Hindu women’s right to property has been evolved out of continuing struggle between patriarchal Indian society and modern progressive forces of India. The right of Hindu women to inherit property has been restricted from the beginning of the Indian culture, though women were not completely stopped from inheriting properties, their share was negligible in amount.

The contemporary Hindu law of property inheritance is largely influenced by ancient rules and regulations, in ancient India property inheritance rights were largely influenced by two Hindu law schools as enforced in different parts of the country respectively Dayabhaga School of law and Mitakshra school of law. Both these schools didn’t provide much property rights to women, but they were given somewhat greater rights under Dayabhaga than Mitakshara.

In the modern era with changing times, it has been recognized that for the development of the nation women should also be given equal status and rights as males. Hence, the first major legislation recognizing women’s rights to inheritance of property came into existence in the year 1956 named Hindu Succession Act, 1956, since then with the passage of time women’s right of property inheritance is getting evolved and has come a long way, the most recent and significant rule for women’s right to property inheritance was introduced in the year 2005 when an amendment was done in Section 6 of Hindu Succession Act, 1956 and daughters were given equal right compared to the share of the son’s in the father’s property, the provision set out the rule that daughter acquires right in the father’s property by birth and continues to have an interest even when the father disposes of his own interest through a will.

Understanding the concept of Mitakshara and Dayabhaga schools of Hindu Law – A historical perspective:

In ancient times, women were not considered equal to men, thus their rights were also not equal to the male members of the society. They were denied the rights to the property because of their incompetency to participate in sacrificial rituals, and were not allowed to offer funeral cake for the spiritual salvation of the common ancestor, so it can be inferred that denial of property rights for women has its roots in religious practices. However, at the time of marriage she received a limited range of property, which only included moveable property such as jewellery, clothes, utensils, etc., this property was called Stridhan.[1]

Laws of Hindu religion differ from place to place even in the matters of partition and succession of the property. There were different schools of Hindu law, which have prominence over different states; the two most significant schools were Mitakshara and Dayabhaga schools of law. The Mitakshara School was followed throughout India except for the eastern part of India; on the other hand, Dayabhaga School was followed throughout eastern India especially in the parts of Bengal and Assam.

The main difference between the Mitakshara and Dayabhaga school is that Mitakshara School recognizes the right in the ancestral property by birth or a valid adoption only, and the male members of the family could ask for partition to their father for only ancestral property and don’t hold a right in the father’s self-acquired property, this right in the ancestral property by birth is called the rule of survivorship, and the woman doesn’t have a share in the coparcenary property, whereas in the Dayabhga school a member of the family could only get a right in the property whether ancestral or self-acquired only by the death of the last holder.

In the Mitakshara school right in the coparcenary property can only be acquired by birth, thus the share of a person cannot be defined it keeps fluctuating at the birth and death of a male member, on the other hand, there is no difference between separate and coparcenary property in the Dayabhaga school, whatever property a person earns is by the inheritance, and that too only by the death of the father (last holder). Every coparcener enjoys equal rights in the coparcenary property, and only if a father dies intestate then, in that case, separate property of the father is inherited by rights of succession.

In Mitakshara school property rights of the women were restricted to a great extent; women were believed to never be able to become a coparcener. The widow of a deceased coparcener could not get his share and was not allowed to enforce a partition of his husband’s share against his brothers, Dayabhaga school on the other hand was somewhat lenient, it differs in the matters of inheritance by women and women as heirs from Mitakshara school, widow’s had greater property rights in Dayabhaga school than Mitakshara school, a widow has the right to inherit her deceased husband’s share and could enforce a partition against his brothers. In spite of the freedom provided by Dayabhga school, this policy has its own restrictions, for instance on the death of a widowed woman who doesn’t have any [2]sons, her husband’s share didn’t pass on to her daughters and was inherited by the nearest male heir.

During the later part of history, when the British were ruling over India, Privy Council preferred the rules and regulations of Dayabhaga School over Mitakshara School. The first case upholding the women’s right to property that laid down the foundation stone of modern Hindu law was the Mussumat Thakoor Deyhee vs. Rai Baluk Ram[3], in this case, the Privy Council held that a widowed woman can dispose of the property inherited from her husband if it is moveable, but she had no such right in case of immovable property, the Privy Council ruled that women can dispose of the moveable property in the Benares Hindu law, but she can neither dispose of moveable property nor immovable property under Bengal Hindu law.

However, this case was later overruled by the Privy Council in the case of Bhugwandeen Dubey vs. Mynabaee[4] and Hindu women were also stopped in Benares Hindu law from alienating the moveable property also inherited from husband, which on the death of the widow devolves upon the heirs of the husband. This was done to prevent conflicting judgments as the Bengal school adopted the more stringent form of ancient text, which was finally approved by the Judicial Committee of the Privy Council.

Woman’s Estate and Hindu Women’s Right to Property Act, 1937:

The view adopted by the judicial committee of the Privy Council led to the concept of Stridhan evolving into the Hindu women’s limited estate, this limited estate lead to the foundation of rule that there are two types of property, which a woman can own

1. Stridhan:
   Stridhan was also recognized as a woman’s estate; the woman has the complete right over it, and has the right of alienation over it.
   
2. Woman’s Limited Estate:
   She didn’t have the right to alienate this share of the property, usually, this property was obtained in the partition of the deceased husband’s share in coparcenary property or property inherited by a woman from the father’s estate, there was no unanimity as to the character of the women’s property inherited from the father, there was a conflict among different schools, some considered it as Stridhan and some considered it as women’s estate. However, all the schools unanimously agreed that property obtained by the widow from the deceased husband’s share is a woman’s estate.

The concept of women’s limited estate was statutorily recognized in the year 1937 under the Hindu Women’s Right to Property Act, 1937; it wasn’t until the year 1956 when the concept of women’s limited estate was done away with by the parliament legislation.

The concept of Coparcenary under Hindu Women’s Right to Property Act, 1937

The reforms introduced by legislature in the concept of coparcenary, under Hindu Women’s Right to Property Act, 1937 for the betterment of women did more damage to the property rights of the women than improving it. The reforms introduced resulted in conflicting opinions as to the position of the women in coparcenary.

Though the women were not allowed to become a coparcener, they were allowed to inherit the position of the deceased husband, thus the operation of the coparcenary was postponed till her death. The Act gave those powers to the women which previously were only available to the males, such as the right to demand partition. The terms such as women’s limited estate were still in practice, because the 1937 Act was still using it, and the confusion as to the women’s position as daughter, wife, widow, and other characters were still rising.[5]

Hindu Succession Act, 1956 - The modern era of Hindu Laws

After the independence of India, the personal laws of Hindus went under a radical change, one of those laws was the Hindu Succession Act, 1956. It was the first uniform law in the matters of inheritance under Hindus as it applied to both the schools Mitakshara and Dayabhag, and also to the parts of southern India that were previously governed by a matriarchal system of Hindu law.

The Act of 1956 did not only gave the women the right to inherit the property from a male heir, and ended the restriction placed by ancient Hindu law, but also cleared the position by ending the concept of women’s estate, and helped in enlarging the concept of stridhan, which now included both moveable and immoveable property. The legislation introduced the right of Hindu women to inherit property as in the same lines of male heirs; Section 6 of the Act laid that by the death of a member of coparcenary, the property devolves upon the mother, widow, and daughter, along with the son in the same share by testamentary or intestate succession and not by the rule of survivorship. Inheritance by the rule of survivorship was not allowed if there were female heirs.

However, this Act has its own drawbacks such as, since, this Act doesn’t give the daughter the right to be a coparcener, and she doesn’t have a right by birth in the coparcenary property as the son. Section 6 of the Act mentioned that if a male Hindu died intestate, then his interest in the coparcenary property shall be devolved by the members of the coparcenary. In the case there was a surviving female relative of the deceased coparcener then the devolution of property would happen by the testamentary or intestate succession. The term notional partition was understood in a very narrow sense, which gave very little to nothing at all in the partition to female heirs.[7]

The Supreme Court cleared the position and interpreted the section in such a sense that it gave the woman an equal right in the property of a coparcener, in the case of Gurupada vs. Heera Bai[8], the court held that the share of the successors should be decided in such a way, that each person should receive that much amount; he would have got if a partition had taken place during the lifetime of the deceased person. The share an heir will receive during the partition of the interest of the deceased coparcener is not the only interest he will get in the property, the share is in addition to the share one must receive if a rational partition would take place.

The second important change was brought by Section 14 of the Act, which defeated the concept of women’s limited estate, and gave the right to a woman to acquire and hold property as an absolute owner and any property on which she had a limited right becomes her absolute property after the commencement of the Act, irrespective of whether it is moveable or immoveable. While making this Section parliament tried to clear any ambiguity that may have arisen by mentioning in Sub Section (2) that this rule doesn’t apply to wills, gifts, any other instruments, the decree of a civil court which prescribes a restricted estate in such a property. Despite all these efforts at the end of the Parliament, when the Act came into power this Section remained in controversy as it was getting interpreted in many ways.

The Act upon its reading mentions that the property which was acquired even before the commencement of the Act shall be construed as an absolute property, thus one can interpret that the Act is retrospective in nature, but to what extent the Act is retrospective it was not mentioned, and this resulted in conflicting opinions by various High Courts, some took the opinion that the Act is totally retrospective meaning that the property in which she had limited ownership will become her absolute property, even if it was alienated in the past, on the other hand, some courts took the opinion that the Act is not completely retrospective, and if the limited ownership property was alienated in the past it will not become the absolute property.[9]

The controversy was resolved by the Supreme Court in the case of Kotturuswami vs. Veeraava[10], the property should be in full ownership of a female Hindu, which had been acquired either before or after the commencement of the Act, this line certainly made the Section retrospective, but even then the property should be in the possession of a female Hindu in order when the act came into force in order to make the Section applicable.

The scope and ambit of Section 14 were decided in answering the second question that arose by this Section that was whether the property given to a widow in lieu of her maintenance would be her absolute property or a limited property with no power to alienate as a restricted estate, the question was decided in the case of V. Tulasamma & Ors. Vs. V. Sesha Reddi, the Supreme Court said that where the right in the property was not created for the first-time subsection (1) of Section 14 would be attracted, and a female Hindu will have the complete right over the said property and will be avoided where a pre-existing right is confirmed via an instrument. In the light of this principle, the Supreme Court held that life estate was given to a wife or daughter-in-law for the maintenance is merely a pre-existing right, and subsection (1) would be attracted. Hence, a Hindu woman can alienate the property that was given to her as maintenance as she wishes.

Daughters as Coparcener – The Hindu Succession (Amendment) Act, 2005

The the classical notion of coparcenary which only included male members underwent a change by the legislature in the year 2005 through the amendment in Section 6 of the Hindu Succession Act, 1956, daughters were accepted as coparceners and was given the right by birth in the ancestral property. The need of giving the daughters, the right to be a coparcener was first felt before the enactment of the Hindu Succession Act, 1956, but due to furor during that time it was scrapped, then with time concept of stridhan degenerated into dowry and the daughter lost control over it, the second reason why parliament felt that there is a need of giving the Hindu women title of coparcener was for the realization of the constitutional mandate of equality and to defeat discrimination on the grounds of gender in Articles 14 and 15 of the Indian Constitution.

By the effect of the 2005 amendment women was given the power to become ‘Karta’ of the joint family property, prior to the amendment which was only limited to the male heirs, due to this women become able to enjoy the property fully, whether she inherited it from her parents or her in-laws. Further, because of the amendment devolution of the property by the rule of survivorship has been stopped, it would only operate if she died intestate leaving behind no children. If she died intestate then her share was given to her child, which was decided by the concept of notional partition.[11]

After the enactment of the amendment the question arose before the court whether the the amendment is retrospective or prospective, after more than a decade long discussion and many case laws the question was answered for the final time by the Supreme Court in the year 2020 after detailed reasoning in the case of Veeneta Sharma vs. Rakesh Sharma[12], the court said that amended Section 6 of the Act confers the status of a coparcener to the daughter born before or after the commencement of the amendment in the same manners as the son, and the rights can also be claimed by a daughter born before 9.9.2005, to the partition, alienation, or disposition which has taken place before 20th December 2004. Hence, the Act operates on a retroactive effect.

Conclusion
The 2005 amendment in the Hindu Succession Act, 1956 was the most significant step in the history of Hindu women’s property rights. Now that the daughters have been recognized as coparceners, their interest in the ancestral property is now protected more than ever, since the daughters now also have right by birth in the ancestral property as the sons, she cannot be denied her share in the property by testamentary disposition by the father.

Still, if the women don’t know about these rights available to her, then it is of no importance, the government should spread general awareness of the rights available to women at At the grassroots level, legal literacy camps should be organized not just for the Hindu women’s, but for all the religions. In the modern period, a nation cannot develop if the women of that nation are still lacking behind, thus the women should have equal rights to their male counterparts not just on paper, but also in practice, then only a nation can be on the right track of development.

End-Notes:

1. Reena Patel, Hindu Women’s Property Rights in India: A Critical Appraisal, Third World Quarterly, https://www.jstor.org/stable/4017753.
2. Debarati Halder & K. Jaishankar, Property rights of Hindu women: a feminist review of succession laws of ancient, medieval, and modern India, Journal of Law and Religion, https://www.jstor.org/stable/25654333.
3. Mussumat Thakoor Deyhee vs. Rai Baluk Ram, (1866) 11 M.I.A. 139
4. Bhugwandeen Dubey vs. Mynabaee, MANU/PR/0016/1867
5. Shruti Pandey, Property Rights of Indian Women, Women’s Link Worldwide, https://www.womenslinkworldwide.org/files/gjo_article_India_caseC.%20Masilamani_en.pdf.
6. Vijender Kumar, Proprietary Rights of Females under Hindu Law: Strains and Stresses, Journal Of The Indian Law Institute, https://www.jstor.org/stable/43953282
7. Gurupada vs. Heera Bai, 1978 AIR 1239
8. Prakash Chand Jain, Women's Property Rights under Traditional Hindu Law And The Hindu Succession Act, 1956: Some Observations, Journal of The Indian Law Institute, https://www.jstor.org/stable/43951878
9. V. Tulasamma & Ors. Vs. V. Sesha Reddi, 1959 AIR 577
10. Shivani Singhal, Women as Coparceners: Ramifications of the Amended Section 6 of the Hindu Succession Act, 1956, Student Bar Review, https://www.jstor.org/stable/44308350
11. Veeneta Sharma vs. Rakesh Sharma, (2019) 6 SCC 162