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Daughter's Right of Inheritance in India: A Perspective on the Problem of Dowry

Author(s): Lucy Carroll


Source: Modern Asian Studies, Vol. 25, No. 4 (Oct., 1991), pp. 791-809
Published by: Cambridge University Press
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Modern Asian Studies 25, 4 (199 ), pp. 791-809. Printed in Great Britain.

Daughter's Right of Inheritance in India:

A Perspective on the Problem of Dowry

LUCY CARROLL

University of Texas

One may argue that it [i.e., dowry] is nothing but a gift of love and affection

by the bride's father who is not obliged to give any share to his daughter by

birth. Now, however, the law of succession has been changed, giving equal

right of inheritance to the daughter along with the son under the Hindu

Succession Act, I956.1

Given the exclusion of daughters as heirs to the property of their

father, dowry represented-and arguably still represents in the vast

majority of Hindu families-the daughter's major right in the pro-

perty of her own family. The attempt to abolish or to render illegal

dowry transactions is to negate even further the daughter's property

rights in her family of birth. Although most textbooks on Hindu law

contain statements to the effect that the daughter's right to main-

tenance until marriage and to her marriage expenses (which would

certainly include something in the way of dowry) is in lieu of a share

in the family property, it would be a gross over-simplification to

suggest that exclusion from inheritance is the single cause of the

dowry system as it presently exists in India. Nevertheless, the prob-

lem of dowry should be seen in the context of other property rights of

the daughter, and criticism and condemnation of the dowry system

should be coupled with advocacy of reform of the daughter's rights as

an heir to the property of her natal family.

Before the Hindu Succession Act I956, the Hindu daughter was

Paper presented at the University of Texas, Austin, April 2, 1986. I am indebted to

the Center for Asian Studies, University of Texas, Austin, for appointing me Visiting

Scholar in Residence, and to the staff and faculty associated with the Center for the

gracious hospitality which was extended to me during my tenure.

R. Jaganmohan Rao, 'Dowry System in India-A Socio-Legal Approach to the

Problem,' Journal of the Indian Late Institute 15 (1973):617-25, at p. 620.

oo26-749X/91/$5.oo + .oo ? I991 Cambridge University Press

791

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LUCY CARROLL
792

excluded from succession to her father's property by the presence of a

son, a son's son, a son's son's son, or a widow. Further, when a

woman did succeed to property, she held it in limited, as opposed to

absolute, estate. She was entitled to possess, use, and enjoy the pro-

perty, but not to waste or alienate it, during her tenure-i.e., usually

until her death, but in some circumstances marriage or remarriage

would bring her tenure to an end. When her tenure determined, the

property passed not to her heirs, but to the relatives of the last male

holder; in the case of a daughter succeeding to her father's property,

the property passed to the nearest heirs then living of her father. The

woman's tenure merely delayed or postponed succession from one

male owner to another male owner in the context of a system of

succession which confined full ownership rights to men.

The Hindu Succession Act gave daughters and sons equal rights of

intestate succession to the property of their father, and abolished the

woman's limited estate in the context of intestate succession. (The

limited estate may still be created by a will.) The Hindu Succession

Act, however, did not affect the concept or constitution ofjoint family

property.

Thus, for instance, consider succession to a man governed by

Mitakshara Hindu law who dies leaving two sons and two daughers.

Sons and daughters are simultaneous heirs under the Hindu Suc-

cession Act and take in equal shares. It might, therefore, be assumed

that each of the four children would take one-fourth of the estate. The

actual result, however, is that each of the sons becomes entitled to

5/I2ths of the property and each of the daughters takes a share of

I/I2th-i.e., the son's interest in the property is five times that of the

daughter's share. To understand this result, it is necessary to under-

stand something about the joint family as a property owning unit.

It is first necessary to establish a few basic propositions.

Devolution of property. Property can devolve either by inheritance or

by survivorship. Property passing by inheritance devolves on

intestacy (i.e., in the absence of a will) on the heirs of the deceased as

defined by law. When property passes by survivorship, the interest of

the deceased in the property is simply obliterated on his death and the

interests of the surviving co-owners are augmented. If, for instance,

there were three equal co-owners, each owning one-third of the prop-

erty, and one dies in circumstances where survivorship applied, there

would now be two equal co-owners, each owning one-half of the

property.

Hindu law. There are two main schools of Hindu law, Mitakshara

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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA


793

and Dayabhaga. Dayabhaga is more or less confined to Bengal and

Assam, while Mitakshara enjoys dominion over the rest of India.

Within the Mitakshara tradition there are regional variations.

Joint and separate property. Particularly in Mitakshara Hindu law, the

distinction between ancestral or joint family or coparcenary property

on the one hand, and separate or self-acquired property on the other,

is very important. Any property coming into a person's hands, by

inheritance or survivorship, on the death of his father, father's father,

or father's father's father is ancestral property in his hands, whether

or not it was ancestral property in the hands of the person from whom

it passed to him. Thus, separate property becomes, by virtue of

devolution to a direct male descendant, ancestral property in the

hands of the person taking the property. It is also important to note

that any property obtained on a partition of joint family property

remains joint family property in the hands of the person who has

taken his share. Any property inherited by a person from any relative

other than his father, paternal grandfather, or paternal great-grand-

father is his separate property.

In Mitakshara, separate property devolves by inheritance; joint

family/ancestral property devolves by survivorship. The Mitakshara

son takes an interest in joint family property at the moment of his

birth;2 he takes no interest in his father's separate property as long as

his father is alive.

The Mitakshara Coparcenary

The joint-property owning unit, the coparcenary, is distinct from the

joint family, as the latter unit is defined in sociological or anthropo-

logical contexts. In the context of this paper joint family is used as a

synonym for coparcenary, and joint family property is used as a

synonym for coparcenary property. The coparcenary is composed of

male agnates to a maximum depth of four generations, who hold in

common ownership property which devolves by survivorship. Mem-

bership in the coparcenary is by birth and takes effect from the

moment of birth, but membership is only open to sons. The moment

he is born, a son takes a coparcenary interest in the joint family

property equal to that of his father. Daughters do not take such a

2 Strictly speaking, the son takes an interest in the property from the moment of his

conception, reckoned back from the date of his birth, at which time it becomes

apparent that the fetus was male.

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LUCY CARROLL
794

proprietary interest; they are not eligible to be members of the

coparcenary; they are only entitled to maintenance until their mar-

riage and to their marriage expenses (including, of course, 'dowry').

Contrary to the apparent assumption of S. J. Tambiah that joint

family property is an ideal and that frequent partition renders separ-

ate property the rule,3 joint property is the rule and separate property

the exception, and usually a very temporary exception at that.

Indeed, the legal presumption is that every Hindu family is joint,4

although there can be a joint family with no joint family property and

there can also be joint family property without a joint family.

Rather than creating separate estates, partition actually increases

the number of joint family estates. Consider a man with three sons

and three grandsons (figure i). Assume it is a Mitakshara joint family

and the property consists of property inherited by A from his father,

together with savings accumulated from the income of that property

and additional property purchased out of such savings. During A's

lifetime, A, each of his sons from the moment of their birth, and each

of his grandsons from the moment of their birth are co-owners of the

property. The family remains joint until A's death; after A's death a

3 'But ... the four generation rule of coparcenary rights and the right of partition

granted members did produce the fission of the ideal corporation. When partition

takes place the coparceners become independent owners and cannot any more

exercise survivorship rights in respect of one another. The property must descend according

to the ordinary rules of inheritance-to the issue of these separate owners.' S. J. Tambiah,

'Dowry and Bridewealth, and the Property Rights of Women in South Asia,' in J.

Goody and S. J. Tambiah, Bridewealth and Dowry (Cambridge: C.U.P., 1973), p. 78,

emphasis added.

To be sure, an individual can deal with the property he obtained on a partition as if

he were an 'independent owner' as long as (i) he did not have a son at the time of the

partition, or (2) a simultaneous partition took place between himself and his son or

sons (partition during the father's lifetime is rare); but he may do so only until a post-

partition son is born to him. ('Son' here includes the son of a predeceased son and the

son of a predeceased son of a predeceased son.) If he had a son at the time of the

partition and if there were no simultaneous partition between himself and his son, the

partition merely results in a smaller coparcenary being created; no 'independent

owner' emerges, even temporarily. If he did not have a son or if a simultaneous

partition did take place, a temporary situation of 'independent ownership' results.

The moment a post-partition son is born to such an 'independent owner', a new

coparcenary is created as respects the property which the 'independent owner'

obtained on the partition and such property will pass by survivorship to the other

coparcener(s) (i.e., the son or sons of the person who, temporarily being a sole

coparcener, temporarily had rights of 'independent ownership'), not by 'the ordinary

rules of inheritance'.

4 'Generally speaking, the normal state of every Hindu family is joint. Presumably

every such family is joint in food, worship and estate. In the absence of proof of

division, such is the legal presumption.' S. T. Desai (ed.), Mulla-Principles of Hindu

Law (i4th edn, Bombay: N. M. Tripathi, 1978), p. 284.

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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA


795

BCE

B1 C1 C2

Figure i.

partition occurs and all A's sons separate. After partition B and his

son Bi; and C and his sons Ci and C2 now constitute new joint

families, with the son holding an equal interest in the property with

his father.

In order for individual estates to be created from these groupings,

there would have to be further partitions between B and Bi, and

among C, CI, and C2. However, if a partition occurs between, for

example, B and BI, the situation of individual estates that results is

only temporary, as it is only temporary in the case of A's son E, who

had no son at the time of the partition from his brothers on their

father's death. As soon as a son is born to E, or as soon as a son is born

to BI (who has now separated from B), or if a son were born to B after

the second partition, a new coparcenary unit is immediately and

automatically established.

The property that the sons of A divided on A's death was joint

family, ancestral, property. When the further partition occurred

between B and Bi, the property that each took was joint family,

ancestral, property. During the temporary period when B, Bi, and E

each hold joint family property without a co-owner (i.e., without an

individed son), each possesses rights of an absolute owner over the

whole of the property in his possession. But his situation is not that of

an owner of separate or self-acquired property; he is simply a sole

coparcener in possession of joint family property. The character of the

property is not altered by the fact that it is for the time being held by a

single coparcener; it is not converted into separate property; it was and

remains joint family property. Such being the unalterable character of

the property in the hands of B, B I, or E, the moment a son is born to

any of these sole coparceners, the son takes a birthright in the pro-

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LUCY CARROLL
796

perty in the hands of his father. The sole coparcener becomes one of

two coparceners, each of whom possesses an equal interest in the

property.

It is important to note that in figure I it is assumed that A and his

sons B5 and C are widowers. The presence of A's widow would com-

plicate the situation on the partition between A and his sons.

Similarly, the presence of a wife of B or C would complicate the

situation on a partition between B and Bi or among C and his sons.

Since space is limited and the emphasis of the present discussion is on

the position of daughters, these details will have to be passed over.

Nevertheless, it is worthy of comment that both before and after the

Hindu Succession Act, the position of the widow or mother was and is

considerably superior to that of the daughter. The daughter is born to

leave the family; the wife is brought in from outside and by the time

she has become a mother or a widow she has been incorporated into

the family to a degree that the daughter herself never achieves. To be

sure, the mother or widow never achieves the status of a son of the

family, but in comparison with the daughter, her position is superior.

To reiterate: After the partition among the sons of A and between B

and BI, three individual estates were created, in the hands, respec-

tively, of B, Bi, and E. However, the property in the hands of these

individuals is and remains joint family property, and the birth of a son

to any of these men results in the immediate establishment of a new

coparcenary unit. Such a joint property unit is established automati-

cally by the operation of the law, completely independently of the

wishes of B, B I, or E. Any property which came into the hands of B or

E directly from their father A, or into the hands of B directly from his

father B, is ancestral property in which the son, respectively, of B or E

or BI acquires an interest on birth equal to the interest of his father.

An increment in the value of joint family property is joint family

property; accumulations of income from joint family property are

joint family property; property purchased out of the income of joint

family property is joint family property; income earned through the

use of joint family property is joint family property; etc.

A man may retain separate title to money he earns without the use

ofjoint family funds or property; and to the property he acquires with

his own separate funds; and to property which he inherits from any

female or from a male other than his father, father's father, or father's

' As to the son hypothetically born to B after the partition between B and Bi, we

may assume that B remarried and that the partition between B and Bi took place on

B 's insistance because he realized that his father intended to remarry.

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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA


797

father's father. But all such property is only separate property in his

hands, at his will, and during his lifetime. During his lifetime a man

may convert his separate property into joint family property simply

by declaring it so to be and treating it as such (there may be tax

advantages in so doing). Even if he keeps his separate property separ-

ate during his lifetime, at his death it passes to his son and becomes, in

the son's hands, ancestral property in which the son's son will have a

coparcenary interest.

Thus, separate property is constantly being converted into

ancestral or joint family property; the converse occurs much less

frequently and when it occurs, the property remains separate property

only temporarily, i.e., only until it passes by succession into the hands

of a direct male descendant of any male owner. For an example of the

conversion of joint family property into separate property, consider

what the situation would have been if after the partition between A's

sons, E had died without leaving spouse or child. The property in the

hands of E is ancestral, joint family, property, but he is a sole

coparcener; there is no co-owner who could take the property by

survivorship and the property, therefore, passes by inheritance. His

heirs are his two brothers, who take the property in equal shares. In

the hands of B and C, the property which E had obtained on the

partition becomes separate property. Although the property originally

came from the father of B, C, and E, it comes into the hands of B and

C by inheritance to their brother, not to their father. For this reason it

is separate property, not ancestral or joint family property, in their

hands. When the property passes to the sons, respectively, of B and C,

it will become in their hands joint family property once again.

Devolution under Mitakshara Law

To return to the original example of a man dying and leaving two sons

and two daughters and giving this anonymous man a family history,

let us assume that he is E, the son of A, that he did not die childless

after all, and that since the partition from his brothers he has married,

produced four children, and been widowed (figure 2). The property in

question is his share in the property of his father (A) which he took on

the partition from his brothers (B and C) after the death of their

father, plus accumulated profits and increments.

By definition a coparcenary exists between E and his sons. On the

birth of each son, the father's (E's) interest in the property was

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LUCY CARROLL
798

S1 S2 Dl D2

Figure 2.

reduced -to one-half by the birth of the first son, and to one-third by

the birth of the second son. (The interest of the first son, originally

one-half, was also reduced to one-third by the birth of a second son to

his father.)

Actually, a very fundamental principle of the Mitakshara coparcen-

ary is that each coparcener is co-owner of the whole and that the

interest of any particular coparcener can only be worked out at a

partition which terminates the joint family as a property owning unit.

The very definition of the shares destroys the coparcenary. Thus, it is

a violation of this fundamental principle to assign interests in the joint

family property to E and his sons; it is, however, impossible to explain

the situation without allocating fractional interests in the property.

Under the pre-1956 law, on the death of E his undivided interest in

the joint family property would have passed by survivorship to his two

sons, thereby increasing their interests in the joint family property to

one-half each. (It needs to be emphasized that, not only can the

Mitakshara coparcener's interest in the joint family property not be

defined except at a partition terminating the coparcenary, but in the

meanwhile it is a fluctuating interest, being enlarged by deaths of

coparceners and decreased by the birth of males who take from birth a

coparcenary interest.) The daughters would have taken no share or

interest in the property; if unmarried, they would have remained

entitled to maintenance until their marriage and to their marriage

expenses and dowry.

Rather than attempting a wholesale reform of this system, the

Hindu Succession Act merely tinkered with it. Without disrupting the

coparcenary unit and without actually partitioning the coparcenary

property, the Act intervenes to give some right of inheritance to the

female relations of a coparcener at his death. This is does by providing

that if the coparcener should leave any one or more of nine named

relatives" (eight of whom are women, the sole male being the

D)aughter; widow; mother; daughter's son; daughter's daughter; son's daughter;

son's widow; son's son's daughter; son's son's widow.

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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA


799

daughter's son), the coparcenary interest of the deceased does not

pass by survivorship but by inheritance to his heirs as defined by the

Hindu Succession Act. The daughter is one of the named relatives

whose presence precludes the property passing by survivorship.

Since the coparcenary interest of the deceased coparcener is to pass

by inheritance, it is necessary to determine what that interest is. This

is done by calculating the deceased coparcener's share as if a partition

of the joint family property had taken place immediately before his

death. In the present example, E's interest in the joint family property

at the time immediately before his death was only one-third, given the

presence of his two sons. It is this one-third interest which passes by

inheritance in equal shares to his four children, each taking I/4th of

this I/3rd or I/I2th. In addition to this I/i2th share which he obtains

by inheritance, each son possesses by virtue of his birth an interest

immediately prior to his father's death equivalent to I/3rd of the

property; this interest he retains. The son's interest after the death of

E and notional redistribution of the property is thus I/3rd plus I/ I 2th

equals 5/I 2ths -as compared with the 6/I 2ths he would have taken in

the absence of the Hindu Succession Act, and as compared also with

the i/I2th taken by his sister because of the Act.

The daughters take their shares as absolute, separate shares; they

do not become members of the coparcenary unit by virtue of the

ownership of these shares. Perhaps one or more of the male

coparceners will buy them out; more likely perhaps, the daughters

may be encouraged to forego their shares in favour of their brothers.

The share of I/i2th which the son takes by inheritance under the

Hindu Succession Act is, like that of his sister, an absolute share and

his separate property vis-a-vis his coparcener brother, unless he elects

to convert it into joint family property, which for convenience he

probably will do. However, even if he keeps the i/i2th share separate

from his brother in the larger coparcenary, it is joint family property

in his hands and vis-a-vis his own sons, who will have the right in it

from birth. This then is the beginning of a new smaller coparcenary

within the larger coparcenary.7

The son's coparcenary interest, frozen for a moment in time for the

purpose of the notional calculation, becomes immediately a fluctuat-

ing coparcenary interest again, capable of being increased or

7 The complications which arise because of the presence of a mother or widow on

the scene are as nothing compared with the complications arising from the fact that

within any one coparcenary there can simultaneously be one or several smaller

coparcenaries.

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LUCY CARROLL

800

decreased as deaths and births occur. If, for example, after the death

of E, S dies (leaving neither wife nor child), his coparcenary interest

passes by survivorship to the other son S2, the daughters taking no

share in the interest of their deceased brother in the family property.

The sister is not a relative whose presence prevents the rule of

survivorship from operating. The point to be emphasized here is that

a daughter's position vis-a-vis the property of her natal family is not

simply or merely defined by her relationship to her father. She is also

a sister to her brother. After E's death Si, as a coparcener (I/3rd) and

as an heir (I/I2th), had a very considerable interest in the family

property, an interest five times that of the daughter's share. He then

dies leaving no relative except his own siblings; his entire coparcenary

interest in the joint family property passes to his brother to the total

exclusion of his sisters because of the operation of the survivorship

rule.8

On the other hand, if Di had died unmarried, her property, includ-

ing her I/I2th share from her father's estate, would be inherited in

equal shares by her brothers and sister. Even if she were married, if

she left no child, her I/ 2th share would be inherited by her siblings,

who would take precedence over her own husband in regard to this

property.

Separate Property under Mitakshara

Prior to 1956, the daughter was excluded from succession to her

father's separate property no less than to his joint family property by

the presence of a son, a son's son, a son's son's son, or widow. By

virtue of the Hindu Succession Act, sons and daughters now succeed

in equal shares to any separate property of their father.

A Mitakshara father can severely alter his daughter's rights of

succession to his separate property by converting it during his lifetime

into joint family property. Further, a coparcener can at any time

renounce his coparcenary interest in favour of the other coparceners.

The property then passes by pre-mortem survivorship, effectively

evading the operation of the Hindu Succession Act, since on his death

the renouncing coparcener holds no interest in the coparcenary pro-

" If Si had kept the 1/12th share he received by inheritance to his father as his

separate property, his sisters would share equally with the brother in this 1/I2th. If he

had merged this share with his coparcenary interest, it would pass as part of his

coparcenary interest exclusively to his brother S2.

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DAUGHTER S RIGHT OF INHERITANCE IN INDIA

801

perty and there is nothing in respect of which the Hindu Succession

Act could operate.

Testate Succession under Mitakshara

Prior to i956 the Mitakshara coparcener generally could not dispose

of his undivided coparcenary interest by will. (The Bombay and

Madras schools of Mitakshara did permit such wills.) The right to

dispose of his coparcenary interest by will was conferred upon all

Mitakshara coparceners by the Hindu Succession Act. Thus the

Mitakshara father E in figure 2 could have left a will bequeathing his

joint property interest (as well as his separate property) to his sons,

thereby disinheriting his daughters. The unmarried daughter would,

in these circumstances, be able to proceed against the estate and the

heirs for maintenance until her marriage and her marriage expenses;

the married daughter would have no claim on the property. To be

sure, the Mitakshara father could also leave a will bequeathing his

coparcenary interest (as well as his separate property) to his

daughters, disinheriting the sons on the ground that since they had

already taken by birth considerable interests in the property, they

were well enough provided for. One must doubt that such an event

has often happened in the 30 years since I956.

While the power of testamentary disposition is a matter to be kept

in mind in other contexts, it is unlikely that wills would commonly be

used to disinherit the Mitakshara daughter under the present law.

After all, the same result, as far as joint family property is concerned

(and remember that separate property can be converted into joint

family property simply by declaring it so to be), can be more easily

attained by a much more familiar (to the Mitakshara coparcener)

process-the simple renunciation of coparcenary interest.

Muslim Law

Muslim law is frequently criticized because it gives daughters a share

equal to only half that taken by a son.9 However, Mitakshara Hindu

9 For a discussion of Muslim law of succession, see Iucy Carroll, 'The Hanafi Law

of Intestate Succession: A Simplified Approach,' Modern Asian Studies 17 (i983):629-

70; and Lucy Carroll, 'The Ithna Ashari Law of Intestate Succession: An Introduc-

tion to Shia Iaw Applicable in South Asia,' Modern Asian Studies 19 (i985):85-124.

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LUCY CARROLL

802

law, even after the Hindu Succession Act, is much harsher in its

treatment of the daughter as an heir to joint family property in the

presence of a son. Further, given the fact that a Muslim is permitted

to dispose of a maximum of only one-third of his estate by will,'? the

Muslim daughter cannot be totally disinherited by her father in the

way a Hindu daughter can be deprived of her new rights under the

Hindu Succession Act by the simple expedient of a will, or the Mitak-

shara daughter deprived of any inheritance to her father's interest in

joint family property by the even simpler renouncement by him in

favour of his other coparceners.

If E in figure 2 were a Muslim, each of his sons would take a share

of I/3rd and each daughter i/6th of his estate, as compared with

5/ 2ths and /I 2th under Mitakshara law. Even if the Muslim father

left a will exercising the maximum testamentary power permitted to

him, the Muslim daughter would still take I/gth. Further, Muslim

law recognizes the sister as an heir to the property of her childless

brother, so that on the death of Si each sister would take I/4th of his

estate, S2 taking half of his brother's property.

The Dayabhaga Coparcenary

Under Dayabhaga Hindu law, interests in and rights over joint family

property differ radically from those interests and rights under Mitak-

shara law. Firstly, no coparcenary exists between a man and his son:

the son acquires no interest at birth in the ancestral property held by

his father; he acquires an interest in this property only on the death of

his father. Secondly, the rule of survivorship has no application in

Dayabhaga law. All Dayabhaga property passes by inheritance in specific and

defined shares. There is no distinction between joint family and separate

property either in the mode of devolution or in the heirs who take.

Further, there is no distinction between joint family and separate

property in regard to the owner's power of dealing with it; in regard to

both he has rights of absolute ownership and can sell, gift, or will it

away at his pleasure.

The Dayabhaga 'coparcenary', as it is often called, really is not at

"' A Muslim may dispose of more than one-third of his estate by will if such

disposition is ratified by the heirs. The share of any heir ratifying the excess bequest is

reduced, but the share of the non-ratifying heir is not reduced. For an example of the

calculations involved, see Lucy Carroll, 'Sunni Testate Succession: Some Queries,'

Islamic and Comparative Law) Quarterly 4 (1984):204-9; and F. M. Kulay, 'Rejoinder to

Lucy Carroll,' Islamic and Comparative Law Quarterly 6 (i986):92-5.

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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA


803

all analogous to the Mitakshara coparcenary. It is much more analo-

gous to the situation under Muslim law when heirs elect to retain the

property in an undivided state and hold it as tenets-in-common. In

both Dayabhaga and Muslim law, the joint property owning unit is

created, not automatically by the operation of the law on the birth of a

son, but by the decision of the heirs to hold the property jointly and

undivided. Like Muslim heirs, Dayabhaga heirs inherit and hold

property in definite, defined, and unfluctuating shares. There is no

requirement that the property be divided and distributed among the

individual heirs, and the heirs may continue in joint possession of

undivided property in which each owns a definite and unfluctuating,

although undivided, interest.

The distinction between the Mitakshara coparcenary and the

Dayabhaga coparcenary is well illustrated by Mulla's discussion of

the termination of a Mitakshara coparcenary:

[I]t is not necessary ... that the unity of possession ... should be destroyed

and specific portions of the property assigned to the coparceners. It is quite

enough if the unity of ownership is destroyed, and the share of each coparcener

defined, so that any coparcener can say that he is the owner of a definite

share, one-third or one-fourth. Nothing further need be done. The members

may continue joint in possession, but the coparcenary is destroyed."

In other words, what characterizes the ordinary state of affairs in the

Dayabhaga coparcenary, signalizes the end of the Mitakshara

coparcenary. So fundamental to the ideology and philosophy of the

Mitakshara coparcenary is the principle that each coparcener is co-

owner of the whole and that the individual's interest should not and

cannot be ascertained during the life of the coparcenary, that the

definition of shares terminates the coparcenary unit and effects a

partition, even if the property itself remains undivided and possession

continues to be joint. However, as has been stressed before, in the

destruction of a Mitakshara coparcenary is the birth of multiple new

coparcenaries.

l Supra note 4, p. 348; emphasis added. The passage continues: 'Thenceforth the

share of each member will on his death pass to his heirs. The members having

separated, the principle of survivorship ceases to apply.' These two sentences are very

misleading in that the share each member takes on a partition is ancestral property in

which his existing undivided sons and any subsequently-born sons possess coparcen-

ary interests; as between and among such members of the smaller coparcenary

created by partition of the larger coparcenary succession will be by survivorship and

not by inheritance.

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LUCY CARROLL
804

Devolution under Dayabhaga Law

There was no distinction under the pre-I956 law in regard to the

devolution of property held by a Dayabhaga male depending on

whether the property was joint family property or his own separate

property; his undivided interest in joint family property as well as his

separate property passed by inheritance to the same heirs in the same

hierarchy of preference. The absence of a rule of survivorship in

Dayabhaga meant that a daughter might well figure as an heir to her

father's joint family property, which she could never do in Mitak-

shara, unless her father were a sole surviving coparcener.

Before 1956 in both Mitakshara and Dayabhaga the daughter was

an heir to the separate property of her father if he left neither son,

son's son, son's son's son, or widow. In Dayabhaga law she occupied

the same position as an heir to her father's interest in joint property.

In Mitakshara law the other coparceners (e.g., her father's brothers,

nephews, etc.) would take the property by survivorship, ousting the

daughter. There being no succession by survivorship in Dayabhaga,

the daughter succeeded by inheritance to her father's share of joint

property no less than to his separate property. Thus, as is so often

remarked, a woman could be a member of the Dayabhaga coparcen-

ary-a very shocking state of affairs from the Mitakshara point of

view. However, the meaning of the terms 'coparcener' and 'coparcen-

ary' in Dayabhaga and Mitakshara are so dramatically and

fundamentally different that we are not talking about the same thing

in spite of using the same words.

In Mitakshara a coparcener is one who jointly with others owns

property in which he possesses an imprecise and fluctuating interest

which can only be determined by a partition; who has the right of

succeeding by survivorship to the interests of other co-owners; and

whose son from birth becomes himself a co-owner, diluting and reduc-

ing the interests of other co-owners.

In Dayabhaga a coparcener is an individual owner of a precise

share in undivided property-a share which is definite and unfluctu-

ating; in which no one acquires any interest as long as he is alive; and

which will pass by inheritance to his own heirs, not by survivorship to

other owners of shares in the undivided property.

In the Dayabhaga coparcenary, a female coparcener is not the

threat to the fundamental basis of the institution in the way that a

female coparcener would be in the Mitakshara system. There is no

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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA


805

risk of the female Dayabhaga coparcener or her descendants succeed-

ing by survivorship to the property of other coparceners, because all

coparceners own precise shares that pass by inheritance to the heirs of

the individual owner, not by survivorship to other coparceners. The

children of a female Dayabhaga coparcener acquire by birth no pro-

perty rights that could pose a threat to the property rights of other

coparceners, because children of no coparcener acquire any property

rights at birth. And in any case, prior to I956, the Dayabhaga

daughter, like the Mitakshara daughter succeeding to her father's

separate property, took a limited estate. On her death, the property

passed not to her own heirs, but to the nearest heir then living of the

last male owner (i.e., the nearest heir to her father).

Returning again to E and his two sons and two daughters, let it now

be assumed that the family is governed by Dayabhaga law. Prior to

1956 E's property would have passed by inheritance to his two sons in

equal shares. Under the Hindu Succession Act, his property, both

joint family property and separate property, passes in equal shares to

his four children, the Dayabhaga daughter taking I/4th of the joint

family property as opposed to the Mitakshara daughter's i/i2th. The

difference here is due to the fact that because under Mitakshara E's

sons took by birth an interest in the joint family property, only one-

third of the property passed under the Hindu Succession Act; all

Dayabhaga property passes under the 1956 Act in intestate succession.

If Si had then died, prior to I956 his property would have passed

by inheritance to his brother; Dayabhaga did not recognize the sister

as an heir. Under the Hindu Succession Act, the sister is an heir

equally with the brother; thus after 1956 both sisters (DI and D2) and

S2 would succeed in equal shares to the property of their brother (Si).

The Mitakshara sisters took no share in the coparcenary property of

their brother because the rule of survivorship applied to the situation.

The absence in Dayabhaga of both male birthright in joint family

property and succession by survivorship means that the Hindu Suc-

cession Act had a much more comprehensive and dramatic effect on

the legal position of the Dayabhaga daughter than on the Mitakshara

daughter. Since the son does not take a share of the Dayabhaga

father's property on birth, all of the father's property passes by

inheritance. Since all Dayabhaga property passes by inheritance, in

the absence of a will, it all comes under the intestate provisions of the

Hindu Succession Act which make sons and daughters simultaneous

and equal heirs.

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LUCY CARROLL

8o6

Reform Options

There are two approaches that could be taken toward amelioration of

the Mitakshara daughter's position.

Option I: Creation of birthrightforfemales. The daughter as well as the

son could be given a right by birth in the joint family property. This

has one clear advantage in that the daughter, if she had such a

birthright, could not be disinherited either by her father's will or by

his renunciation in favour of the coparceners (renunciation cannot be

in favour of any particular coparceners and must be in favour of the

coparcenary group as a whole).

Such an approach was in fact taken by the Bill under consideration

in Andhra Pradesh a couple of years ago which proposed to make

daughters members of the coparcenary by birth in the same way that

sons are members by birth. The statement of objects and reasons set

out with the Andhra Pradesh Bill is particularly interesting because of

the direct connection it makes between the dowry problem and

inheritance rights:

The Hindu Succession Act, 1956, governs the property rights of Hindus and

provides for devolution of property. Women are not members of the

coparcenary under Hindu Mitakshara law and therefore they are not entitled

to claim partition in coparcenary property, and such exclusion of daughters

has led to the creation of socially pernicious dowry system with its attendant

social ills. In order to eradicate this ill by positive means which will

simultaneously ameliorate the condition of women in Hindu society, it is

proposed to confer equal rights on Hindu women along with male members

so as to achieve the constitutional mandate of equality by suitably amending

the said Act.'2

However, this approach very quickly runs into complications.

These complications basically arise because of the rule of survivorship

obtaining in the Mitakshara coparcenary and the fear that a non-

agnate of the property-owning group (e.g., daughter's daughter or

daughter's son) might end up with a coparcenary right to a major

interest in the property simply through the operation of survivorship

and the dying out of other branches. The Andhra Pradesh Bill

immediately encountered problems concerning the position of the

daughter's children. Clearly it seemed, if a woman were to be made a

coparcener by birth, she would have to be a coparcener with quite a

2 Quoted in Manushi, Aug.-Sept. 1983, p. 8.

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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA


807

different status and quite a different set of rights and interests than

those possessed by a male coparcener.

Option 2: Abolition of birthright and survivorship. This approach has the

advantage of tremendous simplicity, coupled with the fact that it

would assimilate the Mitakshara system to that of the Dayabhaga,

thus constituting a step in the evolution of a Uniform Civil Code. The

suggestion that the right by birth presently enjoyed by Mitakshara

males be abolished-simple, obvious, and elementary as it may

appear to the outsider-is nothing less than revolutionary in the

context of the immense emotional appeal that the concept of male

birthright has for men. Consider, for example, the following extract

from Ramesh Chandra Nagpal's recent tome on Hindu law:

The son's right by birth in the interest of his father in the joint family

property should be admitted in all schools. It is a commendable rule of the

Mitakshara. It deserves respect ... by all the legal systems of the world. It

gives economic security to every man from the day he comes into the world

... Although the right to maintenance given to a child also gives security to

him, yet the right by birth is still better. It is in addition to the right of

maintenance. Again, the right to maintenance is lost on attaining majority.

The right acquired by birth in the joint family property is a life-long right.'3

The contradistinction Mr Nagpal is here making between the right

to maintenance and the proprietary right from birth neatly sums up

the difference between the rights of daughters and sons in the Mitak-

shara joint family property, not only under the traditional system, but

also as largely carried over into the present system under the Hindu

Succession Act. It apparently does not occur to him that the security

he so highly values for himself could be equally desired by women. It

also apparently does not occur to him that the security he so highly

values and claims for himself is very greatly enhanced by the fact that

his sisters do not have birthrights in the property, a fact which swells

considerably the share he obtains by and from his birth.

With the abolition of male birthright and survivorship, all Mitak-

shara property, like all Dayabhaga property, would pass by

inheritance and be governed by the Hindu Succession Act. Under the

Hindu Succession Act the daughter is an equal and simultaneous

intestate heir with the son.

One must stress the daughter's rights as an intestate heir, because

of the right of a Hindu to leave a will. The Dayabhaga owner even

13 Ramesh Chandra Nagpal, Modern Hindu Law (Lucknow: Eastern Book Co.,

1983), p. 600.

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LUCY CARROLL

8o8

before I956 had the power of disposing of his property, both joint and

separate, by will; prior to the Hindu Succession Act a Mitakshara

coparcener generally could not so dispose of his interest in joint

property.

The disadvantage of reform which improves the position of the

Mitakshara daughter as an intestate heir (as opposed to reform along

the lines contemplated by the Andhra Pradesh Bill which aimed to

give daughters a birthright in the property) is that the intestate heir

can be disinherited by will. The Dayabhaga daughter, whose position

the 1956 Act so dramatically improved, is presently in this situation,

i.e., capable of being disinherited by will.

Perhaps it might be worth considering adopting in Hindu law the

principle of Muslim law which limits the testamentary freedom of an

individual to a given proportion of his estate (in Muslim law this

proportion is one-third), and requires the remaining bulk of the prop-

erty to pass according to the rules of intestate succession.

A restriction on testamentary disposition would be a new disability

for the Dayabhaga property owner, who has long enjoyed the right to

dispose of his property by will. But it would not be a 'new' disability

on the Mitakshara holder of interest in joint family property because

prior to I956, except in Bombay and Madras states, he had no power

to dispose of this interest by will.

Concluding Remarks

Casual assertions, such as the quotation with which I commenced this

essay, to the effect that the Hindu Succession Act 'gave equal right of

inheritance to the daughter along with the son','4 must not be allowed

to obscure the fact that the Act did not give the vast majority of Hindu

women anything approaching equal rights with her brother in the

family property.

While we ponder the problem and consider reform options, it would

be very interesting and useful to know what effect the Hindu Suc-

cession Act has had on Dayabhaga succession in actual practice.

Abstract legal rights are one thing; what happens down on the ground

is often something quite else. Has the Dayabhaga daughter claimed

and obtained her share of the property? If not, why not? Are

daughters even aware of their new rights? Are wills being used to

'4 Supra note i.

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809

DAUGHTER S RIGHT OF INHERITANCE IN INDIA

disinherit daughters? etc., etc. The Hindu Succession Act has been in

force for thirty years and, as far as I am aware, there has been no

research into its actual impact and implementation. It would be par-

ticularly worth looking into the Dayabhaga situation, given the prob-

ability that reform will (eventually) be in the direction of assimilating

the Mitakshara coparcenary to that of the Dayabhaga.

Appendix

The following tables summarize the position of E's

daughter (figure 2) in the situations discussed in the text.

TABLE I

E dies: daughter's share in E's estate*

Mitakshara-pre- 1956 None (joint & separate)

Mitakshara - post- 956 1/12 (joint)

I/4 (separate)

Muslim i/6

Dayabhaga-pre- 1956 None

Dayabhaga- post- 1956 I/4

TABLE 2

E has died; now Si dies: sister's share in brother's estate**

Mitakshara - pre-1956 None (joint & separate)

Mitakshara-post-1956 None (joint)

I/3 (separate)

Muslim 1/4

Dayabhaga-pre- 1956 None

Dayabhaga-post-1956 1/3

* If daughters and sons inherited equally, daughter

would take 1/4.

** If sisters and brothers inherited equally, sister would

take 1/3.

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