Vivekananda Institute of law and legal studies

Family law PSDA

REPORT

Submitted by : Anisha Maity Submitted to: Ms. Sonia Jain

Enrollment no. : 08517703521

 INDEX

Women's Property Rights- Hindu Succession Act 3

Introduction of the Hindu Women’s Right to Property Act, 1937 4

Position of Daughter in her father’s coparcenary 6

HEIRS IN CLASS I, HINDU SUCCESSION ACT. 6

HEIRS IN CLASS II, HINDU SUCCESSION ACT. 7

 Introduction

Section 4 of Hindu Succession Act "Overriding effect of Act"

Section 4. (1) Save as otherwise expressly provided in this Act, -

Any text, regulation, or interpretation of Hindu law, as well as any

practise recognised as compliant with that law, prior to the effective date
of this Act, shall cease to apply to any issue with respect to which this Act
makes a provision;

(b) Any other law in effect immediately before the implementation of this
Act shall cease to apply to Hindus to the extent that it conflicts with any
of its provisions.

The section stating that the act shall not supersede any requirements set
forth in any other act to prevent the division or fragmentation of the
agriculture or sealing the ceiling or formation of tenancy rights in spite of
such holding shall be omitted as to the aforementioned section. The fact
that this clause did not apply to rights on agricultural lands and that these
rights were governed by State-level tenure rules created discrimination
against women because these women did not have any rights to or
interests in the agricultural lands. The interest of women in agricultural
property is therefore guaranteed with the removal of this clause, just as it
is for males.

Women's Property Rights- Hindu Succession Act

Women's ability to inherit property has never been in good standing. To
gain equal rights to inherit their father's ancestors' property, they have
been battling and protesting nonstop. At first, women had no legal claim
to the title of "coparcener"—a person who receives an equal portion of an
estate's inheritance. Women's property rights have gradually increased
over time. Due to the idea that women belonged to another family, they
were not granted coparcenary powers.

sell her saudayika possessions regardless of her marital status.

HerWomen were not given the position of coparceners, according to the
Mitakshara School of Hinduism, hence they were not eligible to inherit the
ancestral property that was passed on to the male heirs. Due to their
complete possession of Streedhan, who only received a small amount of
jewellery or clothing upon their marriage, there was inequality and
discrepancy.

In spite of the fact that it calls for the use of positive discrimination, the
Indian constitution has always promoted an equality-oriented culture and
ethos. Everyone is treated equally and equally before the law under
article 141. The government is empowered by Article 152 to take
affirmative action, safeguard the interests of women and other oppressed
groups, and strengthen the provision of equality.

Introduction of the Hindu Women’s Right to Property Act, 1937

The Hindu Women's Right to Property Act, passed in 1937, gave widows
of departed husbands access to their husbands' assets following his
passing. In contrast to the past, when the theory of survivorship split the
property among the remaining coparceners, the widow now had the
exclusive claim to such property. She did, however, have some restrictions
on this land, which she kept until she passed away.

Regarding disposition rights, a woman had unrestricted access to absolute

right to alienate or dispose of non-saudayika property, however, would
expire after marriage and she would need her husband's approval. She
had no authority to give away the non-stridhan property to anyone, as it
was unalienable. Such property would be distributed among her heirs
after her passing.

She had no authority to dispose of her late husband's belongings; instead,

inheritance and survivorship laws would apply in the event of
self-acquired and inherited property, respectively.

The Hindu Succession Act of 1956 was enacted with the premise that
Articles 14 and 15 of the Indian Constitution are significant and protective
of women's rights and that no other law may be in contradiction with
them. It resulted in changes to the property rights of women, granting
them full ownership of the limited rights in the property they inherited.
Sections 6 and 8 of the Act dealt, respectively, with the sale of a
Mitakshara coparcenary property and the sale of male Hindus themselves.
The Hindu Succession (Amendment) Bill, 2004 was introduced with the
idea of bring two major changes in the then-existing Hindu Succession
Act, 1956 (hereinafter referred to as the Act). First being, bring a new
section in place of the existing Section 6 in order to give equal rights to
the daughters as to the sons and second being omission of section 23
which disentails the female rights to ask for partition in a dwelling
house occupied by the intestate family with the male heirs initiating it.
And finally, in 2005, certain changes were brought in to the Hindu
Succession Act, 1956 by way of this amendment

Section 6(4) in The Hindu Succession Act, 1956

(4) After the Hindu Succession (Amendment) Act, 2005* took effect, no
court shall recognise any right to proceed against a son, grandson, or
great-grandson for the recovery of any debt due from his father,
grandfather, or great-grandfather solely on the ground that such son,
grandson, or great-grandson has a pious obligation under Hindu law to
discharge any such debt: However, nothing in this subsection shall apply
to any debt incurred before to the effective date of the Hindu Succession
(Amendment) Act, 2005.
Any such right or alienation shall be enforceable under the principle of
pious obligation in the same way and to the same extent as it would have
been if the Hindu Succession (Amendment) Act, 2005 had not been
passed. Examples of these rights or alienations include: (a) the right of any
creditor to proceed against the son, grandson, or great-grandson, as the
case may be; or (b) any alienation made in respect of or in satisfaction of
any such debt, and any such right or alienation shall be enforceable under the
rule of pious obligation in the same manner and to the same extent as it
would have been enforceable as if the Hindu Succession (Amendment) Act,
2005 had not been enacted.
Explanation. —For the purposes of clause (a), the expression “son”,
“grandson” or “great-grandson” shall be deemed to refer to the son, grandson
or great-grandson, as the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act, 2005.
Pious obligation

The doctrine of pious obligation has posed difficulties in the context of

codified law and more so in the context of women. It has been held that the
‘moral obligation’ to pay of the debts of deceased relatives that arises in the
case of male coparceners does not apply to the widow. In Keshav Nandan
Sahay v. Bank of Bihar the court held that the sons were liable for
pre-partition debts incurred by their deceased father with respect to some
bank loans while the widow was not. The court felt that on partition
between the coparcener and his sons the widow is allotted a share in her
own right and not as a mere representative of her husband. This position of
her differentiates her from her sons as regards their pious obligations

Unlike in the case of the sons, the daughters have no pious obligation to
pay the debts of their father. The necessary corollary of this position is that
the daughters would be liable to discharge the debts of the father only to
the extent of the value of the assets inherited by them through their father.

Section 18 in The Hindu Succession Act, 1956

18. Full blood preferred to half blood.—Heirs related to an intestate by full

blood shall be preferred to heirs related by half blood, if the nature of the
relationship is the same in every other respect.

Position of Daughter in her father’s co-parcenary

The Supreme Court gave a landmark judgement Vineeta Sharma v Rakesh

Sharma & ors. regarding the daughter’s rights in coparcenary of her father
and whether she can claim rights in coparcenary of her father irrespective of
the father living or dead at the time of Hindu Succession (Amendment) Act,
2005. A three-judge bench delivered this judgement in favour of the daughter
that no matter whether the father is alive or not at or before 2005, his
daughter will be entitled to claim coparcenary property of her father as a
coparcener.
HEIRS IN CLASS I, HINDU SUCCESSION ACT.

Son; daughter; widow; mother; son of a predeceased son; daughter of a

predeceased son; son of a pre-deceased daughter; daughter of a
pre-deceased daughter; widow of a pre-deceased son; son of a pre-
deceased son of a pre-deceased son; daughter of a pre-deceased son of a
pre-deceased son; widow of a pre-deceased son of a pre-deceased son;
son of a pre-deceased daughter of a pre-deceased daughter; daughter of a
pre-deceased daughter of a pre-deceased daughter; daughter of a
pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased
daughter of a pre-deceased son.

HEIRS IN CLASS II, HINDU SUCCESSION ACT.

CLASS II of the schedule.

I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s
daughter’s son, (4)
daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI.. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Explanation : In this Schedule, references to a brother or sister do not include
references to a brother
or sister by uterine blood.

Section 15 of the Hindu Succession Act, 1956

As per s 15(1) of the Hindu Succession Act, the property of a Hindu

woman dying without a will (‘intestate’) shall be inherited by (‘devolve’
on) her sons, daughters, and husband. If the woman has no living
husband or children, the heirs of the husband shall inherit the property.
Only in the event that the woman’s husband has no heirs shall the
property be inherited by the woman’s parents.

In contrast to s 15(1), s 8 outlines how the property of a Hindu man dying

intestate is to devolve. Where a Hindu man has died intestate, the
property shall devolve on the heirs specified in Class I of the Schedule to
the Hindu Succession Act.

The relatives in Class I of the Schedule include the wife, children, and
mother of the Hindu male, along with a few other relatives including
certain grandchildren. If there are no living Class I heirs, the property
shall devolve on Class II heirs.

Class II heirs include the man’s father and other relatives including
certain grandchildren.

If there are no Class I or II heirs, the property shall devolve on ‘agnates’

or persons related to the Hindu man wholly through male relations, either
through blood or adoption.

In the event that there are no Class I or Class II heirs or agnates,

property shall devolve on ‘cognates’, who are persons not wholly related
through male relations, either by blood or adoption.

There is a difference between the schemes laid out in Sections 15

(Hindu woman) and 8 (Hindu man) of the Act. Under s 15, the intestate
woman’s husband and his heirs are prioritised over the woman’s
parents. For the intestate man, on the other hand, under s 8, the man’s
parents are Class I and Class II heirs. Further, for an intestate man,
there is no mention of the wife’s heirs inheriting their property under s 8
of the Act.
Pointing to this difference, petitioners have challenged s 15 of the
Act for being discrimination.

Section 15(2) in The Hindu Succession Act, 1956

(2) Notwithstanding anything contained in sub-section (1),—

(a) any property inherited by a female Hindu from her father or

mother shall devolve, in the absence of any son or daughter of the
deceased (including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in sub-section (1) in
the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or

from her father-in-law shall devolve, in the absence of any son or
daughter of the deceased (including the children of any pre-deceased
son or daughter) not upon the other heirs referred to in sub-section
(1) in the order specified therein, but upon the heirs of the husband.

Section 6 of the hindu succession act creating gender equality

Prior to the enactment of the Hindu Women's Right to Properties Act 1937,
women were not entitled to a share in the Joint Family Property, and
succession was governed by survivorship. As per the rule of survivorship,
on the death of a member of joint and undivided family, his share in the
joint family property would pass on to the surviving coparceners, which
included only the male members of the family.

Post-independence, the laws relating to intestate succession amongst the

Hindus are governed by the Hindu Succession Act, 1956. This Act was
enacted to lay down a uniform system of inheritance in the matters of
succession among the Hindus. However, the principles governing
succession of the Coparcenary property were distinct and different under
the Act.

The daughter of a coparcener will, as of the date the Hindu Succession

(Amendment) Act of 2005 takes effect, have the same rights to the
coparcenary property as she would have had if she had been a son; she
will, by birth, become a coparcener in her own right in the same manner
as the son;
Any reference to a Hindu Mitakshara coparcener shall be deemed to
include a reference to a daughter of a coparcener, and she shall be
liable to the same responsibilities in respect of the said coparcenary
property as those of a son: However, nothing in this subsection shall impact or
render illegal any disposition or alienation of property made before December
20, 2004, including any partition or testamentary disposition.

Stridhan

The joint property acquired by partition was designated an absolute

property, or Stridhan, by the Hindu Succession Act of 1956. A woman
has full authority over the alienation of absolute property, which means
she is free to gift, sell, lease, trade, mortgage, or do whatever else with it.

1. Gifts given before the nuptial fire.

2. Gifts given at the time of the bridal procession.

3. Gifts given as a gesture of love by her mother-in-law or

father-in-law at the occasion of her marriage.

4. Gifts created by the women’s mothers, fathers, and brothers.