ACKNOWLEDGEMENT

The sources and final outcome of this assignment required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this all along the completion of my
assignment. Whatever I have done is only due to such guidance and assistance and I would not
forget to thank them.
I respect and owe my profound gratitude to dr

for giving me an opportunity to do this

assignment and providing me with all the support and guidance which made me complete the
assignment on time. I am extremely grateful to her for providing such a nice support and
guidance though she had busy schedule.
Lastly, I am obliged to my friends, for the valuable information provided by them in their
respective fields. I am grateful for their cooperation during the period of my assignment.

Table of Contents
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INTRODUCTION

Women constitute half the worlds population, perform nearly two thirds of its hours, and
receive one tenth of the worlds income and less than one hundredth percent of the worlds
property.

In India, Hindu womens struggle for being conferred with property rights
both in the matrimonial and natal family, not only in name but also in spirit,
in the patrilineal system, is not a new phenomena but dates back to the days
of Shastric laws where her status as maiden, widow or married defined her
property rights burdening her with more restrictions than privileges. With the
passage of time, certain laws were enacted during pre-independence period
to improve the conditions of Hindu women with regard to inheritance,
succession and partition. With the advent of independence, certain changes
were brought into effect for providing property rights to Hindu women.

This paper attempts to highlight the Hindu womens property rights under
The Hindu Succession Act, 1956 and Hindu Succession (Amendment) Act,
2005.

women in India are not only ignorant of their right to inheritance, but believe
that they are not meant to hold property. It was believed that through
independence, women from noble families go to ruin The offshoots of
patriarchy are so deeply entrenched in the Hindu conception of woman that
despite being cognizant of the female centric laws of inheritance, many
women, especially from rural India, voluntarily deny their right to hold
property. The reasoning they furnish- property is a matter regarding the
males of the family. This radically flawed perspective is a result of centuries
of male domination, pillared by the anti feminist interpretation of the ancient
laws by various Hindu lawgivers.
This usually denied but casually granted right was structured to a
somewhatconcrete form by various legislations passed by the Government.
This was a task of herculean proportions,

because remolding the philosophy of Hindu patriarchal society was an

Arduum sane Munus, taking almost a century to materialize definitively. The
earliest attempt may be traced back to 1865, while latestbeing the Hindu
Succession (Amendment) Act, 2005 . This long legislative saga has
evidenced many tumultuous turns, and has still to see many more. Denial of
the right of a daughter to be a part of the Coparcenary was seen as a blatant
discrimination of their rights. Rendered devoid of their inheritance rights,
females were bereft of any form of social empowerment, dependent on their
male relatives entirely. Ushering remarkable amendments in the Hindu
Succession Act 1956 , the Amendment has undeniably elevated the status of
females in the Hindu household. From not having a share in their own natal
ancestral property to holding shares in two families after marriage, Hindu
women have certainly witnessed a phenomenal paradigm shift in terms of
proprietary emancipation. The Amendment has improved the economic
status of Hindu women, spanning over their membership in the Coparcenary,
an abode in the ancestral dwelling house, agricultural rights, and widows
being entitled to property after remarriage and conferring the power of
testamentary disposition upon women.

A HISTORICAL HINDSIGHT- HINDU WOMAN

The struggle for equal status for women isnt peculiar to India. Feminist
movements all over the globe stand testimony to the fact that females have
always been undermined treated assecondary, yoked citizens. Their inferior
status existed not merely in the society but also in the matter of privileges
and right. Nowhere were the proprietary rights of women recognized asearly
as in

India; and were these rightslargely conceded as in our own It becomes

imperative to peruse the origin of this reluctance to impart equitable
proprietary
rights
to
women.
Hindu matters of inheritance see the joint family system as an inevitable
pivot in its mechanism. Before passing of the 1956 Act, these matters were
governed by customary laws, displaying wide regional variations.
The Mitakshara system by Vijnaneshwaraprevailed over almost the whole
nation, whereas the Dayabhaga system, byJimutawahana was followed in
Bengal and Assam. Other subschools like Mayukha in Bombay, Konkan in
Gujarat and Marumakkattayam or Nambudrisystem inKeralaalso existed.
However, concept of Coparcenary was unique to the Mitakshara School,
where a son, sons son and a sons sons son acquiredproperty rights by
birth. Thus, only males could be coparceners.

This was in sharp contrast to the Dayabhaga School, where the rule of
succession was followed. The inheritance rights opened for the first time at
the death of the father, the sons didnt have the right by birth. Moreover, the
doctrine of survivorship was unique to the Mitakshara School where interest
in the joint property of a deceased coparcener devolved upon the existing
coparceners of the family.
Women were looked upon as a property to be pawned as chattels and bound
by the tie of eternal duty and obedience. Since she is not a coparcener, she
cannot be a Karta, nor is she empowered to represent her family. Women
enjoyed respectable social status during Vedic and Post-Vedic period.

Although she did not possess any proprietary right but, she was treated as a
Devi. The right in fathers property was equal for both son and
daughter. Vijyaneshwarasaid - they, who are incompetent to celebrate
sacrificial rights, dont participate in property, but are entitled to food and
raiment. Yajnavalkya expressly admitted widows, daughter, mother and the
Gotrajahas to the order of succession. If Gotrajah (gentile) included both
male and female, it was extremely favorable to the succession of women in
general.Brihaspathi also stated that since daughter, like son, springs from
the limb of man, how can any other man inherit fathers property while she
lives?
Manus code depicted changed status of women, characterized as obedience
to her husband as the beginning, middle and end of duty.
He insisted for her perpetual dependence, declaring her incompetent to
perform religious ceremoniess. Therefore, her proprietary rights were
nominal and hedged with limitations.

LEGISLATIVE EVOLUTION
Many prodigious efforts were made to impart economic strength to women, thwarted time and
again by many who found it preposterous for females toget what is rightfully theirs. The earliest
move was the Indian Succession Act, 1865 that postulated that none shall acquire any interest in
property of ones spouse by marriage, nor shall be incapable of acquiring ones own property
This was succeeded by the Married Womens Property Act, 1874 that laid down thata female had
unrivalled powers of disposition over her separate property. Married women belonging to Hindu,
Mohammedan, Sikh and Jain communities remained outside the purview of the Act, thus it being
futile for almost allfemale population. T.V. Seshagiri Ayyar argued that principles of Hindu
Property rights placed more significance upon ones own descendents (atmabandhus) than
fathersdescendents(pitrabandhus).
His Bill was not passed, till it was resurfaced by Sir Shanmukham Chetty in 1929. This was

baulked at by the traditionalists, as being opposed to the Hindu patriarchal tenets. The Bill took
the form of Hindu Law of Inheritance(Amendment) Act 1929 (Act II).This Act just elevated the
status of nearer female relatives over distant male relatives regarding separate property of Hindu
male dying intestate. Afterthis, Hindu Women's Right to Property Act, 1937 conferred upon the
widow the right to inheritance to the property even when a man died leaving behind a male issue,
and in all cases, widows got a limited estate. However the term descendant in it had a wide
import,leadingtoambiguity.
Faced with a storm of private Bills, the government appointed a Hindu Law Committee (Rau
Committee)headed by B.N. Rau. It aimed to generate a uniform code of intestate succession for
Hindus throughout the territory of India, referred to the Hindu Code Bill. It was regarded as a
challenge to the social and cultural structure of the Hindu Philosophy. Sita Ram Jajoo stated:
"Here we feel the pinch because it touches our pockets. Such negative backlashes were
neutralized by huge support. It was said that the Bill will not be complete unless it provided for a
share to the daughter in Mitakshara coparcener. Pandit Nehru expressed his unequivocal
commitmentfor reforms to remove the disparities suffered by Hindu women. Finally, all
deliberations paved way for the landmark HSA, 1956,effectual from 17th June, 1956.
Its success can be romanticized by saying that the chrysalis of female proprietary rights
underwent the much awaited metamorphosis to give way to a brighter future of women
empowerment. Daughter was introduced as an heir at par with the son. The Act abolished the
duality of Mitakshara and Dayabhaga systems, establishing a uniform code of succession
throughout the Indian Territory. It bestowed absolute power of testamentary disposition upon the
females. The concept of limited estate where her right to use her property was subject to brought
at par with each other. Thus the Act ameliorated the economic interests of women and
empowered them considerably.manifold impediments was abrogated. Moreover both married
and unmarried daughters were brought at par with each other. Thus the Act ameliorated the
economic interests of women and empowered them considerably.

THE HINDU WOMENS RIGHT TO PROPERTY ACT, 1937.

Prior to 1937 there were no codified laws to deal specifically with the Hindu womens right to
property, where disputes arose, they were settled in accordance with the customary practices. In

1937, the Hindu Womens Right To Property Act was passed after much voicing of discontent
over the unsatisfactory condition of womens rights. In the prevalent socio-legal atmosphere of
that time this Act came as a breath of fresh air for supporters of female empowerment. However,
it was by no means enough to achieve the lofty target of gender equality. Under the said Act- a
widow was entitled to a limited interest over the property of her husband what was to be
termed as Hindu widows estate. ]The ameliorative effects of this legislation was further diluted
in 1938, when it was amended to exclude a widows interest in any agricultural land.
Under this Act, a Hindu mans widow, his widowed daughter in law and widowed
granddaughter in law are entitled to inherit to his estate, not only in default of, but along with, his
male issues.The widow in a Hindu coparcenary succeeds to her husbands claim irrespective of
the existence of male heirs. The right of survivorship of his collaterals is hence defeated.
However, the claim granted to the widow is a limited one and it is such a limited interest that has
come about to be called as a Hindu womans estate. It is incorrectly presumed that a widow has
an interest for life in the estate she inherits. Hindu Mitakshara law does not measure estates in
terms of time but on the basis of usage of the estate. A Hindu widow in possession of the estate is
entitled to its complete beneficial enjoyment and is answerable to no one as long as shes not
guilty of willful waste. The peculiarity of this estate is that on the death of the widow, the estate
does not pass onto her heirs but to the heirs of the last male owner or the last full female owner
with regard to stridhan property, whichever the case might be. The widow herself cannot become
fresh stock of descent. Shastric authorities have stated that a widow only inherits a limited
interest in her husbands estate, however, nowhere is it said that similar restrictions are applicable
over other female heirs. The class of female heirs which are from another gothra or after
marriage shall become of a gothra different from that of the last male owner, take from the male
heirs, the property in full as absolute owners. This class includes daughters, childrens daughters
and the sisters and daughters of descendants, ascendants and collaterals within five degrees, who
inherit in order of propinquity.

HINDU WOMENS PROPERTY RIGHTS BEFORE 1956

Before 1956, there were two kinds of womens property,

1. STREEDHAN
2. WOMENS ESTATE
As per Section 14 of Hindu Succession Act, 1956, the womens estate has been abolished.
The word streedhan means womens property. According to Smritikars, the streedhan
constituted those properties which she received by way of gift from the relations which included
mostly movable property (though sometimes a house or a piece of land was also given in gift)
such as ornaments, jewelry and dresses.[12]
Jimutvahana gave a different enumeration of streedhan, so did the schools of Mitakshara. The
enumeration of streedhan can be as follows:1. Gifts and bequests from relations
2. Gifts and bequests from strangers
3. Property acquired by self-exertion and mechanical arts
4. Property purchased with streedhan
5. Property acquired by compromise
6. Property obtained by adverse
7. Property obtained in lieu of maintenance.
Similarly, Women Estate also has the following forms:1. Property obtained by inheritance
2. Share obtained on partition

The Above Stated Women Estate Has The Following Features:

It gives women an absolute ownership of property.

She has the full rights of its disposal or alienation.

She can sell ,gift, mortgage ,lease, exchange or if she chooses , she can put it on fire,

Her property can be passed on to her own on heirs on her death.

The old law of succession has put an end by The Hindu Succession Act, 1956. As per Section 15
of the Hindu Succession Act, 1956:
General rules of succession in the case of female Hindus are as follows
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in
Section 16 :
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1)(a) any property inherited by a female Hindu from her father or mother shall devolve, in the
absence of any son or daughter of the deceased (including the children of any pre-deceased son
or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein,
but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of the deceased (including the children of any
predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the husband.
As per Section 16 of the Act,
The order of succession among the heirs referred to in section 15 shall be, and the distribution
of the intestates property among those heirs shall take place, according to the following rules,
namely:Rule 1- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be
preferred to those in any succeeding entry and those including in the same entry shall take
simultaneously.
Rule 2- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her
own children alive at the time of the intestates death, the children of such son or daughter shall
take between them the share which such son or daughter would have taken if living at the
intestates death.
Rule 3-The devolution of the property of the intestate on the heirs referred to in clauses (b), (d)
and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and
according to the same rules as would have applied if the property had been the fathers or the
mothers or the husbands as the case may be, and such person had died intestate in respect
thereof immediately after the intestates death.
The above stated two sections constitutes new law of succession to womens property.
Under Section 14(1) of The Hindu Succession Act, 1956, the Act has abolished the Hindu
womens limited estate and confers on the women the absolute ownership over all her property
acquired by her.as per Section 14 of the act:
Property of a female Hindu to be her absolute property are as follows:

(1) Any property possessed by a Female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section, property includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance
or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after
her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other
manner whatsoever, and also any such property held by her as streedhan immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or
under a will or any other instrument or under a decree or order of a civil court or under an award
where the terms of the gift, will or other instrument or the decree, order or award prescribe a
restricted estate in such property.
Under this Section , any property acquired by a Hindu female except that which is covered by
sub-section 2 before the Act came into force will became her absolute property and any property
acquired by a Hindu female except that which covered by the commencement of Act will be her
absolute property.[13]
The above stated changes could be seen while going through the observation of courts at
different periods:In Janaki v. Narayana Swami[14] Privy Council observed regarding womens estate as her right
is of the nature of right of property, her position is that of owner; her powers in tat character are,
limitedSo long as she is alive , no one has vested interest in succession.
In another case, Kalawati v. Suraj[15], SC stated that in the context of section 14 women
does not mean any woman , but that woman who is the owner of womans estate. If the holder of
womans estate had alienated the estate to a woman, that woman is not the woman whose estate
is enlarged to full estate.

The effect of rule laid down in the Section 14 of The Hindu Succession Act, 1956 is to abrogate
the stringent provisions against the proprietary rights of a female which are often regarded as
evidence of her perpetual tutelage and to recognize her status as independent and absolute owner
of property.[16]
Before the enactment of The Hindu Succession Act, 1956, Hindu women has streedhan as:

Absolute property and (b) Limited estate.

When the constitutionality of the Act has been challenged and SC has observed that the Act has
the object of enhancing womens limited estate concept regarding property into absolute interest.
It is within the spirit of court of India. Hence it is not violative of any fundamental rights
especially Art.14, 15(1) of the Constitution of India.[17]
S.14 has been given retrospective effect. But this Section has no application for those who has
already inherited and alienated the property before the Act came into force. In Anandibhai v.
Sundarabhai[18] , High Court has been observed as the expression any property possessed by a
female Hindu in Section 14 means any property owned by a female Hindu at the date of the
commencement of the Act, and, these words are prospective in their application. Any property
acquired before the commencement of the act shall be the absolute property. The expression
whether acquired before or after the commencement of this act shows that section is operative
retrospectively.
There are two conditions to be fulfilled for the application of Section 14 of The Hindu
Succession Act, 1956:
1. Ownership of the property must vest in her, and
2. She must be in the possession of the Estate when the Act came into force.
Supreme Courts and High courts have given wider connotations for the term possession.
According to their observation, it can be in the form of actual and constructive possession. In
Santosh v. Saraswathi[19], a question has been raised regarding the possession of property of
female Hindu and Court held the view that where property was given to the woman by way of

maintenance over which she had a right, her possession was accepted, it became her absolute
property. Even when the property is in the possession of a trespasser, it has been held that she is
in constructive possession.[20]
RIGHT OF INHERITANCE OF PROPERTY FOR HINDU WOMEN
When we check the systems of inheritance in Hindu law, there can find two different systems of
inheritance, namely:
1. THE MITAKSHARA SYSTEM
2. THE DAYABHAGA SYSTEM
The former system prevails in Bengal and the latter system prevails in other parts of India. Both
the systems are based upon the text of Manu that to the nearest Sapinda the inheritance next
belongs; after them, the Sakulyas, the preceptor of the Vedas, or a pupil.[21] The guiding
principles of the two systems are different. The Mitakshara interprets the law of inheritance as
nearest blood will be the heir ie; based on the principles of consanguinity. Whereas according to
Manu, the dayabhaga system is based on the principle of religious efficacy or the nearest Sapinda
can offer oblation to the souls. Modes of devolution of property is also different in both schools.
MITAKSHARA SYSTEM
Devolution Of Mitakshara School Can Be In The Form of:
1. Separate Property Of The Last Owner;
2. Joint Family Property.
The Classification Of Heirs Under Mitakshara Are As Follows:

Sapindas

Samanodakas, And

Bandhus

Under Mitakshara law, females takes only limited estate whereas males takes absolute interest in
estate. Males succeeding as heirs, whether to a male or to a female, took absolutely. Females
succeeding as heirs to a male took a limited estate in the property inherited by them, except in
certain cases. If a separated Hindu under Mitakshara or any Hindu under Dayaghaga died leaving
a widow, and brother the widow succeeded to the property as his heir but she being a female did
not take the property absolutely. She was entitled to the income of the property. She could not
make a gift of the property nor could she sell it unless there was some legal necessity. On her
death, the property would pass not to her heirs, but to the next heir of her husband, ie; his
brother.
DAYABHAGA SYSTEM
Under Dayabhaga system, there is only one mode of devolution of property ie; succession.
The Order Of Succession Has The Following Features;
1. Religious efficacy
2. One mode of succession
Under the first order of succession, the right to inherit the property is bestowed with spiritual
benefit on the deceased owner. And under the second order, there is no right by birth or
survivorship.
It does not recognize the rule of survivorship in the Joint Family property. Moreover, 2 or more
persons can become joint tenants but with the exception of widows and daughters. The joint
family property is passed on to heirs, males or females or even to his legatees as if he were
absolutely seized thereof and not to the surviving coparceners on the death of owner. It cannot be
found in Mitakshara law.
Illustrations

A AND B, TWO HINDU BROTHERS, GOVERNED BY THE MITAKSHARA

SCHOOL OF HINDU LAW, ARE MEMBERS OF A JOINT AND UNDIVIDED
FAMILY. A DIES LEAVING HIS BROTHER B AND A DAUGHTER. AS SHARE IN
THE JOINT FAMILY PROPERTY WILL PASS TO HIS BROTHER, THE SURVIVING
COPARCENER AND NOT TO HIS DAUGHTER AS HEIR.

A AND B, TWO HINDU BROTHERS, GOVERNED BY THE DAYABHAGA

SCHOOL OF HINDU LAW, ARE MEMBERS OF A JOINT AND UNDIVIDED
FAMILY. A DIES LEAVING HIS BROTHER B AND A WIDOW. AS SHARE IN THE
JOINT FAMILY PROPERTY WILL GO TO HIS WIDOW AS HIS HEIR EXACTLY AS
IF A AND B WERE SEPARATE[22].

Under Mitakshara law, the right of inheritance was a right which vested immediately on the
death of the owner of the property in the person who was the nearest heir at that time. But it has
some exceptions:

A son or daughter in the mothers womb at the time of death of owner is not entitled to
inheritance.[23]

A son validly adopted to the deceased owner by his widow.[24]

Apart from the case of a child en ventre sa mere or of an adopted child , the estate once
vested in an heir will not be divested by the subsequent birth of a person who would have
been a preferable heir had been alive at the time of the time of the death of last
owner.[25]

However both under Mitakshara and Dayabhaga schools, in certain special cases women has
excluded from inheritance of property. Under Mitakshara the only heir liable to be excluded from
inheritance on unchastity is widow of the deceased.[26]
Sections 24 and 25 of The Hindu Succession Act, 1956 have also laid down the grounds for
excluding a person from inheritance while Section 28 of the said Act of 1956 provides that no
person shall be disqualified from succeeding to any property on the ground of any disease, defect

or deformity or on any ground except as provided in the said Act of 1956. Therefore, the
disabilities left after the Hindu Inheritance (removal of disabilities) Act, 1928, have been
removed by the Hindu Succession Act, 1956.
The Section 8 -13 of The Hindu Succession Act, 1956, deals with the rules of succession with
separate property of a male Hindu, dying intestate. The Act applies to cases of succession which
opens after the Act came into force. The property of a male Hindu dying intestate devolve firstly
on heirs in clause (1) which include widow and son.[27]
The Section Divides The Heirs Of A Male For The Purposes Of Inheriting The Property Into
Four Classes. These Include:

Relations Mentioned In The Class I Of The Schedule

Relations Mentioned In The Class Ii Of The Schedule

Agnates Of The Deceased And

Cognates of the Deceased.

The Section 6 and 8 Of The Hindu Succession Act, 1956

The relationship between the above stated Sections can be read out from decisions of courts.
Section 6 is applied to the devolution of coparcenary property of a male Hindu who dies after the
commencement of the Act. Section 8 is applied to the devolution of a self-acquired property of
male Hindu.[28]
In Narayanan v. Pushparajani,[29] Kerala High Court observed that where a person dying
intestate does not have wife or children and leaves behind him brother by half blood and a sister
by full blood. In such a case, the sister by full blood would be excluded by the brother by half
blood. Thus sister by full blood alone would inherit the property excluding the brother by half
blood.
Illustration: A Hindu dies intestate leaving a widow. The widows together will take the whole.

Under Mitakshara Law, fathers widow and brothers widow were not heirs. But now they are
recognized as heirs and are given a high place in the order of succession. Similarly, in the case of
persons mentioned under class ii of schedule (brothers brother, sisters daughter and fathers
father) were used to inherit property as bandhus after all the agnates are exhausted, are now
placed in the high place of order of succession.
Hence it is possible to conclude that, the recent developments regarding the law of Hindu
womens property rights has definitely enriched the possibilities of providing extensive rights on
deserved property.

THE HINDU SUCCESSION ACT, 1956.

The idea of limited estate as propagated by the Hindu Womens Right to Property Act was
abolished in 1956 by the introduction of the Hindu Succession Act. The Hindu Succession Act
was a progressive act that brought about many reforms, the most important being the granting of
absolute rights to women, over the property that they held. The benefits of the Act were twofold
as held by the Supreme Court in an attempt to put all controversy at rest. The Supreme Court
declared that as under section 14 of the Act, the disability of women to hold property absolutely
was removed. In addition to this, it converted the limited estate of a female owner to an absolute
estate irrespective of the fact that the creation of the estate occurred at a point of time before the
enactment of the said legislation, which was retrospective in nature.
It has been said that this Act abrogates all the rules of the law of succession hitherto applicable
to Hindus whether by virtue of any text or rule of Hindu law or any custom or usage having the
force of laws in respect of all matters dealt with in the Act. Therefore no woman can be denied
property rights on the basis of any custom, usage or text and the said Act reformed the personal
law and gave woman greater property rights.
In practice though, this Act is quite biased in favour of male heirs. An example of this gender
based discrimination is the fact that in the presence of both male and female heirs, there being an
ancestral dwelling house, the female heir cannot ask for partition of the residence until and
unless the male heirs ask for their respective shares. Also the right of residence exercised by the
daughter is limited by her marital status, a daughter may claim this right if she is unmarried or a

widow or has been divorced from or deserted by her husband. She cannot claim her right to
residence if she is happily married to her husband.
Section 14 of this Act provides for the conversion of the limited interest of a Hindu female is into
absolute rights. If she gets property from her husband she can sell it and the purchaser gets
absolute right in the property, which prior to this Act, she could sell it only for the necessities of
the family or to perform religious ceremonies for the benefit of her deceased husband. Section 14
is wide in its ambit. The legislation has defined womens property in the widest possible manner.
The property includes both movable and immovable property acquired by a female by
inheritance, partition, in lieu of maintenance, arrears of maintenance, gift from any person, a
relative or not, before or after marriage or by her own skill, exertion, by purchase or by
prescription or in any other manner whatsoever and also any such property held by her as
stridhanam immediately before the commencement of the Act. Prior to the enactment of this
legislation, women were deprived of the right to alienation of property. The concept of
survivorship lost much of its effect due to this Act, which provided for the devolution of a
coparceners property unto his mother, widow and daughter, i.e. his female heirs in addition to
his son if he dies intestate. However, section 6 of this Act still retains the Mitakshara coparcenery
excluding women from survivorship as a result father and sons hold the joint family property to
the total exclusion of the mother and daughter despite providing a uniform scheme of intestate
succession.

According to the 174th report of the Law CommissionWhile broadly removing the gender discrimination inherent in Mitakshara Coparcenary. The
broad features of the legislations are more or less couched in the same language in each of
these Acts. The amending Acts of Andhra Pradesh, Tamil Nadu and Maharashtra add three
sections namely, 29A, 29B and 29C but Karnataka numbers them as Sections 6A, 6B and 6C of
the Act.
These state enactments provide equal rights to a daughter in the coparcenary property and
contain a nonobstante clause
Despite the improvements brought about by the Act, it remained predominantly gender
discriminatory, especially where inheritance rights of daughters were concerned. It was amended
in 2005 to give equal rights to daughters in separate property as well as coparcenary property left
by the father. The disability of women inheriting their patrimonial property was taken away by
section 6 of the amended Act.
The right accrued to a daughter in the ancestral property, by virtue of the Amendment Act, 2005
is absolute, except in the circumstances provided in the amended Section-6. The excepted
categories to which new Section-6 is not applicable are two, namely, (1) where the disposition or
alienation including any partition which took place before 20-12-2004 and (2) where
testamentary disposition of the property was made before 20-12-2004.The Hindu Succession
Act, 1956 : - Gender Position Before 2005 Amendment
The very preamble of the Act signifies that an Act to amend and codify t law relating to intestate
succession among Hindus. The Act aims to lay down an uniform law of succession whereas
attempt has been made to ensure equality inheritance rights between sons and daughters. It
applies to all Hindus including Budhists, Jains and Sikhs. It lays down an uniform and
comprehensive system of inheritance and .applies to those governed by the Mitakshara and
Dayabha schools as well as other [6] schools. The Hindu Succession Act reformed the Hindu

personal law and gave women greater property rights, allowing her f ownership rights instead of
limited rights in property.

The daughters were also granted property rights in their father's estate. In the matter of
succession of property of a Hindu male dying intestate, the Act lays, down a set of general rules
in sections 8 to 13. Sections 15 and 16 of the act contain separate general rules affecting
succession to the property of a fem intestate. Under section 8 of the Act three Classes [7] of heirs
recognized by Mitakshara Law and three Classes[8] of heirs recognised by Dayabhaga Law
cease exist in case of devolution taking place after coming into force of the Act..

Of course mother, widow, son and daughter are primary heirs. In the absence of Class I heirs, the
property devolves on Class II heirs and in their absence first on agnates and then on cognates.
Still some sections of the Act came under criticism evoking controversy as being favourable to
continue inequality on the basis of gender. One such provision has been the retention of
mitakshara coparcenary with only males as coparceners .
As per the Law Commission Report, coparcenary constitutes a narrower body of persons within
a joint family and consists of father, son, son's son and son's son's son. Thus ancestral property
continues to be governed by a wholly patrilineal 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
coparcenary property, in contradiction with the absolute or separate property of an individual
coparcener, devolve upon surviving coparceners in the family, according to the rule of devolution
by survivorship. Since a woman could not be a coparcener, she was not entitled to a share in the
ancestral property by birth.Section 6 of the Act, although it does not interfere with the special
rights of I those who are members of a mitaksltara coparcenary, recognises, without abolishing
joint family property, the right upon death of a coparcener, of certain members of his preferential
heirs to claim an interest in the property that would have been allotted to such coparcener if a
parititon [10] of the joint family property had in fact taken place immediately before his death.

Thus section 6 of the Act, while recognising the rule of devolution by survivorship among the
members of the coparcenary, makes an exception to the rule in the proviso. According to the
proviso, if the deceased has left a surviving female relative specified in Class I of the Schedule I
or a male relative specified in that Class who claims through such female relation, the interest of
a deceased in mitakshara coparcenary property shall devolve by testamentary of intestate
succession under the Act and not as survivorship [11]. Thus non-conclusion of women as
coparceners in the joint family property under the mitakshara system as reflected in section 6 of
the Act relating to devolution of interest in coparcenary property, has been under criticism for
being violative of the equal rights of women guaranteed under the Constitution in relation to
property rights. This means that females cannot inherit ancestral property as males do. If a joint
family gets divided, each male coparcener takes his share and females get nothing. Only when
one of the coparceners dies, a female gets share of his interest as an heir to the deceased. Further
as per the proviso to section 6 of the Act, the interest of the deceased male in the mitakshara
coparcenary devolve by intestate succession firstly upon the heirs specified in Class I of
Schedule I. Under this Schedule there are only four primary heirs, namely son, daughter, widow
and mother. For the remaining eight, the principle of representation goes up to two degrees in the
male line of descent. But in the female line of descent, it goes only upto one degree. Thus the
son's son's son and the son's son's daughter get a share but a daughter's daughter's son and
daughter's daughter's daughter do not get anything. Again as per section 23 of the Act married
daughter is denied the right to residence in the parental home unless widowed, deserted or
separated from her husband and female heir has been disentitled to ask for partition in respect of
dwelling house wholly occupied by members of joint family until the male heirs choose to divide
their respective shares therein. These provisions have been identified as major sources of
disabilities thrust by law on woman. Another controversy is the establishment of the right to will
the property. A man has full testamentary power over his property including his interest in the
coparcenary.
On the whole the Hindu Succession Act [12] gave a weapon to a man to deprive a woman of the
rights she earlier had under certain schools of Hindu Law. The legal right of Hindus to bequeath
property by way of will was conferred by the Indian Succession Act, 1925.

The Hindu Succession (Amendment) Act, 2005 - A Prologue:

This amending Act of 2005 is an attempt to remove the discrimination as contained in the
amended section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the
Hindu mitakshara coparcenary property as to sons have. Simultaneously section 23 of the Act as
disentitles the female heir to ask for partition in respect of dwelling house wholly occupied by a
Joint Family until male heirs choose to divide their respective shares therein, was omitted by this
Amending Act. As a result the disabilities of female heirs were removed. ?This is a great step of
the government so far the Hindu Code is concerned.

This is the product of 174th Report of the Law Commission of India on "Property Rights of
Women: Proposed Reform under the Hindu Law". First, the 2005 act, by deleting a major gender
discriminatory clause - Section 4 (2) of the 1956 HSA - has made women's inheritance rights in
agricultural land equal to men's. Section 4(2) excluded from the purview of the HSA significant
interests in agricultural land, the inheritance of which was subject to the succession rules
specified in state-level tenurial laws. Especially in the north-western states, these laws were
highly gender unequal and gave primacy to male lineal descendants in the male line of descent.

Women came very low in the succession order and got only a limited estate. The new legislation
brings male and female rights in agricultural land on par for all states, overriding any
inconsistent state laws. This can potentially benefit millions of women dependent on agriculture
for survival. Second, the 2005 act makes all daughters, including married ones, coparceners in
joint family property. The 1956 HSA distinguished between separate property and joint family
property.
The separate property of a (non-matrilineal) Hindu male dying intestate (without leaving a will)
went equally to his class I heirs, viz, son, daughter, widow and mother (and specified heirs of
predeceased children). On joint family property, those previously governed by `Mitakshara'
(prevailing in most of India) differed from those governed by `Dayabhaga' (prevailing in Bengal
and Assam). For the latter, joint family property devolved like separate property. But in
Mitakshara joint family property, while the deceased man's "notional" share went intestate to all
class I heirs (including females) in equal parts; sons, as coparceners, additionally had a direct
birthright to an independent share. Sons could also demand partition of the joint family property;
daughters could not. The 2005 act does not touch separate property. But it makes daughters
coparceners in the Mitakshara joint family property, with the same birthrights as sons to shares
and to seek partition. In addition, the act makes the heirs of predeceased sons and daughters more
equal. Third, the 2005 act by deleting Section 23 of the 1956 HSA gives all daughters (including
those married) the same rights as sons to reside in or seek partition of the parental dwelling
house. Section 23 disallowed married daughters (unless separated, deserted or widowed) even
residence rights in the parental home, and unmarried daughters had rights of residence but not
partition. Fourth, the legislation removes a discriminatory section which barred certain widows
from inheriting the deceased's property, if they had remarried.
According to the amending Act of 2005, in a Joint Hindu Family governed by the mitakshara
Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in
the same manner as the son heir. She shall have the same rights in the coparcenary property as
she would have had if she had been a son. She shall be subject to the same liabilities and
disabilities in respect of the said coparcenary property as that of a son and any reference to a
Hindu mitakshara coparencer shall be deemed to include a reference to a daughter. But this
provision shall not apply to a daughter married before the commencement of the Hindu

Succession (Amendment) Act of 2005. This provision shall not affect or invalidate any
disposition or alienation including partition or testamentary disposition of property which had
taken place before 20th December, 2004.Further any property to which female Hindu becomes
entitled by virtue of above provision shall be held by her with the incidents of coparcenary
ownership and shall be regarded, as property capable of being disposed of by her by will and
other testamentary disposition. The provision was also made that where a Hindu dies after the
commencement of the Hindu Succession (Amendment) Act of 2005, his interest in the property
of a Joint Hindu Family governed by the Mitakshara Law, shall devolve by testamentary or
intestate succession under the Act and not by survivorship, and the coparcenary property shall be
deemed to have been divided as if a partition had taken place. Further the daughter is allotted the
same share as is allotted to a son. The provision was also made that the share of the predeceased
son or a predeceased daughter as they would have got, had they been alive at the time of
partition, shall be allotted to the surviving child of such predeceased son or of such predeceased
daughter. Further the share of the pre-deceased child of a predeceased son or of a pre 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. The most important fact is 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 bad taken place immediately before his death, irrespective of whether he was entitled to
claim partition or not. This amending Act of 2005 has also clear provision that, after
commencement of the Amending Act of 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 (on the ground of the pious obligation under the Hindu Law), of
such son, grandson or great grandson to discharge any such debt. But if any debt contracted
before the commencement this Amending Act of 2005 the right of any creditor, to proceed
against son, grandson or great grandson, shall not affect or any alienation relating to any such
debt or right 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 Hindu Succession Amending Act of
2005 had not been enacted.

Further for the purpose of creditors right stated above the expression son, grandson or great
grandson shall be deemed to refer to the son, grandson or great grandson who was born or
adopted prior to the commencement (9th September, 2005) of the Amending Act of 2005. Such
provisions shall not apply to a partition which has been done before 20th December, 2004.
Sections 23 and 24 omitted. Likewise special provisions relating to rights in respect of dwelling
house and the disentitlement rights of widow's remarrying, respectively omitted from the Act.
The Amending Act also in the Schedule of the Hindu Succession Act, 1956 added new heirs viz,
son of a pre-deceased daughter of a pre-deceased daughter of a pre-deceased daughter daughter
of a pre-deceased daughter, son of a pre-deceased daughter, daughter of a pre-deceased son.

Thus the amendment of Hindu Succession Act of 1956 in 2005 is a total commitment for the
women empowerment and protection of women's right to property. This Amending Act in a
partrilineal system, like mitakshara School of Hindu Law opened the door for the women, to
have the birth right in the family property like the son. The women were vested the right of
control and ownership of property beyond their right to sustenance.

Amended Hindu Succession Act

The Hindu Succession Act 1956 is a codified law dealing with the matters of succession of a
deceased dying intestate and it applies to any person who is a Hindu by religion in any of its
forms or development. The Act also applies to any person who is a Buddhist, Jaina or Sikh by

religion. The general rules of succession under the Hindu Succession Act 1956 for a male who
dies intestate is that heirs known as Class I heirs succeed in preference to heirs in other classes
CLASS I HEIRS

Prior to the amendment these were the Class I heirs:

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 predeceased son of a predeceased son
Daughter of a pre-deceased son of a pre-deceased son
Widow of a pre-deceased son of a predeceased son
After the amendment, these heirs have been added in the list of Class I heirs:
Son of a predeceased daughter of a pre-deceased daughter
Daughter of a predeceased daughter of a pre-deceased daughter
Daughter of a predeceased son of a pre-deceased daughter
Daughter of a predeceased daughter of a pre-deceased son

CLASS II HEIRS

In Class II there are many categories, father falls in the category I, these fall in category II:

Son's daughter's son

Son's daughter's daughter
Brother Sister

CLASS III HEIRS

These fall in category III:

Daughter's son's son
Daughter's son's daughter
Daughter's daughter's son
Daughter's daughter's daughter

Four heirs from category II and III of Class II are the same as that of Class I. This discrepancy is
so because these heirs were elevated to Class I after the amendment, but were not deleted from
Class II.

CONCLUSION
From a predominantly male centric set of property rights, the law has
evolved over time to give first limited then absolute rights to women where
property is concerned. It was the previously held view that giving women the
right to property would lead them to have too much freedom and a sense of
their own importance that would lead to the eventual breakdown of the
societal structure and lead to utter chaos. Such views are now known to be
erroneous.
The various rights and liabilities of women holding property are as of now at
par after the amendment of the Hindu Succession Act 1956, in 2005.
However, the reality is far from the black letter of the law since even now
only one in ten women are aware of the rights they are capable of exercising.
It is the duty of the legally aware people in society to ensure that this
deficiency is remedied. Nevertheless, these laws are a significant step
forward in achieving gender equality as envisaged by the framers of our
constitution, the founding fathers of our nation.

These amendments can empower women both economically and socially.

and have far-reaching benefits for the family and society. Independent
access to agricultural land can reduce a woman and her family's risk of
poverty, improve her livelihood options, and enhance prospects of child
survival, education and health. Women owning land or a house also face less
risk of spousal violence. And land in women's names can increase
productivity by improving credit and input access for numerous de facto
female household heads.
Making all daughters coparceners like wise has far-reaching implications. It
gives women birthrights in joint family property that cannot be willed away.
Rights in coparcenary property and the dwelling house will also provide
social protection to women facing spousal violence or marital breakdown, by
giving them a potential shelter. Millions of women - as widows and daughters
- and their families thus stand to gain by these amendments.