Tuesday, January 28, 2014


The Constitution of India provides that every person is entitled for equality before law and equal protection of laws and thereby prohibits discrimination on the basis of caste, creed and sex. Discrimination on the basis of sex is permissible only as a protective measure to the female citizens as there is need to empower women who have suffered gender iscrimination for centuries. So far as property is concerned, now the daughters are given every right to inherit immovable and movable property equal to that of male members. Let us examine how this right to property of daughters has been recognized in the laws relating to Hindus.

Prior to Hindu Women's Right to Properties Act 1937, woman was totally excluded from taking share in the Joint Family Property. Succession to the property of male member was governed by rule of survivorship. Rul f survivorship means that on the death of a member of joint and undivided family his share in the joint family property passes on to the surviving male members called as coparceners. Mulla defines coparceners as ''The three generations next to the holder in unbroken male descent." If a man has sons, grandsons and great-grandsons living, all of these constitute a single coparcenary with him. Coparceners jointly inherit property and have unity of possession. The co-heirs and their heirs are also called coparceners so long unity of possession continues. Co-parcenary is different from joint family. Co-parcenary is limited to three generations next to holder while the joint family has no such limitation. It includes several generations of the holder. To understand the position of Hindu women under the law of succession, it is worthwhile to know important features of co-parcenary property. There are two different laws followed by Hindus in respect of property. One is Mithakshara Law which is widely followed in India, except in West Bengal where Dayabhaga Law is followed.

1. Unity of ownership: The ownership of property is vested in the whole body of the co-parceners.

2. In determinability of shares:
The interest of a coparcener in the property is fluctuating and is capable of being enlarged by deaths in the family and liable to be decreased by births in the family.

3. Community of interest: No co- parcener is entitled to any independent and exclusive interest in the co- parcenary property nor he is entitled to the exclusive possession of any part of the coparcenary property. His right is that of an undivided interest.

4. Rights by birth: Co-parcenary members acquire interest in the property by birth under Mitakshara law while under Dayabhaga, nobody inherits any interest by birth.

5. Devolution of survivorship: One of the interesting features of Mithakshara co-parcenary is that on the death of a co-parcener his interest in the property passes on to other co- parceners by survivorship (i.e. to the members who are alive). In Dayabhaga, the property devolves on the coparceners on the death of the holder.

The Hindu Women's Right to Property Act, 1937 gave a death blow to the doctrine of survivorship. Under this Act, the widow of a deceased co-parcener of a Mitakshara undivided family will have the same interest which her husband had while he was alive. It may be noted that the widow has right to claim partition. With the passing of the Hindu Succession Act, 1956, the position of widows and daughters came to be improved.

Before going further into the Hindu Succession Act, 1956, it is worthwhile to examine the concept of coparcenary property. Generally speaking coparcenary property is one in which all the coparceners have community of interest and joint possession. Such property consists of

1. Ancestral property;

2. Property jointly acquired by the members of the joint family of HUF nucleus;

3. Separate property of a member thrown into the common hotch pot with the intention of abandoning all his separate claims on it, which becomes the property of joint family. 

4. Property acquired by all or any of the coparceners with the aid of joint family funds.

Ancestral property means that property which descends from father, father's father or father's father's father. The Privy Council has held that the ancestral property is confined to property inherited from the three immediate paternal ancestors and the property inherited from the maternal grandfather is the absolute property of the inheritor in which his son does not acquire any interest by birth, and that it is not ancestral.

For the purpose of succession to property by Hindu daughter the Hindu Succession Act, 1956, divides the property into four categories, thus:

1. Co-parcenary property,
2. Property of a male Hindu,
3. Property of a female Hindu and
4. Dwelling house.

According to section 6 of the Hindu Succession Act 1956 when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.

In case there are female relatives like daughter, widow, mother, daughter of pre-deceased son daughter of predeceased daughter, widow of pre-deceased son, widow of pre-deceased son of a predeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by succession and not by survivorship.

Section 6 of the Hindu Succession Act has been amended by the Hindu Succession (Amendment) Act, 2005, and according to this, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the co-parcenary property as she would have had if she had been a son; (c) be subjected to the same liabilities in respect of the said co-parcenary property as that of a son, and any reference to a Hindu Mitakshara co-parcener shall be deemed to include a reference to a daughter of a co-parcener.

Any property to which a female Hindu becomes entitled to under the Amendment Act, 2005, shall be a property capable of being disposed of by her by testamentary disposition i.e. by way of Will. Where a Hindu dies Amendment Act, 2005, his interest in the property of the joint Hindu family governed by the Mitakshara Law shall devolve by testamentary or intestate succession and not by survivorship and the co-parcenary property shall be deemed to have been divided as if a partition had taken place. Now, there is no distinction between son and daughter in so for as the property rights in co-parcency

property are concerned. However it may be noted that this benefit is not available to daughter married prior to a partition, which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act 1990. This exclusion is mainly to avoid unnecessary litigation, which may spoil cordial relations amongst the family members.

The property of a male Hindu dying intestate shall devolve according to Sec.8 to 12 of the Hindu Succession Act, 1956. According to Schedule to the Act, the property will devolve firstly upon the heirs specified in class I of the Schedule; in the absence of such heirs, upon the heirs specified in class II, in the absence of heirs specified in class I and II, upon the agnates of the deceased and in the absence of agnates of the deceased, it will devolve upon the cognates of the deceased. A person is said to be Agnate of another, if the two are related by blood or adoption wholly through males and a person is said to be Cognate of another, if the two are related by blood or adoption but not wholly through males.

The heirs mentioned as class I heirs are son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a predeceased daughter, widow of a pre-deceased son, son of a pre- deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, widow of a pre- deceased son of a pre-deceased son.

The heirs mentioned as class I shall take the property of the deceased simultaneously and to the exclusion of all other class of heirs

For the first time in the Indian history under sec. 14 of the Hindu Succession Act 1956, female Hindu is given absolute ownership over the property acquired by her by way of will, gift, purchase or in any other manner whatsoever where the terms of gift, will, or other instrument or the decree do not prescribe a restricted estate in such property.

According to section 15 of the Hindu Succession Act, 1956, the property of a female Hindu dying intestate shall devolve firstly upon the sons and daughters [including the children of any pre-deceased son or daughter] and the husband; secondly, upon the heirs of the husband; thirdly upon the heirs of the father; and lastly upon the heirs of the mother. However, any property inherited by a female Hindu from her parents the same shall devolve upon the heirs of her father in the absence of any son or daughter of the deceased [including the children of any pre-deceased son or daughter.

Similarly, in the absence of son or daughter of the deceased, [including the children of any pre- deceased son or daughter], the property inherited by a female Hindu from her husband or father- in-law, shall devolve upon the heirs of her husband. Among the heirs specified in sub-section (1) of Sec.15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.

No person shall be disqualified to succeed to the property only on the ground of any disease, defect or deformity.

According to sec.23 of the Act, where a Hindu intestate has left surviving him/her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his/her family, the right of female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein. However, the female heirs shall be entitled to a right of residence therein if she is unmarried or has been deserted by or has separated from her husband or is a widow.

Sections 25 of he Act do disqualify to inherit the property by a murderer and sec.26 of the Act disqualifies a Hindu upon conversion to any other religion.

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