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EVOLUTION OF PROPERTY RIGHTS OF WOMEN IN INDIA

Updated: Nov 10, 2020

By

Vanmathi M, III year of B.A., LL.B.


Introduction

When we turn the pages of our history, we can notice the position of women in society. In the Vedic period, men denied to give equal status to women and were given a very inferior position. From Vedic society to modern society, the right of Hindu women’s property has been undergoing many transformations. In the ancient Hindu joint family system, property rights are vested in the hands of male members only. There is a Karta, who is the head of the joint family and a sole administrator of all the affairs of the joint family. Women had no rights regarding property and she could not express any freedom of expression regarding property administration. It was the duty of male members to administrate the joint family property. There is a lot of difference in Mitakshara and Dayabhaga School regarding inheritance laws. Numerous improvements have been made such as the Hindu Women's Right to Property 1937 to give gender justice for women. To establish the right to equality provided under the Indian constitution, the central government enacted the Hindu Succession Act 1956. This act does not bring any changes which empower women. The amendment of this act only recognised women as a coparcener. Because previous law stated that a woman is not considered a coparcener anymore. But the Hindu Succession Amendment Act 2005 gives equal property rights to women and recognised them as coparceners. But there is a question that this Hindu Succession Amendment Act is retrospective or prospective due to confusing judgement. Here we clarify the doubts from the latest notable judgement given by the Supreme Court in Vineet Sharma vs. Rakesh Sharma.

Ancestral property and coparcenary property – Clarification

Coparceners are members of the joint family. But all the members of the Hindu joint family are not coparceners. In Hindu joint family, Karta is the most senior member and all the other members are coparceners. Coparcener can acquire an interest in the property by birth. Under Hindu law, the property is divided into two, they are joint family property and separate property. The joint family property is further divided into Ancestral property and separate property of coparcener thrown into common coparcenary stock. The term 'Joint family property' is synonymous with 'Ancestral property' and the term separate property includes self-acquired property. Ancestral property means any property which inherited up to four generations of male lineage. The term coparceners are the three generations next to the holder of the property in unbroken male descent.

Hindu women's coparcenary right under ancient Hindu law

Under the Hindu joint family system, property rights were vested only in the hands of male members of the family. In Venugopala vs. Union of India, the Supreme Court held that the Mitakshara concept of coparcenary is based on the concept of the birthright of a son, grandson, great-grandson. Under Dayabhaga School, the female can become coparcener and have a right to call for the partition of coparcenary property. In Mitakshara School, they did not accept a female as a coparcener. When comparing both Mitakshara and Dayabhaga School, Dayabaga law can be preferred to initiate the growing spirit of modern society. In Sahadeo Singh vs. Chhabila Singh, Patna High Court held that widow cannot be a Karta of the joint family because she is not a coparcener and she has no legal qualifications to become Karta. Hence a mother cannot alienate the share of her minor son in joint family property and it is possible only when the court permits it. In Kandhamal vs Kandish Khevar, Madras High Court held that a gift made by the father (Karta) in favour of his wife of immovable ancestral property is void.

Hindu Succession act 1956 - pros and cons

The Hindu Succession Act deals with inheritance and succession. It applies to all Hindus, Jains, Buddhist and Sikhs. This act gave a broad scope to ancestral property and self-acquired property. This act introduced the survivorship rule. The term coparcener shall be introduced when there is an inheritance of ancestral property. Coparceners are male members up to three generations descended from a common male ancestor. It refers to a son, son's son, son's son's son can be the coparceners in Hindu undivided family and they have an interest in the property by birth. Whereas daughters, wife, widows could not be considered as coparceners and did not acquire any property. This legislation is discriminatory one and it violates Article 14 of the Indian constitution. The survivorship rule faces a lot of criticism and it makes a woman in worse condition. This act abolished the limited estate of Hindu women.

Hindu Succession (Amendment) Act 2005 (women's property rights)

It gave the women a right to be a coparcener as a son. The amendment was made to Section 6 of Hindu Succession Act to remove gender discrimination and provide equal rights to the daughters as well. This act abrogated the survivorship rule. This amendment came into force on September 09, 2005, and declared coparcener's daughter would acquire coparcener right by birth and have equal rights in the property like a son. It also notices that it does not invalidate the disposition of property by a partition or will have taken place before December 20, 2004 (the day amendment was introduced in parliament). Before this act, some states such as Tamil Nadu, Andhra Pradesh, Kerala, Karnataka and Maharashtra had amended state laws to provide daughters with equal rights over inheritance. This amendment repealed Section 23 of Hindu Succession Act which disentitled a female heir to ask for partition in respect of dwelling house wholly occupied by the joint family until male heirs choose to divide their respective shares and it also repealed section 24 which denied rights of the widow to inherit her husband's property upon her remarriage. The crux in this amendment will now be prospective or retrospective. It means the father needs to be alive on September 09, 2005, for his daughter to claim his property. There was huge conflicting judgement given and the answer to this confusing question was given in the case of Vineet Sharma vs Rakesh Sharma.

Amendment act is retrospective or prospective nature- explained with case laws

(1) In 2016, Prakash vs. Phulavati, this case was placed before J.Anil Dave and J.A.K.Goyal held that under the amendment act, rights apply to living daughters of living coparceners. Father has to be alive on the date of enforcement of amendment act 2005. Hence the living daughter of the coparcener had no right in coparcenary property when the coparcener died before the introduction of this act.

(2)In 2018, Danamma vs. Amar Singh, this case was placed before J.A.K Sikri and J Ashok Bhuwan stated that even the father had died before 2005, yet the daughter will get equal share and daughters are entitled to coparcenary property since birth. These two judgments brought confusion among people. It was sold out by the latest judgement in 2020.

(3)In 2020, Vineet Sharma vs. Rakesh Sharma, the three-judge bench J.Arun Mishra, J.S.Abdul Nazeer and J.M.R.Shah held that daughter has a right in coparcenary property by birth. Father need not be alive on the date of enforcement of amendment act 2005. The Supreme Court states that "daughter is always a daughter", whether she is married or not, her father is alive or not. We should give equal rights in all aspects. Moreover, SC states that it is not necessary that the daughter is alive; if she is not alive it will also be claimed by the daughter's legal heirs. This judgement overruled previously mentioned judgement.

Conclusion

Since 2005, women had the right to inherit ancestral property. But this latest Supreme Court judgement made it retrospectively applicable. The Supreme Court requested the High Courts and subordinate courts to decide all pending matters regarding this issue, as far as possible, within six months. This latest judgement empowers the women and upholds gender justice.