The issue of Hindu Women’s Right to Property is a pressing concern when it comes to gender equality in our nation. The Hindu Succession (Amendment) Act, 2005, was primarily introduced to overcome this discrimination, which was disadvantaging Hindu women concerning their rights in the family and self-acquired property.
The 2005 amendment brought about noticeable changes in empowering a Hindu Woman’s Right to her ancestor’s property. However, this act itself was not free from patriarchal notions and gender biases. This article aims to critically analyze the position of Hindu women today, when it comes to the matters of property, inheritance and the rules of succession.
A Hindu female and a Hindu male were never placed on the same footing when it came to matters of inheriting property.
Women’s “rights to inherit, own and control property are determined by the values and norms which are socially acceptable, as well as the mechanisms of intra-household decision-making and distribution.”
Under Classical Hindu Law, the coparceners constituted of only male members. Four generations of sons, starting from the eldest male member in the family, qualify to be coparceners and are entitled to a share in the coparcenary property.
A male becomes a coparcener in the family by birth or through a valid adoption. After the death of the last holder of property (the senior-most member of the family), the son from the next new generation becomes a member of the coparcenary. The next new generation could be added to the coparcenary only after the last holder of the property passes away.
The Hindu Succession Act, 1956,
“marked an advance in terms of establishing females’ right to inherit but failed to make females coparceners, who acquire notional shares in the joint family property, to be realized upon death. This implies that, upon intestate death of a Hindu head of household, each male coparcener first receives his share of the joint family property, a process followed by the distribution of the deceased person’s notional share of joint property among all male and female heirs, generally in equal shares.
To illustrate, letting m be the number of (male) coparceners and of the number of additional females, an intestate succession of a Hindu head of household would have each of the former receive a share of [(1 / (m + 1)) + (1 / (m + 1)) / (m + f)] whereas each of the latter will receive only (1 / (m + 1)) / (m + f) with the difference being the coparcener share.’’
The legislatures finally pursued the need to bring about the economic emancipation of women in order to end gender discrimination. In 2005, the Hindu Succession Act was amended and brought about changes in the traditional Hindu laws relating to the succession rights of a Hindu woman.
However, this Act contains a discrepancy within itself because while protecting the rights of a woman concerning the acquisition of family property, the laws related to the devolution of her separate property are inclined towards the patriarchal side of the family.
I. Section 6
The amended Section 6 of the 2005 Act grants the daughter of a coparcener the right in coparcenary property equal to that of a son. This proposition was considered by the legislature before the enactment of the Hindu Succession Act, 1956 as well, but did not reach consensus.
Nevertheless, four states took the extremely progressive step of including daughters as coparceners before the amendment of 2005, namely: Andhra Pradesh in 1985, Tamil Nadu in 1989, and Maharashtra and Karnataka in 1994.
The Hindu Succession Amendment Act of Andhra Pradesh, 1985, made remarkable development. It held that the Mitakshara System was in violation of the fundamental right of equality. The Indian Constitution guarantees equality to all citizens through Article 14 and 15. By enforcement of the respective amendments, these states conferred a right by birth in coparcenary property on daughters remaining unmarried on the date of the commencement of the respective amending Acts.
Such daughters were, after that, made subject to the same rights and liabilities as a son. From the date of their birth, the daughters would become coparceners. In case the daughter died without leaving behind any legal heirs, the concept of survivorship would be followed.
The issue of Retrospective Enactment
When HSAA came into force, it effectively superseded all State Amendments. The 2005 amendment created an issue concerning Section 6(1)(c) of the amended Hindu Succession Act: from the date of implementation of state amendments till the 20th day of December 2004 (the date before which the Central Amendment Act does not apply) if the unmarried daughter was illegally denied her rightful share, she could demand a partition, to challenge an unauthorized alienation and to re-open an inequitable partition.
However, since 9th September 2005 (the date when the HSAA came into force), that right was taken away explicitly, and she was rendered unable to enforce her legitimate rights. This was imposed retrospectively.
II. Applicability of the Amendment – Series of Judgments
There were conflicting High Court judgments regarding whether the Amendment Act, 2005, is prospective or retrospective.
1. Pushpalatha N.V v. V. Padma
The Karnataka High Court in Pushpalatha N.V v. V. Padma, held that the Act was retrospective in nature. The Bombay High Court, in Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, held that the amendment is retroactive.
2. Prakash v. Phulavati
Finally, the Honourable Supreme Court in Prakash v. Phulavati clarified by stating-
“The text of the 2005 amendment, itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the Hindu Succession (Amendment) Act, 2005. In view of the plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment.
An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present Amendment Act of 2005, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of amendment.”
Therefore, the Supreme Court clarified that the amendment is prospective and that both the daughter and her father must be alive following the amendment’s date. This, however, can imply that the status of a daughter as a coparcener is not a right by birth but depends on the mortal status of her father, i.e., a female can only claim coparcenary rights in her family if her father is alive on 09.09.2005. Even though the decision of this judgment may be questionable, at least it finally settled the debate on the issue.
3. Danamma v. Amar
That changed yet again with the case of Danamma v. Amar. As per the facts of the Danamma case, the male coparcener passed away in 2001, leaving behind a widow, two daughters, and two sons. The partition proceedings were initiated by one of the sons in 2002. Both the trial court and the high court rejected the contention of the petitioners (the daughters) that they had any right in ancestral property, thereby aligning with the Phulavati judgment.
In an appeal to the Supreme Court, the Apex Court took a different approach. While upholding the ratio decidendi in the Phulavati judgement, the court stated –
“In the present case, no doubt, the suit for partition was filed in 2002. However, during the pendency of this suit, Section 6 of the HSA was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the daughters got crystallized in 2005 and this event should have been kept in mind by both the trial court as well as the High Court. “
This judgment created confusion by agreeing to the ratio of Phulavati judgement, but not applying it. The judgment brought back the ambiguity surrounding the matter, by granting coparcenary rights to the daughter of a male coparcener passed away before 2005.
4. Mangammal v. T.B. Raju
In the case of Mangammal v. T.B. Raju, the Supreme Court held that the Phulavati case would hold precedent in a case related to the death of a male coparcener prior to the enforcement of the HSA Amendment.
5. Vineeta Sharma v. Rakesh Sharma
In Vineeta Sharma v. Rakesh Sharma the issue has been referred to a larger bench by the Supreme Court since two-judge benches delivered all three judgments. Given the issues arising from the interpretation of the statute by various courts, a further legislative amendment would not be out of order in Section 6.
III. The Patriarchal Bias of Section 15
There is no reason why a Hindu woman’s husband’s parents should have the right to her property before her parents. Considering the mother in law of the deceased is alive, the law gives the mother in law of such a deceased more importance than her mother.
For instance, in the absence of the heirs present in Section 15(1)(a), the self-acquired property of a Hindu woman would devolve entirely upon her husband’s heirs to which she might be remotely related as compared to her father’s or mother’s heirs.
Section 15(2)(a) states that the heirs of her father shall inherit the property which a Hindu woman inherits from her father, upon her death, in the absence of any children or children of pre-deceased children. This means that the property she inherits from a male goes back to the male lineage.
Section 15(2)(b) states that the property inherited by a Hindu woman from her husband or father in law, upon the former’s death shall devolve in the absence of her children and pre-deceased children to the heirs of her husband. The devolution of property of a female in the Hindu Succession Act, 1956, is different from that of a male and depends upon the source from where she had acquired it.
The source of acquisition of property by a male plays no role in deciding how the property must devolve, but the source of acquisition of property by a female plays a significant role in deciding her heirs. If she inherits property from her father/mother or husband/ father-in-law, in the absence of her children, the property reverts to heirs of the father or heirs of husband, respectively.
The purpose of the Amendment Act, which was to ensure a Hindu woman’s right to secure the coparcenary property, gets defeated by not amending Section 15. The laws determining the property succession of a Hindu female who dies intestate, are still entrenched in the ideologies of a patriarchal society.
There are no such exceptions present in the intestate laws in the case of a Hindu male. The basis of the inheritance of a female Hindu’s property dying intestate would be the source from where the female Hindu first acquired the property. This means that the trajectory of succession would decide the path for the devolution of the said property of a female Hindu.
This pattern of devolution of a Hindu female’s property would enable persons who are not even remotely related to the Hindu female to inherit her property. The reversion of the once-inherited-property back to her father’s or her husband’s heirs reflects that the legislature only intends to see her as a temporary owner.
The Hindu woman has traditionally faced significant difficulties in her quest for ownership and access to the property. However, the 2005 amendment aimed to combat the gender-based inequalities prevalent in law. Although it addressed certain discrimination and provided women with a better position, it did not fully resolve the gender inequity. To conclude, the 2005 amendment was a necessary but not sufficient step taken in the right direction.
A comprehensive list of principles that should govern the rules of intestate succession has been mentioned by Justice SA Kader. If these are implemented, they can be the most effective ways to ensure the furtherance of women’s property rights and their emancipation.
- There must be one common rule of inheritance for both males and females.
- The rule must be the same for both the genders no matter what be the nature of acquisitions of property by the intestate.
- There must be gender equality
- The husband and wife must have mutual, equal rights.
- The father and mother must be placed on the same position.
 Kanakalatha Mukund, ‘Women’s Property Rights in South India: A Review’  EPW 1352
Aparajita Goyal, ‘Women’s Inheritance Rights and Intergenerational Transmission of Resources in India’ Journal of Human Resources 114
 The Kerala Legislature enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975, thereby eliminating the HSA
Debarati Halder and K. Jaishankar, ‘Property Rights Of Hindu Women: A Feminist Review Of Succession Laws Of ancient, Medieval, And Modern India’(2009) 24Journal of Law and Religion663
Shivani Singhal, ‘Women as Coparceners: Ramifications of the Amended Section 6 of the Hindu Succession Act, 1956’ (2007) 19 Student Bar Review 50
 Poonam Pradhan Saxena, Family Law Lectures- Family Law II (4th edn, LexisNexis Publications 2019)
Pushpalatha N.V. v. V. Padma  ILR Kar 1484
Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari  SCC OnLine Bom 908
Prakash v. Phulavat 2 SCC 36
Danamma v. Amar 3 SCC 343
Mangammal v. T.B. Raju 15 SCC 662
Vineeta Sharma v. Rakesh Sharma  6 SCC 162
Law Commission Report 201
Archana Parasar, Amit Dhanda, Redefining Family Law in India(1st edn, Routledge 2008) 304
Justice S.A Kader, ‘The Proposed Amendment of the Hindu Succession Act, 1956 – A Half-Hearted Measure’ 1 LW (JS) 129.