Women's Property Rights

Why section 14 matters more than it looks. It abolished the Hindu woman's estate, under which a widow held only for life and the property reverted to her husband's heirs on her death. After 1956 she could sell it, mortgage it and leave it by will.

The Schedule and section 8. On the death of a male Hindu intestate, his separate property devolves first on the Class I heirs, who include the son, DAUGHTER, widow and mother, taking simultaneously and equally. That is 1956, and a student who says a daughter had no inheritance rights before 2005 is wrong.

The old section 6, and its proviso. Coparcenary interest devolved by SURVIVORSHIP on the surviving coparceners, all male. The proviso created a notional partition where the deceased left a female Class I heir, so that the widow and daughter took a share of what would have been his, but neither became a coparcener.

Sections 15 and 16, the female's own succession. On the death of a female Hindu intestate, her property goes first to her sons and daughters, including the children of a predeceased child, and the husband; then to the husband's heirs; then to her father and mother; then to her father's heirs; and lastly to her mother's heirs. Property inherited from her father or mother goes, in the absence of children, to her FATHER'S heirs; property inherited from her husband or father-in-law goes to her HUSBAND'S heirs. The asymmetry with a male's succession under section 8 is the standing criticism, and the Law Commission has recommended change.

Section 30. A Hindu may dispose of by will any property capable of being so disposed of, which since 2005 expressly includes a female's coparcenary interest under section 6(2).

The amendment of 2005

Section 6(1) as substituted. On and from the commencement of the Hindu Succession (Amendment) Act 2005, in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall BY BIRTH become a coparcener in her own right in the same manner as the son; have the same rights in the coparcenary property as she would have had if she had been a son; and be subject to the same liabilities; and any reference to a Hindu Mitakshara coparcener shall be deemed to include a daughter.

The proviso. Nothing in sub-section (1) shall affect or invalidate any disposition or alienation, including any partition or testamentary disposition of property, which took place before 20 DECEMBER 2004. Note the date: it is the date of introduction of the Bill, chosen to prevent partitions made to defeat the amendment.

Section 6(2). Property to which a female becomes entitled is held with the incidents of coparcenary ownership and is capable of being disposed of by her by testamentary disposition.

Section 6(3). Where a Hindu dies after the commencement, his interest devolves by testamentary or intestate succession under the Act and NOT BY SURVIVORSHIP, the property being deemed divided as if a partition had taken place, with the DAUGHTER ALLOTTED THE SAME SHARE AS A SON, and with provision for the children and grandchildren of a predeceased son or daughter.

Section 6(5). Nothing in the section applies to a partition effected before 20 December 2004; and the Explanation defines partition for the purpose as one by a registered deed or by a decree of a court.

And what was repealed. Section 23, which had prevented a female heir from claiming partition of a dwelling house wholly occupied by the family until the male heirs chose to divide, and section 24, which had disqualified certain widows who had remarried. Both were omitted in 2005, and both are worth naming.

Vineeta Sharma

Facts. Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1, decided 11 August 2020 by Arun Mishra, Abdul Nazeer and M.R. Shah JJ. Conflicting Benches had held, in Prakash v. Phulavati, that both the father and the daughter had to be alive on 9 September 2005 for the substituted section 6 to apply, and in Danamma the contrary. A three-judge Bench was constituted to resolve it.

Held. The substituted section 6 confers the status of coparcener on a daughter BORN BEFORE OR AFTER the amendment, in the same manner as a son, with the same rights and liabilities. The rights of a daughter born earlier may be claimed with effect from 9 September 2005, subject to the savings in section 6(1) for a disposition, alienation, partition or testamentary disposition made before 20 December 2004. Since the right in coparcenary is BY BIRTH, it is NOT necessary that the father coparcener should have been living on 9 September 2005. The statutory fiction of partition under the old proviso did not effect an actual partition, so notwithstanding a preliminary decree a daughter is to be given a share equal to a son's in pending final-decree proceedings or appeals. A plea of ORAL PARTITION is not to be accepted lightly and must ordinarily be supported by a registered document or a decree, and only in exceptional cases by long-standing public documents. Prakash v. Phulavati and Mangammal were overruled and Danamma partly overruled.

Why it matters. It is the judgment that made the 2005 amendment work as written. Its practical importance is the oral partition point: the commonest defence to a daughter's claim was an asserted partition years earlier, and the Court made that assertion hard to run.

Mary Roy

Facts. Mary Roy v. State of Kerala, (1986) 2 SCC 209, decided 24 February 1986 by Bhagwati CJ with Pathak and A.N. Sen JJ. Under the Travancore Christian Succession Act 1092 of the Kollam Era, a daughter of an Indian Christian in the erstwhile State of Travancore took a quarter of a son's share or five thousand rupees, whichever was less, and nothing where she had received stridhanam. Sections 24, 28 and 29 were challenged under article 32, and the question was whether the Part B States (Laws) Act 1951, which extended the Indian Succession Act 1925 to the area, had repealed the Travancore Act.

Held. The petitions succeeded on the statutory point, so the constitutional question did not have to be decided. On the coming into force of the Part B States (Laws) Act 1951 the Travancore Christian Succession Act 1092 STOOD REPEALED, and intestate succession to the property of members of the Indian Christian community in those territories was thereafter governed by Chapter II of Part V of the Indian Succession Act 1925, under which a daughter takes equally with a son.

Why it matters. It equalised inheritance for Christian daughters in that area nineteen years before the Hindu amendment, and it is the standing example of a court reaching an equality result by CONSTRUING A REPEALING STATUTE rather than by striking a provision down, which is worked as a technique in [The Judiciary as an Engine of Social Change].

What the law still does not give

Agricultural land in several States. Section 4(2) of the 1956 Act, which had excepted tenancy laws providing for the devolution of agricultural holdings, was omitted in 2005; but State tenancy and land reform legislation continues in several States to lay down its own line of succession, and litigation about the interaction continues.

A share in the matrimonial home. Indian law recognises no COMMUNITY OF PROPERTY between spouses and no presumption that assets acquired during a marriage are shared. A woman who has contributed unpaid work for twenty years has no proprietary claim to what her husband bought. The Domestic Violence Act 2005 answers it possessorily through the right to reside in the shared household, and that is not ownership.

Equality in a female's own succession. Section 15's scheme, sending a childless woman's property to her husband's heirs and property inherited from her parents back to her father's heirs, has no counterpart for a male, and the reform has been recommended and not enacted.

And relinquishment in practice. A daughter's most common route out of a share is a release deed executed in favour of her brothers, and no statute reaches a relinquishment that is formally voluntary.

A worked example

A Hindu father governed by Mitakshara law dies in 2003 leaving a son and a daughter and joint family property. The son claims a partition took place orally in 1998. The daughter sues in 2021.

Was she a coparcener? Under Vineeta Sharma, yes: the right is by birth, and it is not necessary that the father was alive on 9 September 2005. The 2003 death does not defeat her.

What about the alleged partition? Section 6(5) excludes a partition effected before 20 December 2004, and the Explanation defines partition as one by registered deed or by a decree. Vineeta Sharma holds that a plea of oral partition is not to be accepted lightly and must ordinarily be supported by a registered document or a decree, and only exceptionally by long-standing public documents. A bare assertion of an oral partition in 1998 will not do.

Suppose the father's interest had already devolved. The old section 6's proviso created a NOTIONAL partition where a female Class I heir survived, and Vineeta Sharma holds that the fiction did not effect an actual partition or disrupt the coparcenary, so she still takes as a coparcener.

Suppose there is a preliminary decree from 2010. The Court held that notwithstanding a preliminary decree the daughter is to be given a share equal to a son's in the pending final-decree proceedings.

And her own property? Whatever she takes is hers absolutely under section 14 and, being coparcenary property in her hands, is disposable by will under section 6(2).

What this does NOT mean

It does not mean daughters had no rights before 2005. A daughter has been a Class I heir to her father's separate property since 1956, and section 14 gave women absolute ownership in the same year.

It does not mean the amendment is retrospective without limit. The proviso saves dispositions, alienations, partitions and testamentary dispositions made before 20 December 2004, and section 6(5) excludes partitions effected before that date.

It does not mean the Hindu Act governs everybody. Christians and Parsis are governed by the Indian Succession Act 1925 and Muslims by their personal law, and Mary Roy is about the first of those.

And it does not mean property equality has been achieved. State tenancy law, the absence of any community of property between spouses, the asymmetry of section 15 and the practice of relinquishment all survive.

Quick revision

Three things kept apart: the COPARCENARY, taken by birth and by survivorship, section 6; SUCCESSION to separate property, sections 8 to 13 and the Schedule, where a daughter has been a Class I heir since 1956; and the woman's OWN property, section 14, absolute ownership since 1956, with section 15's separate and criticised order of succession.

Amendment of 2005, in force 9 September 2005: s.6(1), the daughter of a coparcener BY BIRTH becomes a coparcener in her own right in the same manner as the son, with the same rights and liabilities; proviso saving dispositions, alienations, partitions and testamentary dispositions before 20 DECEMBER 2004, the date the Bill was introduced; s.6(2), the interest is held with the incidents of coparcenary ownership and is disposable by will; s.6(3), no devolution by survivorship, notional partition with the daughter allotted the same share as a son; s.6(5), no application to a partition before 20 December 2004, and partition means a registered deed or a decree. Sections 23 and 24 omitted.

Vineeta Sharma 2020, three judges: coparcener by birth, born before or after the amendment; rights claimable from 9 September 2005 subject to the savings; the father NEED NOT have been alive on that date; the old notional partition did not disrupt the coparcenary; a share equal to a son's even after a preliminary decree; oral partition not to be accepted lightly and to be supported by a registered document or decree; Prakash v. Phulavati and Mangammal overruled, Danamma partly. Mary Roy 1986: the Part B States (Laws) Act 1951 repealed the Travancore Christian Succession Act 1092, so Chapter II of Part V of the Indian Succession Act 1925 applies and a Christian daughter takes equally.

Still missing: State tenancy and land reform succession; no community of property in the matrimonial home; section 15's asymmetry; and relinquishment by release deed.

Test yourself

1. What did the 2005 amendment change, and what did it not? It substituted section 6 so that a daughter of a coparcener becomes a coparcener BY BIRTH in the same manner as a son, with the same rights and liabilities, and it omitted sections 23 and 24. It did not disturb dispositions, alienations, partitions or testamentary dispositions made before 20 December 2004, and it did not touch a woman's position under sections 8, 14 or 15, which was already what it is.

2. State the holding in Vineeta Sharma on the father's survival. That since the right in coparcenary is by birth, it is not necessary that the father coparcener should have been living on 9 September 2005; a daughter born before or after the amendment takes as a coparcener, and Prakash v. Phulavati was overruled on the point.

3. Why does the oral partition point matter in practice? Because the commonest defence to a daughter's claim is an assertion that the family divided years earlier. Section 6(5) requires a partition to be by registered deed or decree, and Vineeta Sharma holds that a plea of oral partition is not to be accepted lightly and must ordinarily be supported by a registered document or a decree, only exceptionally by long-standing public documents.

4. What did Mary Roy decide, and by what route? That the Travancore Christian Succession Act 1092 stood repealed on the coming into force of the Part B States (Laws) Act 1951, so that intestate succession among Indian Christians in the erstwhile Travancore territories is governed by Chapter II of Part V of the Indian Succession Act 1925, under which a daughter takes equally with a son. The route was construction of a repealing statute rather than a declaration of unconstitutionality.

5. Name three respects in which property equality is still incomplete. The succession to agricultural holdings under State tenancy and land reform legislation; the absence of any community of property between spouses, so that unpaid contribution to a household creates no proprietary claim, only the possessory right to reside under the Domestic Violence Act; and the asymmetry of section 15, under which a childless woman's property goes to her husband's heirs and property inherited from her parents returns to her father's heirs, with no counterpart for a male Hindu.