Women's right to property

Last Updated 09 July 2009, 08:49 IST

The Constitution of India provides that every person is entitled for equality before law and equal protection of laws and thereby prohibits discrimination on the basis of caste, creed and sex.

So far as property is concerned, the daughter shall be given every right to inherit immovable and movable property equal to that of male members. Let us examine how  this right to property of daughter has been recognised in the laws relating to Hindus.

Coparcenary property
Prior to Hindu Women’s Right to Properties Act 1937, women were excluded from getting a share in the Joint Family Property. Succession to the property of male member was governed by rule of survivorship.

The rule of survivorship means that on the death of a member of joint and undivided family, his share in the joint family property passes on to the surviving male members called as coparceners.

If a man has sons, grandsons and great-grandsons living, all of these constitute a single coparcenary with him. Coparceners jointly inherit property and have unity of possession.
The co-heirs and their heirs are also called coparceners so long as unity of possession continues. Coparcenary is different from joint family. Coparcenary is limited to three generations next to the holder while the joint family has no such limitation. It includes several generations of the holder.

To understand the position of Hindu women under law of succession, it is worthwhile to know important features of co-parcenary property. There are two different laws followed by Hindus in respect of property. One is Mithakshara Law which is widely followed in India, except in West Bengal where Dayabhaga Law is followed.

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

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

Community of interest: No coparcener is entitled to any independent and exclusive interest in the coparcenary property nor is he entitled to the exclusive possession of any part of the coparcenary property.

His right is that of an undivided interest. Rights by birth: Coparcenary members acquire interest in the property by birth under Mithakshara law while under Dayabhaga, nobody inherits any interest by birth.

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

Women’s Right to Properties Act, 1937
The Hindu Women’s Right to Properties Act 1937, gave a death blow to the doctrine of survivorship. Under this Act, the widow of a deceased coparcener of a Mithakshara undivided family will have the same interest which her husband had while he was alive. It may be noted that the widow has the right to claim partition. With the passing of the Hindu Succession Act, 1956, the position of widows and daughters came to be improved. 
Before going further into the Hindu Succession Act 1956, it is worthwhile to examine the concept of coparcenary property. Generally speaking, coparcenary property is one in which all the coparceners have community of interest and joint possession.

Such property consists of
*Ancestral property
*Property jointly acquired by the members of the joint family of HUF nucleus
*Separate property of a member “thrown into the common hotch potch” with the intention of abandoning all his separate claims on it, which becomes the property of joint family
*Property acquired by all or any of the coparceners with the aid of joint family funds
Ancestral property

Ancestral property means that property which descends from father, grandfather or father’s father’s father.

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

Hindu Succession Act 1956
For the purpose of succession to property by Hindu daughter the Hindu Succession Act, 1956, divides the property into four categories:
*Coparcenary property
*Property of a male Hindu
*Property of a female Hindu 
*Dwelling house

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

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

Section 6 of the Hindu Succession Act has been amended by the Hindu Succession (Amendment) Act, 2005, and according to which, in a joint Hindu family governed by the Mithakshara 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 Mithakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.

Any property to which a female Hindu becomes entitled to under this Amendment Act 2005, shall be a property capable of being disposed of by her by testamentary disposition i.e. by way of Will. 

Where a Hindu dies after the commencement of the Amendment Act 2005, his interest in the property of the joint Hindu family governed by the Mithakshara Law shall devolve by testamentary or intestate succession and not by survivorship and the coparcenary property shall be deemed to have been divided as if a partition had taken place.

Now, there is no distinction  between son and daughter in so for as the property rights in coparcency property is concerned. 

However this benefit is not available to daughter married prior to or to a partition, which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act 1990. This is to avoid unnecessary litigation, which may spoil cordial relations.

(Next week: Succession to the property of a male Hindu, female Hindu (Sec 8 to 12, 14, 15, 16) and restrictions on the rights of Hindu female in the dwelling house)

(The writer is an advocate specialised in property matters. He can be contacted on 080-25530200 or 25526644 / 45 E-mail : editor@realestatereporter.net)

(Published 09 July 2009, 08:49 IST)

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