WOMEN’S RIGHT TO PROPERTY – EVOLUTION

What Is Mitakshara Coparcenary?

Coparcenary literally means Joint inheritance of property. Also called parcenary.

Coparcenary is a narrower body of persons within a joint family, and consists of father, son,
son's son, son's son's son. This disparity in the property rights on the basis of gender is deep
rooted and can be traced back to the ancient times. Traditional Hindu inheritance laws
evolved from the ancient texts of Dharmashastras and the various commentaries and legal
treatises on them. In particular, the Mitakshara and the Dayabhaga legal doctrines, dated
around the twelfth century AD govern the inheritance practices among the Hindus. In most of
northern and parts of western India Mitakshara law is prevalent. Under the Mitakshara law,
on birth, the son acquires a right and interest in the family property. According to this school,
a son, grandson and a great grandson constitute a class of coparceners, based on birth in the
family.

No female is a member of the coparcenary in Mitakshara law. Hence, joint family property
devolves by survivorship within the coparcenary. This means that with every birth or death of
a male in the family, the share of every other surviving male either gets diminished or
enlarged. If a coparcenary consists of a father and his two sons, each would own one third of
the property. If another son is born in the family, automatically the share of each male is
reduced to one fourth. The Mitakshara law also recognizes inheritance by succession but only
to the property separately owned by an individual male or female. Females are included as
heirs to this kind of property by Mitakshara law.

With respect to the property of a woman, it consisted of “Stridhana” and “non Stridhana”. A
woman enjoyed the right of disposal over Stridhana but had limited interest in the latter.
Again, within Stridhana, there was “Saudayika” and “Non Saudayika” as regards the power
of a woman to alienate it. Saudayika (gifts, presents, properties received by way of bequests
from parents or relatives) conferred on her an absolute power of alienation, irrespective of
marital status. The non – saudayika Stridhana (property received from non relatives) her
powers of alienation were curtailed after marriage as the husband’s consent was necessary
before she could part with it by way of transfer.

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 The changes in the Hindu Woman’s position changed 1937 onwards from female member’s
rights being restricted to maintenance to being given a right to property. The Hindu Women’s
Right to Property Act, 1937 made a major inroad into the concept of Coparcenaries by
hindering the application of the Doctrine of Survivorship in the event of death of a
coparcener when he left behind a widow. The primary reason of the act was to give
ownership, though limited in nature.

Women’s property and their rights prior to 1956 act can be put in one word: STRIDHANA

Prior to the Act of 1956, Shastric and Customary laws, which varied from region to region,
governed Hindus and sometimes it varied in the same region on a caste basis. As the country
is vast and communications and social interactions in the past were difficult, it led to diversity
in the law. Consequently in matters of succession also, there were different schools, like
Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and
Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight
variations. The multiplicity of succession laws in India, diverse in their nature, owing to their
varied origin made the property laws even mere complex. 
But, however the social reform movement during the pre-independence period raised the
issue of gender discrimination and a number of ameliorative steps were initiated.

The meaning however varied from school to school. To understand the same, one needs to
see what the smritis and rishis interpreted it to be.

Smritis

Manu enumerates six kinds of Stridhana1

1. Gifts made before the nuptial fire, explained by the Katyayanna to mean gifts made at the
time of marriage, before the fire which is the witness (Adhyagni)
2. Gifts made at the bridal procession, while the bride is being led from residence of her parents
to that of her husband (Adhyabahanika)
3. Gifts made in token of love by say the parents in law (pritidatta) and those made while
making obeisance at the feet of elders (padavandaika)
4. Gifts made by father
5. Gifts made by mother

1
Manu IX, 194

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6. Gifts made by brother

Vishnu adds the following since the list by Manu is not exhaustive

1. Gifts made by husband to his wife on suppression, that is, on the occasion of taking another
wife (adhivedanika)
2. Gifts subsequent, those made after marriage by her husband’s relation or her parents
relations (anwadheyaka)
3. Sulka, or marriage fee
4. Gifts from sons and relations

Yajnavalkya defines Stridhana as “what was given to a woman by her father, mother,
husband, or brother, or received by her before the nuptial fire or presented to her on her
husband’s marriage to another wife is considered as Stridhana”

According to Mitakshara:

Given by Vijnaneshwara:

Property obtained by:

1. Inheritance
2. Purchase
3. Partition
4. Seizure
5. Finding

Stridhana According to the Bombay School

The Mayukha, applied in Bombay, Gujarat and North Konkan adopt the definition of
Stridhana as given by the Mitakshara.

For the purpose of succession, Mayukha divides Stridhana into two classes, viz,

 Technical – refers to the property expressly recognised as Stridhana

 Non technical – comprises of every other kind of property belonging to a woman.

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 Stridhana according to Benares School:

The Smriti Chandrika enumerates certain kinds of property as Stridhana as recognised by the
smriti writers. For any disputes as regards the determination of the nature of property, the
definitions of Mitakshara would apply.2

Stridhana According to Mithila School

The Vivada Chintamani is the leading authority of the Mithila School. The work does not
give any name to the properties but enumerates 11 kinds of properties viz

1 – 6 as given my Manu

7 – 9 as gifts made on supersession, gifts subsequent, sulka

10 – Ornaments

11- Food and vesture mentioned by the devala and interpreted to mean funds appropriated for
a woman’s support

Stridhana according to Dayabhaga or the Bengal School

There are 2 propositions as accepted by Mitakshara School also

i. Every kind of Stridhana belonging to a woman passes onto her heirs on her death
ii. not Every kind of Stridhana can be disposed by the woman at her pleasure

Distinction between both schools

In sheo Shankar v Debi Sabat3 the lordships of the Privy Council held that

2
Salemma v Lutchman 21 Mad 100
Subram v Arunachelam (1905) 28 Mad 1
3
(1903) All 468

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 “The Bengal School of lawyers have always limited the use of the term narrowly, applying it
exclusively, to the kind of women’s property enumerated in the sacred texts. The Mitakshara
seem to apply the term broadly to every kind of property that a woman may possess”

Features of Stridhana

A Hindu female may acquire property from various sources. Hence whether a particular
property is Stridhana or not depends on

 the source from which the property was acquired

 her status at the time of acquisition
 the school to which she belongs

Stridhana of every description belonging to a woman passes onto her heirs on her death and
not so for non Stridhana properties. A woman has absolute ownership over her Stridhana
property and may dispose it as she pleases. As regards to non Stridhana property, she is
merely a qualified owner and has only limited interest in the property.

ENUMERATION OF STRIDHANA

Sources of Woman’s property:

A woman may acquire property from various sources

i. Gifts and bequests from relations: property acquired by this method is Stridhana 4 except
under Dayabhaga which does not recognise immovable property under this.5 These gifts
constitute technical Stridhana and include:
a. adhyagni (gifts before nuptial fire)
b. adhyavahanika – bridal procession
c. padavandanika – when paying obeisance at feet of elders
d. anwadheyaka – gifts made after marriage
e. adhivedanika – gifts made on supersession

4
Basantha kumari v kamikshya 1906 cal 23
5
Venkata v Venkata 1877 Mad 281

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 f. sulka – gratuity or marriage fee
g. pritidatta – made out of affection by parents in n law
h. bhartridatta – gifts from husband

ii. Gifts and bequests from strangers: a gift may be received from anyone who is not related.
Property given during maidenhood or time of marriage is considered technical Stridhana by
all schools. Property bequeathed to a Hindu female covertures are Stridhana under Bombay,
Benares and madras schools but not according to the mithila and Dayabhaga schools

iii. property obtained on partition:

a. In Dayabhaga School, where a share is allotted to a mother or father’s mother on partition of
Joint Hindu Family Property, it is given to her by way of provision for her maintenance and is
therefore not Stridhana. On her death, the property would revert back to the sons or
grandsons out of whose share the property was taken.
b. In Mitakshara, the Privy Council held6 that a share allotted to a mother on her partition is not
Stridhana but stands on same footing as property inherited from her husband.7
c. According to the Mithila School, the share allotted is not Stridhana8
d. In Madras school the allotment by partition is obsolete.

iv. Property given in lieu of maintenance: property given for maintenance or in lieu of
maintenance or for arrears of such maintenance, lump sum money so given constitutes
Stridhana according to all schools.9

v. property acquired by inheritance:

a. a woman may inherit from husband, father, son, mother daughter and rest
b. According to Dayabhaga, Benares, Mithila and Madras schools, property inherited, whether
from male or female does not constitute Stridhana.

vi. property acquired by mechanical arts: the property is Stridhana according to all schools
where the term “mechanical arts” is to be read as spinning, painting etc

6
Debi mangal v mahadeo Prasad 1912 all 234
7
Bhagwantrao v Punjaram 1938 Nag 255
8
Krishnalal v nandeshwar 1919 4 pat LJ 38
9
Doorga v teju 1866

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vii. Property acquired by compromise: there is no presumption that she takes only a life estate.
What estate she takes depends on the terms of the deed and other circumstances.10

viii. property acquired by adverse possession: this constitutes Stridhana under all schools

ix. Property purchased with Stridhana or savings of income from Stridhana: the properties
so obtained constitute Stridhana according to all schools. Irrespective of whether the property
is movable or immovable, whether the purchase was made by exercise of the right of pre-
emption, the property would still constitute Stridhana11

Property acquired from sources other than those mentioned above

 Stridhana by Custom: the widow of a separated Hindu, who dies without leaving male
issue may by custom, inherit his property as Stridhana
 Maiden’s property: all property, except inherited by her, however acquired would constitute
Stridhana
 Acquired During Widowhood: all except
o According to Bombay School, property inherited by her as a widow, mother grandmother,
and according to other schools all property inherited by her in any capacity
o Property obtained by her on partition
 Unchastity: this does not disqualify a woman from inheriting Stridhana property12

Rights of Woman over her Stridhana

 During maidenhood: there is no limitation to the power of a Hindu female to dispose of her
Stridhana during maidenhood, whatever be the character of the Stridhana, there is no
qualifications attached.
 During covertures- saudayika and non saudayika: the power of a woman to dispose of her
Stridhana property depends on the character of it

10
Pandit Aya Shankar tewari v Chandrawati (1935) 10 Luck 35
11
Dhurjati v ram Bharos (1930) 52 All 222
12
Mst Ganga v Ghasita (1875) 1 All 46

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o Saudayika: a woman has absolute power to dispose. 13 Her husband exercises no control over
the same
o Non saudayika: the disposal is subject to the consent of the husband.

Prior to Hindu Law of Inheritance Act, 1929

Prior to this Act, the Mitakshara law also recognizes inheritance by succession but only to the
property separately owned by an individual, male or female. Females are included as heirs to
this kind of property by Mitakshara law. Before the Hindu Law of Inheritance Act 1929, the
Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations
as being entitled to inherit namely - widow, daughter, mother paternal grandmother, and
paternal great-grand mother . The Madras sub-school recognized the heritable capacity of a
larger number of female's heirs that is of the son's daughter, daughter's daughter and the
sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance Act, 1929.The
son's daughter and the daughter's daughter ranked as bandhus in Bombay and Madras. The
Bombay school which is most liberal to women, recognized a number of other female heirs
including a half sister, father's sister and women married into the family such as stepmother,
son's widow, brother's widow and also many other females classified as bandhus.

Hindu Law of Inheritance Act, 1929

This was the earliest piece of legislation, bringing woman into the scheme of inheritance.
This Act, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's
daughter and sister (thereby creating limited restriction on the rule of survivorship).

Hindu Women's Right to Property Act (XVIII of), 1937

This was the landmark legislation conferring ownership rights on women. This Act brought
about revolutionary changes in the Hindu Law of all schools, and brought changes not only in
the law of coparcenary but also in the law of partition, alienation of property, inheritance and
adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a
share equal to that of the son. But, the widow did not become a coparcener even though she
possessed a right akin to a coparcenary interest in the property and was a member of the joint
family. 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.

13
Munia v Puran (1883)5 All 310

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Despite these enactments having brought important changes in the law of succession by
conferring new rights of succession on certain females, these were still found to be incoherent
and defective in many respects and gave rise to a number of anomalies and left untouched the
basic features of discrimination against women. These enactments now stand repealed.

Prior to 1937, the widow of a deceased coparcener as a member of Undivided Mitakshara

Coparcener was entitled to only a right of maintenance from the Joint Hindu Family property
in the capacity of a member of such joint family. As the Doctrine of Survivorship applied, the
share of the deceased coparcener was taken by surviving coparceners and nothing was given
to the widow out of the share of undivided property so held by the deceased during his
lifetime.

Effect of the 1937 Act:

The Act changed the traditional concept of coparceners and the application of Doctrine of
Survivorship. Under the provisions of this Act, when a Coparcener died as a member of a
Mitakshara Hindu Joint Family and was survived by a widow, she would stand in his shoes
and prevent the undivided interest to go to surviving members. 14 This meant that she was also
given a right to demand partition of the property and claim the share that the deceased
Coparcener would have been entitled to. The only difference, though, was that the ownership
rights were limited and not absolute or was a woman’s estate terminable on her death or
remarriage.15 The Act allowed her to enjoy the income from the property so held but
restricted her from alienating the same, i.e. will, gift, sale etc.

The Act basically converted the liability of maintenance from others onto herself.

Constitutional Provisions ensuring Gender Equality

The framers of the Indian Constitution took note of the adverse condition of women in
society and a number of provisions and safeguards were included in the Constitution to ward
off gender inequality. In this context, Articles 14, 15(3) and 16 of the Constitution can be
mentioned. These provisions are part of the Fundamental Rights guaranteed by the
Constitution. Part IV containing Directive Principles of State Policy, which are no less
fundamental in the governance of the State to ensure equality between man and woman such
as equal pay for equal work. The Directive Principles further endorses the principle of gender
14
Section 3 (2) of the 1937 Act
15
Section 3(3) of the 1937 Act

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equality, which the State has to follow in matters of governance. Similarly, Part IVA of the
Constitution enshrining the Fundamental Duties states that:

It shall be the duty of every citizen of India - 

(e) ... to renounce practices derogatory to the dignity of women...

Despite these provisions for ensuring equal status, unfortunately a woman is still not only
neglected in her own natal family but also the family she marries into because of certain laws
and attitudes.

Position Of Woman After Enactment Of Hindu Succession Act, 1956-

After the advent of the Constitution, the first law made at the central level pertaining to
property and inheritance concerning Hindus was the Hindu Succession Act, 1956 (hereinafter
called the HSA). This Act dealing with intestate succession among Hindus came into force on
17th June 1956. It brought about changes in the law of succession and gave rights, which
were hitherto unknown, in relation to a woman's property. The section 6 of Hindu Succession
Act, 1956 follows as:

Devolution of interest in coparcenary property. - When a male Hindu dies after the
commencement of this Act, having at the time of his death an interest in a Mitakshara
coparcenary property, his interest in the property shall devolve by survivorship upon the
surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of
the Schedule or a male relative specified in that class who claims through such female
relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by
testamentary or intestate succession, as the case may be and not by survivorship.

While recognizing the rule of devolution by survivorship among the members of the
coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the
deceased has left him surviving a female relative specified in Class I of Schedule I, or a male
relative specified in that Class I who claims through such female relative, the interest of the
deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate
succession under this Act and not by survivorship.

Under the proviso if a female relative in class I of the schedule or a male relative in that class
claiming through such female relative survives the deceased, then only would the question of

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claiming his interest by succession arise. The Supreme Court in 1978 Gurupad v. Heerabai
and reiterated later in 1994 in Shyama Devi v. Manju Shukla wherein it has been held that the
proviso to section 6 gives the formula for fixing the share of the claimant and the share is to
be determined in accordance with Explanation I by deeming that a partition had taken place a
little before his death which gives the clue for arriving at the share of the deceased. Section 6
can further be understood by the following-Example: If C dies leaving behind his two sons
only and no female heirs of class I then property of C passes to his sons by survivorship since
there are no female relatives like daughter or any other member specified in the class me of
first schedule. In case C dies leaving behind two sons and three daughters, then property of C
will pass on to his sons and daughters by succession in the following manner.

Firstly property of "C" is divided between "C" and his two sons. The shares of "C" and his
two sons are, C gets one-third and each son one-third.

The sons are entitled to the equal share of the property along with the father. But the
daughters are entitled to the share in the share of the deceased C along with other sons. So the
sons will get one-third of the property and a share, which is one-fifth in the share of deceased
C. Hence the daughter does not take equal share with the son.

However, section 6 did not interfere with the special rights of those who are members of a
Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased in
certain cases. The Act lays down a uniform and comprehensive system of inheritance and
applies, interalia, to persons governed by Mitakshara and Dayabhaga Schools as also to those
in certain parts of southern India who were previously governed by the Marumakkattayam,
Aliyasantana and Nambudri Systems. The Act applies to any person who is a Hindu as
defined in section 2 of HSA.

But now the question the question is whether, the Hindu Succession Act actually gave
women an equal right to property or did it only profess to do so. Significantly, the provisions
regarding succession in the Hindu Code Bill, as originally framed by the B.N.Rau Committee
and piloted by Dr.Ambedkar, were for abolishing Mitakshara coparcenary with its concept of
survivorship and the son's right by birth in a joint family property and substituting it with the
principle of inheritance by succession.

The retention of the Mitakshara coparcenary without including females in it meant that
females couldn't inherit ancestral property as males do. If a joint family gets divided, each

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 male coparcener takes his share and females get nothing. Only when one of the coparceners
dies, a female gets a share of his share as an heir to the deceased. Thus the law by excluding
the daughters from participating in coparcenary ownership (merely by reason of their sex) not
only contributed to an inequity against females but has led to oppression and negation of their
right to equality and appears to be a mockery of the fundamental rights guaranteed by the
Constitution.

Hence this very fact necessitated a further change in regards to the property rights of women,
and which was done by the Hindu Succession (Amendment) Bill, 2004.

The State Amendments

The concept of the Mitakshara coparcenary property retained under section 6 of the HSA has
not been amended ever since its enactment. Though, it is a matter of some satisfaction that
five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka
have taken cognizance of the fact that a woman needs to be treated equally both in the
economic and the social spheres. As per the law of four of these states, (Kerala excluded), in
a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth
become a coparcener in her own right in the same manner as the son. Kerala, however, has
gone one step further and abolished the right to claim any interest in any property of an
ancestor during his or her lifetime founded on the mere fact that he or she was born in the
family. In fact, it has abolished the Joint Hindu family system altogether including the
Mitakshara, Marumakkattayam, Aliyasantana and Nambudri systems. Thus enacting that
joint tenants be replaced by tenants in common. A list of the legislation passed by the five
states is set out below

 The Joint Hindu Family System (Abolition) Act, 1975, Kerala. 

 The Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
 The Hindu Succession (Tamil Nadu Amendment) Act, 1989.
 The Hindu Succession (Karnataka Amendment) Act, 1994.
 The Hindu Succession (Maharashtra Amendment) Act, 1994.

The Hindu Succession (Amendment) Act, 2005

The Hindu Succession (Amendment) Act, 2005 was seeks to make two major amendments in

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the Hindu Succession Act, 1956. First, it is proposed to remove the gender discrimination in
section 6 of the original Act. Second, it proposes to omit section 23 of the original Act, which
disentitles a female heir to ask for partition in respect of a dwelling house, wholly occupied
by a joint family, until the male heirs choose to divide their respective shares therein.

Section 6 seeks to make the daughter a coparcener by birth in a joint Hindu family governed
by the Mitakshara law, subject to the same liabilities in respect of the said coparcenary
property as that of a son.

Laws reflect the face of society and its evolution over the time. To respond to the needs of a
dynamic social system, laws have to be changed and amended, at regular intervals. As far as
the basic objective of the Act is to remove gender discriminatory practices in the property
laws of the Hindus, whereby daughters have been given the status of coparceners 
in the Mitakshara joint family system. However, the position of other Class I female heirs
should not suffer as a result of this move.

However, it does not interfere with the special rights of those who are members of Hindu
Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased
male in certain cases. The Act lays down a uniform and comprehensive system of inheritance
and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and
also to those governed previously by the Marumakkattayam, Aliyasantana and Nambudri
laws. It is proposed to remove the discrimination as contained in section 6 of the Hindu
Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara
coparcenary property as the sons have.

Some Anomalies Still Persist

Some other anomalies also persist-

1. One stems from retaining the Mitakshara joint property system. Making daughters
coparceners will decrease the shares of other Class I female heirs, such as the deceased's
widow and mother, since the coparcenary share of the deceased male from whom they inherit
will decline. In States where the wife takes a share on partition, as in Maharashtra, the
widow's potential share will now equal the son's and the daughter's. But where the wife takes

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no share on partition, as in Tamil Nadu or Andhra Pradesh, the widow's potential share will
fall below the daughter's.

2. Co-parcenary remains a primary entitlement of males; the law, no doubt provides for equal
division of the male co-larcener’s share on his death between all heirs, male and female; still,
the law puts the male heirs on a higher footing by providing that they shall inherit an
additional independent share in co-parcenary property over and above what they inherit
equally with female heirs; the very concept of co-parcenary is that of an exclusive male
membership club and therefore should be abolished.

3. If a Hindu female dies intestate, her property devolves first to husband's heirs, then to
husband's father's heirs and finally only to mother's heirs; thus the intestate Hindu female
property is kept within the husband's lien.

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