DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A. P., INDIA.

PROJECT TITLE:

PROPERTY RIGHTS OF WOMEN WITH REFERENCE TO STRIDHANA AND

WOMANS ESTATE

SUBJECT:

FAMILY LAW –II

NAME OF THE FACULTY:

PROF. S. RADHA KRISHNA garu

NAME OF THE STUDENT:

KODURI LAKSHMI PRAHARSHITHA

ROLL NO:

2017038

SEMESTER – IV

SECTION – A

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ACKNOWLEDGMENT:

“I am highly indebted to my Family law professor, Prof S.Radha Krishna garu

for giving me a wonderful opportunity to work on the topic: “PROPERTY RIGHTS OF

WOMEN WITH REFERENCE TO STRIDHANA AND WOMANS ESTATE”, and it is
because of his excellent knowledge, experience and guidance, this project is made with great
interest and effort . I would also like to thank my seniors who have guided my knowledge of
doing research on such significant topic. I would also take this as an opportunity to thank my
parents for their support at all times. I have no words to express my gratitude to each and every
person who have guided and suggested me while conducting my research work”.

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CONTENTS

1.INTRODUCTION………………………………………………..…………………………5

 SCOPE OF THE PROJECT

 SIGNFCANCE OF THE PROJECT
 RESEARCH QUESTION
 RESEARCH OBJECTIVE
 LITERATURE REVIEW
 RESEARCCH METHODOLOGY

2. HISTORICAL BACKGROUND……………………………………………..…………8

3.WOMAN’S PROPERTY INCLUDE:………………………………..………………….9

 GIFTS AND BEQUESTS FROM RELATIONS

 GIFTS AND BEQUESTS FROM NON-RELATIONS
 PROPERTY ACQUIRED BY SELF EXERTION, SCIENCE AND ARTS
 PROPERTY PURCHASED WITH THE INCOME OF STRIDHAN
 PROPERTY PURCHASED UNDER A COMPROMISE
 PROPERTY OBTAINED BY ADVERSE POSSESSION
 PROPERTY OBTAINED IN LIEU OF MAINTENANCE
 PROPERTY RECEIVED IN INHERITANCE
 PROPERTY OBTAINED ON PARTITION

4. STRIDHANA ……………………………………………………………….……………..11

 MEANING AND ORIGIN

 TYPES OF STRIDHANA
 DEVOLUTION TO THE HEIRS

5.WOMANS ESTATE----LIFE ESTATE AND LIMITED ESTATE…………….........14

3
  POWERS OF THE WOMAN ON HER WOMAN’S ESTATE
(a) POWER OF MANAGEMENT
(b) POWER OF ALIENATION
(c) SURRENDER
 REVERSIONERS
 RIGHTS OF REVERSIONERS

6.STATUTRY INTEPRETATION----------INCREASING THE AMBIT OF

WOMAN’S RIGHTS…………………………………………………………………………...17

 SECTION 14 OF THE HINDU SUCCESSION ACT, 1956

 POSITION WITH RESPECT TO HINDU SUCCESSION (AMMENDENT)
ACT, 2005
 JUDICIAL REVIEW

7. CONCLUSION……………………………………………………………………………..28

4
1.INTRODUCTION

“The proprietary position of woman in any system of law represents the thought and the feelings
of the community. Hence the proprietary status which a woman occupied in Hindu law was not
only an index of Hindu civilization but also correct criterion of the culture of the Hindu race.

The position assigned by the Shastras to the widow and even to the women in general, both in
her family and society, was a state of dependence and submission. "Day and night" says Manu,
"must women be held by their protectors in a state of dependence; even in lawful and innocent
recreations, being too much addicted to them, they must be kept by their protectors under their
own dominion." "Through independence, the women go to ruin though born in a noble
family….."

It was believed that the dependant and subservient status of women was because of the fact that
they were incompetent to perform sacrifices and to read Vedas. Because of her dependent status
her right of having property was also treated with dislike or disfavour as there was general
reluctance displayed by the ancient Rishis to allow females to hold property. The cause of
reluctance was that in Smritis, property was intended for the performance of religious
ceremonies.

The primary obligation of a person holding property was to perform religious rites and
ceremonies and a person was considered as a sort of trustee for the performance of those rites
and ceremonies. Since the females were declared by the Smritis to be incompetent to perform
religious ceremonies (Manu, Chap. IX. Verse 10). Therefore, her right to. property was very
nominal and whatever little she used to get, that too was hedged with limitations. For instance,
her husband could exercise his veto even over certain kinds of Stridhan. So the question of
having absolute ownership in the true sense of the term (which includes right of alienation) did
not arise with regard to the property which did not form her Stridhan. She had only the right to
have and enjoy, that property for her sustenance and maintenance during her lifetime and this
type of right in property was known as "Woman's Estate".”

However, women play a significant role in the life of every individual human being. Securing
her better birthrights would mean giving better future to our own society, family and to every
individual. Developed societies/Nations are developed because they have always taken keen

5
interest in providing equal rights to women with that of men. Developing societies/Nations are
developing because they understand the need of the hour and in every possible way trying to give
women better rights. “The gender inequality facets in different forms, but the most tedious one
percept relate to the effective property rights. This disparity in property right pertaining to
gender, spells from ancient times.

The property rights of the Hindu women are highly fragmented on the basis of several factors
apart from those like religion and the geographical region. Property rights of Hindu women also
vary depending on the status of the woman in the family and her marital status: whether the
woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also
depends on the kind of property one is looking at: whether the property is hereditary/ ancestral or
self-acquired, land or dwelling house or matrimonial property. Prior to the Hindu Succession
Act, 1956 ‘Shastric’ and customary laws that varied from region to region governed the Hindus.”

“Under the old Hindu law among all the properties that the women was in possession of, only her
‘stridhan’ was absolute property and in other inherited properties she was entitled to only a life-
estate with limited powers of alienation, if any and this position further continued under the
Hindu Women’s Rights to Property Act,1937. However the framers of the Hindu Succession
Act, 1956 intended to make major changes in the area of the nature of the women’s estate and
this as discusse above is i reflected in S.14 of the Hindu Succession Act, 1956.

RESEARCH QUESTION:

1. To analyse the concept of Stridhana and the woman's estate under the Hindu law.

2. To study the changes incorporated by section 14 of the Hindu succession Act ,1956 with
respect to woman's property rights with regard to Stridhan and the woman's estate.

3 To study the position regarding the same under the Act of 2005.

RESEARCH OBJECTIVE:

The research objective is study the women’s property rights in the Hindu society; their
development from the vedic society to the same in the modern legal sphere and to understand the
concepts of Stridhan and women’s estate in light of the same.

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LITERATURE REVIEW:

1. Diwan Paras, Family Law ,6th edn, Allahabad Law Agency, Faridabad 2003
Relevance- For material on classic Hindu Law regarding women’s right to property.

2. PoonamPradhan Daarna, Family Law lectyres--Family Law-II ,Lexis Nexis, Jan 2011
Relevance - For the considerate understanding of gender biasness regarding property rights
in Hindu Law.

3. Desai A. Satyajeet, Mulla Hindu Law, 17th edn, Butterworths India, Delhi,2000
Relevance- For the understanding of the Supreme Court’s stand on women’s right to property

RESEARCH METHODOLOGY:
Doctrinal, descriptive and analytical research .

SCOPE OF THE PROJECT:

the scope of the project t is limited to dealing with the woman's property rights in detail
especially after the enactment if Hindu succession act 1956 . Further the same has been discussed
with reference to section 14 of the Act. Relevant case laws has been been studied.

SIGNIFICANCE OF THE PROJECT:

women rights in general and their property rights in particular have always been jeopardised in
Indian society though originally they have been given very limited rights with regard to women's
estate , the evolution of law has time and again addresses this issue . Thought the position has
more or less remained same even after the enactment of the Act of 1937. The Act of 1956 has
brought is absolute ownership rights of women with respect to their life estate or limited estates,
which was previously available only in case of Stridhana. In this regards the study of this
concept is of utmost importance.”

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2.HISTORICAL BACKGROUND

“Under ancient Hindu Society, a woman was considered to be of low in social status and treated
as a dependent with barely any property rights. According to a text of Manu, there can be no
property belonging to woman, Son or a slave and whatever property is earned by them, belongs
to that person to whom the woman or slave belongs. It does not mean that they cannot own any
property rather it means that they cannot alienate the property.

Manu's view has also been supportedby Gautam. He observed that a woman can own separate
property but she cannot alienate the same. The property of a Hindu woman can be classified into
two categories: (i) Those properties over which she has absolute ownership; and

(ii) Those properties over which she has limited ownership Property falling under the former
category are termed, as 'stridhana' and that falling under the latter category are termed as
'woman's estate'.”

As per the text of Baudhayana1, women had no place in Hindu scheme of inheritance and
“Females were devoid of powers and incompetent to inherit.” But by virtue of special texts
specified female heirs were given the right inherit. “The Dayabhaga law and the Banaras and
Mithila sub-schools of Mitakshara law recognized five females’ relations as being entitled to
inherit namely; widow, daughter, mother, paternal grandmother, and paternal great grandmother
and the Madras and Bombay sub-schools recognized the heritable capacity of a larger number of
female heirs.

During the British period social reforms movements raised the issue of amelioration of women’s
position in society. The earliest legislation brought females into the scheme of inheritance as The
Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three females
heirs i.e., son’s daughter, daughter’s daughters and sister (thereby creating a limited restriction
on the rule of survivorship). During this period another landmark legislation conferring
ownership right on a woman was the Hindu women’s Right to Property Act XVIII of 1937. This
Act brought about revolutionary changes in the Hindu Law of all schools, and affected not only

1
Diwan Paras, Family Law ,6th edn, Allahabad Law Agency, Faridabad 2003

8
the law of coparcenary but also the law of partition, alienation or property, inheritance and
adoption.

The Act of 1937 enabled the widow to succeed along with the son and to take the same share as
the son. The widow is not a coparcener even though she posses a right akin to coparcener’s
interest in the property and is a member of the joint family. However, under the Act, 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 at all. But, both enactments largely left untouched
the basic features of discrimination against women and were subsequently repealed. Stridhan
system was totally changed by this Act.”

Prior to commencement of the Act of 1956 the property held by a Hindu female was classified
under two heads:

(1) Stridhan and

(2) Hindu Women’s estate.

“The former was regarded as her absolute property over which she had full ownership and on her
death it devolved upon her heirs. The later was considered to be her limited estate with respect to
which her powers of alienation were limited. Such property on her death devolved not on heirs
but upon the next heirs of the last full owner. But section 14 of the Act abolished the later
classification and conferred absolute ownership on her with respect to every property acquired
by her through lawful means.

Therefore, under the scheme of the present Hindu Succession Act, 1956 any property acquired
by a Hindu female either before the commencement of the Act or subsequent to it and which has
been in her possession on the date of such commencement, would be her absolute property,
which can be termed as Stridhan in the modern sense. The Act has dispensed with the distinction
between the Stridhan and woman's estate. It also dispenses with the distinction with respect to
the order of succession between stridhan and women’s estate and a general rule of succession has
been laid down under it.

3.WOMANS PROPERTY INCLUDE

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What is the character of property that is whether it is stridhan or woman’s estate, depends on the
source from which it has been obtained. They are:

 Gifts and bequests from relations-

Such gifts may be made to woman during maidenhood, coverture or widowhood by her
parents and their relations or by the husband and his relation. Such gifts may be inter vivos or
by will. The Dayabhaga School doesn’t recognize gifts of immovable property by husband as
stridhan.

 Gifts and bequests from non-relations-

Property received by way of gift inter vivos or under a will of strangers that is, other than
relations, to a woman, during maidenhood or widowhood constitutes her stridhan. The same
is the position of gifts given to a woman by strangers before the nuptial fire or at the bridal
procession. Property given to a woman by a gift inter vivos or bequeathed to her by her
strangers during coverture is stridhan according to Bombay, Benaras and Madras schools.

 Property acquired by self exertion, science and arts-

A woman may acquire property at any stage of her life by her own self exertion such as by
manual labour, by employment, by singing, dancing etc., or by any mechanical art.
According to all schools of Hindu Law, the property thus acquired during widowhood or
maidenhood is her stridhan. But, the property thus acquired during coverture does not
constitute her stridhan according to Mithila and Bengal Schools, but according to the rest of
the schools it is stridhan. During husband’s lifetime it is subject to his control.”

 Property purchased with the income of stridhan-

In all schools of Hindu Law it is a well settled law that the properties purchased with stridhan
or with the savings of stridhan as well as all accumulations and savings of the income of
stridhan, constitute stridhan.

 “Property purchased under a compromise-

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 When a person acquires property under a compromise; what estate he will take in it, depends
upon the compromise deed. In Hindu Law there is no presumption that a woman who obtains
property under a compromise takes it as a limited estate. Property obtained by a woman
under a compromise where under she gives up her rights, will be her stridhan. When she
obtains some property under a family arrangement, whether she gets a stridhan or woman’s
estate will depend upon the terms of the family arrangement.

 Property obtained by adverse possession-

Any property acquired by a woman at any stage of her life by adverse possession is her
stridhan.

 Property obtained in lieu of maintenance-

Under all the schools of Hindu Law payments made to a Hindu female in lump sum or
periodically for her maintenance and all the arrears of such maintenance constitute stridhan.

 Property received in inheritance-

A Hindu female may inherit property from a male or a female; from her parent’s side or from
husband’s side. The Mitakshara constituted all inherited property a stidhan, while the Privy
Council held such property as woman’s estate.

 Property obtained on partition-

When a partition takes place except in Madras, father’s wife mother and grandmother take a
share in the joint family property. In the Mitakshara jurisdiction, including Bombay and the
Dayabhaga School it is an established view that the share obtained on partition is not stridhan
but woman’s estate.”

4. STRIDHAN

The existence of Stridhan is an ingrained part of Indian culture from times of yore. As male
dominated as the society may be, the existence of the custom of 'bride price' indicates that
women understood the importance of financial independence and safeguarding their interests
long before the feminist movement made it popular to do so.

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“Meaning and origin:

The word stridhan is composed of two words: Stri (woman) and Dhana (Property). The word
means the property belonging to a woman or woman’s property. This is the etymological sense
but the word has a technical meaning given in law. In modern Hindu law the term means not
only the distinct properties as referred to in the Smritis, but it also includes properties in the
nature where she is an absolute owner or where the property devolves upon her by virtue of she
being a legal heir. Literally, it means that the women is all and all in the properties held by him
and that she can use and dispose it at any time, in whatever manner she likes according to her
own will, not subject to obtaining any permissions.

Mitakshara defines that ‘stridhan’ means woman’s property. In the entire history of Hindu Law,
woman’s right to hold and dispose of property has been recognized.“What is given to a women
by her father, mother,her husband or her brother,or received by her at nupital fire or presented
on her adhivedanika, and the like is denominated women’s property.”

On the other hand, Jimutvahana of Dayabhaga law school chalks outStridhan in following words,
“ That alone is Stridhan which a woman has power to give, sell or use independently of her
husband’s control.” The Dayabhaga school of law classifies Stridhan in three classes:

 The yautaka: It consists of the gifts given during marriage. In case of Bistoo Prasad
vs Radha Sunder Nath, it was held by the Hon’ble High Court of Calcutta that the term
Stridhan implies all those gifts given during the marriage ceremonies.
 The Anvadheyaka: It refers to those gifts and bequests made by father subsequent to
marriage.
 The Ayautaka: This not only includes gifts and bequests made by relatives including
the father both in pre-marriage as well as post-marriage state.

Stridhan has all the characteristics of absolute ownership of property. The stridhan being her
absolute property, the female has full rights of its alienation. This means that she can sell, gift,
mortgage, lease, and exchange her property.” This is entirely true when she is a maiden or a
widow. Some restrictions were recognized on her power of alienation, if she were a married
woman.

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“Types of stridhan:

For a married woman stridhan falls under two heads:

 the sauadayika (gifts of love and affection)- gifts received by a woman from relations
on both sides (parents and husband).
 the non-saudayika- all other types of stridhan such as gifts from stranger, peoperty
acquired by self-exertion or mechanical art. Over the former she has full rights of
disposal but over the latter she has no right of alienation without the consent of her
husband. The husband also had the power to use it.

Devolution to the heirs:

On her death all types of stridhan passed to her own heirs. In other words, she constituted an
independent stock of descent. In Janki v. Narayansami2 , the Privy Council aptly observed, “her
right is of the nature of right of property, her position is that of the owner, her powers in that
character are, however limited… So long as she is alive, no one has vested interest in the
succession.”

The Supreme Court has explained the meaning and nature of “Stridhan” in the case of Rashmi
Kumar vs. Mahesh Kumar Bhada3- “The properties gifted to her before the marriage, at the
time of marriage or at the time of giving farewell or thereafter are her Stridhan properties. It is
her absolute property with all rights to dispose at her own pleasure. He has no control over her
Stridhan property. Husband may use it during the time of his distress but nonetheless he has a
moral obligation to resort the same or its value to his wife. Therefore, Stridhan property does not
become a joint property of the wife and the husband and the husband has no title or independent
dominion over the property as owner thereof.”

In case of Bhugwandeen vs Mynabayee4, the Privy Council opined that a property obtained by
a women from her husband is not Stridhan and hence, it passed to the heirs of the husband after
her death, and not to her heirs. Again, in the case of Sheo Shankar vs Devi, the Privy Council”
“held that the property obtained by a daughter from her mother was Stridhan in the hands of the
2
(1916) 18 BOMLR 856
3
(1997) 2 SCC 124
4
(1977) 5 SCC 345

13
mother was not Stridhan in the hands of the daughter and, therefore, on death it passed to the
heirs of the mother and not to her heirs.

A women may hold and acquire properties com various sources. But the test of finding Stridhan
property lies upon the following criteria:

 From which source the property was obtained.

 Whether the women has acquired the property during maidenhood, coverture or
widowhood.
 To what school of Hindu law does she belongs.

5. WOMEN’S ESTATE

The other type of property that could devolve upon the Hindu woman was called woman’s estate.
It was also called widow’s estate. A Hindu woman could be the owner of woman’s Estate in the
same way as any individual subject to two basic limitations.

(a) She could not alienate the property and

(b) On her death, it devolved upon the next heir of the last full owner. In other words, she had
only ‘limited estate’ in respect of this kind of property. She had full powers of possession,
management and enjoyment of such property but she had virtually no power of alienation or
transfer. However she could alienate the property in certain exceptional cases like”

(a) legal necessity i.e., for her own needs and for the need of the dependents of the last full
owner,

(b) for the benefit of estate and

(c) “for the discharge of indispensable religious duties such as marriage of daughters, funeral
rites of husband, his ‘Shradhha’ and alms to poor for the salvation of his soul. In other words she
could alienate the property for the spiritual benefit of the last full owner but not for her own
spiritual benefit.

Powers Of A Hindu Female Over Her Woman’s Estate

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 (a) Power of Management-

like the Karta of a Hindu joint family she has full power of management. The Karta is merely a
co-owner of the joint family, there being other coparceners, but she is the sole owner. She alone
is entitled to the possession of the entire estate and its income. Her power of spending the income
is absolute. She need not save and if she saves, it will be her stridhan. She alone can sue on
behalf of the estate and she alone can be sued in respect of it. Any alienation made by her proper
or improper is valid and binding so long as she lives. She continues to be its owner until the
forfeiture of estate by her re-marriage, adoption, death or surrender.

(b) Power of Alienation-

She has limited powers of alienation, Like Karta her powers are limited and she can alienate
property only in exceptional cases. She can alienate the property for the following:

• Legal necessity (that is, for her own need and for the need of the dependants of the last owner)

• For the benefit of estate, and

• For the discharge of indispensable duties (such as marriage of daughters, funeral rites of her
husband, his shrada and gifts to brahmans for the salvation of his soul; that is, she can alienate
her estate for the spiritual benefit of the last owner, but not for her own spiritual benefit.)

Under the first two heads her powers are more or less the same as that of the Karta. Restrictions
on her powers of alienation are an incident of the estate and not for the benefit of the
reversioners. As to the power of alienation under the third head, a distinction is made between
the indispensable duties for which the entire property could be alienated, and the pious and
charitable purposes for which only small portion of property can be alienated”. She can make
alienation for religious acts, which are not essential or obligatory but are still pious observances
which conduce to the bliss of her deceased husbands soul.5

(c) Surrender-

“means renunciation of estate by the female owner. She has the power of renouncing the estate in
favour of the nearest reversioner. This means that by a voluntary act she can accelerate the estate
5
Smt. Kamala Devi v. Mukund Ram AIR 1955 SC 481

15
of the reversioner by conveying absolutely the estate thereby destroying her own estate. This is
an act of self-effacement on her part and operates as her civil death. For a valid surrender, the
first condition is that it must be of the entire estate6 , though she may retain a small portion of her
maintenance7 . The second condition is that it must be in favour of the nearest reversioner or
reversioners, in case there are more than one of the same category. Surrender can be made in
favour of female reversioners also. The third condition is that the surrender must be bonafide and
not a device of dividing the estate with the reversioners.8

Reversioners:

On the death of the female owner the estate reverts to the heir or the heirs of the last owner as if
the latter died when the limited estate ceased. Such heirs may be male or female known as
reversioners. So long as the estate endures there are no reversioners though there is property of
the female devolves on the reversioners when her estate terminates on her death, but it can
terminate even during her lifetime by surrender.

Rights of Reversioners:

The reversioners have a right to prevent the female owner from using the property wastefully or
alienating it improperly. It is this context that the expression “presumptive reversioner” came
into vogue9. The reversioners have the following three rights:”

 They can sue the woman holder for an injunction to restrain waste.

 “They can in a representative capacity sue for a declaration that alienation made by the widow
is null and void and will not be binding on them after the death of the widow. However by such a
declaration the property does not revert to the woman nor do the reversioners become entitled to
it. The alienee can still retain the property so long as the widow is alive10.

 They can after the death of the woman or after the termination of estate, if earlier, file a suit for
declaration that an alienation made by the widow was improper and did not bind them. The

6
Natvarlal Punjabhai v. Dahubhai Manubhai AIR 1954 SC 61
7
Chinnamarappa Goundar v. Narayammal AIR 1906 Mad 169 10
8
Bhagwant Koer v. Dhanukdhari Prasad Singh AIR 1919 PC 75
9
Bakshi Ram v. Brij Lal AIR 1995 SC 395
10
Bijoy Gopal Mukherji v. Krishna Mahishi Debi (1907) 34 IA 87

16
Supreme Court observed that when a Hindu female holder of woman’s estate improperly makes
alienation, the reversioners are not bound to institute a declaratory suit during the lifetime of the
female holder. After the death of the woman, they can sue the alienee for possession of the estate
treating alienation as a nullity.11

6. STATUTORY INTERPRETATION------Increasing the ambit of womans rights

SECTION 14 OF THE HINDU SUCCESSION ACT, 1956 :

The preamble of the Act signifies that it is an Act to amend and codify the law relating to
intestate succession among Hindus. The Act aims to lay down an uniform law of succession
whereas attempt has been made to ensure equality of inheritance rights between sons and
daughters. It applies to all Hindus including Budhists, Jains and Sikhs. It lays down an uniform
and comprehensive system of inheritance and applies to those governed by the Mitakshara and
Dayabhaga schools as well as other schools. The Hindu Succession Act reformed the Hindu
personal law and gave women greater property rights, allowing her full ownership rights instead
of limited rights in property.

Section 14 provides that any property possessed by a Hindu female, whether acquired before or
after the commencement of this Act shall be held by her as full owner thereof and not as limited
owner.

sub-section (1) explains further that ‘property’ in this subsection includes both movable and
immovable property acquired by her by inheritance, partition, gift or will or acquired in lieu of
maintenance or arrears of maintenance or acquired by her own skill or exertion or by purchase or
by prescription or any other manner whatsoever , and also any property held by her as stridhana
immediately before the commencement of the said Act.” It is immaterial whether it be obtained
by inheritance of the deceased husband’s separate property or of his share in coparcenary
property by virtue of the proviso to section 6of the Act, or by devise of her deceased husband or
gift from a relative or any other person, and whether before, at or after her marriage.

“But, as expressly provided by sub section (2) of this section , a Hindu female shall not be
entitled to hold any property as an absolute owner if she has acquired the same by way of gift , or

11
Radha Rani Bhargava v. Hanuman Prasad Bhargava AIR 1966 SC 216

17
under a will or any other instrument , or under a decree or order of a civil court or under an
award ,where the terms of the gift , will or other instrument or the decree order or award
prescribe a restricted estate in such property .

Thus Section 14 has abolished women’s estate by converting it into stridhan and woman’s estate
and has converted existing woman’s estates into full estates. It has introduced fundamental
changes in the traditional Hindu law of property of woman.

 Conversion of women’s ‘Limited Estate’ into ‘Absolute Property’

The property rights of the Hindu women are highly fragmented on the basis of several factors
apart from those like religion and the geographical region. Property rights of Hindu women also
vary depending on the status of the woman in the family and her marital status: whether the
woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also
depends on the kind of property one is looking at: whether the property is hereditary/ ancestral or
self-acquired, land or dwelling house or matrimonial property. Prior to the Hindu Succession
Act, 1956 ‘Shastric’ and customary laws that varied from region to region governed the Hindus.

Under the old Hindu law among all the properties that the women was in possession of, only her
‘stridhan’ was absolute property and in other inherited properties she was entitled to only a life-
estate with limited powers of alienation, if any and this position further continued under the
Hindu Women’s Rights to Property Act,1937. However the framers of the Hindu Succession
Act, 1956 intended to make major changes in the area of the nature of the women’s estate and
this as discusse above is reflected in S.14 of the Hindu Succession Act, 1956.

Therefore, section has the effect of:

o Firstly, removing any disability in either statutory or customary law with respect to power
of alienation, title etc with respect to women’s property after the enactment of the Act.”
o Secondly the enactment retrospectively acts and converts any right, which the women
might have had in any estate, and converts her into an absolute owner.
o Thirdly the action of the section is on both immovable and immovable property.

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 o “Fourthly, the mode of acquisition of a right in the property (except in case of a
gifts/wills etc that specifically creates a restricted estate) is not relevant for the operation
of the section.

In this regard the reasoning of the judiciary is to be examined especially with respect to how the
courts have determined which properties held by the women would be benefited by the section
14 and converted to absolute estates.

 property received in lieu of partition

The Karta can grant some property to a member of the family for his or her maintenance. A
Hindu female can also be granted property for her maintenance under a family arrangement or a
partition.

In Chinnappa Govinda v. Valliammal12, a father-in-law gave some properties for the

maintenance of his widowed daughter-in-law under a maintenance deed. Subsequently, in 1960
he died. Since he died leaving behind the daughter-in-law his interest devolved by succession.
The daughter-in-law sued for partition so as to get her share of inheritance. Other members said
that she could get her share only if she agreed to include the properties given to her for
maintenance in the suit properties. The Court held that she need not surrender the properties held
by her under the maintenance deed.

Section 14 lays down that any property which a Hindu female gets on partition after the
commencement of the Act will be her absolute property and any property which she got at a
partition before the commencement of the Act will also become her absolute property provided it
was in her possession at the commencement of the Act. The Kerela High Court in” Pachi
Krishnamma v. Kumaran Krishnan13 observed that the share a woman got on partition would
be her absolute property on account of her pre-existing right to maintenance enlarged to an
absolute title to property by virtue of section 14(1).”

 property given under an award or decree

12
AIR 1969 Mad 187
13
AIR 1982 Ker 137

19
“In Badri Prasad v. Kanso Devi14, where a partition under an award was subsequently
embodied in a decree, certain properties were allotted to a Hindu female as her share, the
Supreme Court said that section 14(2) did not apply. Their Lordships said that section 14 should
be read as a whole. It would depend on the facts of each case whether the same is covered by
sub-section (1) or subsection (2). The crucial words in the subsection are ‘possessed’ and
‘acquired’. The former has been used in the widest possible sense and in the context of section
14(1) it means the state of owning or having in one’s hand or power. Similarly the word acquired
has also been given widest possible meaning. The Supreme Court was of the view that a share
obtained by a Hindu female in a partition under section 14(1) even though her share is described
as a limited estate in the decree or award.

 property under an agreement or compromise

The test that if the decree or award is the recognition of pre-existing right then sub-section (1)
will apply and if property is given to the Hindu female for the first time under an award or decree
subsection (2) will apply. It has been applied to the acquisition of property under an agreement
or compromise. This distinction has been clearly brought out by Mahadeo v. Bansraji15 and
Lakshmichand v. Sukhdevi.16

 property received in inheritance

Any property that a Hindu female inherited from a male or female relation was taken by her as
limited estate except in the Bombay school. Section 14 lays down that any property that a Hindu
female inherits from any relation after the commencement of the Act will be her absolute
property. On her death it will devolve on her heirs under the provisions of section 15 and 16. If
any property has been inherited by her before the commencement of the Act and if it is in her
possession then that property also became her absolute property.

 property received in gift”

Under the Act, there is no distinction between the gifts received by her from relatives or
strangers and at any stage of her life, and all gifts that she receives will be her absolute property.

14
AIR 1970 SC 1963
15
AIR 1971 ALL 515 19
16
AIR 1970 Raj 285

20
“Ornaments received by her at the time of her marriage are ordinarily her stridhan property. A
full bench in Vinod Kumar Sethi v. State of Punjab17 held that dowry and traditional presents
made to a wife at the time of the marriage constitute her stridhan. In Gopal Singh v. Dile Ram18,
a widow having a life estate purported to make a gift of the property before the Hindu
Succession Act 1956 came into force.

 property received under a will

In Karmi v. Amru19 A Hindu , under a registered will , conferred a life estate on his wife
Nihali, with the direction that after the death of Nihali , properties would devolve on Bhagtu and
Amru, two of his collaterals Nihali took possession and died in 1996. On her death her heirs
claimed property on the assertion that after the coming into force of the Hindu Succession Act ,
Nihali’s life estate became her full estate . It was held that where only life estate is conferred
under a will , Section 14(2) will apply , and the estate will not become full estate .But if a will
confers on her full estate , she will take absolutely . Properties given under a settlement to the
widow which were to revert to the settlor on his brother on her death , do not get enlarged into
full estate .”

POSITION UNDER THE HINDU SUCCESSION (AMMENDMENT) ACT 2005

The Hindu Succession Act, 1956 was altered by the Hindu Succession (Amendment) Act, 2005
which came into force from ninth September 2005. The Amending Act substituted section 6 of
the Act. Section 6 of the Act of 1956 manages devolution of interest of a male Hindu in
coparcenary property and perceives the rule of devolution by survivorship among the
coparceners. “The maintenance of the Mitakshara coparcenary property without incorporating
the females in it implies that the females can't inherit in the ancestral property as their male
partners do.It is proposed to remove the discrimination as contained in section 6 of the Hindu
Succession Act, 1956 by giving equivalent rights to daughters in the Hindu Mitakshara
coparcenary property as the sons have.

17
AIR 1982 P& H 372
18
AIR 1987 SC 2394
19
AIR 1971 SC 745

21
‘The Hindu Succession (Amendment) Act, 2005 has substituted S. 6, w.e.f. 9-9-2005. With
effect from this date, the devolution of interest in the coparcenary property shall be governed by
this Section. In a Mitakshara joint Hindu family, the daughter of a coparcener shall
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a
son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener.’.
Therefore the amending Act of 2005 is an attempt to remove the discrimination as contained in
the amended section 6 of The Hindu Succession Act, 1956 by giving equal rights to daughters in
the Hindu Mitakshara coparcenary property as the sons have. Simultaneously section 23 of the
Act as disentitles the female heir to ask for partition in respect of dwelling house wholly
occupied by a joint family until male heirs choose to divide their respective shares therein, was
omitted by this Amending Act. As a result the disabilities of female heirs were removed. This is
a great step of the government so far The Hindu Code is concerned. This is the product of 174th
Report of the Law Commission of India on “Property Rights of Women: Proposed reform under
the Hindu Law”.

Nonetheless, even after the passing of the Amending Act and substitution of section 6, various
inquiries were brought up in the legal circles in respect to whether the Amending Act was
retrospective or not and whether a daughter conceived before coming into force of the Amending
Act i.e., ninth September 2005 was qualified for benefits under the newly formed section 6 of the
Act. There were conflicting perspectives and contradictory contentions.”

JUDICIAL REVIEW
Section 14 applies only when a woman has title as well as de jure possession of the property at
the time of the commencement of the Act. “The Courts have usually interpreted the section,
especially “…possessed…” liberally so as to give maximum effect to the section and thereby
benefit the widow. In Mangal Singh v. Smt. Rattno20 the nature of the right that a widow

1967 AIR 1786, 1967 SCR (3) 454

20

22
possessed over some lands that were currently in actual possession of some collaterals (of the
deceased husband) was to be determined. The court drew attention to the fact that section 14 of
the Act spoke about “…any property possessed by a Hindu female…” instead of “…any property
in possession of a Hindu female….” The former would refer to instances when there is
‘constructive possession’ while the latter would refer to ‘actual possession’. The court took this
to be a deliberate move on part of the legislature and the widow was given absolute property
rights over property in which she had de jure possession despite lacking de facto possession.

In the case of Komalam Amma v. Kumara Pillai Raghavan Pillai21, it was held by the
Supreme Court that the concept of maintenance includes the provision for food and clothing. The
provision made by giving life interest in the property for residence in lieu of pre existing right to
maintenance and Hindu lady acquires far more than vestige of title deemed to sufficient to attract
Section 14(1).

In the case of Gangamma v. G. Nagarathnamma and Ors.19, the Supreme Court held that
Hindu female is the full owner of the properties which stand in her name on the date of the
commencement of the Hindu Succession Act, and even thereafter. Also, affirmed the view that
sub section (1) of section 14 is very large in its amplitude and covers every kind of acquisition of
property by a female Hindu. Regardless of whether such property was possessed by a Hindu
female on the date of commencement of the Act or was subsequently acquired or possessed, she
would be the full owner of the property.

earlier, with reference to remarriage and property of a woman, the Supreme Court in Cherotte
Sugathan v. Cherotte Bharathi22, held that upon the death of the husband, his share vested in
his wife absolutely, which could not be subjected to divestment, save and except by reason of a
statute. Also, remarriage of the wife cannot be a ground for her loosing right to succeed to her
deceased husband's property.” In Santhosh v. Saraswathibai23, it was held that Section 14 (1)
not only takes within its ambit a land which was not only in possession of the female Hindu but
also covers the land over which she has the right to possess. Section 14(1) will also be applicable

21
2009. AIR SCW 4471
22
(2008) 2 SCC 610
23
2006 AIHC 765

23
to a land possessed by a female who is Hindu by religion, and the reason for which she got the
property was for maintenance.

“The scope of the section has been tempered by decisions such as Eramma v. Veerupana24
where in 1936 after the death of a coparcener one among three widows (before the final decree)
occupied her husband’s property. It was held that S.14 could not aid her because at the time she
got possession she had no vestige of ownership and had no position higher than a trespasser.

In general, however, landmark cases such as Jaganathan Pillai v. Kunjithapadam Pillai25 have
attempted to enlarge the property of the widow by following a liberal interpretation of the
section. The facts of the case were that a widow who had transferred property prior to the
commencement of the Act, the property having limited ownership, came into possession of the
same upon retransfer of the property. After commencement of the Act the Supreme Court held
that she becomes absolute owner of the property. The judgement also contained significant
judicial dicta, which was quite favourable to the property rights of females in general;

“Section 14 of The Hindu Succession Act 1956 has abolished certain women’s estate and in
respect of woman’s estates which are outside the purview of section 14, a reversioner’s right
under old Hindu Law still endures.

Section 14(1) has qualified retrospective application; it converts only those women’s estates into
full estates over which she has possession when the Act came into force. It does not apply to
those woman’s estates over which the Hindu female has no possession when the Act came into
force; in such a case old Hindu Law continues to apply. Section 14(2) uses the words “any other
instrument”.

Applying the principle of ejusdem generis, these words should be read along with the preceding
words, “acquired by way of gift or under a will” and would thus, mean the instruments under
which title to property has been conveyed to the Hindu female.”

V.Tulsamma Vs Shesha Reddy26-------an analysis

24
A.I.R. 1966 S.C. 1879
25
AIR 1987 SC 1493 338
26
1977 AIR 1944, 1977 SCR (3) 261

24
“This case arose from the facts where, under a compromise in a suit for maintenance filed by the
appellant Tulasamma, against her deceased husband's brother, who was in a state of jointness in
the ownership of properties with her husband at the time of husband's death, Tulasamma was
allotted certain properties, but as per the written terms, she was to enjoy only a limited interest in
it with no power of alienation at all. According to the terms of the compromise the properties
were to revert to the brother after the death of Tulsamma. Subsequently Tulasamma continued to
remain in possession of the properties even after coming into force of the HAS and after the
HSA was enacted Tulsamma alienated her shares to someone else. The alienation was challenged
by the husband's brother on the ground that she had got a restricted estate only under the terms of
the compromise and her interest could not be enlarged into an absolute interest by the provisions
of the HSA in view of exception to Section 14 of the Act. In declining the challenge by the
brother, the Supreme Court upheld the absolute right of Tulsamma. In fact the relevant
observations in the judgment deserve to be extracted:”

“The Hindu female's right to maintenance is not an empty formality or an illusory claim being
conceded as a matter of grace and generosity, but is a tangible right against property which flows
from the spiritual relationship between the husband and the wife and is recognized and enjoined
by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists
starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right
against property and the husband has a personal obligation to maintain his wife and if he or the
family has property, the female has the legal right to be maintained there from. If a charge is
created for the maintenance of a female. The said right becomes a legally enforceable one. At
any rate, even without a charge the claim for maintenance is doubtless a preexisting right so that
any transfer declaring or recognizing such a right does not confer any new title but merely
endorses or confirms the pre-existing rights.”

“Observation- the right of widow to be maintained is of course not just in rem., it doesn't give
her any interest in Join Family Property (JFP), but it is certainly jus ad rem, i.e. a right against
JFP. Therefore, when specific property allotted to the widow in ‘lieu of her claim for
maintenance', the allotment would be in satisfaction of her jus ad rem- the right to be maintained
out of JFP. It would not be a grant for the first time, without any pre-existing right in widow. The
instrument giving the property is merely a document effectuating a pre-existing right. Thus J.

25
 Fazal Ali concluded, provisions of S. 14 must be liberally construed so as to advance the object
of the Act, which is to enlarge the limited interest of widow. S. 14(2) doesn't refer to any transfer
which merely recognizes a pre-existing right). S. (2) to S. 14 is merely a proviso to Ss. (1) of S.
14 and has to be interpreted as a proviso and not in manner so as to destroy the effect of main
provision. The explanation to S.s. (1) has expanded the notion of ownership and includes all
types of property. The use of express terms like property acquired by a female at partition or in
lieu of maintenance or arrears of maintenance in explanation to S.s. (1) clearly makes S.s. (2)
inapplicable to these categories, which have been expressly excluded from operation of S. s. (2).”
The Act of 1956 has made revolutionary changes in The Hindu society and every attempt should
be made to carry out the spirit of the Act, i.e. to emancipate women in India. The court thus held
that the widow is the absolute owner and the restrictions mentioned in the decree to be ignored.
This principle has subsequently been reiterated and expanded in several later decisions.

“In the case of Prakash v. Phulawati27, the SC held that a plain reading of the statute
(Amendment Act) itself suggests that a daughter has a right in coparcenary property on and from
the commencement of the Amendment Act. The SC held that ‘An amendment of a substantive
provision is always prospective unless either expressly or by necessary intendment it is
retrospective’. In the instant case there was no express or intended stipulation which would make
the Amendment Act retrospective in its application and by virtue of the Amendment Act, right to
coparcenary property would be available only to ‘living daughters’ of ‘living coparceners’ on 9
September 2005

The recent judgment of Shri Badrinarayan Shankar vs Ompraskash Shankar Bhandari28

the Full seat of the Bombay High Court has settled on four inquiries of significance in this
connection by alluding to different judgments of the Supreme Court and additionally judgments
of House of Lords and Court of Appeal.”

1. “Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act,
2005 is prospective or retrospective in operation?

27
AIR 2011 Kar. 78
28
2014 SCC Bom 908

26
 Held: Section 6 as amended by the 2005 Amendment Act is retroactive in nature meaning
thereby the rights under Section 6(10(b) and (c) and under sub-rule (2) are available to all
daughters living on the date of coming into force of the 2005 Amendment Act, i.e. 09/09/2005,
though born prior to 09/09/2005. Obviously, the daughters born on or after 09/09/2005 are
entitled to get the benefits of amended section 6 of the Act under clause (a) of subsection (1). In
other words, the heirs of daughters who died before 09/09/2005 do not get the benefit of
amended section 6.

2. Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act,
2005 applies to daughters born prior to 17/06/1956?
Held: Amended Act applies to daughters born prior to 17/06/1956 provided they are alive on
09/09/2005, i.e. the date of coming into force of the Amendment Act, 2005.

3. Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act,
2005 applies to daughters born after 17/06/1956 and prior to 09/09/2005?
Held: Amended Act applies to daughters born after 17/06/1956 but before 09/09/2005 provided
they are alive on 09/0/2005, i.e. the date of coming into force of the Amendment Act, 2005.

4. Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act,
2005 applies only to daughters born after 09/09/2005?
Held: The Amended Act applies to daughters born on or after 09/09/2005.

Similar view was taken by the Orissa High Court in Pravat Chandra Pattnaik and Others vs.
Sarat Chandra Pattnaik and Another and by the Karnataka High Court in Sugalabai v.
Gundappa A. Maradi and Others.”

According to Hon'ble Justice Sujata V. Manohar of Supreme Court of India29 ".It is not easy
to eradicate deep seated cultural values or to alter traditions that perpetuate discrimination. It is
fashionable to denigrate the role of law reform in bringing about social change. Obviously law,
by itself, may not be enough. Law is only an instrument. It must be effectively used. And this

29
2004 SCC 213

27
effective use depends as much on a supportive judiciary as on the social will to change. An
active social reform movement, if accompanied by legal reform, properly enforced, can
transform society."

“7. CONCLUSION
Therefore it can be concluded that woman's property rights have not been absolute in nature in
early Hindu societies. The Veda and the Smritis have not identified women as the owners of
property though they were given the status of the beneficiaries. Shower the Vedic Hindu law
recognised the concept of Stridhana which is the only property a Hindu woman is entitled to the
ownership of. With regards to Stridhan the ownership of the same lies with the woman and on
her death the property devolves to her heirs. Another category of women's property that was
recognised was the Woman's estate, which was considered to be her life estate with limited
powers of alienation. Upon her death the property wouldn't devolve upon her heirs it devolves
upon the the heirs of the last full owner of the property i.e. to the reversioners.this position
continued after the Hindu women's rights to property Act 1937. However the Hindu Succession
Act has changed the above position by converting the Hindu woman's limited estate to the
absolute property. There for the Hindu woman by virtue of section 14 of the 1956 Act have been
given the absolute property rights on their estates . Hence the woman are now entitled to absolute
ownership with respect to both Stridhana and the woman's estate. Further the Hindu succession
amendment act, 2005 by virtue of section 6, has guaranted the inheritance rights to woman by
giving the same legal status of a male coparcener in the family. It has hence increased the ambit
of women’s property rights to a greater ambit and has helped in achieving the goal of greater
equality. Despite the fact that Judiciary has ruled in favour of gender equality, in a nation where
often the female foetus is prematurely ended, it will be a huge undertaking and can't be tended to
by any judgment of a Full Bench of a High Court or the Supreme Court in its genuine sense.”

28