The right to inheritance of a property is vested by an individual from the birth under the Mitakshara school of Hindu law. For a considerable period of time, women were deprived of any such entitlement because of the prominent idea of patriarchy. It is a well adhered fact that the bias and unjust portrayed over the course of time cannot be undone, and therefore, the judiciary and the legislature are always keen to enact a progressive stance to help the legislations evolve to be gender just and neutral. Under the classical Hindu law, the women were not deemed to be coparceners and therefore were deprived of rights which were in general enjoyed by the males of the family.

The deprivation was not only limited to the fact that they could not demand a share in the partition, but it also included the obliviousness from the doctrine of Survivorship whereby the general succession through devolution was only limited to the coparceners (the males). The coparcenary under the classical law is defined to include the legitimate sons where the domain is three generations excluding the last holder of the property. The women were merely considered to be the part of the Hindu Joint Family and had no allocations in the shares.

There however existed few exceptions, for instance, the father's wife, a widowed mother, and a paternal grandmother had the entitlement to a share if there happens to be a partition. The aforementioned could not obviously demand a partition but they could progress a share if the partition happened. The partition too had few requisites, precisely for the father's wife and the widowed mother, namely, the partition should be executed through metes and bounds; the share should be determined in proportion to the received stridhan. Comparably, the paternal grandmother is entitled to a share equivalent to the share of a grandson provided that her own son is deceased, and the partition takes place between the grandsons.

The very reality that there exists a cliché notion of differentiation between the genders where the males are provided with all the benefits merely because of being an XY chromosome is discriminatory and portrays bias on the part of the personal laws. The aforementioned is in violation of the fundamental right to equality guaranteed under Article 14 of the Constitution of India.

The demand for a legislation that portrayed an equitable and just notion was needed because there exists empirical data which suggests that the females with diluted economic standi were mistreated especially in the rural areas of the country. The statistics and fact sheets by the National Family Health Survey suggest that the women with an acquired land or a self- worth had a better autonomy in the natal as well as the marital family. Quite upsettingly, a woman with no entitlement had to deal with numerous prejudices and there were observed instances where the woman was even thrown out of the marital home after being associated with a bad omen and considered to be a burden as expressly observed in the case of Omprakash &Ors vs Radhacharan .

Figure 1: Official report of NFHS portraying instances of Domestic Violence against dependant females.
 

Adhering to the data observed on numerous occasions, it was a need of the hour to bring in subsequent changes for the upliftment of the females who were mistreated for no great cause. There are numerous enactments and amendments so as to curb the blatant misfortune. This research paper will chronologically answer all the favourable enactments and the subsequent changes over the decades.

Firstly, under the uncodified Mitakshara law, a widow was entitled to residence and maintenance from the common pool or the joint family property if her husband dies as an undivided member; however, as soon as she remarries, she is deemed to be dead to the deceased husband's family and can no longer be entitled to maintenance and residence. The very fact that the property which her husband was entitled to moves back into the common pool was considered to be unfair to the widow as she received no shares.

Hence, enactment of the act Hindu Women's Right to Property Act 1937 was observed which expressly provided that the widow will step into the shoes of the deceased husband for the purpose of devolution barring the other coparceners from inheriting the property through Survivorship provided there exists no male descendant of the deceased and that she has not remarried. The essence of the aforementioned act was however demeaned when there happened to an amendment where the widows were excluded from any interest in the agricultural land . Additionally, the aforesaid act provided with limited ownership of the property and not absolute; after the death of the concerned female, the property will revert back to the reversioners.

It was only in the year 1956 when such instances of usufructuary ownership were curbed and an absolute authority was promised subsequent to the enactment of the Hindu Succession Act 1956 (hereinafter referred to as HSA). The act also dissolved the differences between the Mitakshara and Dayabhaga school of Inheritance and Succession along with providing a uniform law for the intestate succession of both the ancestral as well as self- acquired property.

However, the said enactment was although a step forward but was yet not sufficient as it failed to impart gender equality as the male child was still being considered prominent in comparison to a daughter. The daughters were entitled to the succession of the father's separate property but had no right towards the ancestral property. The primary heirs for the notional partition excluded the daughters and the members who were not the coparceners with few exceptions as mentioned above.

Furthermore, the HSA still has traces of difference as it provided a different scheme of succession to the women. The explanation is quite disputed because it sees women as having no permanent home, a woman moves out of the natal family after marriage and the fear that the female will take a substantial share along with herself to the husband's family is the rationale behind such a scheme. This is done in order to protect the property of a Hindu man and has no substantial relation to the female herself. A woman's property scheme differs on her marital status, whether she has children or not, the source of the property et cetera.

The S. 15 and 16 of the HSA can be interpreted as a mechanism to withhold the natal property into the natal family only; the property should revert back to the natal family on her death and not the husband and his heirs if she dies childless and vice versa. The aforesaid sections have proven to be discriminatory in their approach on numerous occasions. Why? The term ‘property' for the purpose of the S. 15, and 16 include the self-acquired property too.

As observed in the case of Omprakash vs Radhacharan , the widow was thrown out of the marital home being accused of being responsible for the death of her husband with no concrete justification. The heirs never bothered to investigate about the 15-year-old widow for her well- being until her death in the year 1966 where the heirs of the husband demanded the property acquired by the lady to devolve onto them. The Hon'ble Supreme Court of India held that the law is to function keeping the statutes intact and emotions away.

The property was successfully devolved onto the heirs of the husband. The judgement is quite disputed not because of its legal standi but because of its moral standi. The interpretation should not only define the entitlement of a property rather it should also discuss about the individuals who should be disentitled to a property. The purpose of the judiciary is not to merely deliver judgements, but it is to deliver judgements that seem, and is fair as well, from the perspective of a normal prudent individual.

The law commission's report likely presumed such an incident, and for the purpose to overthrow such incidents, it proposed a report for the amendment of the S. 15 of the HSA to include the parental heirs on equal footing as to the husband's heir. The reasoning presented was that if the woman can be made entitled to inherit the property from either of the sources through amendments then it should be a fair deal if the self-acquired property is devolved equally to both the heirs (parental, and husband's) in order to overlook any misfortune where a person could die intestate. The report is submitted and is forwarded to the legislative department; the status however is pending yet.

Subsequent to the enactment of the HSA 1956, few states including Karnataka, Maharashtra, and Tamil Nadu did state amendment to the HSA in order to include the daughters for the purpose of entitlement and to portrays a progressive stance. The state of Kerala at the same time abolished the Joint Hindu Family System (hereinafter referred to as JHF). The aforementioned laws were however deemed to be incompetent over the course of time. Why? The reasons were the combination of incompetence, constitutional validity, and jurisdictional issues.

Firstly, the amendments in the state of Karnataka, Maharashtra, and Tamil Nadu lauded widely because they conferred the coparcenary rights to the daughters for the first time along with including the children of the daughter for the purpose of partition if the daughter/s is/were predeceased. However, the aforesaid legislations were criticized for the ambiguity they portrayed through their ambiguous language and structure. For instance, the statute failed to make it clear if the law was applicable to all the Hindus residing in that particular state irrespective of their original domicile or only to the Hindus domiciled in that respective state irrespective of the place of residence. The law was even questioned for its constitutional validity for the fact that they disentitled all the daughters married before the enactment of the acts.

Secondly, the verity that Kerala overthrew the concept JHF exemplified a situation of disentitlement, where a person deliberately willed their property to the sons making the daughters progress no share. This way, the daughters were ousted from the share as well as the right to maintenance, because there existed no JHF.

Additionally, having multiple legislations was a point of conflict for its enforceability. For instance, a dispute between the natal family and the marital family could not be resolved amicably if one of them resided in a state with a separate amendment because the governing legislation had different foundations.

The precedents stood incompetent and the law could not justify the superimposition of one legislation over the other and therefore it was established that there should be one law relating to coparcenary throughout India, as it would help resolve the conflicts in a more fruitful manner along with a clear applicability and enactment of rules. The state amendments however were not repealed per se because they were not in direct conflict with the Central legislation.

An inroad to the clash was answered through the Constitution which expressly provided that if a state legislation is inconsistent with the Central legislation then the Centre would prevail to the extent of the inconsistency. This addressed the issue where the precedents could not be applied to a case happening in a state with separate legislation. In other words, the precedents regained their competence.

Empirically, the status of a Hindu woman is anyways dependent on the male members of the family as stated in the Dharma sastras. This is one of the reasons why the inheritance & succession laws fail to include women especially daughters for the purpose of inheritance of the property received through forefathers. But adhering to the modern notion, the society is evolving daily, and the laws should be competent to meet and provide justice according to the progressive stance; for this purpose, the legislature introduced an amendment to the HSA named Hindu Succession Amendment Act in the year 2005 to further improve the conditions of the woman on the recommendation of the 174th law commission's report.

The major attribute of the act was, that it introduced coparcenary to the daughter making them eligible to demand a share in the coparcenary property along with abolishing the doctrine of Survivorship. The other substantial changes include the omission of the S. 4 (2) of the HSA which barred the women from getting any entitlement into the agricultural lands. The aforesaid ensured the women's interest in the agricultural land coequal to the males.

Additionally, it also omitted S. 23 which barred the women from demanding a partition of the dwelling house owned by the JHF, and subsequently quashed S. 24 which curbed the inheritance rights of a widow after remarriage. Lastly, the doctrine of pious obligation was abolished, and four new entries were added to the Class I heirs (male intestate) including great granddaughters and great grandsons.

Subsequent to any amendment, the actual interpretation and implementation have to deal with a number of backlashes, for instance, the Court's started interpreting the amendments in consonance with previously known legislation. There happened to be a number of flawed judgements either fully or partially before the sound verdict was pronounced in the case of Vineeta Sharma vs Rakesh Sharma.

The Hon'ble Supreme Court in the said case established that a daughter is a coparcener by birth, and it is irrelevant whether her father was alive or dead at the day the amendment came into force. However, prior to the Vineeta Sharma verdict, the matter of property rights was addressed in other major judgements. The comparative analysis is being performed so as to establish the validity of the current interpretation.

In Prakash & Others vs Phulvati & Others, the Hon'ble Supreme Court relied on two major reasonings, firstly, a daughter cannot reopen a partition that took place prior to 20th December 2004, and secondly, that the amendment of the section would apply to the daughter only if her father was alive at the day the amendment came into force, that is, 9th September 2005. The said judgement was overruled in the sense that it failed to comply with the fact that a daughter has a right from her birth and therefore she had an existent right when her father died. Another major judgement was the Uttam vs Saubhag Singh , the Hon'ble Supreme Court was flawed in its reasoning because it considered the entire property vested by an individual as its separate property.

It established a principle that upon the death of a coparcener, the undivided interest of the individual will become his separate property and would subsequently devolve through the rules of succession. The very fact that it treated the coparcenary property as the Karta's exclusive property is invalid because it is in distortion of the S. 6 of the HSA in consonance with the classical Hindu law.

Lastly, another major judgement was the Danamma & Others vs Amar & Others , the Hon'ble Supreme Court applied the amended section for the purpose of partition because the suit was in pendency till 2005 and the final decree was awarded in the year 2007. The reasoning was partially flawed because they failed to consider the retroactive effect of the amendment and abided by the amended section merely because the judgement was pronounced after the amendment.

The same was then partially overruled by the Vineeta vs Rakesh  where the reiterated the principle that a daughter is a coparcener by birth and hence the amendment is retroactive in nature and not prospective.

An empirical data suggests that the 2005 amendment has brought in positive changes whereby a woman is now having better education, an equal say and representation in the household, plus a greater possibility where a daughter could inherit a piece of land . However, the law is still inefficient to address numerous other atrocities including the bias between the agnates and the cognates where an agnate is preferred, along with the fact that a half blood is recognized whereas a uterine blood is not recognized.

The aforesaid argument is practiced yet just in the name of male lineage and blood line, we are yet to observe few subsequent changes for the legislation to bring in a perfect notion of equality. It is the time that will answer the subsequent expectations, whether the latest interpretation laid a foundation stone for more progressive ideas or will the essence dilute and fade gradually.
 
Bibliography
Cases

• Danamma & Others vs Amar & Others (2018) 3 SCC 343
• Omprakash vs. Radhacharan (2009) 15 SCC
• Prakash & Others vs Phulvati & Others Civil Appeal No. 7217 of 2013
• Uttam vs Saubhag Singh (2016) 4 SCC 68
• Vineeta Sharma vs Rakesh Sharma MANU/SC/0582/2020

• Hindu Marriage Act 1955
• Hindu Succession Act 1956
• Hindu Succession (Andhra Pradesh Amendment) Act 1986 Hindu Succession (Karnataka Amendment) Act 1994 Hindu Succession (Maharashtra Amendment) Act 1994 Hindu Succession (Tamil Nadu Amendment) Act 1989 Indian Succession Act 1925
• Muslim Personal Law (Shariat) Application Act 1937
• The Indian Constitution 1950
• The Kerala Joint Hindu Family (Abolition) Act 1975

• Dhananjay Mahapatra, Supreme Court Gives Equal Inheritance Right to Daughters from 1956: India News - Times of India (The Times of India August 12, 2020) accessed October 29, 2020
• Duncan Derrett, The Hindu Succession Act, 1956: An Experiment in Social Legislation (Oxford University Press1959) accessed October 25, 2020
• Krishnaprasad, Equal Rights of Daughters to Ancestral Property Remains: HC (The Hindu October 1, 2015) accessed November 3, 2020
• Prakash Jain, WOMEN'S PROPERTY RIGHTS UNDER TRADITIONAL HINDU LAW AND THE HINDU SUCCESSION ACT, 1956 (Jstor2003) accessed November 22, 2020
• Sona Khan, Inheritance of Indian Women: a Perspective (Jstor2000) accessed November 24, 2020
• V Venkatesan, Interview: 'The Project of Reforming the Hindu Succession Act Is Far From Over': Dr Saumya Uma (The Wire August 17, 2020) accessed November 19, 2020

1. Denotes a male offspring (heterogametic sex).
2. NFHS Survey Report, 2015-16.
3. (2009) 15 SCC 66.
4. Hindu Women's Right to Property Amendment Act, 1938
5. Omprakash (n 2).
6. Law Commission, Proposal to amend Section 15 of the Hindu Succession Act, 1956 in case a female dies intestate leaving herself acquired property with no heirs (207, 2008) 6.
7. The Constitution of India, Art. 254 (1).
8. Law Commission, Property Rights of Women: Proposed Reforms Under the Hindu Law (174, 2000).
9. Hindu Succession Amendment Act, S. 6.
10. Hindu Succession Act, S. 8.
11. MANU/SC/0582/2020.
12. Civil Appeal No. 7217 of 2013.
13. (2016) 4 SCC 68.
14. (2018) 3 SCC 343.
15. Vineeta (n 10).
16. Sapkal R, From Mother to Daughter: Do Equal Inheritance Property Laws Reform Improve Female Labour Supply, Educational Attainments in India? .
17. Goyal G, Inheritance Law Reform and Women's Access to Capital: Evidence from India's Hindu Succession Act.

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