 1992) 112 Quran 1658, 59 179 mistake. Therefore every
newborn child carries within himself an innocent upright nature. This concept contradicts the
Christian belief of inborn sin. Islam teaches that no sin is inherited by a child. Both Adam and
Eve disobeyed Allahs orders, yet they were forgiven because they repented113 . 3. Property
Rights of Muslim Women under the Customary Law In pre-Islamic Arabia the law of inheritance
was based on comradeship-inarms and hence even wife and children were excluded from
inheritance. In fact the law of inheritance was based on the principles of agnatic preference and
exclusion of females. Thus a daughter or a sister or daughters son or sisters son could not
succeed to the property114. It is evident from this that before the advent of Islam women were
not only deprived of their right to inheritance but their very destiny was in the hands of her
husbands clan or with her relatives. In the pre-Islamic society males enjoyed upper hand over
females in matters related to inheritance. When a man lost his life, his heir would claim the right
over the widow and marries her. After marriage, he denies her the right to claim the part of
inheritance constituted by the dowry. He can also take the dowry and ask another man to marry
her. Further fatherless children never inherit, instead they were mistreated and not looked after
well and young girls would become victims of sexual abuse115 . However the prophet totally
reformed the pre-Islamic law of inheritance without abrogating all the customs of the pre-Islamic
Arabia. He retained in their 113 Afsar Banu, Status of women in Islamic society.45 (Vol-I,
Anmol Publications Pvt. Ltd New Delhi,2003) 114 Paras Diwan; Muslim Law in Modern
India,213 (9th edn., Allahabad Law Agency, Allahabad, 2000) 115 See Supra note 113 at.46 180
original form many Arabian customs which did not conflict with the basic tenets of Islam116.
The prophet removed certain economic and social evils then prevalent. For example, in pre-
Islamic Arabia, women had no right to inheritance. So Islam made husband or wife an heir.
Females and cognates were made competent to inherit. Parents and ascendants were given the
right to inherit even when there were male descendants. As a general rule females were given
one half the share of a female117 . Thus Islam gave a share to women who were denied a share
in pre-Islamic Arabia. The pre-Islamic Arabs were against the inheritance to woman because of
her weakness. She is not capable of doing acts of defense and bravery. Hence distant males of the
family inherited the property. When Thabit, the well-known poet of the Arabs died leaving
behind him a wife and few daughters, the sons of his uncles seized all his property
and spared nothing for his wife and daughters. The widow complained to the
prophet. Then the prophet recited to them the verse that was revealed to him. So
Quran created inheritance rights for women at time w

no such rights existed. The daughter gets half the share of the brother118 . Although
Islam granted woman the right to inheritance, her share is by no means fair and equal to that
given to men. The brother takes twice his sisters share. This has been looked upon as
discrimination against women119. The woman is given a lesser share because Quran has assured
inheritance to women not only as daughters but also as mothers and wives. Moreover, in Islam
the husband had to take care of his wife even if she is wealthy enough to maintain
herself. Legally she is entitled to 116 See supra note 113 at 213 117 Dr. Rakesh
Kumar Singh, Text Book on Muslim Law 315 (Universal Publishers, New Delhi, 2011)
118 Quran 2:228 119 See supra note 113, at 320. 181 claim maintenance. At the
same time she is not obligated to spend any of her wealth on the household. Again at
the time of marriage, the Muslim women receive Mehr which she is free to use, spend or invest it
in any way she likes. Therefore as a wife she adds to whatever she receives through inheritance
in her capacity as daughter and that she does not have to support either herself or her children.
Therefore the position of a Muslim woman is secure as far as inheritance is concerned. Their
financial situation is completely guaranteed by the Islamic law120 . However in practice, the
divine rules regarding womens inheritance are violated and overlooked by Muslim societies.
Very often they are forced to give up their share for the benefit of male members of the family.
This is particularly the case where women are married to wealthy men. Their share is
automatically written off and would be absorbed by the male relatives. If they refuse to do it they
will be accused of being selfish, greedy, inconsiderate and irresponsible. 4. Muslim law of Wills
and Protection of Family Members In the Pre-Islamic times a man had an almost unlimited
power of disposing of his property, but as the Quran has laid down clear and specific rules for the
distribution of the inheritance it was thought undesirable for man to interfere with gods
ordinances. Therefore the absolute testamentary power of the Muslim has been restricted to one-
third of his property. The reason is that for a musalman a Will is a divine institution since its
exercise is regulated by the Quran. It gives the testator the means of correcting to a certain extent
the law of succession and of enabling some of those relatives who are excluded from inheritance.
At the same 120 See supra, note 113 at 321. 182 time the prophet had declared that the power
should not be exercised to the prejudice of the lawful heirs. Thus the Muslim law of Wills is a
compromise between the divine rule and the moral duty of a Muslim. He doesnt want to
interfere with the divine law, at the same time he is duty bound to make arrangements for the
distribution of his property after his death121. However under a valid custom a Muslim may be
allowed to dispose of his entire property under Will because the Shariat Act 1937 does not apply
to Wills. A bequest of more than one-third may be done by the consent of heirs. The rationale
behind the rule is that the limitation of the testators power of disposition is entirely for the
benefit of the heirs and if they do not want it they are free do to so122 . Muslim Womens Right
to Mehr The inheritance rights of women under Islamic law can be understood best if they are
examined in the larger context of property rights of women with in a marriage123. The law of
marriage in a way is a law of property settlement rather than defining sexual morality. Though
the Muslim law of inheritance protects womens rights better than the law, in the matter of
matrimonial law, Hindu law is more favorable to women than the Muslim law which permits
Triple Talaq and Polygamy. However Islamic law is very progressive since it permits dissolution
of marriage either by consent or by providing for irretrievable break down of marriage. Only in
the latter half of the twentieth century the British Matrimonial Jurisprudence 121 This is a
tradition laying down that a Muslim who possesses property should not sleep even for two nights
unless he has made a written Will. 122 See supra note 113 at 222 123 Mary F. Radford, The
inheritance rights of women under Jewish and Islamic Law, available at:
http://www.beedu/be.org,( Accessed on 25-9-09.) 183 accepted the concept of divorce by mutual
consent. This was included into Hindu law in 1976. The Divorce Act which governs Christian
marriages recognized this concept only in 2001124 . Another characteristic feature of Muslim
matrimonial law is the Quranic right of Mehr: Dower / Mehr give Muslim women property
rights. Dower is a payment whether in cash or as property which the husband pays (known as
prompt dower) or promises to pay (deferred dower) to the wife. Dower is for wifes use and may
be disposed as she wishes. One of the ways in which women can empower themselves is through
the Islamic right of a reasonable dower without fear of social consequences125. Mehr in a way
provides for future security for the woman at the time of marriage. There is not a parallel
provision in any other legal system. All provisions of dissolving a marriage become unjust to
women if they are not providing economic protection to women126 . The right of the wife to
receive Mehr constitutes a salient feature of Islamic law. This concept of Mehr gives the Muslim
marriage the status of a civil contract. Mehr is in turn looked up on a token of respect towards
women. Whatever may the Mehr, monetary or not in law it is an exclusive property of the wife
and not of her parents or guardians and it removes the disability suffered by women under the
law of inheritance. Since it is a Quranic right the husband can give a particular house itself as
Mehr. The woman will be entitled to this property or its monetary value. If the husband refuses to
pay the prompt Mehr upon marriage, the woman can refuse to 124 Flavia Agnes, Economic
Rights of women under Muslim Personal Law Economic and Political weekly, Vol-xxxi,2832
(October1996) 125 United Nations Human settlements Program, 2005, Muslim women and
Property, available at: www.unhabitat.org, (Accessed on 28-10-09) 126 See supra note 15 at
2832 184 fulfill her marital obligations including co-habitation. She is not bound to obey any of
his commands, she is entitled to live separately and claim maintenance from her husband during
this period127. In addition to that she is entitled to talaq tafwiz in the case of non-payment of
Mehr. The superior position of women under Islamic law can be ascertained only if we compare
it with the status of women under other contemporary legal systems. Under Roman and British
Legal systems of this period, women lost their rights to acquire, hold and manage separate
property upon marriage. The Roman law of marriage owed its roots to the Judaic law and is
based on the concept of a patriarchal family consisting of wives, sons and slaves128. Under the
British system upon marriage the woman loses her legal existence resulting into her legal death.
All her property belonged to her husband and he could only use it be even alienate it without her
consent. The husbands right to his wifes property was held in such high esteem that even after
betrothal, if the woman alienated her property without the consent of the groom he could sue her
for fraud. In fact all the key Islamic legal materials generally support womens right to acquire,
hold, use, administer and dispose of property. A Muslim woman possesses independent legal,
economic and spiritual identity and independence. The Quran notes that women shall be legally
entitled to their share129 and that to men is allotted what they earn, and to woman what they
earn130. Only if women choose to 127 See supra note 15 at 2833 128 Catherine Edwards, The
Politics of Immorality in Ancient Rome, 34(Cambridge University Press, 2002) 129 Quran 4:7
130 Quran 4:32 185 transfer their property can men regard it as lawfully theirs131. The Islamic
laws supporting property rights of women are drawn from a variety of fields such as marriage,
dower, inheritance and maintenance. Further a quotation from Baer, 1983:9 is worth mentioning
in this context. He says that (History)shows no doubt, that (Muslim) women were property
holders a fact which has been pointed out for various Islamic societies and should be reiterated
herethat this certainly was not the case in many other civilizations including many western
societies. The question is whether it also disapproves the view of the subservient role of women
in traditional Islamic society132. It is also pertinent to note here that the Married
womens property Act was passed in Britain only in the year 1860, whereas more than 1300
years earlier that right was clearly established in Islamic law What ever men earn, they have a
share in that133 . III. Disparity in the status of women in their personal laws due to
discrimination on the basis of religion India which is a multi religious multi cultural society has
given to its citizens an opportunity for their complete development irrespective of their sex,
caste, religion or race by enshrining the various fundamental rights in part III of the Constitution.
Despite this, religious precepts always superseded the beneficial 131 Quran 4:4 132 Research
Paper prepared by Mr. M.Siraj and Dr. Hilary Lim, University of East London U.K The study
was on the Land and Property Rights in the Muslim world. The study was sponsored by United
Nations Human Settlements Programme (UN.HABITAI) available at: http://www. unhabitat.org,
(Accessed on 10.09.2011). 133 Ibid at 4:31 186 pragmatic and humanistic international and
national laws of the country134. The constitutional mandate of non discrimination against any
person on the grounds of religion given under Article 15(1) has still not been enforced totally
even after the promulgation of the constitution 66 years ago135. The property rights of Christian
women are even now a distant dream because of the strong religious precepts, church teachings
and the retention of the Common law concept of subjugation of women by making them a non-
entity after marriage. The church always insisted on the obedience of women to her husband136 .
The Church perpetuates patriarchy and subjugation of Christian women. To add to that the
legislature has not taken any steps to control the testamentary capacity and also to prevent the
execution of release deeds at the time of marriage whereby the daughters are prevented from
claiming their share under section 37 of the Indian Succession Act 1925. Further the streedhanam
given to the daughter at the time of marriage is to be handed over to the Father in law or to the
husband. This is in fact a reflection of the Common law concept of Covertue under which wife
becomes a non-entity. The ulterior motive behind this is to keep the women economically
dependent on the husbands family and to restrict her freedom. 134 Dr.A.K.Srivastava, Muslim
Personal Law and Rights of Muslim Women, A Socio Legal study 34 SCJ 3 (2007) 135
Emmanuel Nahar, Minority Rights in India: Christian experiences and Apprehensions
Mainstream Weekly Vol.XLV, No.01, (24-4-07). 136 Wives submit yourselves unto your
husbands said St. Paul for the husband is the head of the wife So let the wives be subject to
their own husbands in everything. St. Peter said. Likewise, ye wives are in subjection to your
own husbands. These precepts found its place in the prayer book, and it will be read out during
marriage service. So the Church perpetuates patriarchy and subjugation of Christian women: To
add to that the legislature has not taken any steps to control the testamentary rights and also to
prevent the execution of release deeds at the time of marriage whereby the daughters are
prevented from claiming their share under Section 37 of the Indian Succession Act 1925. 187
Hindu women had also this traumatic experience and they were also kept under subjugation by
denying them property rights. Women of the ancient period did not have any right to hold,
acquire or dispose of property. It was clearly laid down in the Rigveda that a son born of the
body does not transfer wealth to sister137 . Married daughters living with their husbands could
inherit from their father only when they had no brother138. The position of the wife of the Vedic
age was also highly condemnable. There was no check on the tyranny of man over women. The
society was highly patriarchal and masculine. The household was ruled by the husband who
wielded absolute control over all other members of the family. Women were treated as property
and upon marriage dominion over them was transferred from the father to the husband139.
Neither the daughter nor the wife of this period enjoyed any legal status which means she could
neither hold nor inherit property. However the status of Hindu women underwent radical change
with the enactment of the Hindu Succession Act 1956. It is apt to repeat the observation of the
Supreme Court in Tulsamma v. SheshaReddy140. The Court observed that the shackles placed
on the Hindu women over her property have been broken by this act and her status has been
brought on par with men. Further the 2005 (Amendment) Act wiped away all the inequality that
was retained in the 1956 Act thereby conferring an enviable status to the Hindu Women though it
is on paper. 137 Rigveda 111, 31-32 138 Rigveda 111, 31-32 139 See supra note 15 at 10. 140
AIR 1977 SC 1944. 188 It is pertinent to note here Christian women of Kottayam District also
hail from families having ancestral properties141. Yet they do not acquire any birth right, instead
very often they are sent to matrimonial homes after giving a nominal amount as streedhanam
with this the whole tie with the natal family will be cut off. She has to depend on her husband for
the rest of her life. In other words she has to live like a slave, surrendering all her liberty, dignity
and self-esteem. She gets 1/3 of the share of husbands property only when she becomes a
widow. Besides this she has to hand over the stridhanam to husband or to the father-in-law. In
this context we should appreciate the contributions of Islam to the well being of women. Islam
removed all the yokes on women. Quran asserted the dignity of women and holds the view that
man and women are equal and they complement each other142. The Muslim women were also
denied property rights under the pre-Islamic customary laws; wife and children were excluded
from inheritance. In fact the law of inheritance was based on the principles of agnatic preference
and exclusion of females. Thus a daughter or a sister or a daughters son or sisters son could not
succeed to the property143 . In other words before the advent of Islam women were not only
deprived of their right to inheritance but their very destiny was in the hands of her husband
family or with her relatives. In the pre-Islamic society males enjoyed upper hand over females in
the matter of inheritance. But the prophet totally reformed this customary law of inheritance and
made husband or wife an heir. Females and 141 The Christians in Travancore were formerly
Hindus hailing from Namboodiries families having joint family property. This tradition is still
being continued. Christians have no separate property. 142 See supra note 109 at 387 143 See
supra note 113 at 45 189 cognates were made eligible to inherit. Thus Islam gave women a share
which was denied to her in pre-Islamic Arabia. Even though she is given a share, she is treated
unequally by giving her half the share of her brother. Muslim women do not have equal right
regarding marriage or divorce144 . Repeated uttering of the word Talaq could make a Muslim
woman a destitute. However the women do not have such rights. Besides this, the practice of
polygamy adds to the misery of Muslim women. Hence because of polygamy and Triple Talaq
the Muslim women are more vulnerable than their counter parts in other religions145 . However
with regard to inheritance rights she stands superior to Christian women because the Quran
assures her a share although not equal to that of her brother. Quran compensates it by giving her
right to Mehr which she can keep with her and claim maintenance from the husband even if she
is rich. An analysis of the property rights of Christian Hindu and Muslim women point towards
the fact that the status of Christian women is the most vulnerable as far as property rights are
concerned. The Christian women are deprived of equal rights to parental property because of the
continuance of the dowry system under Section 28 of the repealed Travancore Christian
Succession Act 1916 which provided that the male shares shall be entitled to have the whole of
the interstates property divided equally among themselves subject to the claims of the daughter
for streedhanam146. Section 29 further provides, the female heirs or the descendants of 144
T.K.Rajalakshmi, Muslim Women more Vulnerable Frontline, Vol.24, issue o2, Jan-Feb-27,
2007 145 See supra note 98 at 18 146 See Section 28 of the Travancore Christian Succession Act
1916; Daughters Streedhanam and its value. The streedhanam due to a daughter shall be fixed at
the value of the share of a son or Rs.5000/- whichever is less. 190 the deceased female heirs
will be entitled to share in the intestates property only in the absence of the male heirs. These
two rules of succession are still being continued in the Catholic community of Kottayam District
and Kannyakumari District even after its repeal following the verdict of the Supreme Court in
Mary Roy v. State of Kerala. Further, the Christian families with ancestral properties still
continue the custom of partitioning the properties among the members of the family. Here also a
daughter who has been given streedhanam will be excluded from partition. It is to be noted here
that the father / testator can disinherit a daughter through a Will also. These two practices are still
unabashedly going on in the Catholic families. Meanwhile the Hindu personal law has undergone
changes through a continuous process of codification. The state is continuing its neglect towards
the Christian women who are still being governed by the law of Israel, religious precepts and
customary practices that are repugnant to the constitutional mandate of nondiscrimination and
the principles of non-discrimination enunciated by CEDAW. It can be rightly added that
Christian women are suffering from double discrimination, the discrimination on the basis of
religion and discrimination on the basis of sex. The Constitution of India recognizes equality of
status and in fact provides for certain provisions under the chapter on fundamental rights more
favourable to women but in actual practice they are observed more in breach than in
compliance147. This is absolutely true in the case of Christian women. It is worth quoting here a
passage cited by Mr. Fali Nariman referring to the U.S. Constitution 147 Js.Rajendra Babu,
Gender Justice, Indian perspective145 AIR (2007). 191 Congress woman said: We the
people a very eloquent beginning. But when that document was included on 17.09.1787, it was
not included in that we the people I feel somehow for many years that George Washington and
Alexander Amialton just left me out by mistake. But I realize that it is through the process of
interpretation and court decision that I have been finally included in we the people148. The
Christian women will acquire equal status only if she is freed from Church influences,
patriarchal family system, of restricting the practice of execution of release deeds and
testamentary capacity of the testator. IV. Summary An analysis of the inheritance rights of the
Christian, Hindu and Muslim women brings forth the reality that only the Christian women alone
are deprived of the right to inherit a share of the ancestral property. This is the mere callousness
of the Legislature. The international Conventions on women always focus on womens
inheritance rights. However neither the community nor the Church would ever take any step to
plug the existing loopholes in the Indian Succession Act 1925 because they are up in arms
against women inheriting property. The Law Commission also has been enthusiastic in the
reforms of Hindu Succession Law. No such enthusiasm is shown in reforming Christian Personal
Law. In tune with the Law Commissions recommendations, even the Government has made an
effort to make reformatory laws in Hindu Succession, though it is not implemented effectively.
To make matters worse Christian women are still being controlled by the Church through its
Canon laws which ensure womens subjugation and subordinate status. 148 Fali S.Nariman,
The Silences in our Constitutional Law, J 25 SCC(2) (2006)

13 General Principles of Inheritance under Muslim Law in

India
Article shared by Pragati Ghosh

The 13 General Principles of Inheritance under Muslim Law are mentioned below:
(1) Nature of the Heritable Property:
Heritable property is that property which is available to the legal heirs for inheritance. After the
death of a Muslim, his properties are utilised for the payment of funeral expenses, debts and the
legacies i.e. wills, if any. After these payments, the remaining property is called heritable
property. Under Muslim law, every kind of property may be a heritable property.

For purposes of inheritance, Muslim law does not make any distinction between corpus and
usufruct or, between movable and immovable, or, corporeal and incorporeal property. Under
English law, there is some difference in the inheritance of movable and immovable property.

But, under Muslim law there is no such distinction; any property, which was in the ownership of
the deceased at the moment of his death, may be the subject-matter of inheritance.

Shia Law:
Under the Shia law, a childless widow is entitled to get her share (1/4) in the inheritance only
from the movable property left by her deceased husband.

(2) Joint or Ancestral Property:

The concept of a joint family or of coparcenaries property (as is recognised under Hindu law) is
not known to Muslims. Whenever a Muslim dies, his properties devolve on his heirs in definite
share of which each heir becomes an absolute owner. Subsequently, upon the death of such heir,
his properties are again inherited by his legal heirs, and this process continues.

Thus, unlike Hindu law, there is no provision for any ancestral or joint-family property.
Accordingly, under Muslim law of inheritance, no distinction has been made between self-
acquired and ancestral property. All properties, whether acquired by a Muslim himself or
inherited by his ancestors, are regarded as an individual property and, may be inherited by his
legal heirs.

(3) No Birth-Right:
Inheritance opens only after the death of a Muslim. No person may be an heir of a living person
(Nemoest haeres viventis). Therefore, unless a person dies, his heirs have no interest in his
properties. Unlike Hindu law, the Muslim law of inheritance does not recognise the concept of
right by birth (Janmaswatvavad).

Under Muslim law, an heir does not possess any right at all before the death of an ancestor. It is
only the death of a Muslim which gives the right of inheritance to his legal heirs.

As a matter of fact, unless a person dies, his relatives are not his legal heirs; they are simply his
heir-apparent and have merely a chance of succession, (spes successions). If such an heir-
apparent survives a Muslim, he becomes his legal heir and the right of inheritance accrues to
him. If the heir-apparent does not survive a Muslim, he cannot be regarded an heir and has no
right to inherit the property.

(4) Doctrine of Representation:

Doctrine of representation is a well known principle recognised by the Roman, English and
Hindu laws of inheritance. Under the principle of representation, as is recognised by these
systems of laws, the son of a predeceased son represents his father for purposes of inheritance.
The doctrine of representation may be explained with the help of the diagram given below. P has
two sons A and B. A has got two sons and D and has a son E.

During the life of P, his family members are his two sons (A and B), and three grandsons (C, D
and E). Unfortunately, pre-deceases P, i.e. dies before the death of P. Subsequently, when P
also dies, the sole surviving members of the family of P are A and three grandsons, C, D and E.

Under the doctrine of representation, E will represent his pre-deceased father and would be
entitled to inherit the properties of P in the same manner as would have inherited had he been
alive at the time of Ps death.

But, Muslim law does not recognise the doctrine of representation. Under Muslim law, the nearer
excludes the remoter. Accordingly, in the illustration given above, E will be totally excluded
from inheriting the properties of P. Both, under Shia as well as under Sunni law, E has no right to
inherit the properties of P. The result is that E cannot take the plea that he represents his pre-
deceased father () and should be substituted in his place.

Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is to
say, if there are two heirs who claim inheritance from a common ancestor, the heir who is nearer
(in degree) to the deceased, would exclude the heir who is remoter. Thus, between A and E, A
will totally exclude E because A is nearer to P in degree whereas, E belongs to the second degree
of generation. The Muslim jurists justify the reason for denying the right of representation on the
ground that a person has not even an inchoate right to the property of his ancestor until the death
of that ancestor.

Accordingly, they argue that there can be no claim through a deceased person in whom no right
could have been vested by any possibility. But, it may be submitted that non-recognition of
principles of representation under the Muslim law of inheritance, seems to be unreasonable and
harsh. It is cruel that a son, whose father is dead, is unable to inherit the properties of his
grandfather together with his uncle.

(5) Per-Capita and Per-Strip Distribution:

Succession among the heirs of the same class but belonging to different branches may either be
per-capita or per-strips. In a per-capita distribution, the succession is according to the number of
heirs (i.e. heads). Among them the estate is equally divided; therefore, each heir gets equal
quantity of property from the heritable assets of the deceased.

On the other hand, in a per strip distribution, the several heirs who belong to different branches,
get their share only from that property which is available to the branch to which they belong. In
other words, in the stripital succession, the quantum of property available to each heir depends
on the property available to his branch rather than the number of all the heirs.

Under Sunni law, the distribution of the assets is per-capita. That is to say an heir does not in any
respect represent the branch from which he inherits. The per-capita distribution may be
illustrated by the following diagram.
M has got two sons A and B. A has three sons, S 1, S2 and S3. has two sons S4 and S5. When M
dies there are two branches of succession, one of A and the other of B. Suppose, A and both die
before the death of M so that the sole surviving heirs of M are his five grandsons.
Now, under the per-capita scheme of distribution (as recognised under Sunni law) the total
number of claimants (heirs) is five and the heritable property would be equally divided among all
of them irrespective of the branch to which an heir belongs.

Therefore, each of them would get 1/5 of the total assets of M. It may be noted that under Sunni
law the principle of representation is recognised neither in the matter of determining the claim of
an heir, nor in determining the quantum of share of each heir.

Shia Law:
Under the Shia law, if there are several heirs of the same class but they descend from different
branches, the distribution among them is per strip. That is to say, the quantum of property
inherited by each of them depends upon the property available to that particular branch to which
they belong. In the above-mentioned illustration, A and constitute two branches, each having
1/2 of Ms property. Both, A and pre-decease M.

But, the quantum of property available to each of their branch would remain the same. Therefore,
the surviving heirs of A namely, S1, S2, 53 would get equal shares out of 1/2 which is quantum of
property available to the branch of A. Thus S 1, S2 and S3 would get 1/6 each. Similarly, the
quantum of property available to the branch of is also 1/2 but the descendants from this branch
are only two. Accordingly, the 1/2 property of would be equally shared by S4 and S5.
Therefore, 54 and S5 would get 1/4 each. It is significant to note that for a limited purpose of
calculating the share of each heir, the Shia law accepts the principle of representation. Moreover,
under the Shia law this rule is applicable for determining the quantum of share also of the
descendants of a pre-deceased daughter, pre-deceased brother, pre-deceased sister or that of a
pre-deceased aunt.
(6) Females Right of Inheritance:
Males and females have equal rights of inheritance. Upon the death of a Muslim, if his heirs
include also the females then, male and female heirs inherit the properties simultaneously. Males
have no preferential right of inheritance over the females, but normally the share of a male is
double the share of a female.

In other words, although there is no difference between male and female heir in so far as their
respective rights of inheritance is concerned but generally the quantum of property inherited by a
female heir is half of the property given to a male of equal status (degree).

The principle that normally the share of a male is double the share of a female has some
justification. Under Muslim law, while a female heir gets (or hopes to get in future) an additional
money or property as her Mehr and maintenance from her husband, her male counterpart gets
none of the two benefits. Moreover, the male heir is primarily liable for the maintenance of his
children whereas, the female heir may have this liability only in an extraordinary case.

(7) A Child in the Womb:

A child in the womb of its mother is competent to inherit provided it is born alive. A child in
embryo is regarded as a living person and, as such, the property vests immediately in that child.
But, if such a child in the womb is not born alive, the share already vested in it is divested and, it
is presumed as if there was no such heir (in the womb) at all.

(8) Primogeniture:
Primogeniture is a principle of inheritance under which the eldest son of the deceased enjoys
certain special privileges. Muslim law does not recognise the rule of primogeniture and all sons
are treated equally.

However, under the Shia law, the eldest son has an exclusive right to inherit his fathers
garments, sword, ring and the copy of Quran, provided that such eldest son is of sound mind and
the father has left certain other properties besides these articles.
(9) Step-Children:
The step-children are not entitled to inherit the properties of their step-parents. Similarly, the
step-parents too do not inherit from step-children. For example, where a Muslim H marries a
widow W having a son from her previous husband, the son is a stepson of H, who is step-father
of this son.

The step-father and step-son (or daughter) cannot inherit each others properties. That step-child
is competent to inherit from its natural father or natural mother. Similarly, the natural father and
natural mother can inherit from their natural sons or daughters.

However, the step-brothers (or sisters) can inherit each others properties. Thus, in the illustration
given above, if a son (or daughter) is bom out of the marriage of H and W, the newly born child
would be a step-brother (or sister) of the son from wifes previous husband.

These sons or daughters are competent to inherit each others property. The step-brothers or
sisters may either be, uterine or consanguine. Muslim law provides for mutual rights of
inheritance between uterine and consanguine brothers or sisters.

(10) Simultaneous Death of two Heirs:

When two or more persons die in such a circumstance that it is not ascertainable as to who died
first (i.e. who survived whom) then, both of them cease to be an heir for each other. In other
words, where two or more heirs die simultaneously and, it is not possible to establish as to who
died first then under Muslim law, all the heirs are presumed to have died just at one moment. The
result is that such heirs are regarded as if they did not exist at all; the inheritance opens omitting
these heirs.

For example, A and are each others legal heirs in such a manner that after the death of any one
of them, the surviving person would inherit the property of the deceased one. But, both A and
die simultaneously say, in an aero plane crash, and it could not be established as to who survived
whom. Under Muslim law, neither A would inherit nor would inherit A.

Thus, the legal heirs of A would inherit As property as if there was no at all. Similarly, the
heirs of would inherit Bs property as if A did not exist at all?
(11) Missing Persons:
According to the texts of Hanafi law, a missing person was supposed to have been dead only
after ninety years from the date of his birth; till then the inheritance of his properties did not
open. But, now this rule has been superseded by Sec. 108 of the Indian Evidence Act, 1872
which provides as under:

When the question is whether a man is alive or dead, and it is proved that he has not been heard
of for seven years by those who would naturally have heard of him if he had been alive, the
burden of proving that he is alive is shifted to the person who affirms it.

Accordingly, where a Muslim is missing for at least seven years and if it could not be proved that
he (or she) was alive then, that person is legally presumed to be dead and the inheritance of his
(or her) properties opens.

It has been held by the courts that Hanafi rule of ninety years of life of a missing person was only
a rule of evidence and not any rule of succession; therefore, this Hanafi rule must be taken as
superseded by the provisions of Indian Evidence Act 1872.

(12) Escheat:
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by
Government through the process of escheat. State is regarded as the ultimate heir of every
deceased.

(13) Marriage under the Special Marriage Act, 1954:

Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a
Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or her)
properties do not devolve under Muslim law of inheritance. The inheritance of the properties of
such Muslims is governed by the provisions of the Indian Succession Act, 1925 and Muslim law
of inheritance is not applicable.
The daughter

Under the Muslim law, ideology that a woman is half the worth of a man, a son takes double the
share of a daughter. But the daughter is the absolute owner of whatever property she inherits. If
there is no brother, she gets half a share. It is legally hers to manage, control, and to dispose off
according to her wishes.

She is eligible to receive gifts from even from those she would inherit from. This is contradictory
because she can inherit only one-third of the mans share but can get gifts without any hassle.

Till a daughter is not married, she enjoys the right to stay in her parents house and seek
maintenance. In case of a divorce, charge for maintenance reverts to her parental family after
the iddat period (approximately three months) is over. But, if her children are in a position to
support her, the responsibility falls on them.

The wife
In the famous Shah Bano case, the Supreme Court had held that in case of a divorce, it is the
responsibility of the husband to make reasonable and fair provision to maintain his former wife
even after separation under Section 3 (1Ha) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986. This period extends beyond iddat as the woman retains control over her
goods and properties.

In the event of the death of her husband, a widow gets the one-eighth share (when there are
children) but will get one-fourth share (if there are no children). If there is more than one wife,
the share may diminish to one-sixteenth.

The mother

A Muslim mother is entitled to inheritance from her children, if they are independent. She is
eligible to inherit one-sixth of her dead child's property if her son is a father as well. In the
absence of grandchildren, she would get the one-third share.
The maher (entitlement)

This is the total money or property that a wife is entitled to get from her husband at the time of
marriage.

There are two types of maher: prompt and deferred. In the former case, the amount is given to
the wife immediately after marriage; in the later, the amount is given to the wife when her
marriage has ended, either upon the death of her husband or by divorce.

The wasiyat (will)

A Muslim cannot give away more than one third of his/her total property through a will. In
circumstances where there are no heirs in the estate as prescribed by law, the wife may inherit a
greater amount by will.

Property Rights of a Christian Woman

The law applicable to Christians is the Indian Succession Act, 1925. A Christian widow, whose
husband owned property, is entitled to 1/3rd of his property. The remaining 2/3rd is divided
equally among their children whether sons or daughters. In the absence of the children, widow
gets of the property and remaining property is divided to other legal heirs. If he leaves no wife
behind, all his children will each have equal share of the total property. If any of the children die,
the share due to them will go to their children and not to the daughter-in-law or son-in-law. Sons
and daughters have an equal share in their parents' property when they die without a will. Even if
money or gifts were given to daughters at the time marriage, they will still be entitled to get a
share of the parents' property, just like their brothers. A woman's share whether acquired from her
parents or husband - is her absolute property, just like the men's share. She can do with it as she
wishes: sell, gift or will to whomsoever she wishes. The jewellery and other gifts that have been
given to any woman by her natal (birth) family during her lifetime are called Stridhan and belong
to her alone.

CONCLUSION

From a predominantly male centric set of property rights, the law has evolved over time to give
first limited then absolute rights to women where property is concerned. It was the previously
held view that giving women the right to property would lead them to have too much freedom
and a sense of their own importance that would lead to the eventual breakdown of the societal
structure and lead to utter chaos. Such views are now known to be erroneous. The various rights
and liabilities of women holding property are as of now at par after the amendment of the Hindu
Succession Act 1956, in 2005. However, the reality is far from the black letter of the law since
even now only one in ten women are aware of the rights they are capable of exercising. It is the
duty of the legally aware people in society to ensure that this deficiency is remedied.
Nevertheless, these laws are a significant step forward in achieving gender equality as envisaged
by the framers of our constitution, the founding fathers of our nation.

Edited by Saksham Dwivedi

[i] Kanaka Latha Mukund, Turmeric Land, womens property rights in Tamil society since early
medieval times, XXVII/17,Economic and Political Weekly, WS-2 (1992)

[ii] ibid

[iii] Maynes Hindu law and Usage 840 (1986).

[iv] D Bh IV, I, 18.

[v] Manu, VIII, 416.

[vi] Available at http://newcenturyindianlaw.blogspot.in/2011/02/womens-right-to-

property.html(Last visited March 10, 2014).

[vii] Maynes Hindu law and Usage 840 (1986).

[viii] Vasonji V Chanda Bibi (1915) 37 All 369 PC

[ix] Renka v. Bhola Nath (1915) 37 All 177

[x] Kery Kolitany v. Moneeram (1875) 13 BLR 5, 53, 76: 19 WR 367

[xi] Maynes Hindu law and Usage (1986).

[xii] Bhau V. Ragunath (1906) 30 Bom 229

[xiii] Devcooverbaees case (1 Bom HC 130)

[xiv] Available at http://newcenturyindianlaw.blogspot.in/2011/02/womens-right-to-

property.html (Last visited March 10, 2014).

[xv] Amrito Das, Notional Partition, A critique, Section 6 of The Hindu Succession Act 1956,
J 149 AIR (2004)