• The Law Gazette

Property Rights of Hindu Women: Journey from a Limited Ownership to Equal Rights in the Coparcenary

Hindu women being conferred on rights to property ownership since ancient times, their property has been called “Stri-dhan” and this ownership allows them to use it according to their will except for a certain exception whereby the women’s husband may enjoy superiority in command. Initially, women’s property being divisible into women’s estate and Stridhan and women’s estate, they need to be understood to understand the evolution of the rights.


WHAT COMPRISES OF STRI-DHAN AND WOMEN’S ESTATE?

1. Property acquired by Gift/Bequests through relatives on both sides (husband and herself), in the form of will/inter-vivos is included under Stridhan except for immovable property gifted by the husband to the wife (Exception as per Dayabhaga School).

2. If the property is gifted by people apart from relatives, thus falling under gifts/wills by strangers, before “nuptial fire” or during “bridal procession”, etc. During the period of coverture, such gifts/bequeaths were considered as stridhan [accepted by Bombay, Banaras, Madras schools; not accepted by Mithila and Dayaybhaga schools] but the authority over these was possessed by the husband.

3. Property gained by a woman through her efforts such as labour, employment, etc., be it when she was not married, married/during coverture, or a widow is considered Stridhan [except Mithila and Bengal schools that do not consider such property acquired during coverture].

4. All savings, properties etc. acquired through Stridhan money is in itself considered stridhan.

5. Property acquired through compromise is considered stridhan and its categorisation as to women’s estate or stridhan depends on the terms of the arrangement.

6. Property acquired by a woman through adverse possession is considered stridhan as well.

7. Any type of maintenance paid in money or through gifts or transfer of movable/immovable properties is considered her stridhan.

8. Inherited properties:

i. Mitakshara school of law expounds that all such property inherited from both sides is stridhan.

ii. Privy Council in many cases has held that such property acquired falls under the ambit of women’s estate.[1]

iii. Bombay School expounds that if such inheritance has taken from female to female than, it can be considered her stridhan.[2] If in case it has been through a male if the women have come into the father’s gotra via marriage, then if she acquires the property, it would be categorised as women’s estate and if she was born in the family, then she the property may be considered stridhan.

9. Partition: Share obtained through the partition, both according to Mitakshara and Dayabhaga schools is considered under women’s estate.[3]


DIFFERENCE BETWEEN STRI-DHAN AND WOMEN’S ESTATE:

The difference between Stri-Dhan and women’s estate was the nature of ownership which they conferred on the women i.e., absolute and limited respectively.


Features of Stridhan:

Stri-dhan is considered as conferring on a woman, absolute rights of owning that property when she was an unmarried woman or a widow, thus enabling her to alienate or sell or dispose of the same at will. However, in case she was married this stri-dhan was divided into:

i. Saudayaka or gifts made from love that covers those given by relatives from both side and on which the woman had full rights of disposal.

ii. Non-saudakya covering the remaining categories of stridhan such as those acquired through self-exertion. It gave a limited right to the women and her husband was in control of these with regards to disposal.

Stridhan also passed on from her to her heirs only as it was to be considered as an “independent stock of descent”.[4]


Features of women’s estate:

The women being a limited owner of the property, in this case, she has been held to be a rightful owner, however, her powers being limited with the under said limitations as follows:[5]

i. Limitations on power to alienate property

ii. It passes on after her to the last full owner of the property


These powers can be examined in brief as follows:

i. Power to manage the property:

Having absolute rights to management, also being the full- owner of the property herself, her rights include entitlement to income from an estate which she can save or spend and which on saving comprises of her stridhan[6], capability to file a suit on behalf of the estate and capability to be sued for the same.[7] Until the women re-marry, dies, adopts or surrenders, she remains to be the sole- owner of the estate property.[8]


ii. Power to alienate property:

The woman had limited power to alienate property, and this was only in cases of certain exceptions as follows[9]:

a. In case any legal necessity arises.

b. If such alienation is beneficial for the estate

c. For completing certain religious and charity that would spiritually benefit the last full owner. For example, his funeral rights or shraddha ceremony, for their daughter’s marriage, etc. It may also include non-essential religious charity that may spiritually benefit the husband.[10]

Thus, the power of alienation w.r.t. to part of property alienable is divided as[11]:

a. Indispensable duties: In such cases, the entire property may be alienated by her

b. Religious purposes: Only parts of the property may be alienable.

An improper alienation may result in the reversioner either consenting or challenging and it is voidable, thus being valid for her until she is living[12]. If consented to, the alienation may become legitimate.[13] If challenged, the same may be vested on the reversioner only after she dies.


iii. Power to surrender property:

By using the right to renounce her estate or surrender, a woman may convey the property in favour of the nearest reversioner, thus, in turn, destroying her estate. This being a woman’s self-effacement, it is the basis of surrender and not the transfer of property.[14] Thus three essentials to be fulfilled for making a valid surrender are as follows:

i. It includes the estate in its entirety[15], except for a part reserved for maintaining the woman.[16]

ii. It is to be made for the nearest reversioner/reversioners.

iii. It should be bona fide and not an attempt to divide the property.[17]

Passage of estate to reversioners:

The women’s estate not being considered an independent stock whereby her heirs may ascend to it, the same is returned to heirs of the last full owner. Thus, it takes place such as he had died.[18] The heirs to whom such rights are returned are called reversioners and even if there are no reversioners for an estate as such, there may always be a “presumptive reversioner”[19]. So, on the women’s death or on her surrendering or forfeiting the estate by remarrying or adopting, etc. resulting in termination of the estate, the property passes on to the reversioner.


However, the reversioner may also enjoy a right to prevent a woman from not properly handling the property as follows:

i. Improper handling consists of using it in a wasteful manner or alienating it improperly.

ii. The reversioners can plead an injunction to avoid a woman from such wasting, however, not being granted to harass a lady.

iii. If in case the woman has improperly alienated the property, it is highly acceptable for the reversioners to sue for a declaration to declare the alienation null and void.[20] However, if such declaration is issued, the property is not as an effect transferred back to the woman or reversioners but may rightfully be under the alienee until the woman is living.

iv. Also, if such a suit has not been filed when the woman is living, it can also be filed after her death and the alienation be declared null and void, resulting in the reversioner taking possession.[21]


THE HINDU WOMEN’S RIGHT TO PROPERTY ACT 1937

The three types of widows introduced by the act that was to be considered as heirs alongside the son, grandson and great-grandson were:

i. Widow of intestate

ii. Son’s widow

iii. Grandson’s widow


Separate property:

For any property under Dayabhaga law or separate property under Mitakshara law, the deceased’s widow took to share that as the same as that received by the son. If there was no son¸ the widow could take the entire property. If there were more than one widow, they would take only one share together.

Illustration: A Hindu man died leaving behind a separate property. There were two widows and two sons left. Thus, both the sons would take 1/3rd part each and both the widows together would also get 1/3rd part, receiving 1/6th part individually.

However, the property was received as a women’s estate in all scenarios.


Coparcenary:

According to Section 3(2), in a Mitakshara coparcenary, the widow after her husband’s death received the interest equal to what her husband used to receive, even though a son was left behind. Further, according to section3(2), she could claim partition and consequentially the interest share of her husband on the date of partition being analysed was presented to her.[22] The coparcenary did not dissolve on the death of the coparcener and thus no definite interest was received by her[23] and until she asked for a partition, her interest fluctuated accordingly.[24] Also, after she died, the interest passed on to the heirs of her deceased husband.[25]


HINDU SUCCESSION ACT, 1956

According to Section 14 (1), the limited estate was abolished as it made all property woman-owned except certain cases mentioned in sub-clause (2) as absolute property of the woman. It also thus made such limited estates acquired in the past to full properties. Further, the explanation to the Section defines property in the style of Vijnaneshwar.


Retrospective effect of Section 14(1):

Article 14(1) also being applicable in a retrospective manner, on fulfilment of two conditions given below, the estate may be converted to an absolute ownership one. These conditions are:

i. The woman needs to own the property

ii. At the time the act was enforced, the woman had to have the property


Ownership:

The Section seeking women to “possess” the property has been construed by the Courts to own the same or have powers related to it [26] and thus needs the woman to show her title over it.

a. Interest under Coparcenary: Whereby the woman receiving interest equal to her husband under a coparcenary by application of Section 3(3) of the 1937 Act, on her aliening the same, it was confirmed by the Court that by application of Section 14 of the HAS, 1956, the interest was converted into her absolute property. [27] Further, in a similar case, it was also confirmed that on the woman’s death, even if in case of partition has not occurred yet, the property would devolve upon her heirs.[28]

b. Limited estate and S.2 of WRA,1856: By application of S.2 of the Widow Remarriage Act, 1856, a limited estate acquired by a woman from her husband, on her remarriage, ceases to exist and the scenario resembles as if the woman had died. Thus, examining its conflict with S.14 of the HSA and whether it becomes an absolute estate by the latter’s application, it was held that as laid under Section 4(1)(a), the HAS having an overriding effect, the S.2. of the 1956 act won’t apply and nothing as such under Section 14(2) would undermine the potential of the limited estate to be converted into an absolute one by application of 14(1).[29] This overriding effect has also been stated by Rajasthan HC in Bhuri Bai v. Champi Bai [30].


Possession:

The property need not be in physical possession of the woman and constructive possession, for example, in the following cases is also considered valid:

i. If she can validly have the possession of the property but at that time is in the actual possession of a trespasser.[31]

ii. If like above, the actual possession is with a person to whom property is mortgaged, leased or licensed.[32]

However, the above two rules being co-extensive, are such that if the woman is not an owner and in possession of the property, thus possessing it illegally, she won’t be considered as possessing as understood by the Section. Similarly, without possession, the section does not apply.


Property not in possession:

There being a difference in point of view the law laid down by certain high courts as confirmed by the SC in Radha v. Hanuman[33] is that if a woman having a limited estate had alienated the property which was then challenged by the reversioners as being not done validly and:

i. Consequentially the 1956 act came into force

ii. The act came into force and then the reversioners challenged the alienation

Then, in both the above cases, the property not having the woman, was not converted from a limited estate to full ownership and thus both the suits could be filed. However, on it being declared that the alienation was improper, it would get conveyed back to the woman where it was then converted into full ownership or Stridhan by application of Section 14(1).[34] Thus, the law laid down favours the women.

Law governing reversioners after the passage of 1956 Act: There being uncertainty on the point with certain HCs favouring the old law to apply to such rights as they were not ventured in the new law and certain HCs, on the other hand, insisting that the latter law being present while succession takes place, is applicable, the SC has confirmed the view that the matter of succession opened for the heirs of the husband on the woman’s death.[35]


Absolute ownership of property acquired after Hindu Succession Act, 1956:

Except for as laid under Section 14(2) i.e. whereby the acquisition of a property under a will/gift/instrument/decree/order/award is subject to a restrictive condition granting only limited estate to the woman, the property otherwise acquired by a female in the form of limited estate, by the application of Section 14(1) will confer absolute ownership on the lady.[36] The applicability of both sections has to be examined on a case-to-case basis.[37] As explained in Munna Lal v. Rajkumar, to attract Section 14(2), the will/document granting interest should be the source and not only a mere declaration of this right.[38]

i. Property acquired under award/decree:

Thus, the effect of the section is that any property succeeded by the woman or received after partition turns into her absolute property.[39] This has been done by liberally interpreting” possession” and “acquisition” under the section to consider such property though described as a limited estate to attract section 14(1).[40] Also, the decree under which the property is acquired needs to be of a nature that confers or reads the title and not just declaratory in nature.[41]


ii. Property acquired for payment of maintenance:

In case property was received by a woman instead of her maintenance, she had rights over it and having possessed it, it was converted to the absolute property by application of Section 14(1) despite certain restrictive clauses[42] and also in cases like where after the death of the woman, the property was to be divided among the daughters as mentioned under a will.[43] Also, this property in question was differentiated from the right of the woman to partition thus inheritance and maintenance being separate entities.[44] However, if the property acquired was granted as a life -estate, the same would attract Section 14(2).[45]

Thus, if the woman has an interest in the property before it was granted to her, it will be extended and not just based on the grant and if she did not have any interest before it.


iii. Property acquired through compromise/agreement:

Having confirmed the daughters’ equal share of ownership in a property under a compromise and was thus allowed possession of it throughout her lifetime, the mothers’ property was not converted into an absolute one.[46]


iv. Property acquired under the Will:

Wherever life estate is granted under a will, Section 14(2) being attracted, the property will not be enlarged to absolute ownership.[47] Similarly, if such properties were to be conveyed to. For e.g., the brother of her husband on her death, the property did not become her absolute one.[48]


THE HINDU SUCCESSION (AMENDMENT) ACT 2005

The Act based on the Report of the 174th Law Commission and the previous state amendments have taken place in Andhra Pradesh and Kerala among others like Tamil Nadu, Karnataka, and Maharashtra, is aimed at establishing female equality by abolishing male survivorship, the inclusion of daughters, etc.

i. The act having replaced Section 6, the daughters have given the status of a coparcener like a son, she receives all such associated rights relating to the coparcenary property such as holding and managing Joint family property, can be held liable for the same and may also receive the same share that a son may receive.

ii. Under Section 23, the females unlike their male counterparts not having the right to seek partition in a house which the joint family partially or wholly occupied, the same being discriminatory to women was done away with.

iii. The schedule of the act being amended, four categories of Class-I heirs were added thus resulting in the number of heirs from a female’s side as 16 as to the earlier 12. These include 11 females and 5 males as compared to earlier 8 females and 4 males. The added persons are:

a. Pre-deceased daughter’s pre-deceased daughter’s son

b. Pre-deceased daughter’s pre-deceased daughter’s daughter

c. Pre-deceased daughter’s pre-deceased son’s daughter

d. Pre-deceased son’s pre-deceased daughter’s daughter


Daughters as coparceners:

The Act aimed at the removal of gender disparity in Hindu woman’s property rights has been amidst disputes concerning its application being prospective or retrospective. Although the position regarding daughters born after the 9th September 2005 is clear since they are coparceners by birth in pursuance of Section 6, the dispute arose about the daughters born before such date. Though daughters born after 9th September 2005 gain the status of a coparcener by application of Section6, the acts retrospective applications such as to cover daughters born before has often come to question before the court.[49]


Accordingly, in Vaishali Satish Ganorkar v. Satish Keshaorao Ganorka, the Court held that the application being only prospective in nature, such daughters born before the date, could only gain the interest in the property by succession after the intestate’s death.[50]


In contrast to this, the Court in Badrinarayan Shankar Bhandari & Ors. v. Omprakash Shankar held that for applying Section 6(1) the two pre-requisites are[51]:

i. The coparceners daughter is alive when the amendment was enforced

ii. When the act commenced, the property in question is available on that date

A three-judge bench of the SC having reiterated these conditions in Vineeta Sharma v Rakesh Sharma[52], whereby the father had died in 2001 but the daughters were living at the time of enforcement of the act, held that the daughters would be equally eligible for rights in the coparcenary because the same is acquired by her from her birth, thus solving the conflict between 2 judgments viz. Prakash v. Phulavati[53] (daughter, not coparcener as father/coparcener not alive on Sep 9, 2005) and Danamma v. Amar[54] (doesn’t matter if father not alive, daughter has right by birth).


In suits of property partition or alienation, if the cases were that of before 20th December 2004, the act would not apply to them. [55] However, if they are still pending before the Court, the act could be applied to the dispute.[56]


CONCLUSION

Thus, Hindu women’s property rights have changed throughout history from earlier the same being categorised as stridhan (full ownership except for certain cases) and women’s estate (limited ownership) to absolute ownership introduced by 1956 HAS. Similarly, the 1937 act introducing three widows and facilitating for wife’s interest in coparcenary after the husband’s death, 2005 amendment made daughter’s the coparceners and introduced many such changes to facilitate equality.


ENDNOTES [1] Bhagwandeen v. Maya Baee, (1867)11M.A.I.487(India). [2] Sheo Shanker v. Devi Saha, (1900) ILR 22 All 353(India). [3] Devis Prasad v. Mahadeo, (1912) 39 L.A.121(India). [4]Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, 24th Edition, pg. 392. [5] Janki v. Narayanasami, (1916)43 I.A.2017(India). [6] Sitaji v. Bijendra, 1954 S.C. 601(India). [7] Radharani v. Brindarani, 1936Cal. 392(India). [8] Paras Diwan, note supra 4 at pg. 393. [9] Paras Diwan, note supra 4 at pg. 393. [10] Kamla v.Bachulal, 1957 S.C.434(India). [11] Paras Diwan, note supra 4 at pg.394. [12] Kalishanker v. Dhirendra, 1954 S.C.505(India). [13] Paras Diwan, note supra 4 at pg no. 393. [14] Natwar v.Dadu, 1954 SC 61 (India). [15] Id. [16] Chinammarappa v. Nerayamal, 1966 Mad. 169(India). [17] Bhagwan Kaur v. Dhanukdhari, 1919 P.C.75(India). [18] Moni Ramv. Kerry, (1880)7 I.A.115(India). [19] Kallippa v.Palani, 1953 S.C.195 (India). [20] Shula v. Mohan, 1987 S.C.1072(India). [21] Radha v. Hanuman, S.C.216.(India). [22] Parrappagari v. Parappagari, 1954 Mad.567 (India). [23] Padmanabha v. Harsamoni, (1972) 1 C.W.R.775(India). [24] Laxmi v. Krishnavenamma, 1965 SC 825 (India). [25] D.P. Raj v. Rameshwar, 1971 Raj.269 (India). [26] Gummalappura v. Setra, 1959 SC577(India). [27] Suharam v. Gauri Shankar, 1968 SC 365(India). [28] Soltappa v. Meenakshi, (1970)1 MLJ 383(India). [29] Chinnappa v. Meenakshi, 1971 Mad 453(India). [30] Bhuri Bai v. Champi Bai, 1968 Raj.139(India). [31] Mangal v. Rsttno, 1967 S.C.1786 (India). [32] Paras Diwan, note supra 4 at pg 401. [33] Radha v. Hanuman,1966 S.C.216(India). [34] Chinna Kolandi v. Thanji, 1965 Mad. 497(India). [35] Daya Singh v. Dhan Kaur 1974 SC 665(India). [36] Sumeshwar v. Swami,1970 Pat.348(India). [37] Seth Badri v. Kanso, AIR 1970SC 1963 (India). [38] Munna Lal v. Rajkumar, AIR 1962 SC 1493(India). [39] Panchi v. Cumaran, 1982 Ker. 137(India). [40] Seth Badri v. Kanso, AIR 1970SC 1963 (India). [41] Rampali v. Chando, 1966AIL584 (India). [42] Santharam v. Subramanya, 1977 S.C.2024. [43] Palchuri Henumayyayya v. Tadikamalla Kodtlingam, 2001 SC 3062(India). [44] Chinnapppa v. Valliammal, 1969 Mad. 187(India). [45] Suba v. Gauranga , 1971 Ori. 242(India). [46] Smt. Himi v. Smt. Hira Devi, 1997 SC 83(India). [47] Karmi v. Amru, 1971 S.C.745(India). [48] Bhura v. Kashiram, 1994 SC 1202(India). [49] Diganth Raj Sehgal, A Critical Analysis of Hindu Succession Amendment Act, 2005, I pleaders, May 20, 2020, https://blog.ipleaders.in/critical-analysis-hindu-succession-amendment-act-2005/ [50] Vaishali Satish Ganorkar v. Satish Keshaorao Ganorka, 2012 (5) Bom CR 210. [51] Badrinarayan Shankar Bhandari & Ors. v. Ompraskash Shankar, 2014 SCC OnLine Bom 908(India). [52] Vineeta Sharma v Rakesh Sharma, 2020 (3) RCR (Civil) 473(India). [53] Prakash v.Phulavati, (2016)2 SCC36(India). [54] Danamma v. Amar, (2018)3SCC343(India). [55] Dannamma Suman Surpur v. Amar Singh (2018) 3 SCC 343(India). [56] Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788(India).

ABOUT THE AUTHOR

This blog has been authored by Manav Manish Bhatt, who is a 2nd Year B.A., LL.B. (Hons.) student at Hidayatullah National Law University, Raipur.


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