Q.

1) The law of Property of a Hindu female is marked by vicissitudes starting from the Vedic s
ociety when female enjoyed equal status economically and wife enjoyed equal rights in husband
s house to a very inferior position, when Manu declared: a wife, son and a slave are declared to
have no property and if they happened to acquire it would belong to male under whom they are
in protection.

In the light of the above statement explain the changes that our society witnessed in the zone of
females right to property.

Also explain the rules related to female intestate succession in India as per Hindu Succession Act
Substantiate your answer with relevant statutory provisions and case laws.

Answer:

THE HINDU WOMENS RIGHT TO PROPERTY ACT, 1937.

Prior to 1937 there were no codified laws to deal specifically with the Hindu womens right to
property, where disputes arose, they were settled in accordance with the customary practices. In
1937, the Hindu Womens Right To Property Act was passed after much voicing of discontent
over the unsatisfactory condition of womens rights. In the prevalent socio-legal atmosphere of
that time this Act came as a breath of fresh air for supporters of female empowerment. However,
it was by no means enough to achieve the lofty target of gender equality. Under the said Act a
widow was entitled to a limited interest over the property of her husband what was to be
termed as Hindu widows estate. The ameliorative effects of this legislation was further diluted
in 1938, when it was amended to exclude a widows interest in any agricultural land.

Under this Act, a Hindu mans widow, his widowed daughter in law and widowed
granddaughter in law are entitled to inherit to his estate, not only in default of, but along with, his
male issues. The widow in a Hindu coparcenary succeeds to her husbands claim irrespective of
the existence of male heirs. The right of survivorship of his collaterals is hence defeated.
However, the claim granted to the widow is a limited one and it is such a limited interest that has
come about to be called as a Hindu womans estate. It is incorrectly presumed that a widow has
an interest for life in the estate she inherits. Hindu Mitakshara law does not measure estates in
terms of time but on the basis of usage of the estate. A Hindu widow in possession of the estate
is entitled to its complete beneficial enjoyment and is answerable to no one as long as shes not
guilty of willful waste. The peculiarity of this estate is that on the death of the widow, the estate
does not pass onto her heirs but to the heirs of the last male owner or the last full female owner
with regard to stridhan property, whichever the case might be. The widow herself cannot become
fresh stock of descent. Shastric authorities have stated that a widow only inherits a limited
interest in her husbands estate, however, nowhere is it said that similar restrictions are
applicable over other female heirs. The class of female heirs which are from another gothra or
after marriage shall become of a gothra different from that of the last male owner, take from the
male heirs, the property in full as absolute owners. This class includes daughters, childrens
daughters and the sisters and daughters of descendants, ascendants and collaterals within five
degrees, who inherit in order of propinquity.

THE HINDU SUCCESSION ACT, 1956.

The idea of limited estate as propagated by the Hindu Womens Right to Property Act was
abolished in 1956 by the introduction of the Hindu Succession Act. The Hindu Succession Act
was a progressive act that brought about many reforms, the most important being the granting of
absolute rights to women, over the property that they held. The benefits of the Act were twofold
as held by the Supreme Court in an attempt to put all controversy at rest. The Supreme Court
declared that as under section 14 of the Act, the disability of women to hold property absolutely
was removed. In addition to this, it converted the limited estate of a female owner to an absolute
estate irrespective of the fact that the creation of the estate occurred at a point of time before the
enactment of the said legislation, which was retrospective in nature.

It has been said that this Act abrogates all the rules of the law of succession hitherto applicable
to Hindus whether by virtue of any text or rule of Hindu law or any custom or usage having the
force of laws in respect of all matters dealt with in the Act. Therefore no woman can be denied
property rights on the basis of any custom, usage or text and the said Act reformed the personal
law and gave woman greater property rights.

In practice though, this Act is quite biased in favour of male heirs. An example of this gender
based discrimination is the fact that in the presence of both male and female heirs, there being an
ancestral dwelling house, the female heir cannot ask for partition of the residence until and
unless the male heirs ask for their respective shares. Also the right of residence exercised by the
daughter is limited by her marital status, a daughter may claim this right if she is unmarried or a
widow or has been divorced from or deserted by her husband. She cannot claim her right to
residence if she is happily married to her husband.

Section 14 of this Act provides for the conversion of the limited interest of a Hindu female is into
absolute rights. If she gets property from her husband she can sell it and the purchaser gets
absolute right in the property, which prior to this Act, she could sell it only for the necessities of
the family or to perform religious ceremonies for the benefit of her deceased husband. Section 14
is wide in its ambit. The legislation has defined womens property in the widest possible manner.
The property includes both movable and immovable property acquired by a female by
inheritance, partition, in lieu of maintenance, arrears of maintenance, gift from any person, a
relative or not, before or after marriage or by her own skill, exertion, by purchase or by
prescription or in any other manner whatsoever and also any such property held by her as
stridhanam immediately before the commencement of the Act. Prior to the enactment of this
legislation, women were deprived of the right to alienation of property. The concept of
survivorship lost much of its effect due to this Act, which provided for the devolution of a
coparceners property unto his mother, widow and daughter, i.e. his female heirs in addition to
his son if he dies intestate. However, section 6 of this Act still retains the Mitakshara
coparcenery excluding women from survivorship as a result father and sons hold the joint family
property to the total exclusion of the mother and daughter despite providing a uniform scheme of
intestate succession.

According to the 174th report of the Law Commission-

While broadly removing the gender discrimination inherent in Mitakshara Coparcenary. The
broad features of the legislations are more or less couched in the same language in each of
these Acts. The amending Acts of Andhra Pradesh, Tamil Nadu and Maharashtra add three
sections namely, 29A, 29B and 29C but Karnataka numbers them as Sections 6A, 6B and 6C of
the Act.

These state enactments provide equal rights to a daughter in the coparcenary property and
contain a nonobstante clause

Despite the improvements brought about by the Act, it remained predominantly gender
discriminatory, especially where inheritance rights of daughters were concerned. It was amended
in 2005 to give equal rights to daughters in separate property as well as coparcenary property left
by the father. The disability of women inheriting their patrimonial property was taken away by
section 6 of the amended Act.

The right accrued to a daughter in the ancestral property, by virtue of the Amendment Act, 2005
is absolute, except in the circumstances provided in the amended Section-6. The excepted
categories to which new Section-6 is not applicable are two, namely, (1) where the disposition or
alienation including any partition which took place before 20-12-2004 and (2) where
testamentary disposition of the property was made before 20-12-2004.

Q.2) Write short notes on the following: Universal Civil Code

Answer: Background

A uniform civil code will mean a set of common personal laws for all citizens. Currently,
for example, there are different personal laws for Hindus and Muslims. Personal law
covers property, marriage and divorce, inheritance and succession.

Uniform Civil code is enshrined as article 44, as part of the Directive Principles of States
policy, in the Indian Constitution. It makes the implementation of the Uniform Civil
Code as a duty of the state
 Personal Laws in India were first framed in India during British Rule. The British feared
opposition from community leaders and refrained from further interfering within this
domestic sphere. The demand for a uniform civil code was first put forward by women
activists in the beginning of the twentieth century, with the objective of women's rights,
equality and secularism.

After independence, the Indian Government under Jawaharlal Nehru wanted to bring out
a uniform civil code. However, after heated debates and oppositions, 4 bills relating to
personal laws of Hindus (Hindu Marriage Act, Succession Act, Minority and
Guardianship Act and Adoptions and Maintenance Act) could only be passed.

The uniform civil code became a flashpoint in Indian politics in 1985 during the Shah
Bano case. The Supreme Court had held that Bano, a Muslim woman, should get alimony
from her former spouse. In the context of that judgement, the court had said uniform civil
code should apply for personal law. The Rajiv Gandhi government had controversially
piloted a law in Parliament to overturn the Supreme Court ruling.

Debate on uniform civil code

The uniform civil code has always been a subject of intense debate. An examination of
the various stands pro and against the same follows:

Arguments Pro uniform civil code-

o As per Article 44 enshrined in the Constitution, it is a duty of the State to move

towards establishing a uniform civil code

o It means Uniform laws for all engendering equality among all citizens;
Inconsistency in personal laws runs contrary to Right to Equality

o True spirit of secularism- Uniform Civil code is true spirit of secularism as

religion is a personal matter so laws should be common for all religions

o Needed to protect vulnerable sections of the society from abuses associated with
unequal, derogatory and in human personal laws; For eg anti- women laws

o Article 25 empowers state to regulate secular activity which may be associated

with religious practices

o The establishment of a Uniform Civil code would pave way for greater unity
among Indians. The animosity due to different treatment of different sections
under different laws will be removed.

o Human right violations and exploitations due to social institutiona and norms such
as Khap dictates and honour killings can be checked effectively.
 o Uniformity of laws will reduce the burden on judiciary in context of pronouncing
judgements on personal laws

Views against Uniform Civil Code:

o Accommodation of various ideas/beliefs and consensus building should be the

key rather than legal enforcement of a uniform set of norms. The society must be
slowed reformed and no manner of coercion must be exercised.

o The fears among the minority community of majority domination must be

adequately allayed and all apprehensions addressed.

o In the views of some experts, the idea of uniform civil code is against secularism
ideals as it involves the state interfering in religious matters.

Q.3) Write short notes onthefollowing: Difference between the Shia and Sunni Law with respect
to wasiyat.

Answer: As Muslim law is an uncodified law. It is derived from their religious texts. Further the
Muslim law of Wills is not uniform for all of the sections. There are many differences amongst the
Shias and the Sunnis.

Bequests to an Heir

In sunni law

Bequest to an heir without consent of other heirs is invalid. Bequest to an heir is invalid unless
consent of heirs is obtained after death of testator.

In shia law

Bequest up to 1/3 of the property is valid even without consent.Muslims can bequest one-third of
their estate without consent of heirs. Consent of heirs is required if bequest exceeds one third of
estate. Mohammedan law does not allow him to show any undue preference towards any particular
heirs and a bequest to some of his heirs without the consent of the other heirs will be altogether
invalid

The Court in the case of Damodar Kashinath Rasane v. Shahajsdibi And Ors. observed that the Sunni
Schools agrees in holding that a bequest in favor of an heir is invalid but, according to the Shia law it
would seem that a testator can leave a legacy to one of his heirs so long as that legacy does not
exceed one-third of his estate, and that such a legacy would be valid without the consent of the other
heirs and if the legacy exceeds one-third of the estate, it will not be valid to any extent unless the
consent of all the heirs, given after and not before the death of the testators, had been obtained.
Bequest to an unborn person

Sunni law-

Bequest to unborn child is valid if the child is born within 6 months of making the will. The bequest
to an unborn person is void, unless a child in womb is born within 6 months of the will.

Shia law-

Valid if the child is born within 10 months of making the will.If the child in the womb is born within
10 lunar months, it is valid.

The beneficiary must be in existence at the time of the testators death. A bequest in favor of an
unborn person is void37 unless such person was a child en ventre sa mere at the time of the Will
and is actually born within six months of that date. Under the Shia law also a bequest in favour of an
unborn child is invalid but if the legatee was in the womb at the time of the Will, the bequest will be
valid (that is, if he is born more than six months after the date of the Will but within the longest
period of gestation from the date of the Will but within the longest period of gestation from the date
of the bequest). A bequest can be made to an unborn person and a Will in favor of a child who is
born, within six months of the date of making the Will can be a beneficiary. But according to Shia
Law, a bequest to a child in the womb is valid, even if the child is in the longest period of gestation
i.e., ten lunar months.

Consent in Case of Bequest to a Non-Heir

Sunni law

For a bequest of more than 1/3 to a non-heir, the consent of heir must be obtained after the death of
testator

Shia law

Heir's consent may be obtained before or after death

In both the sects consent of the heir is required before bequesting it to a non-heir, but the only
difference is in sunni law the consent of the heir can be obtained only after the death of the testator
and in shia law the consent of the heir can be obtained before or after the death of the testator.

Q.4) Trace out the history of the laws relating to Interstate succession so applicable to the Hindus an
d the Muslims?

Answer:

In Hindu social system, Dharmasastras do not separate the spiritual from the secular, therefore, in the
grasthasrama a person is given the training to lead a complete and meaningful life for the benefit and
welfare of those who left and those who are present and those who will be born. It is a unique
phenomenon of Hindu philosophy that the Hindu family has been thought of as one of the most
important institutions because all other institutions like brahmacharya, vanaprastha and sanyasha
depend on it. Hence, the importance of the family is advocated in the Dharmasastras.

Origin of coparcenary: The coparcenary as understood in Hindu law has its origin in the concept of
Daya as explained by Vijnaneshwara while commenting on Yajnavalkyasmriti in the Daya vibhaga
prakranam vayavahara adhaya. Here, Vijnaneshwara discussed that Daya is only that property which
becomes the property of another person, solely by reason of relation to the owner. The words solely
by reason of relation exclude any other cause, such as purchase or the like.

Narada also approves the meaning of the Daya which is a coparcenary property because according to
him, sons can divide only fathers property which has been approved by the learned
(Svatvanimitasambandhopalashanam).

Therefore, the unique concept of coparcenary is the product of ancient Hindu jurisprudence which
later on became the essential feature of Hindu law in general and Mitakshara School of Hindu law in
particular.

Position Of Women (In Regards To Property Rights) Prior To Enactment Of Hindu Succession Act,
1956-

Since time immemorial the framing of all property laws have been exclusively for the benefit of man
and 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 Act of 1956, Shastric and
Customary laws, which varied from region to region, governed Hindus and sometimes it varied in the
same region on a caste basis. As the country is vast and communications and social interactions in
the past were difficult, it led to 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 arumakkattayam 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 even mere complex.

Issue of gender discrimination:

But, however the social reform movement during the pre-independence period raised the issue of
gender discrimination and a number of ameliorative steps were initiated. The principal reform that
was called for, and one which became a pressing necessity in view of changed social and economic
conditions, was that in succession there should be equitable distribution between male and female
heirs and the Hindu womens limited estate should be enlarged into full ownership (however that
actually never happened).

Prior to Hindu Law of Inheritance Act, 1929-

Prior to this Act, the Mitakshara law also recognizes inheritance by succession but 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 Act 1929, the Bengal,
Benares and Mithila sub schools of Mitakshara recognized only five female relations as being
entitled to inherit namely widow, daughter, mother paternal grandmother, and paternal great-grand
mother . The Madras sub-school recognized the heritable capacity of a larger number of females
heirs that is of the sons daughter, daughters daughter and the sister, as heirs who are expressly
named as heirs in Hindu Law of Inheritance Act, 1929.The sons daughter and the daughters
daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to
women, recognized a number of other female heirs including a half sister, fathers sister and women
married into the family such as stepmother, sons widow, brothers widow and also many other
females classified as bandhus.

Hindu Law of Inheritance Act, 1929-

This was the earliest piece of legislation, bringing woman into the scheme of inheritance. This Act,
conferred inheritance rights on three female heirs i.e. sons daughter, daughters daughter and sister.

Hindu Womens Right to Property Act (XVIII of), 1937-

This was the landmark legislation conferring ownership rights on women. This Act 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 adoption. The Act
of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son.
But, 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. A daughter had virtually
no inheritance rights.

Despite these enactments having brought important changes in the law of succession by conferring
new rights of succession on certain females, these were still found to be incoherent and defective in
many respects and gave rise to a number of anomalies and left untouched the basic features of
discrimination against women. These enactments now stand repealed.

Constitutional Provisions ensuring Gender Equality-

The framers of the Indian Constitution took note of the adverse condition of women in society and a
number of provisions and safeguards were included in the Constitution to ward off gender inequality.
In this context, Articles 14, 15(3) and 16 of the Constitution can be mentioned. These provisions are
part of the Fundamental Rights guaranteed by the Constitution. Part IV of the constitution containing
Directive Principles of State Policy, which are no less fundamental in the governance of the State to
ensure equality between man and woman such as equal pay for equal work.

Despite these provisions for ensuring equal status, unfortunately a woman is still not only neglected
in her own natal family but also the family she marries into because of certain laws and attitudes.