Veerashwar Singh Jadaun is a Law Student from University of Petroleum & Energy Studies.
In the area of law where equality is a key term, how significantly the world has ignored the rights of women. A woman is the soul and heart of every family and a nation; however, this heart has bled a lot, now under the evolved laws woman have acquired the same rights as a man. Property rights of a Hindu woman have also evolved from nil, which begs the question of how these rights evolved and how the efforts of the judiciary played their role in the evolution
Here I report the cases which have made this evolution possible and the development in each case. 5 cases are reported with critical analysis of their effect on women's property rights and the contemporary position of the topic. Each case is a landmark in its segment, and the cases are drafted in a sequence to understand the evolution. The judicial approach of the court and the mindset of the court are also described. With the changing times, the interpretation of these provisions is also reported.
Keywords: Hindu Women Rights, Women Rights, Property Rights, Women Property Rights,
The Hindus are governed under the customary laws that have passed on through centuries and generations. Now, mainly there are two schools guiding it i.e. Dayabhaga & Mitakshara. In Dayabhaga school both males and females have equal rights and on the other hand under Mitakshara School the women have close to no rights, and they were considered outsiders in any family they live in. The property of a male coparcener is passed on to other male coparceners, leaving behind their female counterparts without any rights in the Joint family. The females could not be coparceners but they used to be part of the Joint Hindu Family. The coparceners consisted of male ancestors, his son, grandson, and a great-grandson. This was the reason why Britishers came up with the policy of the Doctrine of lapse i.e. prohibiting a Hindu ruler without a natural Male heir from adoption, by which they can Annex the kingdom.
As we know that the public policy of India is that everyone is equal in the eyes of law, gender must not be a factor while drafting laws, but it was deeply engraved in our customary laws that the women always hold fewer rights in Joint Hindu family. Before marriage, the woman has no right over the property as she can’t be a coparcener, and after marriage, the women are not entitled to any property in the Joint Family Property of her Husband. So this created an environment where the women are always exploited and their rights and never taken care of.
Such exploitation forced the legislature to make such laws and amendments that the women have the same rights over the property as their male counterparts. Today, women managed to get the same right over property as a man. But how did this happen? This stage has not attained overnight, it took over 90 years in this sequence-
Hindu Law of Inheritance Act 1929
Hindu Women’s Right to Property Act, 1937
Hindu Succession Act, 1956
Hindu Succession Act, 1956 (2005 amendment)
The law of such impact does not come without ambiguity and loopholes, and any scenario that the legislature might not have thought of while drafting. The judiciary has kept up with time to interpret these laws in the correct manner and enact the intent of the Legislature.
Further on the paper will discuss four prominent cases that have contemplated the Rights of a woman in the sequence;
Surjit Lal Chhabda v Commissioner of Income Tax1
Facts- In this case, the appellant is Surjit Lal Chhabda (hereinafter referred to as “Appellant”), and is the owner of a Property named “Kathoke Lodge”. He later made a sworn declaration that the property is being transferred to the “family hotchpot”. Family Hotchpot can be understood as a JFP (Joint Family Property). The family of the appellant includes the appellant, his wife and his unmarried daughter.
After throwing the property in the Hotchpot, the appellant contended that the property must not be under the name of the Appellant, as the Property was thrown into common stock, the appellant had abandoned his all claims over the property, therefore, the income which will be received should be assessed under the status of Joint Family Property.
While on the other hand, CIT (Commissioner of Income-tax) contented that a single male member (appellant) can’t constitute a HUF, as both other members are female. This would be contrary to the basic concept of a Hindu Undivided Family.
ITO (Income tax officer) held that in the absence of a nucleus of JFP the appellant couldn’t mingle his separate property, hence, no Undivided Family Property in this case.
AAC (Appellate Assistant Commissioner) rejected the appeal because it was observed by the court, the appellant was dealing with the property in the same way as before the declaration, and, as the appellant is the sole surviving coparcener of the property his interest in property continued to be the same as before, the property can be taxed under his name.
Can a Single male constitute a JHF or HUF with his wife and unmarried daughter?
If a HUF consists of a single Coparcener, would the immovable property will be assessed under that coparcener or HUF?
Held-A single male can constitute a JHF with his wife and unmarried daughter as the Hindu law allows so.
The High Court held that the Property will be taxed under the name of Appellant, as even after the property is thrown into the family ‘Hotchpot’2, the rights over the property haven’t seen any change. As under Hindu law, the family of the appellant has one wife and one unmarried daughter, and they have neither right to property nor right against alienation because those rights are available to the coparcener of a property. The Appellant is the only coparcener in the property and he’s the Karta himself, which means that the appellant holds every right over the property as before declaration3. The right of maintenance of Wife and Unmarried child will remain the same, as even before the declaration the appellant was liable for maintenance, and hereafter it nonetheless remains the same.
The Hon’ble Court also made it clear that “HUF” (Hindu undivided family), “JF” (Joint Family) & “Family Hotchpot” are synonymous with each other.4
End Result of this Judgment - It is very clearly written in the Mitakshara law that a female can’t be a coparcener in a Hindu family. During the time of this judgment, the laws didn’t recognize any rights of women in the family property. Female was only allowed to maintain under that property, nevertheless, the interest is limited and she can’t become a coparcener after the death of her husband.
This judgment though gave women enough rights to be a member of HUF and which has a sole surviving coparcener.
Controller of Estate Duty Madras v. Alladi Kuppuswamy 5
Facts- There was a family consisting of Husband, Wife & three Sons. The husband and sons settled certain properties worth 2 lakhs in the name of the wife absolutely, and certain other properties to form a part of Joint Family Property, the share of wife in this were worth 5 lakhs.
Now the wife died in the year 1956 before the Hindu succession act 19566 was enacted & the husband died before the Estate Duty act 19537 was enacted. Now the property which was absolutely owned by the wife was transferred to his kids. The tax authorities assessed that wife was a member of Hindu Coparcenary, and if the interest in the property passed on her death to the children, then estate duty must be paid by the heirs under the Estate Duty Act, 1953
Rights of Hindu women if deceased after Hindu women’s property act, 1937 but before the Hindu succession act 1956 was enacted?
Husband of a coparcenary dying after the Hindu Women’s Rights to Property Act, 1937 came into the picture, whether the widow will share the same rights as her husband?
When the Phraseology of a particular section of a state takes within sweep the transaction which is taxable, it is not for the court to strain and stress the language of the section so as to enable the taxpayers to escape the tax? Under the Estate Duty Act, 1953
Judicial Approach- The Main question for determination is as to whether the interest acquired by a Hindu widow under this act is a coparcenary interest, if yes, then there would be no difficulty treating her as a member of the Hindu coparcenary.
Section 7(2) of the Hindu Women’s Right to Property Act8, states that the right of a deceased over a property will be passed to his cessor. While this act also states that under Mitakshara law when a Male dies his interest survives through his wife and the husband continues to survive through his wife. The wife survives with “the same interest as he himself had”. This means that the wife has the same rights as a coparcener.
The rights of the widow must be determined in this case, as before this Act, a wife had no interest in the family/ husband’s property. Which begs the question, that if now a widow has the coparcenary rights then, does then her rights are absolute coparcenary rights or limited coparcenary rights.
Held- The court, in this case, held that the widow can be conferred as a coparcener, but not in a strict legal sense. She can have rights inferred to her by her husband, as in form of the coparcenary interest. The court also referred to Section 3 of the Hindu Women’s Rights to Property act, 1937, which says that the s Hindu Widow can be conferred the Coparcenary right but under two conditions.
That the woman will only have limited interest in the property conferred to her.
She can’t become a coparcener.
The court explained the reasons for not becoming part of the coparcenary property, that the condition of her inclusion in the Joint Family is one of the significant reasons for the denial of rights. If women become a part of the family through marriage, it would contradict the main conditions for becoming a coparcener, the main condition for that is being part of the family by birth.
If a widow does not exercise her right to partition, on her demise the property will be merged back into the Hindu Joint Family.9 The Court also contended that the provisions of the Estate Duty Act must be given full effect and that the Estate duty must be made for the transactions happening. 10
End Result of this Judgment- The Women didn’t hold any right over the property, as the laws didn’t permit them for so. As society evolved it also empowered the women to talk about their rights, and initiated the legislature to create rights for the women over the property. The Hindu Women Rights of Property Act 1937, created rights over the husband’s property after his death.
A woman after the marriage is included in the Joint Family, but she has no rights. This created a perfect opportunity for family members to exploit the wife and take her for granted, and if the husband dies, the family members mostly force the widow out of the house.
This act gave women better rights in relation to inheritance and it was made to bring out a social change, and this judgment followed the intent of the legislature
State of Maharastra vs Narayana Rao11
Facts-A joint family consisted of “S” his son, mother, and wife. S died on June 5th, 1957, and his interest in the property was divided among his survivors. Son, wife, and mother of S were included in the list of survivors. This family was governed under the Bombay School, which says that the mother will also get a share in the property of the Son, thus, the mother of S will also get a share in the property upon partition. Upon the demise of S, the property was supposed to be devolved to the Survivors under the provision of Section 612 of the Hindu Succession Act.
But they remained to live together and enjoyed the property until the Act of Maharashtra Agricultural Lands (Ceiling on Holdings), 196113 came into the picture. The survivors filed a petition in the court that they have devolved the property, as 1/2nd share is given to the Son and 1/4th share was given to both Mother and Wife of S. This would save them from hitting the limit to owning agricultural properties under this Ceiling and holdings act.
In a case where the woman inherits the interest in the joint family property through the way of death of her husband through the partition. Will the women cease to be a member of the Joint Hindu Family?
Can a Single male continue a JHF?
Judicial Approach- As per the rule of Notional partition when a person dies intestate, it is presumed that the deceased has devolved the property in equal shares to the survivors. The contentions before the court were that S immediately before dying has separated the property as per the rule of notional partition. Thus the females of such families have separated from the Joint Hindu Family.
The case of Magdum v Hirabai Khandappa Magdum14 was cited in this case, to hammer the point of the assumption of the notional partition after the death of S. As if the Wife and Mother of S would have partitioned, no conflict of law would arise.
Held- The Court held that after the death of S, there is no proof to show that the members of the family separated from the JHF. Court also took notice of the fact that where a female inherits the property after the demise of her husband, then she automatically doesn’t cease to be the part of HUF, she can have the partition upon her wishes. The Widow can’t be presumed to have ceased to be part of the JHF, without her express will take partition from the JHF, for the same the Court said;
“If what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving behind as his heir. Such a result does not follow the language of the statute. “15
The joint and undivided family is the normal condition of a Hindu Society. An undivided Hindu family is ordinarily joint not only in case of the estate but also in food and worship16. Also, it is not necessary that a joint family should own a joint property. Thus there can be a joint family without joint family property.
While discussing the point of Coparcenery, the court in respect of the Mitakshara Laws stated that the Coparcenery is a narrower body than the joint family, and only males can acquire an interest in the property by birth. Thus a daughter has no right to the family property.
End Result of the Judgment
Section 6 of the Hindu Succession Act was under ambiguity and this judgment expresses the intent of the legislature for the working of Section 6. A joint family can be consisted of a single male member, with his fie, mother, and unmarried daughter.
This judgment didn’t even consider the issue of making women/daughters as coparcener but said that a widow doesn’t cease to be a part of JHF and will hold on in the family of their husband. Females in Hindu society are considered as a “Paraya Dhan”, which may be an indirect factor affecting the mentality of a Hindu family which desires(mostly) that the daughters of a family should be married and sent away, due to which the parents don’t focus on the health and education of daughter’s. And even in the family, they go to, they treat them like a “Nauakr-rani”. It is clearly visible that women had to fight for everything everywhere and, thus the law came up with the amendment of 2005 in the Hindu Succession Act, which allowed the women to stand on an equal footing with men over the rights as a coparcenary.
Satish Ganorkar v. Vaishali Satish Ganorkar17
Facts- In this case, the Bank has issued a loan to the father, and his property is given as security of the loan, it is still unpaid. Father has two daughters and both of them are born before the amendment18 in the Succession Act, which gave coparcenary rights to daughters. As the father failed to give back the loan he took from the bank and now the bank has a claim to right over the property as the default on the loan. Daughters have claimed their right over the property as 2/3 share in the property. Daughters were intent to keep the 2/3rd property and give 1/3rd property to the bank as the repayment of the loan.
The question of law is whether the women have the coparcenary right over the property as they were born before the amendment, thus does the HAS amendment has Retrospective effect or Prospective effect?
The plaintiff’s case for claiming 2/3rd right I the suit property is upon the fact that the suit property is purchased from the nucleus of the 3 HUF initially constituted by their grandfather who in turn acquired a property
Judgment- The Supreme Court held that the following amendment of 200519 will not be retrospective in nature
It stated that to held a statute retrospective it should keep in view
general scope and purview of the statute and at and the remedy sought to be applied
Consider what a former state of the Law was and what the legislation contemplated.
It would not be retrospective merely because a part of the requisition for its action is drawn from a time antecedent to its passing.
In the following case, the general scope and purview of the Amendment Act of 200520 are to make all daughters coparceners so as to devolve upon them the share in coparcenary property along with and as much as all sons. The remedy that it seeks to apply is to remove gender discrimination in such devolution of interest.
Secondly, the amended Section 6 was to come into effect expressly from 9 September 2005. The legislation contemplated that on and from 9 September 2005 the daughter would become a coparcener by birth for the devolution of interest in coparcenary property.
It was held that for an act that is declaratory in nature the presumption against retrospectively is not applicable. Consequently, declaratory statutes may be retrospective since they are only declared. Hence the presumption against taking away vested rights would not apply. So the words 'shall become'...a coparcener in the amended Section 6 of the HSA. This becoming of a coparcener cannot take away vested rights prior to the legislation being brought into effect.
The retrospectively of legislation will be considered in acts that expressly state to have come into effect from a date anterior to the passing of the Bill. In the amended HSA mere protection is not granted to the daughters; they are given a substantive right to be treated as coparceners upon the devolution of interest to them and even otherwise by virtue of their birth. This grant would affect vested rights, as in this case, when alienations and dispositions have been made. Hence retrospectively such as to making the Act applicable to all the daughters born even prior to the amendment cannot be granted when the legislation itself specifies the posterior date from which the Act would come into force
End Result of this Judgment- The Court while contemplating this judgment has made sure that the intent of the parliament is to not Unscramble the Scrambled egg, let the mistakes done in the past be there. Even though this was the first time that a woman has received a right in the coparcener as a coparcener. But limiting that effect to only those who are born after the Amendment of 2005 was leaving a huge population out of the gambit of the Coparcenary rights. A huge number of cases were filed as to receiving this right in a retrospective nature but the court rejected almost every case. Lokmani & Ors v. mahadevamma21 & Ors., Balchandra v. Smt. Poonam & ors22,Prakash & Ors. V. Phulvati 23
Even after many precedents were set before the Hon’ble court, it took notice in the case of Badri Narayan Shankar Bhandari v. Om Prakash Shankar Bhandari, that giving the statute it may be considered that the law is stopping many those who can claim legally claim their rights. The main reason for amending the act, was to provide rights to women but many were still left behind, and this judgment was a landmark judgment clearing all doubts over the effect of the 2005 Amendment.
Badrinarayan Shankar Bhandari vs Omprakash Shanakr Bhandari AIC (Sum17) 7 : (2015) 150 AIC (Sum4) 2
Facts – On the reference of R.G.Ketkar, a single judge bench, a full bench was constituted to adjudicate the matter. The court was formed for the purpose of checking the validity, or the correctness of the judgment in the case of Vaishali Satish Ganorkar v Satish Ganorkar24, (given above).
Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005, is prospective or retrospective in operation?
How the Amendment has to be interpreted?
Whether Section 6 of the Hindu Succession Act, 1956, as amended by the Amendment Act, 2005 apply to daughters born prior to 17-6-1956?
Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 apply only to daughters born after 9-5-2005?
Held-The Court also discussed the term Prospective Statute & Retrospective Statute
Prospective Statute- These statutes operate forward from the date of its enactment conferring new rights on the parties without reference to any anterior event, status, or characteristic.
Retrospective Statute- These types of statutes operate backward, and add new consequences to old actions.
In respect to the question of retrospective or proactive operation, the court held that any daughter born before or after the date 9-9-2005 would be allowed to have rights in coparcenary property. It’s simple, that if a person has to exercise a right under section 6 must be alive at the time when the amendment was brought into force. The only requirement that was given by the court to claim the right over the property as a coparcener is that the person must be living.
Normally a statute is construed in the plain meaning, but in this case, the plain interpretation is leading up to more difficulty. The Court in this case had to apply one of the two i.e. Mischief or Purpose Rule.
Court also stated that the amendment act will also be applied to a daughter born at any time, the time of birth is of no concern.
The only condition that the court has kept is that the father must be alive at the time of amendment.
Section 6 of the Hindu Succession Act, 2005 says;
Devolution of interest in coparcenary property. —
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
The act states clearly that “On and From” i.e. that from the date of commencement of the 2005 Act, the application of this section shall take place. Which is a clear interpretation means that the effect will be on the daughters who were born on or after the date of Commencement. The court nevertheless, settled on a completely different approach.
After much rumination, I have come to the conclusion that the rights of women are well defined and talked about and the legislature is working on them to improve them as the day passes by. It doesn’t take much notice, that the liabilities of a woman are less compared to a man, gender neutrality has been a huge concern for our world, but everyone is working for the betterment of women, which has or will leave their male counterparts behind in terms of exercising their rights. Gender Equality is Equal Rights and Equal Liabilities.
Property Rights of Hindu women have evolved throughout the last century. From having no rights at all to the point where women can be coparceners, this evolution of laws was much needed. 2005 amendment brought the “Equality” in property rights, which was later established by the judgment of Badrinath Shankar. I believe that in this patriarchal society the women will stand equal to men in every segment, as the law will evolve to create a better platform where both are treated equally.
All the material that I have gathered for the purpose of making this research paper are herby expressed;