Report No. 174
Annexure - III
Working Paper on Coparcenary Rights to Daughters under The Hindu Law
Under ancient Hindu Society, a woman was considered to be of low social status and treated as a dependent with barely any property rights. As per the text of Baudhayana, women had no place in the Hindu scheme of inheritance and "Females were devoid of powers and incompetent to inherit." But by virtue of special texts specified female heirs were given the right to inherit. The Dayabhaga law and the Benaras and Mithila sub-schools of Mitakashra law recognized five females relations as being entitled to inherit namely, widow daughter, mother, paternal grandmother, and paternal great-grandmother and the Madras and Bombay sub-schools recognised the heritable capacity of a larger number of female heirs.1
Sometimes the laws themselves discriminated against women. This was particularly true in the sphere of family laws in India which are "Personal Laws", that is the law applicable to a person on the basis of his/her religion. Some of these personal laws exhibit strong features of discrimination against women. During the British period social reform movements raised the issue of amelioration of women's position in society. The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929.
This Act, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughters and sister (thereby creating a limited restriction on the rule of survivorship). During this period another landmark legislation conferring ownership right on a woman was the Hindu Women's Right to Property Act XVIII of 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and affected not only the law of coparcenary but also the law of partition, alienation of property, inheritance and adoption.2
1. M. Indira Devi, "Woman's Assertion of Legal Rights to Ownership of Property" p.168 in Women AND Few, Contemporary Problems, (1994) edt by L. Sarkar & B. Sivaramayya/
2. Mayne, Treaties on Hindu Law & Usage, 14th Edition ed. by Alladi Kuppuswami, (1996)
The Act of 1937 enabled the widow to succeed along with the son and to take the same share as the son. This widow is not a coparcener even though she posses a right akin to coparcenary interest in the property and is a member of the Joint Family. However, under the Act, the widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights at all. But, both enactments largely left untouched the basic features of discrimination against women and were subsequently repealed.
The framers of our Constitution were aware of the low position of a woman in society and they took special care to ensure that the state takes positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution.
Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State to ensure equality between man and woman such as equal pay for equal work. Despite these provisions for ensuring equal status, unfortunately a woman is still not only neglected in her own natal family but also the family she marries into because of certain laws and attitudes. After the advent of the Constitution, the first law made at the central level pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956 (hereinafter called the HSA). This Act came into force on 17th June, 1956.
The HSA lays down a uniform and comprehensive system of inheritance and aplies inter-alia to persons governed by Mitakshara and Dayabhaga Schools as also to those in certain parts of southern India who were previously governed by the Murumakkattayan, Aliyasantana and Nambudri Systems of Hindu Law. The Act applies to any person who is a Hindu by religion in any of its forms or developments or a follower of the Brahmo Prarthana or Arya Samaj or to any person who is a Budhist, Jain or Sikh by religion. In the case of a testamentary disposition this Act shall not apply and the interest of the deceased would be governed by the Indian Succession Act, 1925.
There is no doubt that it reformed the Hindu personal law and gave women greater property rights, allowing women full ownership rights instead of limited rights in the property they inherited from their husbands under Section 14 with a fresh stock of descent under sections 15 and 16 of this Act. Daughters were also granted property rights in their fathers' estate. The attempt to bring about reforms and a comprehensive codification of Hindu Law was resisted by the orthodox sections of Hindus.
However, the then Prime Minister Pt. Jawaher Lal Nehru who was unequivocally committed to carry out these reforms suggested, in order to blunt the edge of opposition, that piecemeal legislation be undertaken to substantially remove the disparities and disabilities suffered by the Hindu women. Consequently it was possible to bring into force, the Hindu Marriage Act, 1955; the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority and Guardianship Act, 1956; and The Hindu Succession Act, 1956. Under the HSA if a Hindu male dies intestate, all his separate or self-acquired property devolves in equal shares on his sons, daughters, widow and mother as specified class I heirs.
However, the devolution of interest to coparcenary property is set out in section 6 -
Section 6 of the HSA dealing with devolution of interest to coparcenary property states-
"When a male Hindu dies after the commencement of this Act, having at the time 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:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara Coparcenary property shall devlove by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.-- For the purposes of this 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 the his death, irrespective of whether he was entitled to claim partition of or not.
Explanation 2,-- Nothing contained in the proviso to his section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any his heirs to claim on intestacy a share in the interest referred to therein.
The provision above noted indicates when a male Hindu dies having at the time of his death an interest in a Mitakshara coparcenary property and is survived by a female relative specified in class I of the Schedule of the Act or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coaprcenary property shal devolve by testamentary or intestate succession and not by survivorship. In the absence of this event his interest would have devolved by survivorship on the living members of the coparcenary.
The Act lays specific emphasis on the "interest of the deceased" and provides that 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. The Supreme Court in Gurupada v. Heerabai, AIR 1978 SC 1239. reaffirming in State v. Narayanaro, AIR 1985 SC 716. had examined Section 6 of the HSA and is of the view above expressed.
Section 6 of the HSA contemplates the existence of a coparcenary consisting of male members who have an interest by birth in the joint family property. At no time before partition can it be predicted that he is entitled to so much share (one half or one fourth or one third) in the joint family property. Nor can he say that such and such items of property belong to him, even if the properties are in the possession or use. Until partition takes place this is an unpredictable and fluctuating interest which may be enlarged by deaths and diminished by births in the family. According to the noted Hindu Law Jurist Mayne, every coparcener has a right to be in joint possession and enjoyment of the joint family property and this is expressed by saying that there is both community of interest and unity of possession.
Every coparcener has a right to be maintained including a right to marriage expenses being defrayed out of the joint family funds and every coparcener is bound by the alienation made by the Karta for legal necessity or benefit of the estate and by legitimate acts of management of the Karta; every coparcener has a right to object to and challenge alienations made without his consent or made without legal necessity; and every coparcener has a right of partition and survivorship.1
1. AIR 1985 SC 716.
A widow or daugher on the death of her husband/ father cannot claim to be a survivor as she is not a coparcener recognised under the Act. Desipte constitutional guarantee for not only ensuring equality to women, we find that in the sphere of property rights granted to Hindu women as wives/widows and daughters, there are still many discriminatory aspects in the law. When a Woman is maltreated in her husband's family or there is a demand of dowry, there is huge hue and cry as the instances of killing by in laws/bride burning are not unknown in our society.
But the issue here is regarding the discriminatory treatment given to her even by the members of her own natal family. In Hindu System, ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners. Coparcenary is a narrower body of persons within a joint family and consists of father, son's son's and son's son's son. A coparcenary can consist of a grandfather and grandson, or brothers, or an uncle and nephew and so on.
Thus ancestral property continues to be governed by a wholly partrilineal regime, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. Since women could not be coparceners they were not entitled to any share in the ancestral property by birth. A son's share in the property of his intestate father would be in addition to the share he acquired at the time of birth whereas the share of a daughter/mother/wife, would only be out of the interest the deceased had in a coparcenary on his death.
Secondly, the patrilineal assumptions of dominant male ideology is also reflected in the laws governing a Hindu female who dies intestate, laws that are markedly different from those governing Hindu males who die intestate.1 The property is to devolve first to her children and husband: secondly, to her husband's heirs; thirdly to her father's heirs, and lastly, to her mother's heirs. The provisions of section 15(2) attempt to guarantee that property continues to be inherited through the male heir from which it came either back to (her father's family or back to her husband's family.
1. Ratna Kapur and Brenda Cossman, Feminist Engagements with Law in India (1996)