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Hindu Women’s Property

HINDU WOMEN’S PROPERTY Sec 14 of Hindu succession act 1956, introduces fundamental changes in the concept of women’s property. Under the classical Hindu law there were various restrictions on a woman's ownership of property, and, her right to dispose it (including her testamentary powers). The restrictions imposed on the proprietary rights of a woman depended on her status as a maiden, as a married woman and as a widow. They also depended upon the source and nature of the property. Before 1956, woman's property was divided into two parts (a) woman's estate (or widow's estate) and (b) Stridhan. While the term 'stridhan is found in the ancient texts, the term 'Hindu woman's estate' has been used in the Hindu Women's Right to Property Act, 1937. (a) Stridhan' is her 'absolute' property over which she has full rights of disposal or alienation e.g. gifts from relations/ strangers; property acquired by self-exertion; property acquired by compromise; property obtained in lieu of maintenance. (b) 'Woman's estate’ – She is a 'limited' owner of it, as she can't ordinarily alienate it (like karta, she can alienate it only in exceptional cases); and on her death it devolves not upon her own heirs but upon the next heir of the last full owner (i.e. reversioners e.g. husband's brother) e.g. property obtained by inheritance (whether from a male or female) and a share obtained on partition (Sec. 3, Hindu Women's Right to Property Act, 1937). The Hindu Women's Right to Property Act, 1937, modified the old Hindu law so as to confer greater rights on women. It conferred upon the widow, right of inheritance to her husband’s property, even where the husband left male issue. She was also given power to claim partition. But in all these cases, the widow was given only a limited interest in the property ('woman's estate). She had no power of disposition sale, lease, mortgage, gift or Will. Sec. 14 (H.S. Act, 1956) (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as a full owner thereof and not as a limited owner. Explanation- The term “property" includes both movable and immovable property acquired by a female Hindu by inheritance or device / or at partition/or in lieu of maintenance or arrears of maintenance/or by gift from any person, before, at or after her marriage/or by her own skill or exertion/or by purchase or prescription/or in any other manner/and also any such property held by her as stridhan immediately before the also commencement of this Act. (2) Property given with limitations - Nothing contained in sub-sec. (1) shall apply to any property acquired by gift / Will / or any other instrument / under a decree or order of court / or under an award, where the terms of gift, Will, other instrument, decree or award prescribe a restricted estate in such property. [Note – There is nothing in Sec. 14 (2) or other sections to qualify the absolute ownership or led to forfeiture of estate on her remarriage. The H.S. Act overrides the Widow Remarriage Act or any other Act. Once her limited (woman’s) estate becomes her full or absolute estate (i.e. stridhan) by virtue of Sec. 14, a Hindu female can alienate it by gift or otherwise. Thus, the traditional limitation on the power of disposition of a Hindu female has been done away by Sec. 14 which has “enlarged" her limited estate into her full estate. The H.S. Act recognized her as an independent and absolute owner of property. As the property is now her full estate, she becomes a fresh stock of descent, in respect of that property. It devolves after the Act upon her own heirs and does not revert to the next heirs of the last full owner (i.e. reversioners). However, the reversioners do exist in those cases where the Hindu female lost the juridical possession of the property (discussed below). Pre-Act Woman's Estate ('Limited Estate') [Sec. 14(1)]14 Sec. 14(1) has been given retrospective effect. Two conditions are necessary for this:— (a) ownership of property must vest in her, and (b) she must be in possession of the estate when the Act came in force. She must be owner of the property i.e. she must have acquired title to it (where there is no title or interest in the property she cannot be said to be "possessed" of the property). The property must be in her possession or she has a right to possession of it. The term "possession" has very wide connotation, and includes actual (physical) as well as constructive possession e.g. where she is entitled to possession of property, such as when the property is in possession of a trespasser; property is in possession of mortgagee, lessee or licencee. The term "possession" is co-extensive with the “ownership". Thus wherever woman has ownership of property vested in her she will be deemed to be in possession, and if ownership doesn't vest in her, even if she is in actual possession she will not be deemed to be in possession.

In Mangla Singh v Rattno (AIR 1967) - A widow who had entered into possession of land belonging to her husband in 1946, and had been illegally dispossessed by her husband's brothers in 1954, brought a suit for possession. During the pendency of suit, H.S. Act came into force, and widow died in 1958 and her legal representatives carried on the battle. Held that since the land was possessed by the widow (in a constructive sense) when she died in 1958, her Legal representative succeeds.

It may be noted that Sec. 14(1) does not mean at all that if there is any want or defect in the full ownership of that property under ´some other law,' that want or defect has also disappeared. It may also be noted that Sec. 14(1) uses the expression “whether acquired before or after the commencement of the Act". Thus, this provision is retrospective as well as prospective. If property is not in her possession when the Act came into force Then, in that case, the old Hindu law continues to apply. Sec. 14 has abolished the woman’s estate, but the reversioners are still relevant in respect of the woman's estate alienated by her before 1956. It is important to note that a suit filed by reversioners before 1956 can he continued and a fresh suit can be filed after 1956. Rights of reversioners – Reversioners are the heirs of the last full owner. Had the female not intervened he /they would have inherited the property (Hindu woman's estate) in question. The nature of reversioner's interest was not a vested but a contingent interest. It was a spes successionis i.e. a mere chance of succession. This is so because as long as the limited owner (woman) had the ownership of the property, nobody could lay any claim to it. It could not be predicted with certainty who would succeed to the property on the expiry of the woman's interest in that property because nobody could say who would survive the limited owner (Ram Chander v Ganesh Das AIR 1984 SC 42).

Their rights are as follows:- (i) They can sue for a declaration that an alienation by widow is void, and will not be binding on them after the death of widow. (ii) They can, after the death of widow or after termination of estate, file a suit for the possession of 'improper' alienation made by widow, from alienee. The Hindu female is bound by that alienation because the old law made such a transaction enforceable against her but the reversioners are not bound by such transfer. They are entitled to the restoration of the property from the alienee. The rights of alienee are co-extensive with that of the widow; the alienee can retain property so long as the widow is alive. The alienee does not get the full ownership of the property by virtue of Sec. 14(1), because this provision is meant for the benefit of a Hindu female and not for the transferee from her. The law in force at the time of the death of the limited female owner governs the succession to reversioners. The husband's heirs/ reversioners would be ascertained as if husband had died at the time of widow's death [Daya Singh v Dhan Kaur (1974) 1 SCC 700]. In this case, on the death of a Hindu in 1933 his widow inherited his property as a limited owner. She had made an unauthorized gift of the property before the H.S. Act was passed. As she was not in possession of the property at the time of the commencement of the Act, she could not become the full owner thereof under Sec. 14(1). She died in 1963. Thus, succession to property will be governed by the H.S. Act, 1956. Accordingly, his daughter would succeed to his property, to the exclusion of the collaterals (brothers of husband). Acquisition under Sec. 14(1) covers Re-acquisition The Explanation to Sec. 14(1) makes it clear that Sec. 14(1) is large in its amplitude and covers every kind of acquisition of property. The word "acquired" has to be given the widest possible meaning [Badri Prasad v Kanso Devi (1969) 2 SCC 586]. A conveyance can be annulled by a reconveyance by consent of both the parties. Thus, if she purchases back or if she is donated back the property which she once sold or donated to some person, it would come within the meaning of 'acquisition.' The re-acquisition might have taken place either before the Act or thereafter. It may take place either before the reversioners filed a suit against the alienation by the limited female owner or during litigation or after a decree is passed in their favour. In Teja Singh v Jagat Singh (AlIR 1970 P&H 309), a Hindu female aienated properties before the Act came into force, but alienation is held invalid, consequent to which the possession is reconvened to her, here, the ‘defect’ is cured and the widow becomes absolute owner, by virtue of sec. 14(1). So, the rights of reversioners defected here. In other words, if a woman make a gift before 1956, and there had been a gift back to her in 1954 (or in 1959), the ‘defect’ is cured. Hindu Woman's Property The Hindu Succession Act, 1956 made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband's property as also to her father's property. The 2005 Amendment made the daughter, like a son, a coparcener in a joint family, The amendment was meant to ensure that women and men became equal heirs to ancestral property. INTESTATE SUCCESSION TO PROPERTY OF A HINDU FEMALE The Hindu Succession Act, 1956, deals with succession to the property of a Hindu female intestate. Prior to 1956, there were varied rules under the uncodified Hindu law. Secs. 15 and 16, H.S. Act, are applicable to the absolute property of a female 'including an undivided interest in a Mitakshara coparcenary in which a female was a coparcener' (2005 Amendment to the Act). Only that property will be subject to the application of these sections which are heritable and over which a woman had full powers of disposal. Thus, the scheme of succession is not applicable to any property held by a Hindu woman as a limited owner [Sec. 14(2)], or even otherwise, or to which the Act does not apply [Sec. 4(2)/(5)]. Although Hindu woman’s limited estate has been abolished and, so Long as the woman is alive, she has absolute power over all types of property, yet for the purpose of intestate succession the 'source of property is still material. For the purpose of succession, the property of Hindu female falls under the following three heads:— (a) Property inherited by a female from her father or mother, (b) Property inherited by a female from her husband or father-in- law, and (c) Property obtained from any other source, by inheritance or otherwise. The heirs are divided into five categories called 'entries', heirs in the earlier entry excludes that in the latter entries. So long as a single heir is present in the earlier entry, the property will not go to the next entry (Sec. 16). If there are no heirs in any of these five entries. property goes to the government by escheat.

Entry (a) - Sons and daughters, sons and daughter of a predecessor son or daughter (i.e. grand children), and,the husband. Entry (b) - Heirs of husband. Entry (c) - Father and mother of the propositus (i.e. deceased female) Entry (d) - Heirs of the father. Entry (e) - Heirs of the mother. Entry (a) – Sons and daughters, sons and daughters of a predeceased son / daughter (i.e. grand-children), and, the husband These heirs shall succeed simultaneously, sharing equally, to the exclusion of all other heirs (Sec. 16). However, the children of a predeceased son / daughter will not take per capita with the son or daughter or husband of the intestate, but will take between them the share which their father or mother would have taken if alive at the time of the death of the intestate i.e. they will take per stripes (branch-wise). In other words, such children will divide the share falling to the share of their father or mother (predeceased).

The 'sons and daughters' include son and daughter by natural birth, legitimate or illegitimate; posthumous children; and adopted children (even by a single woman). Children of void and voidable marriages are also included. However, step-children are not included in the expression. With respect to the children (excluding step-children), the marital status of the mother (married or divorced or even unwed) or the validity of her marriage is of no consequence. The children may be born from different husbands, yet they would still, inherit together. The 'grand-children' do not include illegitimate children, or step- children, or children of a void/voidable (annulled) marriage (it is because Sec. 16, Hindu Marriage Act provides that such children can inherit the property of their parents alone). Thus, in order to be eligible for inheritance, such grandchildren must be the legitimate offsprings of their parents, and born out of a valid marriage between them (Shahaji Kisan Asme v Sitaram Kondi Asme AIR 2010 Bom 24). Similarly, their 'deceased parents' should also be legitimate and born out of a valid marriage. For example, a Hindu woman W married an already married man H, thus, it is a void marriage. Two sons S1 and S2 are born to her. S1 and S2 could inherit the property of W in view of statutory legitimacy conferred on them by Sec. 16, H.M., Act. But, if during the lifetime of W, S2 dies and left behind a daughter S2D, then, S1 alone will inherit her property, as S2D will not be deemed to be related to W. The relationship in case of children born of a void/ voidable marriage is personal between the parents and children and they are not deemed to be related to any other relative of either. In a case, a Hindu woman A dies, leaving behind a son S1 and a granddaughter D from her second son S2. S2 had got married to W2, but had later discovered that his consent had been obtained by fraud. S2 filed a petition in court for obtaining a decree of nullity. D was conceived before the discovery of fraud by S2. The marriage was declared null and void. S2 died and D was brought up by A, her grandmother. Now. A also dies. D could not inherit A's property as children born or annulled voidable marriage do not inherit the property of any relative of their parents. Entry (b) - Heirs of husband On the failure of heirs in entry (a) the property will. be devolve upon the heirs of the husband (howsoever remote they may be). Since the property is deemed to be that of her husband the inheritance will be determined buy the law relating to succession to the property of a Hindu male (sec 8). Thus, the husband shall be deemed to have died immediately after the female Hindu died (Sec. 16). Heirs of the husband do not mean 'all persons who could have been the heirs of such husband. The widow of a predeceased son, widow of the deceased brother of the husband, sister of the husband, or even a remote cousin of the husband would fall in the category 'heirs of the husband. Entry (c) - Father and Mother of the propositus (i.e. deceased female) Father/Mother does not include a step-father/mother; adoptive mother / father is included. However, step-father/mother could succeed as 'heir of mother’ and the latter as 'heir of father. Where the marriage of the parents was a void marriage or an anulled voidable marriage, the parents inherit from such children. Even proposita was an illegitimate daughter of the mother, mother will inherit; however putative father will not inherit. Entry (d) Heirs of the father Since the property is deemed to be that of her father the inheritance will be determined by the law relating to 'succession to the property of a Hindu male' (Sec. 8). Thus, the father shall be deemed to have died immediately after the female Hindu died (Sec. 16). Heirs of the father do not mean 'all persons who could have been the heirs of such father.' The category will include brothers and sisters (including half- blood brothers/sisters), and their descendants, grandparents and other natal relation. Entry (e) - Heirs of the mother

Sec 15 (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.

Sec 16. Order of succession and manner of distribution among heirs of a female Hindu.—The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:—

Rule 1.—Among the heirs specified in sub-section

(1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.

Rule 2.—If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death. Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.

(Veera Raghavamma v G. Subbarao AIR 1976 A.P. 377)

In this case it was held that the inherited property should be available at the time of her death. If the identity of the property is changed or it is substantially altered / improved or if it is substituted, Sec. 15(2) has no application. Thus, if she inherits property from father, sells it, and out of sale proceeds, purchases another property, this property again would be her general property and Sec. 15(1) will apply. Radhika v Anguram (1994) 5 SCC 761 Thus, where a Hindu female died leaving behind her daughter from a previous marriage and the second husband, and property that she had inherited from her father, it was held that since the deceased had inherited the property from her parents, her daughter alone will be entitled to succeed and the husband here, cannot succeed A 'step-son’ is not an issue, and cannot inherit the property of a Woman that she inherited from her parents (Lachman Singh v Kirpa Singh AIR 1987 SC 1616).

If she had inherited property from 'father or mother’ (not “father's side" or "mother's side") the heirs fall under the two categories: In a case, A dies leaving behind her husband H, her full brother B and her uterine sister S (her mother having remarried after the death of her father). A had inherited property from her mother. The property will not devolve upon H but upon B (heir of A's father). S is not entitled to succeed as she is not an heir of A's father but of A's mother.

Chintaram v Rushibai, 2000 AIHC 1308 (M.P.) Here, if the female had been married more than once, the properties inherited by her from her respective husbands and their fathers should go to heirs of respective husbands. However, if she remarried after inheriting property from her deceased husband and died leaving behind issues from her second husband, she has not died issueless and her children and second husband will succeed to the property. But if she dies issueless, the second husband will not succeed and the property will revert to the first husband’s heirs. Likewise, where a woman inherited property from her second husband and died leaving behind a son from the first husband, the son would take the property In a recent case, a woman died leaving behind a son and a daughter, born to her from the husband whose property she had inherited. She also had a son from a previous marriage. The Gauhati High Court held that the son born of the previous marriage was not entitled to get the property, as it was the property that was inherited by the woman from her second husband and he was not the progeny of that husband. The expression 'son and daughter’ would mean the son and daughter of that husband from whom or from whose father, she had inherited the property. The court reasoned that if such property is allowed to be drifted away from the source through which the deceased female has actually inherited the property, the object of Sec. 15(2) would be defeated. The object of Sec. 15(2) is to ensure that the property left by a Hindu Temale, does not lose the real source from where the deceased female ad inherited the property (Dhanistha Kalita v Ramakanta Kalita AIR 2003 Gau 92). It is submitted that the expression that the legislature has used in 15(2)(b) is, in absence of 'any son or daughter of the deceased.’ e expression is without any qualification and the words 'any son or daughter' means any son or daughter and not the son/daughter of a particular husband. It would include all kinds of sons and daughters - legitimate, illegitimate, etc. These are the only relations that are described with reference to her and not with reference to her father/husband/ mother. All children have equal rights over the property of their mother. After the 2005 Amendment to the H.S. Act, 1956, a daughter (married or unmarried) has become a coparcener like a son with incidents of coparcenary ownership. As noted earlier, a coparcenary interest is acquired by a daughter by birth and though it comes from the family of her father, it is not an interest that she has inherited' from her parents. In such a situation, her heirs would be her husband, her children and children of predeceased children. These heirs would succeed to her property whether she dies without seeking partition or she dies after partition. CASE LAWS (A) women’s self-acquired property covered by section 15(1) and not section 15 (2). Leading case:— OM PRAKASH V. RADHACHARAN [(2009) 15 SCC 66] Facts:- In this case, a Hindu girls (Narayani Devi), aged 15 years, became widow within three months of the marriage. She was driven out of her matrimonial home immediately after her husband’s death. She never returned there and also in-laws did not bothered for her. She came to her parent’s house, and was educated by them. She then took a job and died intestate 42 years later, leaving behind huge sums in various bank accounts, besides provident fund and a substantial property. There is no doubt or dispute that the properties of the deceased were ‘self-acquired’ ones and were not inherited from her parent’s. Observation and decision- The court further observed:- “it is now a well-steeled principle of law sentiments or sympathy alone wouldnot be a guiding factor in determining the right of the parties which are otherwise clear and unambiguous under the Hindu Succession Act. This court can not issue a direction only on sympathy or sentiments. If the contention of the appellants is to be accepted, we will have to interpret section 15 (1) in a manner which was not contemplated by the parliament. The parliament has bestowed equality upon married and unmarried Hindu women in the matter of property. The golden rule of interpretation must be applied .” The court, thus, held that only because a case appease to be hard would not lead us to involve different interpretation of a ‘statutory provision’ which is otherwise impermissible. In that view of the matter, we are of the opinion that sec. 15(1) of the Act would apply and not sec. 15(2) thereof. Succession to Property of a Female Hindu (originally inherited from her Mother)

LEADING CASE: BHAGAT RAM v TEJA SINGH (AIR 2002 SC 1) In this case, a female Hindu along with her sister inherited property from their mother on the latter's death. After inheriting the property one sister died issueless. The other sister took the property as her 'father's heir' [under Sec. 15(2)(a)] and entered into an agreement to sell the same to a person A. The deceased sister's husband's brother challenged the validity of this sale and claimed the property as an heir under Sec. 15(1)(b). Legal Issue - The question arose whether the said property would devolve on the legal heirs of the father (her sister) or on the heirs of predeceased husband (husband's brother). The court held that under Sec. 15(1)(b) of the H.S. Act, if female Hindu dying intestate and issueless, the devolution of property has to be on the basis of the source from which property was inherited by female. If the property held by a female was inherited from her father or mother, in the absence of any children of the deceased, it would only devolve upon the heirs of the father and in this case her sister, who was the only legal heir of the father of the deceased, admittedly inherited the property because the intent of the legislature is clear that the property, if originally belonged to the parents of the deceased female should go to the legal heirs of the father. Thus, a sale of such property by the sister of the female Hindu is valid. LEADING CASE: JAGANNATHAN PILLAI V. KUNJITHAPADAM PILLAI (AIR 1987 SC 1493) { It is futile to contend that the female shall be in possession of property ‘before’ the coming into operation of the H.S. Act. If the property itself is acquired after the commencement of Act, there could be no question of property being either in physical or constructive possession of female before the coming into operation of the Act. All that is required to be shown by her is that she had acquired the property and that she was ‘possessed’ of property at the time when her title was called into question. If reconveyance takes place before or after 1956, the female would certainly be deemed to be in possession of property, with the result sec. 14 will apply. By reversal of the original transaction, her rights would have to be ascertained as if she become possessed of the property for the first time, after the commencement of the Act.}

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