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The status of women stayed receded for the majority of the time. It was only in 2005 with the introduction of the Hindu Succession Amendment Act which saw the upliftment of the status of women and a real improvement in the property rights vested in them. Initially, under the aegis of ancient Hindu law, hypocrisy was quite manifest. While the era saw a rise in the number of followers for the mythological goddesses while in reality, the respect shown to women was not in the same pace as their religious alignment. Women were treated as if they had no real contribution to society.

Female unmarried member of the societies have never been seen on an equal footing and the succession rules of an undivided Hindu joint family has been seen limited till the third generation of the coparcenary. In the case of Sujata Sharma v Manu Gupta[1], a case decided immediately after the passing of the Amendment, saw the Supreme Court finally take a much-awaited step of affirming the eldest female member of the society as a Karta (manager of the Hindu family). However, the journey to equalitarian judgment has been a long one, and only through the years of evolved jurisprudence and the dire need to see every individual of the family having equal participation in the property rights of the family.

Under the prominent two schools of Hindu law, i.e. the Mitakshara and the Dayabhaga schools, neither of them mentions the right to property to females. Perhaps this has been justified by the stridhana which is given as gift during the female’s marriage to her. However, the serious drawback to this may be seen in the fact that this comes nowhere close to the real division of properties that takes place among the male coparceners.
The customary laws, however, gave three options in which a woman could alienate her estate by herself: 1. legal necessity (that is, for her own need and for the need of the dependants of the last owner); 2. for the benefit of estate; and 3. for the discharge of indispensable duties (marriage of daughters, funeral rites of her husband, his shraddha and gifts to Brahmans for the salvation of his soul; that is, she can alienate her estate for the spiritual benefit of the last owner, but not for her own spiritual benefit)

 

Colonial-era
Hindu customary laws and rules continued to be practiced well after the British invaded the country. Even while uniform laws were introduced touching upon other facets of social life, such as crime and commerce in the eighteenth and nineteenth centuries, British colonial rulers recognized distinct Hindu family laws for different religious groups and other cultural groups. [2]

The inheritance laws thus continued to be governed by the Mitakhshara and Dayabhaga laws till the beginning of the twentieth century. This was primarily the way chosen by the British to impose a stronghold upon the people by preventing administration governance from straying into the beliefs and customs of the people. One of the initial acts which sought to give a uniform succession law for women was the Hindu Women’s Right to Property Act (1937), which emphasized women’s estates. This Act was the first of its kind to put an end to the controversial debate over the characteristics of stridhan, and it established Hindu women’s rights over landed properties inherited from male owners, especially from husbands, even though to a limited extent. The 1937 Act recognized three types of widows:
1) intestate man’s widow;
2) widow of a pre-deceased son; and
3) widow of a pre-deceased grandson who is the son of a predeceased father.

 

Post-Independence
There was a strong urge among the early parliamentarians to sideline the backwardness prevalent among the masses. In Annagouda Nathgouda Patil vs. Court of Wards and Ors [3] which dealt with provisions of the Hindu Law of Inheritance Act of 1929, it was observed that the said Act only governs succession the separate property of a Hindu male who dies intestate. It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all.

A uniform succession law, the Hindu Succession Act (1956), was adopted for Hindus in free India which finally gave a death blow to the ancient practice of preventing women from inheriting landed property from male heirs based on the Hindu Code Bill. With this Act, the concept of women’s estate was finally discarded and the meaning of stridhan expanded by including landed property along with other movable and immovable properties. Women’s estate now had legal backing however the concept of stridhan forwarded by Section 14 of the legislation said that any property a Hindu woman receives after June 17, 1956, will be her absolute property. According to the Act, “property” includes both movable and immovable property that she receives as a gift, or through maintenance or inheritance, or that she acquires by her own skill or by purchase, prescription, partition, etc. But even the Hindu Succession Act did not give women full ownership over the property, as Subsection 2 of Section 14 retains the power of any person or the court to give the limited estate to a woman in the same manner as a limited estate may be given to any other person. Thus, Section 14 has had a retrospective or backward-looking glance [4]. It converts an existing women’s estate into stridhan or absolute estate only when two conditions are fulfilled:
1) ownership of the property must vest in her and it is not limited ownership; and
2) she must be in possession of the estate when the Act came into force.

The Act also keeps silence in cases of a woman’s deceased husband’s property. Except for the right of maintenance, the property cannot become her absolute property. [5]

 

Shortcomings of the Ancient Hindu Customs and the Hindu Succession Act 1956
Since the inception of the concept of stridhan, the acquisition of property by inheritance or by share, and the legality of such property remained controversial. As mentioned earlier, according to Yagnavalyka “[w]hat was given to a woman by [her] father, mother, her husband or her brother or received by her at nuptial fire or presented on her supersession and the like is denominated women’s property.” [6] Vijnaneshwara interpreted the original version of Yajnavalkya’s commentary and interpreted the “and the like” as property including inherited property and out of share or purchase. He was the first among the ancient law givers to interpret stridhan to a broader aspect to include property acquired by inheritance and by share or purchase. However its broader interpretation was opposed by smritikaras. Manusmriti, which is considered as the first and the main source of Hindu law, dictated that women were unable to own such property as they are inferior to men.

The two schools of Hindu law, namely the Mitakhshara and the Dayabhaga schools, upheld succession laws of Manusmriti and women remained as secondary owners of the landed property until the inception of Hindu Women’s Right to Property Act (1937). By the promulgation of this Act, the colonial rulers in India in the eighteenth and nineteenth century took the first step to secure a married woman’s right to property, to a limited extent. It was nearly fifty years after the inception of the Hindu Succession Act (1956) that these questions were solved in the Hindu Succession (Amendment) Act (2005). The ancient concept of stridhan included nine types of property, namely, i) gifts and bequests from relations, ii) gifts and bequests from strangers, iii) property acquired by self-exertion and mechanical arts, iv) property purchased with stridhan, v) property acquired by compromise, vi) property obtained by adverse possession, vii) property obtained in lieu of maintenance, viii) property obtained by inheritance and ix) share obtained by partition, which were finally recognized by the modern legislation; and women, whether married or unmarried,

Even though Section 14 of the Hindu Succession Act (1956), converted women’s estate to stridhan, it was not flawless. The issue of female inheritance was questioned in case of inheritance with a limitation clause. There were several other clauses that continued the age-old discrimination of male and female heirs. The Act of 1956 is meant for unmarried daughters to claim inheritance of the property. Under Section 15 of the Hindu Succession Act (1956), the daughter-in-law inherits only when she is a widow. Hence no question of her succession arises in her father-in-law’s property till her husband is alive . This decision was arrived at by the Courts while discussing the applicability of Section 15 (b), which states 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 predeceased son or daughter) not upon other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the husband. The Court had to clarify the wordings of Section 15 (b) for the purpose of finding out the right heir of the property of widowed woman who has inherited her share from her father in law. In the case of Kailash v. Kishan [7] the court thus decided that there is no flaw in the factual operation of the Section. For the purpose of the widow’s heir in question, the inherited property from her father-in-law would be devolved upon the heirs of her husband after her death. In case she remarries and her second husband also dies and she inherits property from her father-in-law from the second marriage, the said inherited property from the second marriage would be devolved upon the heirs of the second husband and not on the heirs of the first marriage. Hence the will of succession for women remained marginalized to the husband’s heirs mostly.

 

Recent Amendments
The 174th Law Commission took up the task to end this thousands-year-old custom alienating woman from property inheritance. It found that social justice demands that a woman should be treated equally both in the economic and the social sphere. “The exclusion of daughters from participating in coparcenary property ownership merely by reason of their sex is unjust.” [8] The Commission took into consideration the changes carried out by way of State enactments in the concept of Mitakshara coparcenary property in the five States in India, namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra, and Karnataka. The Commission felt that further reform of the Mitakshara Law of Coparcenary is needed to provide equal distribution of property both to men and women. The law commission took a revolutionary step by recommending changes in the ancient succession laws of Mitakhshara and Dayabhaga and thereby amending the existing Hindu Succession Act (1956) to give an equal share to Hindu women in their ancestral properties.

The age-old tradition of investing the whole share of the property of a Hindu who died intestate to his male heirs only has come to an end ultimately. By the New Succession law, the female heirs became equally eligible to inherit the equal share of the property as their male counterparts. In other words, the effect of the Hindu Succession Act (2005) is two-fold:
• Women became active members of the coparcenary property and enjoyed the right of partition of the ancestral dwelling house. In other words, they became the Karta, which was limited to the male heirs only before the promulgation of the new Act.

• Women became entitled to enjoy the right to property fully, no matter whether she inherits the property from her parents or her in-laws. This was affirmed in the case of Sujata Gupta v Manu Gupta wherein the Court finally put an end to the age-old discriminatory property rights.

The Supreme court bench in Danamma v Amar [9] held that the factum of birth that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. The devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b) of S.15 of Hindu Succession Act.

Since it was already settled that the eldest daughter could become the karta, then it would have been grossly unjust to not let the female have her due share in the property even if she was the youngest which is after all a mere chance. The apex court in the matter of Vineet Sharma v Rakesh Sharma noted, “It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise.”[10] The court further held that the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities; moreover there was no requisite of a living father to prove coparcenary since it was acquired by birth.

 

Conclusion
Even after the inception of the new Act in 2005, discrimination of women toward succession has not been fully wiped out. The reasons are both sociological and historical in nature, namely: Hindu orthodox families discriminate against female children from birth in education, health and hygiene matters. Hence, mostly girls remain oblivious of their basic rights. Even though laws are made to prevent child marriages, such acts still prevail in many villages of India. Once a girl is married as a child, she never returns to ask for the share of her ancestral property, nor are such demands entertained by her parental family. The root cause for this is she will introduce a new member to the coparcenary property namely, her husband. Women are considered elements to bring more property to the in-laws’ family by way of dowry. The language of the Dowry Prohibition Act (1961) gives enough scope to convert stridhan into dowry in camouflaged ways. The new Succession Act (2005) gives women rights over their parental property. Possibilities of dowry harassment increase as the women may be pestered to demand family property not for themselves but because of the greed of their in-laws. The new Law may tempt the in-laws to practice the heinous custom of bride burning or Sati in order to remove the women from the list of legal successors of the landed property. The new law makes women eligible for the position of Karta of joint family property. But many Hindu families where women are severely discriminated against may not allow women to use the new law. The question arises when a Hindu daughter marries a person belonging to another faith and converts to the said religion, whether she would have the same rights of partition, succession of ancestral as she would have before marriage.

[1][CS (OS) 2011/2006]

[2]Narendra Subramaniam, Family Law and Cultural Pluralism, in Encyclopedia of India 55-58

[3] (17.12.1951 – SC) : MANU/SC/0065/1951

[4]Janaki Nair & Natl. L. Sch. of India U., Women and Law in Colonial India: A Social History 196

[5]SurajMal v. Babulal, 1985 Del. 95 (1985)

[6](Ya, II, 143).66

[7]Kailash v. Kishan, Pat 154

[8]Law Commission of India 174th Report, Property Rights of Women: Proposed Reforms under the Hindu Law, D.O. No.6(3)(59)/99-LC(LS) (May 5, 2000)

[9]SLP(C) Nos. 10638-10639 of 2013

[10]SLP (C) NO.684 OF 2016