PROPERTY LAWS OF INDIAN WOMEN

It is since India is a Multi religious  and Multilingual country, its property laws are varied from one religion to another religion. and from one region to another region.But Hindu Succession Act 1956 as amended by 2005 Act has done away with the above differences as far as Hindu Law is concerned and made the codified Law applicable to entire India except the state of Jammu & Kashmir and the line of inheritance  either ascent or descent  extends up to four degrees.be it a male or female Hindu dying intestate.. As far as Tribal Women property Laws are concerned – they are still governed by the archaic and unequal customary laws.  Unlike the Hindu Law Muslim property laws are not codified. Regarding property Laws of Christians and Parsis etc they are covered under The Indian Succession The property laws differ for Hindu Women, Muslim Women, Christian Women and Parsi Women.. Now, I shall briefly deal with various property laws in respect of Hindu, Muslim, Christian and Parsi Women.

As for Hindu  Succession  Act 1956 as Amended  by Act 1987  , Andhra Pradesh in India was the first state to confer equal  share to daughters in  ancestral coparcenary property governed by Mitakshara Law, .in a Hindu  Joint Family. on par with the male coparcenars. Karnataka(1990), Tamilnadu (1989)and Maharashtra(1994) followed suit  by taking a cue from Andhra Pradesh by providing for equal rights to daughter in coparcenary Joint Hindu family.  except  in Kerala which had abolished the Joint family system itself and did away with matrlineal inheritance.

The Cumulative Effect of  Hindu Succession Act, 1956 As amended by 2005 Act is as follows:

6. Devolution of interest of coparcenary property.-

1[6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, 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 coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which+h a female Hindu becomes entitled by virtue of sub­-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the per-deceased child of a per-deceased son or of a pres-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]

Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]

Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.

The main scheme of the Act is:

1. The hitherto limited estate given to women  in movable and immovable property was converted to absolute and  on a widow’s  or a divorced woman’s remarriage, she would not lose her rights to her former husband’s property, which has become absolute on account of inheriting from her former husband either due to his death or divorce from him. With the consent of  her husband even  a convert to other religion, an unchaste woman or a woman who has remarried are also entitled to inherit property from their husband. Once a limited estate has got converted into an absolute e4rstater in her hands, even in case of her remarriage the property so inherited from her former husband  would not get reverted to her previous husband’s heirs. The property thus so acquired by her could be retained by her to the exclusion of everyone else and her children, from both the marriages   along with her second husband would inherit such property.in the even of her death.. If her former husband consents to her second marriage with another one a divorced woman or an unchaste women and a convert  to another religion etc  can claim inheritance rights to her husbands/father’s property, movable/immovable ancestral or separate or self acquired etc.The exception being property acquired by way of gift or under a will or any other instrument or under a decree of a Civil Court or under an award, which prescribe as restricted estate in such property.

2 )   Since she as  a daughter becomes a coparcenar in her ancestral Joint family property subject to the same rights and obligations as a male/son coparcenar, she is entitle to perform rituals such as obsequies  etc equal to her brother in such cases.

3)      Even the unborn child, son or daughter, has a right if s/he was in the womb at the time ofdeath of the intestate, if born subsequently.

4)     A daughter also could become Karta of the Joint Hindu /family.

5)     If the succession Opens after 2005 a daughter  even married even prior to 2005 would   be entitled to claim a share in her father’s ancestral or separate property by claiming for partition and allotment of equal share to her on par with a male coparcenar.

6)A daughter coparcenar  gets equal rights to a son in Joint Hindu Family Property in respect of Agricultural land also regardless of any state laws  to the contrary.

7)  The Act applies to both Maharashtra Law except for Jammu and Kashmir.

A  progressive bill, introduced in 2010 in Parliament seeking to amend the Hindu Marriage Act 1955 conferring equal rights to a divorced wife in her husband’s immovable residential (house property) acquired after marriage is still pending in the Parliament. . But, as regards  conferring equal rights on a divorced woman to other assets of the husband’s movable or immovable property  are still at the discretion of the Courts.                                                                                                                                                                      Considering the above, it can be certainly said that to a major extent gender justice has been done  as far as Hindu Codified Law is concerned..

Rights of Tribal women:

It is also pertinent to mention here that as far as property rights of the tribal women are concerned, they continue to be ruled by even more archaic system of customary law under which they totally lack rights of succession or partition. Infact, t tribal women do not even have any right in agricultural lands. what is ironical is that reform to making the property rights gender just are being resisted in the name of

preservation of tribal culture!

In Madhu Kishwar & others v. State of Bihar & others there was a public interest petition filed by a

leading women’s rights activist challenging the customary law operating in the Bihar State and other

parts of the country excluding tribal women from inheritance of land or property belonging to father,

husband, mother and conferment of right to inheritance to the male heirs or lineal descendants being

founded solely on sex is discriminatory. The contention of the Petitioner was there is no recognition of

the fact that the tribal women toil, share with men equally the daily sweat, troubles and tribulations in

agricultural operations and family management. It was alleged that even usufructuary rights conferred

on a widow or an unmarried daughter become illusory due to diverse pressures brought to bear brunt

at the behest of lineal descendants or their extermination. Even married or unmarried daughters are

excluded from inheritance, when they are subjected to adultery by non-tribals; they are denuded of the

right to enjoy the property of her father or deceased husband for life. The widow on remarriage is

denied inherited property of her former husband. They elaborated further by narrating several incidents

in which the women either were forced to give up their life interest or became target of violent attacks

or murdered. Therefore the discrimination based on the customary law of inheritance was challenged

as being unconstitutional, unjust, unfair and illegal.

In the judgment in this case the Supreme Court of India laid down some important principles to uphold

the rights of inheritance of the tribal women, basing its verdict on the broad philosophy of the Indian

Constitution and said:

”The public policy and Constitutional philosophy envisaged under Articles 38, 39, 46 and 15(1) &

(3) and 14 is to accord social and economic democracy to women as assured in the preamble of

the Constitution. They constitute core foundation for economic empowerment and social justice

to women for stability of political democracy. In other words, they frown upon gender

discrimination and aim at elimination of obstacles to enjoy social, economic, political and cultural

rights on equal footing.”

Another passage in this judgment that deserves to be quoted, wherein the desirability of flexible and

adaptable laws, even customary law, to changing times, was emphasized, is:

“Law is a living organism and its utility depends on its vitality and ability to serve as sustaining

pillar of society. Contours of law in an evolving society must constantly keep changing as

civilization and culture advances. The customs and mores must undergo change with march of

time. Justice to the individual is one of the highest interests of the democratic State. Judiciary

cannot protect the interests of the common man unless it would redefine the protections of the

Constitution and the common law. If law is to adapt itself to the needs of the changing society, it

must be flexible and adaptable.”

The Court declined to be persuaded by the argument that giving the women rights in property would

lead to fragmentation of lands:

4 (1996) 5 SCC 125)

“The reason assigned by the State level committee is that permitting succession to the female

would fragment the holding and in the case of inter-caste marriage or marriage outside the tribe,

the non-tribals or outsiders would enter into their community to take away their lands. There is no

prohibition for a son to claim partition and to take his share of the property at the partition. If

fragmentation at his instance is permissible under law, why is the daughter/widow denied

inheritance and succession on par with son?”

Accordingly it was held that the tribal women would succeed to the estate of their parent, brother,

husband, as heirs by intestate succession and inherit the property with equal share with male heir with

absolute rights as per the general principles of Hindu Succession Act, 1956, as amended and

interpreted by the Court and equally of the Indian Succession Act to tribal Christian.

In a substantially concurring but separately written judgment another judge of the Bench supplemented

another significant principle to strengthen the tribal women’s right to property by reading the right to

property into the tribal women’s right to livelihood. The judge reasoned that since agriculture is not a

singular vocation, it is more often than not, a joint venture, mainly, of the tiller’s family members;

everybody, young or old, male or female, has chores allotted to perform. However in the traditional

system the agricultural family is identified by the male head and because of this, on his death, his

dependent family females, such as his mother, widow, daughter, daughter-in-law, grand-daughter, and

others joint with him have to make way to a male relative within and outside the family of the deceased

entitled thereunder, disconnecting them from the land and their means of livelihood. Their right to

livelihood in that instance gets affected, a right constitutionally recognized, a right which the female

enjoyed in common with the last male holder of the tenancy. It was thus held:

“It is in protection of that right to livelihood, that the immediate female relatives of the last male

tenant have the constitutional remedy to stay on holding the land so long as they remain

dependent on it for earning their livelihood, for otherwise it would render them destitute. It is on

the exhaustion of, or abandonment of land by such female descendants can the males in the line

of descent take over the holding exclusively”.

This judgment is also noted for its extensive reliance on the mandate of international Declarations and

Conventions, most notably the Convention on Elimination of all Forms of discrimination against Women

(CEDAW) and the Universal Declaration, of Human Rights that call for gender just legal systems and

equal rights for women.

Muslim women’s property rights:

Indian Muslims broadly belong to two schools of thought in Islamic Law: the Sunnite and the Shiite.

Under the Sunnite School which is the preponderant school in India, there are four sub categories;

Hanafis, Shafis, Malikis and Hanbalis. The vast majority of Muslims in India, Pakistan, Afghanistan, and

Turkey are Hanafis. The Shiites are divided into a large number of sub schools, the two most important

of which, so far as India is concerned are the Ismailis and the Ithna Asharis, but they form a smaller

section of the Indian Muslim population. The usual practice in this sub-continent is to use the terms

‘Sunni’ law or ‘Shia’ law. Strictly speaking, this is inexact; by the former is meant the Hanafi Law and by

the latter, the Ithna Ashari school.

Broad principles of inheritance in Muslim law: Till 1937 Muslims in India were governed by customary

law which were highly unjust. After the Shariat Act of 1937 Muslims in India came to be governed in

their personal matters, including property rights, by Muslim personal law as it “restored” personal law in

preference to custom. However this did not mean either “reform” or “codification” of Muslim law and till

date both these have been resisted by the patriarchal forced in the garb of religion.

Broadly the Islamic scheme of inheritance discloses three features, which are markedly different from

the Hindu law of inheritance: (i) the Koran gives specific shares to certain individuals (ii) the residue

goes to the agnatic heirs and failing them to uterine heirs and (iii) bequests are limited to one-third of

the estate, i.e., maximum one-third share in the property can be willed away by the owner.

The main principles of Islamic inheritance law which mark an advance vis-à-vis the pre-Islamic law of

inheritance, which have significant bearing on the property rights of women, are: (i) the husband or wife

was made an heir (ii) females and cognates were made competent to inherit (iii) parents and

ascendants were given the right to inherit even when there were male descendants and (iv) as a

general rule, a female was given one half the share of a male.

The newly created heirs were mostly females; but where a female is equal to the customary heir in

proximity to the deceased, the Islamic law gives her half the share of a male. For example, if a

daughter co-exists with the son, or a sister with a brother, the female gets one share and the male two

shares.

The doctrine of survivorship followed in Hindu law is not known to Mohammedan law; the share of each

Muslim heir is definite and known before actual partition. Rights of inheritance arise only on the death

of a certain person. Hence the question of the devolution of inheritance rests entirely upon the exact

point of time when the person through whom the heir claims dies, the order of deaths being the sole

guide. The relinquishment of a contingent right of inheritance by a Muslim heir is generally void in

Mohammedan law, but if it is supported by good consideration and forms part of a valid family

settlement, it is perfectly valid. The rule of representation is not recognized, for example, if A dies

leaving a son B and a predeceased son’s son C, the rule is that the nearer excludes the more remote

and, there being no representation, C is entirely excluded by B. There is however no difference

between movable property and immovable property.

Some of the features of the Hanafi school are being pointed out here to get a glimpse into the broad

structure of the property rights of Muslim women in India.

The Hanafi jurists divide heirs into seven categories; three principal and four subsidiaries. The 3

principal heirs are Koranic heirs, Agnatic heirs (through male lineage) and Uterine heirs. The 4

subsidiaries are the successor by contract, the acknowledged relative, the sole legatee and the state

by escheat.

The following 12 heirs constitute Class I heirs (Koranic Heirs):

(a) Heirs by Affinity – Husband and Wife

(b) Blood Relations – Father, True Grandfather (howsoever high), Mother, True

Grandmother (howsoever high), Daughter, Son’s Daughter (howsoever low), Full sister,

consanguine sister, uterine brother, and uterine sister.

Rules of Exclusion: The husband and wife are primary heirs and cannot be excluded by anyone, but

they also don’t exclude anyone either. Law fixes the share of the spouses; if they exist they reduce the

residue which may be taken by the Agnatic or Uterine heirs, but they do not exclude either wholly or

partly any heir.

The father does not affect the share of any Koranic heir except the sisters (full, consanguine or uterine)

all of whom he excludes.

The mother excludes the grandmother, and the nearer grandmother excludes the more remote. The

mother’s share is affected by the presence of children or two or more brothers or sisters. Her share is

also greatly affected by the existence of the husband or wife and the father. In the case of a daughter

she is the primary heir. She partially excludes lower son’s daughters, but one daughter or son’s

daughter does not entirely exclude a lower son’s daughter. As far as the sisters are concerned, one full

sister does not exclude the consanguine sister, two full sisters however exclude the consanguine sister.

The uterine brother or sister is not excluded by the full or consanguine brother or sister.

Another rule that requires consideration is that, ‘a person though excluded himself, may exclude

others.’ For example, in a case where the survivors are the mother, father, and two sisters: the two

sisters are excluded by the father; and yet they reduce the mother’s share to 1/6th.

Class II heir (Agnatic heir): Their classification is done as follows; Males (Group I)- the agnate in his

own right, Group II (females)-the agnate in the right of another, Group III – the agnate with another.

The first group comprises all male agnates; it includes the son, the son’s son, the father, the brother,

the paternal uncle and his son and so forth. These in pre-Islamic law were the most important heirs; to

a large extent they retain, in Hanafi law, their primacy, influence and power.

The second group contains four specified female agnates, when they co-exist with male relatives of the

same degree, namely, daughter (with son), and son’s daughter howsoever low with equal son’s son

howsoever low, full sister with full brother and consanguine sister with consanguine brother.

The third group comprises the case of the full sister and consanguine sister. For example if there are

two daughters and two sisters, here the daughter is preferred as a descendant to the sister who is a

collateral; thus the daughter would be placed in Class I and she would be allotted the Koranic share

and the residue would be given to the sister as a member of Class II.

Under this system the rule that is followed is first the descendants, then the ascendants and finally the

collaterals. The agnatic heirs come into picture when there are no Koranic heirs or some residue is left

after having dealt with the Koranic heirs.

Class III (Uterine heir):

This class is constituted mainly by the female agnates and cognates. Classification is group Idescendants,

which are daughter’s children and their descendants and children of son’s daughters

howsoever low and their descendants, Group II-ascendants, which are false grandfathers howsoever

high and false grandmothers howsoever high, Group III- collaterals, which are descendants of parents

and descendents of grandparents true as well as false.

Members of this class succeed only in the absence of members of Class I and Class II. They also

succeed if the only surviving heir of Class I is the husband or the widow of the deceased.

Property rights through marriage: The Supreme Court of India has laid down in Kapore Chand v Kadar

Unnissa5, that the mahr (dower) ranks as a debt and the widow is entitled, along with the other

creditors of her deceased husband, to have it satisfied out of his estate. Her right, however, is the right

of an unsecured creditor; she is not entitled to a charge on the husband’s property unless there be an

agreement. The Supreme Court has laid down that the widow has no priority over other creditors, but

that mahr as debt has priority over the other heir’s claims. This right is known as the widow’s right of

retention.

Will: There is a provision against destitution of the family members in the Islamic law in that it is clearly

provided that a Muslim cannot bequeath more than one third of his property. However if he registers his

existing marriage under the provisions of the Special Marriage Act, 1954 he has all the powers of a

testator under the Indian Succession Act, 1925.

Property rights of Christian, Parsi (Zoroastrians) women

:The laws of succession for Christians and Parsis are laid down in the Indian Succession Act, 1925

(ISA). Sections 31 to 49 deal with Christian Succession and Sections 50 to 56 deal with Succession for

Parsis.

Christian women’s property rights:

The Indian Christian widow’s right is not an exclusive right and gets curtailed as the other heirs step in.

Only if the intestate has left none who are of kindred to him, the whole of his property would belong to

his widow. Where the intestate has left a widow and any lineal descendants, one third of his property

devolves to his widow and the remaining two thirds go to his lineal descendants. If he has left no lineal

descendents but has left persons who are kindred to him, one half of his property devolves to his

widow and the remaining half goes to those who are of kindred to him.

Another anomaly is a peculiar feature that the widow of a pre-deceased son gets no share, but the

children whether born or in the womb at the time of the death would be entitled to equal shares.

Where there are no lineal descendants, after having deducted the widow’s share, the remaining

property devolves to the father of the intestate in the first instance. Only in case the father of the

intestate is dead but mother and brothers and sisters are alive, they all would share equally. If the

intestate’s father has died, but his mother is living and there are no surviving brothers, sisters, nieces,

or nephews, then, the entire property would belong to the mother.

A celebrated litigation and judgment around the Christian women’s property rights is Mary Roy v. State

of Kerala & others6 in which provisions of the Travancore Christian Succession Act, 1092 were

challenged as they severely restricted the property rights of women belonging to the Indian Christian

community in a part of south India formerly called Travancore. The said law laid down that for

succession to the immovable property of the intestate is concerned, a widow or mother shall have only

life interest terminable at death or on remarriage and that a daughter will be entitled to one-fourth the

value of the share of the son or Rs 5000 whichever is less and even to this amount she will not be

entitled on intestacy, if streedhan (woman’s property given to her at the time of her marriage) was

provided or promised to her by the intestate or in the lifetime of the intestate, either by his wife or

husband or after the death of such wife or husband, by his or her heirs. These provisions were

5 (1950) SCR 747

challenged as unconstitutional and void on account of discrimination and being violative of right to

equality under Article 14 of the Constitution.

The Writ Petition was allowed by the Supreme Court and the curtailment of the property rights of

Christian women in former Travancore was held to be invalid on the ground that the said state Act

stood repealed by the subsequent Indian Succession Act of 1925 which governs all Indian Christians.

However, the provisions were not struck down as unconstitutional since the Court felt that it was

unnecessary to go into the constitutionality issue of the provisions as they are in any case inoperable

due to the overriding effect of the ISA 1925.

Parsi women’s right to property:

Prima facie the property rights of the Parsis are quite gender just. Basically, a Parsi widow and all her

children, both sons and daughters, irrespective of their marital status, get equal shares in the property

of the intestate while each parent, both father and mother, get half of the share of each child. However,

on a closer look there are anomalies: for example, a widow of a predeceased son who died issueless,

gets no share at all.

Succession Rules In General For Different Religions:

The Indian Succession Act was enacted in 1925. The object of the Act was to consolidate the large number of laws which were in existence at that time. Laws governing succession to Muslims and Hindus were excluded from the purview of the Act. While consolidating the law in respect of succession, two schemes, one relating to succession to property of persons like Indian Christians, Jews and persons married under the Special Marriage Act, 1954 and the other relating to succession rights or Parsis, were adopted.

In the first scheme, applying to those other than Parsis, in the case of a person dying intestate leaving behind a widow and lineal descendants, the widow would be entitled to a fixed share of one-third of property and lineal descendants shall be entitled to the remaining two-third. This law was amended subsequently with the object of improving rights of widows and it was provided that where the intestate dies leaving behind his widows and it was provided that where the intestate dies leaving behind his widow and no lineal descendant and the net value of the estate does not exceed Rs 5,000, the widow would be entitled to the whole of this property. Where the net value of the estate exceeds Rs 5,000 she is entitled to charge a sum of Rs. 5,000 with interest at four per cent payment and in the residue, she is entitled to her share. The Act imposes no restriction on the power of a person to will away his property.

Under the second scheme, the Act provides for Parsi intestate succession. By the Indian Succession (Amendment) Act, 1991 (51 of 1991), the Act was amended to provide equal shares for both sons and daughters in their parental properties, irrespective of the fact that it was that of the father or that of the mother. It also enables the Parsis to bequeath their property to religious or charitable purposes, etc., without any restrictions. In effect the amended law provides that where a Parsi dies intestate leaving behind a widow or widower as the case may be, and children, the property shall be divided so that the widow or widower and each child receives equal share. Further, where a Parsi dies leaving behind one or both parents in addition to children, or widow widower and children, the property shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child.

This Act was amended by the Indian Succession (Amendment) Act, 2002. It was felt that section 32 of the principal Act is discriminatory to widows and as such the proviso to section 32 was omitted to remove discrimination in this regard. Section 213 was also amended by this amending Act to make Christians at par with other communities.

The law relating to intestate succession among Hindus is codified in the Hindu Succession Act, 1956 (30 of 1956). It extends to the whole of India except the State of Jammu and Kashmir. The remarkable features of the Act are the recognition of the right of women to inherit property of an intestate equally with men and abolition of the life estate of female heirs.

A vast majority of Muslims in India follow Hanafi doctrines of Sunni law. Courts presume that Muslims are governed by Hanafi law unless it is established to be the contrary. Though there are many features in common between Shia and Sunni schools, yet there are differences in some respects. Sunni law regards Koranic verses of inheritance as an addendum to pre-Islamic customary law and preserves the superior position of male agnates. Unlike Hindu and Christian laws, Muslim law restricts a person’s right of testation. A Muslim can bequeath only one-third of his estate. A bequest to a stranger is valid without the consent of heirs if it does not exceed a third of the estate, but a bequest to an heir without the consent of other heirs is invalid. Consent of heirs to a bequest must be secured after the succession has opened and any consent given to a bequest during the lifetime of the testator can be retracted after his death. Shia law allows Muslims the freedom of bequest within the disposable third.

The Recent Trends Of The Judiciary.

Definitely the current trends of the Supreme Court are to examine personal laws on the touchstone of Articles 14, 15 and 21 of the Constitution of India and  and strike down  those personal laws as   unconstitutional being violative of these Articles of the Constitution  of India.

In Ganduri Koteshwaramma and Anr vs. Chakiri Yanadi and Anr

In this very recent case decided in  October 2011, the Supreme Court reiterated the principle of equal rights in Joint Hindu Family ancestral coparcenary property of the daughter. andf upheld the Amended Act 1986 of Hindu Succession Act 1956; in this case since the succession opened only in 1991, a daughter even though married prior to the Amended Act of HSA 1986  was allowed by the Supreme Court6 to claim equal rights to her share in Joint Hindu Familky coparcenary property.

The  Supreme Court is also following International conventions and declarations like CEDAW to render Gender Justice and eradicate Gender Disparity.

R

We should move toward enacting a Uniform Civil Code within the United framework of the constitution of India as envisaged Under Article 44,  and to give true meaning to the word “Secular” as used in our preamble of the Constitution to usher in economic and social democracy apart from political democracy for women of all religions in India.

Today the India women are fighting for rights in marital property, denied uniformly to them

across all religious boundaries. There is also a significant movement in some of the hill states, towards

community ownership of land by women by creating group titles and promoting group production and

management of land and natural resources by landless women for joint cultivation or related farm

activity. Land rights would be linked directly to residence and working on land under this approach

being lobbied for under the Beijing Platform for Act

I once again reiterate and assert that The Judiciary and Civil Society Members along with the Parliament enact a Uniform Civil Code under Art.44 of the Constitution of India within the framework of a United India, and remove gender disparity and discrimination of  all hues  including gender bias in personal laws and march forward in the direction of Gender Justice and promote true secularism as enshrined in the preamble of our Constitution in giving  codified uniform property laws applicable to women of all parts of India.

Readers! Please be liberal in posting comments on this post.

Ms.Nirmala  P.Rao

Legal Expert www.wizardllegal.in and Political commentator and blogs on politics, Law and other general subjects of interest through www.wizard-legal25blog.com or www.wizard-legal25.blogspot.in or www.wizardlegalblogs.com www.wizardlegal.in/blog

It is since India is a Multireligious  and Multilingual country, its property laws are varied from one religion to another religion. and from one region to another region.But Hindu Succession Act 1956 as amended by 2005 Act has done away with the above differences as far as Hindu Law is concerned and made the codified Law applicable to entire India except the state of Jammu & Kashmir and the line of inheritance  either ascent or descent  extends up to four degrees.be it a male or female Hindu dying intestate.. As far as Tribal Women property Laws are concerned – they are still governed by the archaic and unequal customary laws.  Unlike the Hindu Law Muslim property laws are not codified. Regarding property Laws of Christians and Parsis etc they are covered under The Indian Succession The property laws differ for Hindu Women, Muslim Women, Christian Women and Parsi Women.. Now, I shall briefly deal with various property laws in respect of Hindu, Muslim, Christian and Parsi Women.

                    As for Hindu  Succession  Act 1956 as Amended  by Act 1987  , Andhra Pradesh in India was the first state to confer equal  share to daughters in  ancestral coparcenary property governed by Mitakshara Law, .in a Hindu  Joint Family. on par with the male coparcenars. Karnataka(1990), Tamilnadu (1989)and Maharashtra(1994) followed suit  by taking a cue from Andhra Pradesh by providing for equal rights to daughter in coparcenary Joint Hindu family.  except  in Kerala which had abolished the Joint family system itself and did away with matrlineal inheritance.

  The Cumulative Effect of  Hindu Succession Act, 1956 As amended by 2005 Act is as follows:

 6. Devolution of interest of coparcenary property.-

 1[6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, 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 coparcenary property as she would have had if she had been a son;

 (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

 and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

 Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

 (2) Any property to which+h a female Hindu becomes entitled by virtue of sub­-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

 (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

 (a) the daughter is allotted the same share as is allotted to a son;

 (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

 (c) the share of the per-deceased child of a per-deceased son or of a pres-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

 Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

 (4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

 Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

 (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

 (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

 Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.                                                                                                                                                                                                                                                                                 

 (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

 Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]

 Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]

 Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

 It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.

The main scheme of the Act is:

1. The hitherto limited estate given to women  in movable and immovable property was converted to absolute and  on a widow’s  or a divorced woman’s remarriage, she would not lose her rights to her former husband’s property, which has become absolute on account of inheriting from her former husband either due to his death or divorce from him. With the consent of  her husband even  a convert to other religion, an unchaste woman or a woman who has remarried are also entitled to inherit property from their husband. Once a limited estate has got converted into an absolute e4rstater in her hands, even in case of her remarriage the property so inherited from her former husband  would not get reverted to her previous husband’s heirs. The property thus so acquired by her could be retained by her to the exclusion of everyone else and her children, from both the marriages   along with her second husband would inherit such property.in the even of her death.. If her former husband consents to her second marriage with another one a divorced woman or an unchaste women and a convert  to another religion etc  can claim inheritance rights to her husbands/father’s property, movable/immovable ancestral or separate or self acquired etc.The exception being property acquired by way of gift or under a will or any other instrument or under a decree of a Civil Court or under an award, which prescribe as restricted estate in such property.

2 )   Since she as  a daughter becomes a coparcenar in her ancestral Joint family property subject to the same rights and obligations as a male/son coparcenar, she is entitle to perform rituals such as obsequies  etc equal to her brother in such cases.

 3)      Even the unborn child, son or daughter, has a right if s/he was in the womb at the time ofdeath of the intestate, if born subsequently.


4
)     A daughter also could become Karta of the Joint Hindu /family.


5)     If the succession Opens after 2005 a daughter  even married even prior to 2005 would   be entitled to claim a share in her father’s ancestral or separate property by claiming for partition and allotment of equal share to her on par with a male coparcenar.

6)A daughter coparcenar  gets equal rights to a son in Joint Hindu Family Property in respect of Agricultural land also regardless of any state laws  to the contrary.

7)  The Act applies to both Maharashtra Law except for Jammu and Kashmir.

A  progressive bill, introduced in 2010 in Parliament seeking to amend the Hindu Marriage Act 1955 conferring equal rights to a divorced wife in her husband’s immovable residential (house property) acquired after marriage is still pending in the Parliament. . But, as regards  conferring equal rights on a divorced woman to other assets of the husband’s movable or immovable property  are still at the discretion of the Courts.                                                                                                                                                                      Considering the above, it can be certainly said that to a major extent gender justice has been done  as far as Hindu Codified Law is concerned..                                                                                                                                                                           

Rights of Tribal women:


It is also pertinent to mention here that as far as property rights of the tribal women are concerned, they continue to be ruled by even more archaic system of customary law under which they totally lack rights of succession or partition. Infact, t tribal women do not even have any right in agricultural lands. what is ironical is that reform to making the property rights gender just are being resisted in the name of

preservation of tribal culture!

            In Madhu Kishwar & others v. State of Bihar & others there was a public interest petition filed by a

leading women’s rights activist challenging the customary law operating in the Bihar State and other

parts of the country excluding tribal women from inheritance of land or property belonging to father,

husband, mother and conferment of right to inheritance to the male heirs or lineal descendants being

founded solely on sex is discriminatory. The contention of the Petitioner was there is no recognition of

the fact that the tribal women toil, share with men equally the daily sweat, troubles and tribulations in

agricultural operations and family management. It was alleged that even usufructuary rights conferred

on a widow or an unmarried daughter become illusory due to diverse pressures brought to bear brunt

at the behest of lineal descendants or their extermination. Even married or unmarried daughters are

excluded from inheritance, when they are subjected to adultery by non-tribals; they are denuded of the

right to enjoy the property of her father or deceased husband for life. The widow on remarriage is

denied inherited property of her former husband. They elaborated further by narrating several incidents

in which the women either were forced to give up their life interest or became target of violent attacks

or murdered. Therefore the discrimination based on the customary law of inheritance was challenged

as being unconstitutional, unjust, unfair and illegal.

In the judgment in this case the Supreme Court of India laid down some important principles to uphold

the rights of inheritance of the tribal women, basing its verdict on the broad philosophy of the Indian

Constitution and said:

”The public policy and Constitutional philosophy envisaged under Articles 38, 39, 46 and 15(1) &

(3) and 14 is to accord social and economic democracy to women as assured in the preamble of

the Constitution. They constitute core foundation for economic empowerment and social justice

to women for stability of political democracy. In other words, they frown upon gender

discrimination and aim at elimination of obstacles to enjoy social, economic, political and cultural

rights on equal footing.”

Another passage in this judgment that deserves to be quoted, wherein the desirability of flexible and

adaptable laws, even customary law, to changing times, was emphasized, is:

“Law is a living organism and its utility depends on its vitality and ability to serve as sustaining

pillar of society. Contours of law in an evolving society must constantly keep changing as

civilization and culture advances. The customs and mores must undergo change with march of

time. Justice to the individual is one of the highest interests of the democratic State. Judiciary

cannot protect the interests of the common man unless it would redefine the protections of the

Constitution and the common law. If law is to adapt itself to the needs of the changing society, it

must be flexible and adaptable.”

The Court declined to be persuaded by the argument that giving the women rights in property would

lead to fragmentation of lands:

4 (1996) 5 SCC 125)

“The reason assigned by the State level committee is that permitting succession to the female

would fragment the holding and in the case of inter-caste marriage or marriage outside the tribe,

the non-tribals or outsiders would enter into their community to take away their lands. There is no

prohibition for a son to claim partition and to take his share of the property at the partition. If

fragmentation at his instance is permissible under law, why is the daughter/widow denied

inheritance and succession on par with son?”

Accordingly it was held that the tribal women would succeed to the estate of their parent, brother,

husband, as heirs by intestate succession and inherit the property with equal share with male heir with

absolute rights as per the general principles of Hindu Succession Act, 1956, as amended and

interpreted by the Court and equally of the Indian Succession Act to tribal Christian.

In a substantially concurring but separately written judgment another judge of the Bench supplemented

another significant principle to strengthen the tribal women’s right to property by reading the right to

property into the tribal women’s right to livelihood. The judge reasoned that since agriculture is not a

singular vocation, it is more often than not, a joint venture, mainly, of the tiller’s family members;

everybody, young or old, male or female, has chores allotted to perform. However in the traditional

system the agricultural family is identified by the male head and because of this, on his death, his

dependent family females, such as his mother, widow, daughter, daughter-in-law, grand-daughter, and

others joint with him have to make way to a male relative within and outside the family of the deceased

entitled thereunder, disconnecting them from the land and their means of livelihood. Their right to

livelihood in that instance gets affected, a right constitutionally recognized, a right which the female

enjoyed in common with the last male holder of the tenancy. It was thus held:

“It is in protection of that right to livelihood, that the immediate female relatives of the last male

tenant have the constitutional remedy to stay on holding the land so long as they remain

dependent on it for earning their livelihood, for otherwise it would render them destitute. It is on

the exhaustion of, or abandonment of land by such female descendants can the males in the line

of descent take over the holding exclusively”.

This judgment is also noted for its extensive reliance on the mandate of international Declarations and

Conventions, most notably the Convention on Elimination of all Forms of discrimination against Women

(CEDAW) and the Universal Declaration, of Human Rights that call for gender just legal systems and

equal rights for women.


Muslim women’s property rights:

 Indian Muslims broadly belong to two schools of thought in Islamic Law: the Sunnite and the Shiite.

Under the Sunnite School which is the preponderant school in India, there are four sub categories;

Hanafis, Shafis, Malikis and Hanbalis. The vast majority of Muslims in India, Pakistan, Afghanistan, and

Turkey are Hanafis. The Shiites are divided into a large number of sub schools, the two most important

of which, so far as India is concerned are the Ismailis and the Ithna Asharis, but they form a smaller

section of the Indian Muslim population. The usual practice in this sub-continent is to use the terms

‘Sunni’ law or ‘Shia’ law. Strictly speaking, this is inexact; by the former is meant the Hanafi Law and by

the latter, the Ithna Ashari school.

Broad principles of inheritance in Muslim law: Till 1937 Muslims in India were governed by customary

law which were highly unjust. After the Shariat Act of 1937 Muslims in India came to be governed in

their personal matters, including property rights, by Muslim personal law as it “restored” personal law in

preference to custom. However this did not mean either “reform” or “codification” of Muslim law and till

date both these have been resisted by the patriarchal forced in the garb of religion.

Broadly the Islamic scheme of inheritance discloses three features, which are markedly different from

the Hindu law of inheritance: (i) the Koran gives specific shares to certain individuals (ii) the residue

goes to the agnatic heirs and failing them to uterine heirs and (iii) bequests are limited to one-third of

the estate, i.e., maximum one-third share in the property can be willed away by the owner.

The main principles of Islamic inheritance law which mark an advance vis-à-vis the pre-Islamic law of

inheritance, which have significant bearing on the property rights of women, are: (i) the husband or wife

was made an heir (ii) females and cognates were made competent to inherit (iii) parents and

ascendants were given the right to inherit even when there were male descendants and (iv) as a

general rule, a female was given one half the share of a male.

The newly created heirs were mostly females; but where a female is equal to the customary heir in

proximity to the deceased, the Islamic law gives her half the share of a male. For example, if a

daughter co-exists with the son, or a sister with a brother, the female gets one share and the male two

shares.

The doctrine of survivorship followed in Hindu law is not known to Mohammedan law; the share of each

Muslim heir is definite and known before actual partition. Rights of inheritance arise only on the death

of a certain person. Hence the question of the devolution of inheritance rests entirely upon the exact

point of time when the person through whom the heir claims dies, the order of deaths being the sole

guide. The relinquishment of a contingent right of inheritance by a Muslim heir is generally void in

Mohammedan law, but if it is supported by good consideration and forms part of a valid family

settlement, it is perfectly valid. The rule of representation is not recognized, for example, if A dies

leaving a son B and a predeceased son’s son C, the rule is that the nearer excludes the more remote

and, there being no representation, C is entirely excluded by B. There is however no difference

between movable property and immovable property.

Some of the features of the Hanafi school are being pointed out here to get a glimpse into the broad

structure of the property rights of Muslim women in India.

The Hanafi jurists divide heirs into seven categories; three principal and four subsidiaries. The 3

principal heirs are Koranic heirs, Agnatic heirs (through male lineage) and Uterine heirs. The 4

subsidiaries are the successor by contract, the acknowledged relative, the sole legatee and the state

by escheat.

The following 12 heirs constitute Class I heirs (Koranic Heirs):

(a) Heirs by Affinity – Husband and Wife

(b) Blood Relations – Father, True Grandfather (howsoever high), Mother, True

Grandmother (howsoever high), Daughter, Son’s Daughter (howsoever low), Full sister,

consanguine sister, uterine brother, and uterine sister.

Rules of Exclusion: The husband and wife are primary heirs and cannot be excluded by anyone, but

they also don’t exclude anyone either. Law fixes the share of the spouses; if they exist they reduce the

residue which may be taken by the Agnatic or Uterine heirs, but they do not exclude either wholly or

partly any heir.

The father does not affect the share of any Koranic heir except the sisters (full, consanguine or uterine)

all of whom he excludes.

The mother excludes the grandmother, and the nearer grandmother excludes the more remote. The

mother’s share is affected by the presence of children or two or more brothers or sisters. Her share is

also greatly affected by the existence of the husband or wife and the father. In the case of a daughter

she is the primary heir. She partially excludes lower son’s daughters, but one daughter or son’s

daughter does not entirely exclude a lower son’s daughter. As far as the sisters are concerned, one full

sister does not exclude the consanguine sister, two full sisters however exclude the consanguine sister.

The uterine brother or sister is not excluded by the full or consanguine brother or sister.

Another rule that requires consideration is that, ‘a person though excluded himself, may exclude

others.’ For example, in a case where the survivors are the mother, father, and two sisters: the two

sisters are excluded by the father; and yet they reduce the mother’s share to 1/6th.

Class II heir (Agnatic heir): Their classification is done as follows; Males (Group I)- the agnate in his

own right, Group II (females)-the agnate in the right of another, Group III – the agnate with another.

The first group comprises all male agnates; it includes the son, the son’s son, the father, the brother,

the paternal uncle and his son and so forth. These in pre-Islamic law were the most important heirs; to

a large extent they retain, in Hanafi law, their primacy, influence and power.

The second group contains four specified female agnates, when they co-exist with male relatives of the

same degree, namely, daughter (with son), and son’s daughter howsoever low with equal son’s son

howsoever low, full sister with full brother and consanguine sister with consanguine brother.

The third group comprises the case of the full sister and consanguine sister. For example if there are

two daughters and two sisters, here the daughter is preferred as a descendant to the sister who is a

collateral; thus the daughter would be placed in Class I and she would be allotted the Koranic share

and the residue would be given to the sister as a member of Class II.

Under this system the rule that is followed is first the descendants, then the ascendants and finally the

collaterals. The agnatic heirs come into picture when there are no Koranic heirs or some residue is left

after having dealt with the Koranic heirs.

Class III (Uterine heir):

This class is constituted mainly by the female agnates and cognates. Classification is group Idescendants,

which are daughter’s children and their descendants and children of son’s daughters

howsoever low and their descendants, Group II-ascendants, which are false grandfathers howsoever

high and false grandmothers howsoever high, Group III- collaterals, which are descendants of parents

and descendents of grandparents true as well as false.

Members of this class succeed only in the absence of members of Class I and Class II. They also

succeed if the only surviving heir of Class I is the husband or the widow of the deceased.

Property rights through marriage: The Supreme Court of India has laid down in Kapore Chand v Kadar

Unnissa5, that the mahr (dower) ranks as a debt and the widow is entitled, along with the other

creditors of her deceased husband, to have it satisfied out of his estate. Her right, however, is the right

of an unsecured creditor; she is not entitled to a charge on the husband’s property unless there be an

agreement. The Supreme Court has laid down that the widow has no priority over other creditors, but

that mahr as debt has priority over the other heir’s claims. This right is known as the widow’s right of

retention.

Will: There is a provision against destitution of the family members in the Islamic law in that it is clearly

provided that a Muslim cannot bequeath more than one third of his property. However if he registers his

existing marriage under the provisions of the Special Marriage Act, 1954 he has all the powers of a

testator under the Indian Succession Act, 1925.

Property rights of Christian, Parsi (Zoroastrians) women

:The laws of succession for Christians and Parsis are laid down in the Indian Succession Act, 1925

(ISA). Sections 31 to 49 deal with Christian Succession and Sections 50 to 56 deal with Succession for

Parsis.

 Christian women’s property rights:

               The Indian Christian widow’s right is not an exclusive right and gets curtailed as the other heirs step in.

Only if the intestate has left none who are of kindred to him, the whole of his property would belong to

his widow. Where the intestate has left a widow and any lineal descendants, one third of his property

devolves to his widow and the remaining two thirds go to his lineal descendants. If he has left no lineal

descendents but has left persons who are kindred to him, one half of his property devolves to his

widow and the remaining half goes to those who are of kindred to him.

Another anomaly is a peculiar feature that the widow of a pre-deceased son gets no share, but the

children whether born or in the womb at the time of the death would be entitled to equal shares.

Where there are no lineal descendants, after having deducted the widow’s share, the remaining

property devolves to the father of the intestate in the first instance. Only in case the father of the

intestate is dead but mother and brothers and sisters are alive, they all would share equally. If the

intestate’s father has died, but his mother is living and there are no surviving brothers, sisters, nieces,

or nephews, then, the entire property would belong to the mother.

A celebrated litigation and judgment around the Christian women’s property rights is Mary Roy v. State

of Kerala & others6 in which provisions of the Travancore Christian Succession Act, 1092 were

challenged as they severely restricted the property rights of women belonging to the Indian Christian

community in a part of south India formerly called Travancore. The said law laid down that for

succession to the immovable property of the intestate is concerned, a widow or mother shall have only

life interest terminable at death or on remarriage and that a daughter will be entitled to one-fourth the

value of the share of the son or Rs 5000 whichever is less and even to this amount she will not be

entitled on intestacy, if streedhan (woman’s property given to her at the time of her marriage) was

provided or promised to her by the intestate or in the lifetime of the intestate, either by his wife or

husband or after the death of such wife or husband, by his or her heirs. These provisions were

5 (1950) SCR 747

challenged as unconstitutional and void on account of discrimination and being violative of right to

equality under Article 14 of the Constitution.

The Writ Petition was allowed by the Supreme Court and the curtailment of the property rights of

Christian women in former Travancore was held to be invalid on the ground that the said state Act

stood repealed by the subsequent Indian Succession Act of 1925 which governs all Indian Christians.

However, the provisions were not struck down as unconstitutional since the Court felt that it was

unnecessary to go into the constitutionality issue of the provisions as they are in any case inoperable

due to the overriding effect of the ISA 1925.


Parsi women’s right to property:

 Prima facie the property rights of the Parsis are quite gender just. Basically, a Parsi widow and all her

children, both sons and daughters, irrespective of their marital status, get equal shares in the property

of the intestate while each parent, both father and mother, get half of the share of each child. However,

on a closer look there are anomalies: for example, a widow of a predeceased son who died issueless,

gets no share at all.

Succession Rules In General For Different Religions:

 The Indian Succession Act was enacted in 1925. The object of the Act was to consolidate the large number of laws which were in existence at that time. Laws governing succession to Muslims and Hindus were excluded from the purview of the Act. While consolidating the law in respect of succession, two schemes, one relating to succession to property of persons like Indian Christians, Jews and persons married under the Special Marriage Act, 1954 and the other relating to succession rights or Parsis, were adopted.

In the first scheme, applying to those other than Parsis, in the case of a person dying intestate leaving behind a widow and lineal descendants, the widow would be entitled to a fixed share of one-third of property and lineal descendants shall be entitled to the remaining two-third. This law was amended subsequently with the object of improving rights of widows and it was provided that where the intestate dies leaving behind his widows and it was provided that where the intestate dies leaving behind his widow and no lineal descendant and the net value of the estate does not exceed Rs 5,000, the widow would be entitled to the whole of this property. Where the net value of the estate exceeds Rs 5,000 she is entitled to charge a sum of Rs. 5,000 with interest at four per cent payment and in the residue, she is entitled to her share. The Act imposes no restriction on the power of a person to will away his property.

Under the second scheme, the Act provides for Parsi intestate succession. By the Indian Succession (Amendment) Act, 1991 (51 of 1991), the Act was amended to provide equal shares for both sons and daughters in their parental properties, irrespective of the fact that it was that of the father or that of the mother. It also enables the Parsis to bequeath their property to religious or charitable purposes, etc., without any restrictions. In effect the amended law provides that where a Parsi dies intestate leaving behind a widow or widower as the case may be, and children, the property shall be divided so that the widow or widower and each child receives equal share. Further, where a Parsi dies leaving behind one or both parents in addition to children, or widow widower and children, the property shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child.

This Act was amended by the Indian Succession (Amendment) Act, 2002. It was felt that section 32 of the principal Act is discriminatory to widows and as such the proviso to section 32 was omitted to remove discrimination in this regard. Section 213 was also amended by this amending Act to make Christians at par with other communities.

The law relating to intestate succession among Hindus is codified in the Hindu Succession Act, 1956 (30 of 1956). It extends to the whole of India except the State of Jammu and Kashmir. The remarkable features of the Act are the recognition of the right of women to inherit property of an intestate equally with men and abolition of the life estate of female heirs.

A vast majority of Muslims in India follow Hanafi doctrines of Sunni law. Courts presume that Muslims are governed by Hanafi law unless it is established to be the contrary. Though there are many features in common between Shia and Sunni schools, yet there are differences in some respects. Sunni law regards Koranic verses of inheritance as an addendum to pre-Islamic customary law and preserves the superior position of male agnates. Unlike Hindu and Christian laws, Muslim law restricts a person’s right of testation. A Muslim can bequeath only one-third of his estate. A bequest to a stranger is valid without the consent of heirs if it does not exceed a third of the estate, but a bequest to an heir without the consent of other heirs is invalid. Consent of heirs to a bequest must be secured after the succession has opened and any consent given to a bequest during the lifetime of the testator can be retracted after his death. Shia law allows Muslims the freedom of bequest within the disposable third.

The Recent Trends Of The Judiciary.

Definitely the current trends of the Supreme Court are to examine personal laws on the touchstone of Articles 14, 15 and 21 of the Constitution of India and  and strike down  those personal laws as   unconstitutional being violative of these Articles of the Constitution  of India.

                          In Ganduri Koteshwaramma and Anr vs. Chakiri Yanadi and Anr

                      In this very recent case decided in  October 2011, the Supreme Court reiterated the principle of equal rights in Joint Hindu Family ancestral coparcenary property of the daughter. andf upheld theAmended Act 1986 of Hindu Succession Act 1956; in this case since the succession opened only in 1991, a daughter even though married prior to the Amended Act of HSA 1986  was allowed by the Supreme Court6 to claim equal rights to her share in Joint Hindu Familky coparcenary property.

The  Supreme Court is also following International conventions and declarations like CEDAW to render Gender Justice and eradicate Gender Disparity.

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1 thought on “PROPERTY LAWS OF INDIAN WOMEN”

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