Since time immemorial the framing of all laws have been exclusively for the benefit of man. Woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. Prior to the Hindu Succession Act, 1956 shastric and customary laws that varied from region to region governed Hindus and sometimes it varied in the same region on a caste basis resulting in diversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations.
The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws more complex. Woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance. The control and ownership of property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son. Discrimination against women is pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. Reference was made to the Law Commission. Such reference empowered the Law Commission to examine anomalies, ambiguities and inequalities in the law. They decided to undertake a study of certain provisions regarding the property rights of Hindu women under the Hindu Succession Act, 1956.
Recognizing this the Law Commission 174th Report of Law Commission of India under the Chairmanship of Justice B.P. Jeevan Reddy, vide D.O. No. 6(3)(59)/99-LC(LS), dated 5th May, 2000. in pursuance of its terms made recommendations for the removal of anomalies, ambiguities and inequalities in the law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. It recognises inheritance by succession only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara law. Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila subschools of Mitakshara recognised only five female relations as being entitled to inherit namely - widow, daughter, mother, paternal grandmother, and paternal great-grandmother1)
The Madras sub-school recognised the heritable capacity of a larger number of females heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance (Amendment) Act, 19292)
The son's daughter and the daughter's daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to women, recognised a number of other female heirs, including a half sister, father's sister and women married into the family such as stepmother, son's widow, brother's widow and also many other females classified as bandhus neither accords a right by birth nor by survivorship though a joint family and joint property is recognized. It lays down only one mode of succession and the same rules of inheritance apply whether the family is divided or undivided and whether the property is ancestral or selfacquired. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father's life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers. Since this ownership arises only on the extinction of the father's ownership none of them can compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent. Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him. Since females could be coparceners, they could also act as kartas, and manage the property on behalf of the other members in the Dayabhaga School. During the British regime, the country became politically and socially integrated. The British Government did not venture to interfere with the personal laws of Hindus or of other communities. During this period, however, social reform movements raised the issue of amelioration of the woman'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 daughter and sister (thereby creating a limited restriction on the rule of survivorship). Another landmark legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of) 1937 which brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption3)
The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. The widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition Under Section 3(3) of Hindu Women's Right to Property Act, 1937, a daughter had virtually no inheritance rights. These enactments brought important changes in the law of succession by conferring new rights of succession on certain females. These were found to be incoherent and defective in many respects. It gave rise to a number of anomalies and left untouched the basic features of discrimination against women. These enactments now stand repealed. The framers of the Indian Constitution took note of the adverse and discrimnatory position of women in society. They took special care to ensure that the State should take positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India 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. These constitutional provisions provide that the State shall endeavor to ensure equality between man and woman.
Notwithstanding these constitutional mandates/directives given more than fifty years ago, a woman is still neglected in her own natal family as well as in the family she marries. Pandit Jawaharlal Nehru, the then Prime Minister of India expressed his unequivocal commitment to carry out reforms to remove the disparities and disabilities suffered by Hindu women. Despite the resistance of the orthodox section of the Hindus, the Hindu Succession Act, 1956 was enacted. It came into force on 17th June, 1956. It applies to all the Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and comprehensiye system of inheritance. The Act applies to those governed both by the Mitakshara and the Dayabahaga Schools and also to those in South India governed by the the Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu Law. 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. Attempt has been made to ensure equality inheritance rights between sons and daughters. The Hindu Succession Act reformed the Hindu personal law and gave women greater property rights, allowing her 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 female intestate. Under section 8 of the Act, the heirs are divided into four Classes viz:
(i) Heirs in Class I of the Schedule
(ii) Heirs in Class II of the Schedule
(iii) Agnates, and
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 evoked 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 coparceners4)
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, Such 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, 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. 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, had been under criticism for being violative of the equal rights of women guaranteed under the Constitution. 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. 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. 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. 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. 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 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. This amending Act of 2005 is an attempt to remove the discrimination. It has given equal rights to daughters in the Hindu mitakshara coparcenary property as the sons have. Section 23 of the Act was omitted. The disabilities of female heirs were removed. This is a great step towards omen empowerment.
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