Sunday, 5 February 2017

Good legal article on Hindu woman's right to property

1.In the ancient times, the woman could hold property but
in practice, in comparison to men's holding, her right to dispose of
the property was qualified. This was the situation prior to 1937 when
there was no codified law.   The Hindu Women's Right to Property
Act, 1937 was one of the most important enactment that brought
about changes to give better rights to women.  The said Act was the
outcome  of   discontent  expressed   by   a  sizeable   section   of  society against the unsatisfactory affairs of the women's
 right to property.
Even  the said act did not give an absolute right to women.  Under
the said Act a widow was entitled to a limited interest over the
property of her husband­what was to be termed as Hindu widow's
estate.   The Act was amended in 1938 to exclude the widow from
any interest in agricultural land.
2.On codification of Hindu law the Hindu Succession Act
was enacted in the year 1956 and the daughters were denied the
status of coparceners as against the sons.   It was contemplated to
give them share in the property out of the share falling to the share
of   their  father.   It  clearly     states   that  in   the  case   of   joint  family
property, known as coparcenary property [ancestral], the interest of 
male Hindu, on his death, would devolve by survivorship upon the
surviving     members   of   the   coparcenary   and   not   by   succession.
Coparcenary   consists   of   grandfather,   father,   son   and   son's   son.
However, if the deceased had left him surviving a female relative
[daughter, widow, mother, daughter of a predeceased son, widow of
a predeceased son, daughter of a  predeceased son of a predeceased
son, widow of a predeceased son of a predeceased son]  the interest
of the deceased in the coparcenary shall devolve by testamentary or
intestate succession, as the case may be, under this Act and not by
3.The Constitution of India provides that every person is
entitled for equality before law and equal protection of the laws and
thereby prohibits discrimination on the basis of caste, creed and sex.
It enshrines the principle of gender equality in its Preamble and Parts
III,   IV and IV­A pertaining to a Fundamental Rights, Fundamental
Duties   and   Directive   Principles   respectively.     It   not   only   grants
equality to women, but also empowers the State to adopt measures
of positive discrimination in favour of women.  
Gradually a demand started gaining the momentum that
the daughters should be given equal property rights at par with sons.
It   attracted   attention   of   the   law   makers   who     felt   the   need   of
incorporating   appropriate   provisions   to   calm   down   the   social
clamour.     Initially   Maharashtra   Government   amended   Hindu
Succession Act as applicable in the State of Maharashtra in the year
1994   with   effect   from   22/6/1994.     It     declared   the   daughters
coparceners treating them at par with sons.   However, a rider 
put that they should be unmarried on the date of commencement of
the   Act   and   it   shall   not   be   applicable   to   partitions   which   were
effected prior to 22/6/1994.
4.To remove gender bias out of the provisions of Hindu
Succession Act, 1956 the parliamentarians fought over 49 years and
then came with Hindu Succession [Amendment] Act, 2005 which
came into force on 9th September, 2005.  It gives the following rights
to daughters in a joint Hindu family.
− By birth she shall become a coparcener in her own right in
the same manner as the son.
− Shall have the same rights in the coparcenary property as
she should have had if she had been a son.
− Shall be subject to the same liabilities in respect of the said
coparcenary property as that of a son, and any reference to
a Hindu coparcener shall be deemed to include a reference
to a daughter of a coparcener.
5. The   newly   amended   section   6   has   abolished   all   the
discriminations i.e. difference based on schools, forms of marriages
and   nature   of   Stridhan.   The   Hindu   Succession   Act   made   a
revolutionary change in the law for female Hindus.   For the first
time, a Hindu female could become an absolute owner of property.
She could inherit equally with a male counterpart and a widow was
given importance regarding the succession of her husband's property
as also to her father's property. The daughter of a coparcener in a
joint Hindu family governed by the Mitakshara Law shall, by birth,
became a coparcener in her own right  in the same manner, as her
son, having the same rights and liabilities in respect of the said
property as that of a son.
Earlier under the provisions of Section 6 of the Hindu
Succession Act, 1956, the share of the daughter was less as compared
to son,  but now after the Amendment Act, 2005, this discrimination
is also removed and now, daughter has became an absolute owner of
all property, which was in her possession at the time of passing of
Act, 1956 and for all the properties acquired of the passing of the Act
by virtue of Section 14[1].  So, in the Hindu Law also the concept  of
limited interest has been abolished and the daughter has full control
over the property.
6.It is not in dispute that  a son of a coparcener becomes a
coparcener by birth and is entitled to sue for partition even against
his own father. Now, by the amendment of the Hindu Succession Act,
2005, same rights in the coparcenary property as that of a son have
been given to a daughter of a coparcener and hence, she has become
a coparcener in her own right by birth, which automatically entitles
her to have a right to sue for partition against other coparceners
including her father.  

7. Section 6 of the Amendment Act has an overriding effect, so far as
the partition of a coparcenary property and succession of interest of
deceased member (male or female) is concerned. It also supersedes all
customs   and   usages   or   Shashtric   Law   in   this   regard.   The   amended
Section   6   has   an   overriding   effect   so   far   as   the   constitution   of
coparcenary is concerned. The basic concept of coparcenary is that only
male  members  of  a   joint  Hindu  family  can  constitute   a  coparcenary
completely excluding the female members of the family. This concept has
not   been   substantially   modified   with   the   amendment   of   Section   6.
However, although the daughter has been included as a coparcener by
way of this amendment, the wife, mother and widow are still standing in
queue for their admission in the coparcenary.
Recent Judicial Pronouncements and their effects
 Judicial pronouncements of Hon'ble Supreme Court and Hon'ble
High Courts are of vital importance, as they lay down the interpretation
of the enactment and the intention of the legislature. Some of the most
important recent judicial pronouncements are discussed to ascertain the
actual effects of the Amendment Act of 2005.
1. Hon'ble Supreme Court in the case of  Ganduri KoteshwarammaVs. Chakiri Yanadi reported in 
AIR 2012 SC 169,  held that,
“The new Section 6 provides for parity of rights in the

coparcenary property among male and female members
of   a   joint   hindu   family   on   and   from   September   9,
2005. The Legislature has now conferred substantive
right in favour of the daughters. According to the new
Section   6,   the   daughter   of   a   coparcener   becomes   a
coparcener by birth in her own rights and liabilities in
the same manner as the son. The declaration in Section
6 that the daughter of the coparcener shall have same
rights and liabilities in the coparcenary property as she
would   have   been   a   son   is   unambiguous   and
unequivocal. Thus, on and from September 9, 2005,
the   daughter   is   entitled   to  a   share   in  the   ancestral
property and is a coparcener as if she had been a son.”
(Emphasis Supplied)

2.Babu Dagadu Awari v/s Baby w/o Namdev Lagad 2014
(4) Mh.L.J.608
In that case,  plaintiff i.e. daughter of applicant was
born prior to ­2005 the date of commencement of the
Act, she had filed suit for relief of partition against the
applicant father and respondents 2 and 4 i.e. sisters.  The
father  alienated suit properties by sale deed executed in
favour of respondents 2 and 3.   The suit properties were
ancestral   properties   belonging   to   father   and     his   4
daughters –The alienation took place after 2005 i.e.
the   date   fixed   for   giving   effect   to   Amendment   Act,
therefore, it was held that, suit is maintainable and such

transaction is null and void and not protected by Act.

3.In case of prakash v phulvati decided on 16 october 2015,  it is held by supreme court that the 2005 amendment in Hindu law will not give property rights to a daughter if the father died before the amendment came into force.
The court held that the amended provisions of the Hindu Succession (Amendment) Act, 2005, could not have retrospective effect despite it being a social legislation. The court said the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings.
Re­marriage of Widows & its effects under the Law
It is held by Bombay high court in Baliram Dhake vs Rahubai, AIR 2009 Bom. 57 that if widow has inherited her husband's property
and subsequently remarried, it would not cause her to be divested of
the property, since she became full owner by virtue of the operation of
this section.

 In  Cherotte   Sugathan   Vs.   Cherotte   Bharathi
AIR2008SC1467  right of Hindu widow remarrying to
her former husbands property has been considered. Former husband
had died on 2.8.1976. Succession was to be  opened on that date. Thewidow was held to have became absolute owner of property of her husband   by   reason   of   inheritance   in   terms   of   Section   14   (1)   of Succession Act. 
Though Hindu succession Amendment Act 2005 has substantially improved property rights of daughters,it diminished share of mother in property of her husband.Even though this law is enacted in 2005,till date awareness in respect of this Act is not created in general public.
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