Daughters right to property and Hindu Succession

(amendment) Act2005: another blow in harmonious family

relations?

Is our society moving away from family bonds and attachment with the shift
from joint families to nuclear families? Is the concept of ‘family security’
becoming irrelevant with the society becoming more individualistic and
independent? Have our law makers used their authority to create one more
dent in time tested harmonious relations woven into the fabric of Hindu
families? The first dig at the relations began when daughters were made
coparceners in the family of their birth and the process of digging was
completed by the 2005 amendment to the Hindu Succession Act. It is an
attempt to bring about mathematical equality between brothers and sisters as
though equality in property is the only criteria by which to judge an
egalitarian society. Our lawmakers have conveniently forgotten to appreciate
the daughter’s role and status as a ‘wife vis a vis her husband’

I hope to make this point by perusing a comparison of property rights of a

woman under the Hindu Succession Act 1956(Principal Act) and the 2005
amendment; pros and cons of the 2005 amendment; why not place the wife
on an equal footing with her husband; and ponder over some suggestions
for the lawmakers to consider.

B. Property rights to women under Hindu Succession Act 1956(HSA)

Vis-a vis Hindu Succession (Amendment) Act 2005- a comparison

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Hindu Succession Act enacted in 1956 (which incorporates the Mitakshara
principle of propinquity i.e. preference of heirs according to the proximity of
relationship.) was commended by J.Duncan M.Derrett1 with his observation
that the law of Succession has been so comprehensively reformed that one
need not fear of dying intestate. In a sense, Parliament has made a WILL for
everyone in HSA. A person can die intestate with confidence that no close
relation will be left unprovided for, let alone destitute. The Parliament has
considered and set out in an order of priority, the relations that in most cases
are close to the deceased and whose claims have through the centuries been
recognized by law or in the wills of those classes which normally leave
wills. The predominantly patrilineal structure has been recognized but
considerably modified by the undeniable claims of close cognate relations.
This is not to say that law must remain static because it was praised at one
point of time. But laws have to be realistic. Life of law is not logic but
experience. In this case the logic of equality has been stretched to a breaking
point. Does the Act serve to promote the harmonious family relations or
does it ill-serve healthy family relations ?

Succession under 1956 Act Vs 2005 Act.

The chart will show that Derret was right. Women folk were given a fair
share in their paternal property. In addition their limited estate was converted
into an absolute estate(section 14)

Principal Act Under 2005 amendment:

I. separate property separate property
12 heirs are specified in Class I who 2 more heirs are added:
1
Introduction to Modern Hindu Law: Oxford University Press: 1963 at p. 365

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are preferential/simultaneous heirs. • son of the predeceased
They are: daughter of the
• mother, widow, son, daughter, predeceased daughter;
• daughter of the predeceased • daughter of the
daughter; son of the predeceased daughter of
predeceased daughter, predeceased daughter
• son of predeceased son,
daughter of predeceased son (ie. Upto great-grand children -of the
,daughter of the predeceased daughter and the son alike- are
son of predeceased son, son of preferential heirs)
the predeceased son of the
predeceased son,
• widow of the predeceased
son, widow of the predeceased
son of the predeceased son.

Except the first 4 others take the

representative shares of their
deceased ancestor
• note: 8 out of 12 are
female heirs and one is a
male heir claiming through
the daughter.
• Upto grand-children of the
daughter; and great-grand
children of the son are

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 preferential heirs)

II. Mitakshara coparcenory

interest Mitakshara coparcenory interest
• Sons alone were coparceners
by birth • daughters are also made
coparceners by birth.
• If the deceased left behind
female heirs specified in Class • Same as before but with the
I or male heirs claiming addition of 2 more heirs in
through female heirs- property Class I(viz the great-grand
devolves by testamentary or children of the daughter)
intestate succession and not
by survivorship (proviso to
secion6 of the HSA)

NOTE: facts show that in a large

majority of the cases, one or the
other female heir in Class I or male
claiming through female heir would
invariably be alive at the death of the
intestate. Therefore, the proviso is
larger than the rule which says that
Mitakshara interest devolves by
survivorship. Hence, in most of the
cases Coparcenory property also is
available to class I heirs including

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the daughters.
• Daughters and sons have equal
shares in the man’s ‘notional’ • Same as before
share of undivided interest in
Coparcenory property.
• In addition, son takes the share
independently as coparcener • Daughter also takes a share
by birth. independently by birth. She
takes the liabilities also on par
with the son. By implication,
she takes the rights and duties
of a karta also.
Eg Father dies- leaves son +
daughter. Father’s notional share is In the Same Eg daughter also has
½; and son has ½ share by birth. 1/3 share by birth. After father’s
After father’s death- his ½ share to death- his 1/3rd share is divided
be divided between the son and between the son and the daughter.
daughter Now son and daughter take- 1/3
son takes= ½ + ¼ (own share) + 1/6
daughter = ¼ ( from father’s share)

III. Agricultural land-

It was governed by the State tenurial Agricultural land-
laws and only where the State laws It is now subject to the succession
were silent, HSA applied. under the amendment and females
have a share in it..
I. Dwelling house (sec 23)

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 • A female heir cannot claim
partition of the dwelling
house wholly occupied by
members of the family of the
deceased until the male heirs
choose to divide their shares
• Unmarried daughter has a
right of residence. But
married daughter has a right
of residence only if widowed,
separated or deserted.
NOTE: it was a fair provision and
alive to real life contingencies
V. Widows remarrying
Widow of the predeceased son,
widow of the predeceased son of
the predeceased son and the widow
of the brother are not entitled to
inherit if she has remarried on the
date the succession opens.
NOTE: the property already
inherited is not divested if she
marries after the death of the
deceased because law does not
favour divesting of the property
once vested.
Dwelling house
• Section 23 deleted. Daughters-
both married and unmarried
have the same right to reside in
and claim partition of the
parental dwelling house. The
right is not circumscribed by
any conditions or
contingencies as before.
Widows remarrying
They can inherit even if they have
remarried. (i.e. even after
establishing a new matrimonial
union in a another family- may be
a total stranger family- she has a
share in her former father in law
/grand father in law’s property .!!!
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 The net result of Hindu Succession Act and the other laws is that:
• the liability of the parents towards daughter extends well beyond her
marriage. The daughter and in her absence- her children, her grand-
children and great grand children- are entitled to a share in the
separate and Coparcenory property of her father. They are entitled to a
share in the agricultural lands; the daughters- both married and
unmarried are entitled to ask for a partition, right of residence in the
dwelling house occupied by her brothers even when the brothers are
living jointly and without any contingencies like widowhood,divorce
etc.
• Under the Hindu Adoption and Maintenance Act- the parents are
primarily liable to maintain the unmarried daughter until minority and
beyond minority – to the extent she is unable to maintain out of her
own earnings. Maintenance under the Act includes food, clothing,
residence, education, medical treatment, and reasonable expenses of
marriage.
• In addition, under circumstances specified under the Hindu Adoption
and Maintenance Act2- if she becomes a widow, she is a ‘dependant’
and her maintenance amount forms a charge on the assets inherited by
the heirs of her father or mother.
More often than not- with or without any State made law- the parents
have been discharging their parental obligations out of sheer love and
concern and empathy in case of the daughter in distress. Things done
voluntarily are more enduring.

2
section 21

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I submit- the liability of the parents under the present system has been
extended much beyond reasonable and natural limits, having regard to the
actual facts including the fact that after marriage the daughter passes over to
the husband’s family and the husband is under a legal and a moral obligation
to maintain her.

C. Pros and Cons of the 2005 amendment3

The question is : how far are the laws conducive to the healthy survival of
the families as an institution? My submission on the matter is as under:
The Act disturbs the finely integrated emotional and sentimental threads
woven into Hindu families. Existing family realities and the existing healthy
attitude of the Hindu families towards the daughters are not appreciated. The
parents take up full responsibility of their daughters until they are settled in
life, not only as a duty but also out of love and affection. Given the means at
their disposal, by and large, sons and daughters are treated equally given the
growing egalitarian concept that has developed in the country. If the parents
are dead, in the large majority of the cases the brothers take full
responsibility of their sisters,- at times even by incurring loans and
postponing their own marriages. This has been the culture of the Hindu
society- given the sacred teachings handed over to us down several
centuries. The fabric ought not to be disturbed. Even after marriage, during
moments of crisis she turns to her parents and brothers for aid and advice. It
is in the face of these facts that the law concerning property rights to
females has been amended in an attempt to bring about equality with

3
Also see ‘bill on property rights to daughters :the forgotten wife’ :Indian Law Reports 1992(Kar) JS at p.
21 by the same author

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mathematical accuracy without taking into consideration the existing
realities. There are some equations which may not fit into the mathematical
formula of equality but have stood the test of time, as being based on the
solid foundation of love/affection, care and concern.

One argument in support of the amendments may be- that she too is required
to take liabilities on par with the son. But then, let us be true to the issue-- Is
she practically in a position to discharge and share all the responsibilities
that her brother may take up? Or will she end up taking the benefit and
unable to discharge the burden? The question must be answered
dispassionately and objectively and not just with a feministic bent of mind.

Real life situations show that after her marriage –she moves out to the place
of her husband and her matrimonial home becomes the center of all her
attention/ affection, care and concern. This is not because she does not have
any feelings for her maiden home but because circumstances are such that
she has to put the convenience etc of her matrimonial family on the top of
the priority list. She gets so engrossed with her own family and children that
- she starts identifying herself more with the matrimonial family than with
the family of her birth as a matter of course. She even compromises her
career ambitions to make the matrimonial home a comfortable place for her
husband and children. No one need be blamed for it. Home management is a
laudable job in deed,- in a nut shell- it means shaping and tuning the future
generation who are the custodians of the future generation- though
unfortunately it is yet to get its rightful place. It is a system that has stood
the test of time. But under these circumstances – is she in a position to take
up the liabilities towards her parents also? The term ‘Liability’ must be given

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a broader meaning to include not only the monetary liabilities but also the
responsibility of looking to the physical needs of the parents etc in the
maiden home. It is not just sending a monthly cheque to her parents. A stage
is reached where the parents need physical caring and physical nearness
more than just money. Howsoever much she may desire, and even with the
most broad-minded and understanding husband and in-laws, she would not
be in a position to discharge this liability. It is ultimately the sons and the
daughter-in-laws who are to take care of her parents. The parents also would
like to be taken care of by the son rather than the married daughter.
Somewhere deep inside, they would feel embarrassed if circumstances arise
where they have to rely on the married daughter during their old age days.
This is the psyche deeply ingrained due to what ever reasons.

Speaking of monetary liability, it would be unfair to burden her with the

liabilities in her maiden family that have been incurred after her marriage,
without her knowledge. At the same time it would be impracticable and
unfair to expect the father and the brothers to consult her and get her consent
for every transaction involving family liability – which are matters which
any family would like to hold close to its chest.

Suppose the father dies leaving only liabilities and debts of the nature of
pious obligations but no assets- is she still to share the liabilities along with
her brother? Can the creditors proceed against her also for recovery?

Allotting an equal share in immovable property– has its own problems

specially in an average family with moderate means. When she moves out
to live with her husband- she becomes an absentee landlord; or she may be

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induced or forced to demand a partition and sell her share. Generally
partition takes place after the death of the father; she may become
instrumental – willing or unwilling- in splitting the family bonds- for which
somewhere deep in her mind she would be repenting for her helplessness;
possibilities of she being caught up in tormenting moral and emotional
dilemmas cannot be ruled out. Given the social set up in the Hindu families
–she would be hesitant to go against the wishes of her husband. On one
hand- there may be a husband -coaxing /forcing or prevailing on her to
demand her share in her parents’ property – and on the other hand- her own
realization about the love and concern with which she has been brought up
by them; the sleepless nights that may have been spent by them during her
moments of discomfort- may tear her apart. Possibilities of more female
infanticide/ or suicides/ and more litigations cannot be ruled out.

Equal rights in agricultural lands given to daughters under the 2005

amendment will lead to fragmentation of the lands which will reduce the
optimum utility of the land and also make life tough for the families with
small holdings. The family of her birth could fall in disarray by such an
action. By and large, agricultural holdings in India are not as huge as to
accommodate a share in it for every heir. Mainly they are a modest means of
livelihood.

The rights pertaining to dwelling houses cannot simply be comprehended.

Rights in the dwelling houses along with the right in agricultural lands is
the height of injustice to the family of her birth. No wonder if this right is
traded for monetary gain.

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This kind of amendment would probably fit in a matriarchal family where
sons-in-law moves into his wife’s family and the daughter continues to stay
with her parents – in which case her brother would move on to the family of
his wife and together they would look after the needs etc of her family and
also inherit their estate. India, primarily has a patriarchal set-up where law
under consideration would do more injustice than justice.

D. Place wife on an equal footing as the husband

The extent of the wife’s identification with her husband’s family would
justify placing the wife on an equal footing as that of her husband. Let us try
to weigh her property rights as a wife versus her contributions towards
‘making that home a worthy place to live.’ The non-monetary contribution of
the wife like the home-making efforts, the sacrifices made by her like
foregoing career opportunities or carrying on the career in a low profile, her
opportunity cost of time etc must be recognized and protected. Under the
present legal system, during the lifetime of her husband, her monetary
security lies in the maintenance provisions under the Hindu Adoption and
Maintenance Act; the Criminal Procedure Code and the Hindu Marriage Act.
In addition we have our testamentary laws under which an unscrupulous
husband can drive his illiterate wife and the minor children penniless by
making a will of his self-acquired property and his share in the Mitakshara
Property (sec 30 of the HSA ) in favour of a total stranger. {Here again her
father is one of the persons who comes to her rescue under the Hindu
Adoption and Maintenance Act under which a widowed daughter is his
dependant under specified conditions.} A truly insufficient caring for a
person who dedicates her whole life for that family (minus the initial years
before marriage). This is because our legalistic concept of title to property

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obscures the fact that man and woman are equal partners in marriage and
have contributed together monetarily or non-monetarily to family welfare.
As of now, she has a share as a ‘widow’. But then, which woman would
aspire for ‘widowhood’ to obtain a share in the husband’s property? What
she needs is a share as a ‘wife’ by recognizing her non-monetary
contribution towards home-making specially in cases where she may not be
a working woman.

There can be no two opinion on the point that equals must be treated equally.
Until marriage– daughter and the brother must be treated on par as regards
all matters like- food, clothing, shelter, education, marriage expenses or
performance of marriage in a manner befitting the family standing and
status and means. Marriage brings about a change in the status and the
liability shifts over to the husband from the father. As Manu puts it:
Father is to protect the daughter in childhood; husband in her youth and the
son in her old age. The saptapadi speaks of caring for each other treating
each other as ‘sakha-friend’. Under the present legal system also the
husband is under primary and personal obligation to maintain his wife.
However she is the ‘forgotten wife’ as far as her property rights are
concerned. The Act and the Amendment under consideration is not alive to
the real life situations. This is the ultimate consequence.

In Conclusion- one obvious reality is that after marriage – either the wife
must move into the husband’s family as in the patriarchal system or the
husband must move into the wife’s family as under the matriarchal system.
Following are some of the suggestions offered for the patriarchal system
which is prevalent in our country:

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 • Accept the fact that there is a limit up to which a sister can be treated
on par with the brother.
• After marriage treat husband and wife on an equal footing. Property
earned during the subsistence of marriage be regarded as joint
property subject to maintenance rights of the dependants. Let the
legalistic concept of title not come in the way of recognition that both
are equal partners in home making efforts
• Specify a limit beyond which property cannot be bequeathed away in
order to provide for the heirs as under the Mohammadan law.
• If the present 2005 amendment is to continue in its present form- in
the interest of the harmonious family relation- link the inheritance
rights in agricultural land - to the quantum of property held by the
deceased at the time of his death and her own income and her
husband’s income and property worth.
• Realize and promote the view that the best form of security is one
which comes from earnings out of self exertion. Everything else is
a bonus. So equip the females by enhanced education facilities
and the like

In fact a threadbare discussion on the issues involved would have served the
cause of the women folk better.

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 Gist
Daughters right to property and Hindu Succession (amendment) Act
2005: another blow in harmonious family relations
Is our society moving away from family bonds and attachment with the shift
from joint families to nuclear families? Is the need for family security
lessening with the society becoming more individualistic and independent?
Have our law makers given another blow at the time tested harmonious
relations woven into the fabric of Hindu families? The first dig at the
relations began when daughters were made coparceners in the family of their
birth and the process of digging was completed by the 2005 amendment to
the Hindu Succession Act. The amendment is an attempt to bring about
mathematical equality between brothers and sisters as though equality in
property is the only criteria by which to judge an egalitarian society. Our
lawmakers have conveniently forgotten to appreciate the daughter’s role and
her status as a ‘wife vis a vis her husband’

Hindu Succession Act enacted in 1956 was commended by J.Duncan

M.Derrett4 with his observation that the “law of Succession has been so
comprehensively reformed that one need not fear of dying intestate. In a
sense, Parliament has made a WILL for everyone in HSA. A person can die
intestate with confidence that no close relation will be left unprovided for,
let alone destitute. The Parliament has considered and set out in an order of
priority, the relations that in most cases are close to the deceased and whose
claims have through the centuries been recognized by law or in the wills of
those classes which normally leave wills. The predominantly patrilineal

4
Introduction to Modern Hindu Law: Oxford University Press: 1963 at p. 365

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structure has been recognized but considerably modified by the undeniable
claims of close cognate relations.”
This is not to say that law must remain static because it was praised at one
point of time. But laws have to be realistic. Life of law is not logic but
experience. In this case the logic of equality has been stretched to a breaking
point. Does the Act serve to promote the harmonious family relations or
does it boomrang? Are the liabilities of her parents extended beyond
reasonable limits? Is the daughter in a practical position to discharge her
liabilities towards her parents after her marriage? Does this kind of
amendment fit into the patriarchial system prevalent in India?
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