PROPERTY RIGHTS UNDER HINDU CUSTOMARY LAWS IN INDIA

Abstract

The preliminary structure of the paper is attached to explaining the place of property and
custom in Indian Customary Law. The paper then studies the importance of Hindu Law, its
origin and theory. The Author then moves on to analyze the various personnel laws prevalent in
the Indian jurisprudential system, with respect to property rights, governed by customary laws.
Each part is arranged in a fashion that deals moves slowly right from the fundamentals to the
strikingly burning issues which demand immediate attentions. The work also makes an oriented
study of the Law Commission Reports regarding the disparity in Succession law with respect to
women issues. Judicial pronouncements are also analyzed. The paper then covers the
Marumakkathayam system, followed by the Nair community of Kerala. The author concludes by
stating the need for Uniform Civil Code to abolish the disparities in the system.

Introduction

‘Justice has emanated from nature. Therefore, certain matters have passed into custom by
reason of their utility. Finally the fear of law, even religion, gives sanction to those rules which
have both emanated from nature and have been approved by custom.’
– Cicero1
Ancient custom is generally regarded as providing a foundation for many laws in most systems
of jurisprudence and for reasons grounded in principle and justice. In Indian jurisprudence,
immemorial custom is not merely an adjunct of ordinary law but a constituent part of it. In Hindu
law, immemorial custom has proprio vigore,2 the efficiency of law.3 Custom has its origin in
1
. See, Mulla, Principles of Hindu Law, (1982) at p. 66, See also quoted text of Krishnan B.J: Customary law, Save
Nilgiris Campaign: Seminar on Customary 2000 Law, Ootacamund.
2
. Proprio Vigore (latin) meaning - By its own force or vigor. An expression frequently used in construction.
3
. See, Krishnan B.J: Customary Law, Save Nilgiris Campaign: Seminar on Customary 2000 Law, Ootacamund.
usage. A custom is a usage by virtue of which classes of persons belonging to a defined section
in a locality are entitled to exercise specific rights against certain other persons in the same
locality.

When the courts in India recognised customary rights based on long usage, they become
customary laws. These customary laws were the creation of Indian courts. Customary rights, by
definition cannot be the creature of a written instrument. Neither was the principles of customary
laws codified nor were the said customs listed out separately by legislation in India. However,
customary rights were recognised as early as 1872, when the Indian Evidence Act was enacted.
Section 13 of the Act deals with the facts relevant for the proof of customary law. The Indian
Forest Act 1927, under Sections 12 to 16 recognises rights to pasture and forest produce at the
stage of settling rights before a given area of forest is classified as reserve forest. These rights are
no doubt customary rights. But these rights were seldom transformed into customary rights in the
field. The reasons were twofold. Either the forest dependant communities were ignorant about
their rights or the settlement officers, with their narrow and rigid pre-establishment mindset,
were not inclined to grant such rights to the people. However, it should be admitted that the early
colonial legislations enacted over a century ago did recognise customary rights, though such
legislations were very few.

Jurisprudentially speaking the term ‘property’ is being used to indicate proprietary jus in rem.
Thus law recognizes and protects such a right. The word ‘property’ denotes everything, which is
subject of ownership, tangible or intangible, visible or invisible, real or personal, everything
which has exchangeable value or which goes to make up wealth. In 1950, the Indian Union came
into existence with a new Constitution. This Constitution guaranteed certain fundamental rights
to her citizens. One among them was the right to property. This was guaranteed under Article 31
and Article 19(1) (f). Every citizen had the right to acquire, hold and dispose of property. The
44th Amendment repealed Articles 19(1) (f) and 31, and inserted Article 300A.

India is a tapestry of multiple religions. The diversity in Her religious practice exhibits,
concurrently the diversity in Her legal provisions too. The secularism, as promised under the
perambulatory resolve is been promoted through the respect, the Constitution guarantees to the
Customary laws. In the coming part a study of different religious patterns with respect to the
property is been shown.
 The Fundamentals of Succession

Succession or Inheritance does not depend upon the will of the individual owner; transfer
does. Inheritance is a rule laid down (or in the case of custom recognised) by the State, not
merely for the benefit of individuals, but for reasons of public policy. It follows directly from
this that a private individual, who attempts by gift or will to make property inheritable
otherwise than the law directs, is assuming to legislate, and that the gift must fail, and the
inheritance takes place as the law directs. This was well expressed by Turner L. J. in
Soorjomonee Dosee v. Denobundoo Mulliek: 

'A man cannot create a new form of estate or alter the line of succession allowed by
law, for the purpose of carrying out his own wishes or views of policy.'4

Another general principle applicable to transfers by gift (more liberally applied in the law of
England to wills than to gifts inter vivos) is, that a benignant construction is to be used, and
that if the real meaning of the document can be reasonably ascertained from the language used,
though that language be un-grammatical or untechnical, or mistaken as to, name or
description, or in any other manner incorrect, provided it sufficiently indicates what was
meant, that meaning shall be enforced to the extent and in the form which the law allows. ,

Accordingly, if the gift confers an estate upon a man with words imperfectly describing the
kind of inheritance, but showing that it was intended that he should have an estate of
inheritance, the language would be read as conferring an estate inheritable as the law directs. If
an estate were given to a man simply without express words of inheritance, it would, in the
absence of a conflicting context, carry by Hindu law (as under the present state of law it does
by will in England) an estate of inheritance. If there were added to such a gift an imperfect
description of it as a gift of inheritance, not excluding the inheritance imposed by the law, an
estate of inheritance would pass.5

If, again, the gift were in terms of an estate inheritable according to law, with super-added
words restricting the power of transfer which the law annexes to that estate, the restriction

4
. (1854) 6 M. I. A. 526 
5
. Jatindra Mohan Tagore v. Ganendra Mohan Tagore (72) I. A. S. 47.
would be rejected, as being repugnant, or, rather, as being an attempt to take away the power
of transfer which the law attaches to the estate which the giver has sufficiently shown his
intention to create though he adds a qualification which the law does not recognise. If, on the
other hand, the gift were to a man and his heirs, to be selected from a line other than that
specified by law, expressly excluding the legal course of inheritance, as, for instance, if an
estate were granted to a man and his eldest nephew, and the eldest nephew of such eldest
nephew, and so forth, forever to take as his heirs, to the exclusion of all other heirs, and
without any of the persons so taking having the power to dispose of the estate during his
lifetime; here, inasmuch as an inheritance so described is not legal, such a gift cannot take
effect except in favour of such persons as could take under a gift to the extent to which the gift
is consistent with the law.

The first taker would, in this case, take for his lifetime, because the giver had at least that
intention. He could not take more, because the language is inconsistent with his having any
different inheritance from that which the gift attempts to confer, and that estate of inheritance
which it confers is void. It follows that all estates of inheritance created by gift or will, so far
as they are inconsistent with the general law of inheritance are void as such, and that by Hindu
law no person can succeed thereunder as heir to the estates described in the terms which in
English law would designate estates tail.

The Hindu Law and Usage – its nature origin and usage

Hindu Law is the law of Smritis as expounded in the Sanskrit Commentaries and Digests, which
as modified and supplemented by customs is administered by the Courts.6 The origin of Hindu
Law can be traced back to administration of Justice. Arthasastra and the Dharmasastras say that
the King was the source of Justice and Court Himself. 7 Manu further points out the 18 different
titles of Law used by the Kings.8 Partition and Inheritance and Gifts formed important titles
here.9

6
. See, Mayne, John D, Mayne’s Hindu Law and Usage, 2003, Bharat Law House, New Delhi 15th Edition at p.1
7
. See, Gaut XI, 19-24; Manu, VIII, 1-3.
8
. Manu VIII 4-7.
9
. Jolly, L&C, 35, as mentioned in p.11, Supra n.5
The un-codified Hindu law found its source in the customs which then prevailed. Uncodified
Hundu Law both as to adoption and succession was, to some extent, based on customs having the
force of law and civil Courts to which Bengal, Agra and Assam Civil Courts Act, 1887, was
applicable, were obliged to decide any question regarding succession, inheritance, marriage or
caste or any religious usage or institution on the basis of such law if the parties to the suit or
proceeding were Hindus and on the basis of Mohammadan Law if the parties happen to be
Mohammadans and in other cases on the basis of justice, equity and good conscience. 10 Adoption
of children is a practice of greatest antiquity, which was recognised by civil law from its earliest
date and obtains among the continental nations of Europe whose jurisprudence forms the civil
law. Though adoption was unknown to the common law of England, it was very well known
among the Hindus, the Assyrians, the Egyptians, the ancient Jews, Greeks and Romans.

The law of domicile then became the law governing.  It became settled law that there is a
presumption that parties residing in a particular area are governed by the lex loci. The Privy
Council in Balwant Rao v. Baii Rao held:

“Of course, if nothing is known about a man except that he lived in a certain place, it
will best assumed that his personal law is the law which prevails in that place. In that
sense only is domicile of importance. But if more is known, then in accordance with that
knowledge his personal law must be determined unless it can be shown that he has
renounced his original law in favour of the law of the place to which he migrated.”11

In Sonabai v. Lakhmibai12 it was held that the Halbi Koshtis residing in Berar were governed
by the Beneras School in spite of the fact that they spoke Marathi language. It was found in
that case that these Koshtis were a mixed occupational caste being off-shoots of the Halbas
which was an aboriginal tribe of the tract. The reason for adopting Marathi as their language
was that they were living for generations in the Marathi speaking tract and this circumstance
did not go contrary to the conclusion that they were not of Maharashtra origin.
Similarly in Rajeshwar v. Kesheo13 it was held that Dhonojo Kunbis settled in Chanda district
were not governed by the Bombay School, although they spoke Marathi. The reason was that

10
. Ajith Datt v. Mrs. Ethel Walters L.Rs. and others, (AIR 2001 All 109).
11
. AIR 1921 PC 59
12
. 1956 Nag LJ 725: (AIR 1957 Nag 76) 
13
. 1944 Nag LJ 291
they were held to be the old settlers of Gond origin. In Ramlu Naganna v. Vithal Naganna14
Komtis of Chanda district were held to be governed by the Mitakshara School which is the lex
loci of the place. In that case, there was no evidence of migration and although the parties
spoke some sort of Telgu language, it was held that it was a. mixed dialect which could be
explained on the ground that Chanda once formed a portion of the Telgu tract.

Sarada Prasanna Roy v. Umakanta Hazari15  relates to the case of a family migrating from the
North-West Provinces to Bengal. It was found proved in that case that the family had adopted
the Dayabhaga Law of Bengal for generations and on this finding it was held that they were
governed by the Dayabhaga law. This is not a case in which the presumption about the
application of lex loci was applied but it is a case in which a family which would otherwise
have been governed by the Mitakshara law was held to be governed by the Dayabhaga law on
the ground; that they had abandoned the law of their origin and had adopted the law of the
place. This case does not help the plaintiii-appellant.

The decision of a Division Bench of in Smt. Umabai v. Smt. Chandrabhagabai,16 related to the
case of Marathas of Raipur. It was held in that case that they were governed by the lex loci,
i.e., by Mitakshara law. We have gone through the judgment of the case and find that no
pleadings were raised in that ease contesting the position that the parties were governed by the
Mayakha law. The plea was sought to be raised at the stage of appeal and for want of
pleadings the Court refused to consider it. Naturally, therefore, lex loci was implied.

Hindu Property Rights

14
. AIR 1947 Nag 180) : 1947 Nag LJ 151
15
. ILR Cal 370: (AIR 1923 Cal 485) 
16
. First Appeal No. 39 of 1956 D/- 30-7-1959 (MP)
Succession Law of Hindus,17 under the India is governed by the Hindu Succession Act, 1956 if
the person dies intestate and by the Indian Succession Act, 1925 if he/she has a testamentary
disposition. The Hindu Succession Act, 1956 lays down a uniform and comprehensive system of
inheritance and applies to persons governed by both the Mitakshara 18 and Dāyabhāga19 schools.
The Dayabhaga is the law which prevails only in Bengal and Mitakshara in remaining parts of
India. With the rise of different commentators in different provinces the Mitakshara School was
sub-divided into four Schools, namely, the Benares, the Mithila, the Maharashtra and the
Dravida Schools. The Maharashtra prevails in the Bombay Presidency and the Dravida in the
Madras Presidency. The Mithila School prevails only in Mithila.

The Hindu law regarding the succession was found in the Smritis20 and ancient texts. There are
many schools of Hindu Law and the law of succession in different parts of India depended upon
the school of Hindu Law prevailing in that part. In Balwant Rao v. Baji Rao, their Lordships of
the Privy Council stated the law, 

“The Prima facie any Hindu residing in a particular province of India is held to be
subject to the particular doctrines of Hindu law recognised in that province. . . . But this
law is not merely a local law. It becomes the personal law, and part of the status of every
family which is governed by it; consequently, where any suoh family migrates to another
province governed by another law, it carries its own law with it. Of course, if nothing is
17

.The term ‘Hindu’ as per the Act includes Virashaiva, a Lingayat or follower of the Brahmo, Prarthana or Arya
Samajany and also a person who is Buddhist, Jaina or Sikh. ‘Hindu’ also includes the members of any Scheduled
Tribe within the meaning of clause (25) of article 366 of the Constitution of India unless the Central Government.
See. Section 1 and 2, The Hindu Succession Act, 1956.
18
. The Mitākṣarā is a legal commentary on the Yajnavalkya Smriti best known for its theory of "inheritance by
birth." It was written by Vijñāneśvara, a scholar in the Western Chalukya court in the late eleventh and early twelfth
century. Along with the Dāyabhāga, it was considered one of the main authorities on Hindu Law from the time the
British began administering laws in India. The entire Mitākṣarā, along with the text of the Yājñavalkya-smṝti, is
approximately 492 closely printed pages. (See. Kane, P. V., History of Dharmaśāstra, Poona: Bhandarkar Oriental
Research Institute, 1975, Volume I, Part II, at p.604.)
19
. The Dāyabhāga is a Hindu law treatise written by Jīmūtavāhana which primarily focuses on inheritance
procedure. The digest is most notable for being based on Śāstric doctrines differing from those more commonly used
in the Mitākṣarā, resulting in several basic contradictions between the texts. The Dāyabhāga does not give the sons a
right to their father's ancestral property until after his death. The Dāyabhāga was the strongest authority in Modern
British Indian courts in the Bengal region of India, although this has changed due to the passage of the Hindu
Succession Act of 1956 and subsequent revisions to the act. (Ibid at p.703)
20
. Smriti (Sanskrit) literally "that which is remembered," refers to a specific body of Hindu religious scripture, and
is a codified component of Hindu customary law. See, Brick, David. Transforming Tradition into Texts: The Early
Development of Smrti. ‘‘Journal of Indian Philosophy’’ 34.3 (2006): 287–302.
 known about a man except that he lived in a certain place, it will be assumed that his
personal law is the law which prevails in that place. In that sense only is domicile of
importance. But if more is known, then in accordance with that knowledge his personal
law must be determined; unless it can be shown that he has renounced his original law in
favour of the law of the place to which he migrated.”21

It therefore follows that though the parties are residents in one place X, they must be governed
by the law of the place from which their family migrated, unless it is shown that they renounced
their original law and adopted the law prevailing in X. 22 The Hindu Succession Act hailed for its
consolidation of Hindu laws on succession into one Act. 23 The Hindu Succession Act, 1956 is
part of the Hindu Code which includes the Hindu Marriage Act, 1955, the Hindu Adoptions and
Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.

The Succession Law of Male Hindu

The Law as per the Succession Act, 1956 is as follows. Section 8 of the Act clearly states so.

The property of a male Hindu dying intestate shall devolve according to the provision
of this Chapter:-

(a) firstly, upon the heirs being the relatives specified in class I of the schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives
specified in class II of the schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates  of the
deceased and
(d) lastly, if there is no agnates, then upon the cognates of the deceased.

The legal heirs are defined in the Hindu Succession Law. All the relations are categorised into
two classes called Class I and Class II. The first right on wealth is of Class I heirs. Only if there
is no one available in Class I, then relations under Class II can claim their rights. If Class I &
Class II both are not there, then the claims goes to Agnates and Cognates.

21
.  AIR 1921 PC 59.
22
. See also, : Sri Chandra Choor Deo and Ors.v. Bibhuti Bhushan Deva (AIR 1945 Pat 211)
23
. See, Hindu Succession Act, 1956, at http://en.wikipedia.org/wiki/Hindu_Succession_Act,_1956, as accessed on
10/06/2013 at 14:27 hrs, IST.
The High Court of Delhi, in Air Marshal Satish C. Lal & Anr. v. J.J. Singh & Ors, held that

‘ A bare reading of the aforesaid section makes it clear that when a male Hindu dies
intestate, his property shall first devolve upon the heirs being the relatives specified in
Class I of the Schedule appended to the Hindu Succession Act and to the exclusion of
all other heirs. The relatives specified in Class II of the Schedule will get a chance of
inheritance only if there is no heir of Class I, and if there is no heir of any of the two
classes, the agnates of the deceased will get the chance and lastly, if there are no
agnates, the cognates of the deceased will get the chance of inheritance.’ 24

Class I & Class II heirs under Hindu Succession Law are as follows.

Class I relations
 Son/Daughter
 Widow
 Mother
 Son/Daughter of a pre-deceased son (per-deceased means “already Dead”)
 Son/Daughter of a pre-deceased Daughter
 Widow of a pre-deceased son
 Son/Daughter of a pre-deceased son of a pre-deceased son (3 levels)
 Widow of a pre-deceased son of a predeceased son

Class II relations 

 Father
 Brother/Sister
 Son’s daughter’s son/daughter,
 Daughter’s son’s son/daughter
 Daughter’s daughter’s son/daughter
 Sibling son/daughter
 Father’s Parents
 Brother’s widow
 Father’s sibling
 Mother’s parents
 Mother’s sibling
24
. 187(2012) DLT 471
Agnates & Cognates  - the Bhandus

The class I and class II given above is in the preferential order. In the absence of heirs of
Class I and Class II, the property is passed to the agnates and cognates of the deceased in
succession. Now, one person is said to be the agnate, if he/she is related by blood or adoption
wholly through the male chain line. Similarly, one person is said to be the cognate of the
other if the two of them are related by blood or adoption, but not totally through males, i.e.
there has to be some intervention by a female ancestor somewhere. Further expanding on the
concept, the Supreme Court in Vimla Bai v. Hiralal Gupta and Ors, explained the concepts in
relation to the term, Bhandu.

‘The term 'bandhu' or 'bandhava' meant relations in general and included both
agnates and  cognates though it was sometimes confined to agnates in some of the
Smriti texts relating to succession and gotra kinship, as for instance in the
Vishnusmriti and in some of the verses in Manusmriti. The Mitakshara explains that
the term 'bandhavas' in the above test of Manu means Atma Bandhus, Pitrubandhus
and Matrubandhus, vide Mit. on Yajn. III, 24 (Setlur edn. 1169) Naraharayya's
translation 56.’25

The term 'bandhu' has acquired in the system of the Mitakshara a distinctive and technical
meaning and signifies bhinnagotra sapindas. They are the three classes: (1) atmabandhus or
one's own bandhus, (2) pitrubandhus or the father's bandhus and (3) matrubandhus or the
mother's bandhus. The relevant passage in the Mitakshara is as follows: Cognates are of three
kinds; related to the person himself, to his father, or to his mother, as is declared by the
following text.

The sons of his own father's sister, the sons of his own cognate kindred. The sons of
his father's paternal aunt, the sons of his father's maternal aunt, and the sons of his
father's maternal uncle, must be deemed his father's cognate kindred. The sons of his
mother's paternal aunt, the sons of his mother's maternal aunt, and the sons of his
mother's maternal uncle, must be reckoned his mother's cognate kindred. Here, by

25
. 1990(1) SCALE 49.
 reason of near affinity, the cognate kindred of the deceased himself, are his
successors in the first instance; on failure of them, his father's cognate kindred; or if
there by none, his mother's cognate kindred. This must be understood to be the order
of succession here intended.

Thus again the code is been proved to be in accordance with the Mithakshara school.

As per Section, 8, the first preference is given to Agnates and only if there is no Agnate, only
then Cognate gets the right.

Some note worthy points to interpret the male succession laws are:

a) A child in womb is treated as a separate child as if he/she was out in the world,
He/she gets separate share in the property.26
b) No succession rights if the widow has remarried on the date of succession.27
c) If a person has killed the person from whom he was suppose to acquire the wealth and
has been declared as murderer by law, then he looses his right of acquiring assets.28
d) If there is no heir qualified to succeed to his or her property in accordance with the
provisions of this Act, such property shall go to the  Government.29
e) If there are more than one Widow’s , then they get one share only and then divide it
between themselves and a person immediate family will also be considered as one unit
only.30

The Succession Law of Female Hindu

The property of a female Hindu dying intestate shall be distributed according to the rules
set out as in Section 15(1) is the following –

a) Firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;
b) Secondly, upon the heirs of the husband ;

26
. Section 20 of the Hindu Succession Act, 1956.
27
. Section 24, Ibid.
28
. Section 25, Ibid.
29
. Section 29, Ibid
30
. Section 10, Supra n.25
 c) Thirdly, upon the mother and father;
d) Fourthly, upon the heirs of the father; and
e) Lastly, upon the heirs of the mother.31

If the women has acquired any property from his Father or Mother, in that case the first right will
be of the heirs of her father and not husband, in case of absence of his sons or daughters.
Furthermore if the women has acquired any property from her Husband, in that case the first
right will be of the heirs of her husband, in case of absence of his sons or daughters

Hindu Females - a saga of inequality under the Act

The Hindu Succession Act 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 Act was amended in 2005 to provide that
the daughter of a co-parcener in a joint Hindu family governed by the Mitakshara Law shall, by
birth, become a co-parcener in her own right in the same manner as the son, having the same
rights and liabilities in respect of the said property as that of a son.32

The general rule is succession as we discussed earlier in Section 15 (1)(a-e). The Section also
provides for two exceptions which are stated in Sub-Section (2).

Section 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 predeceased 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.

. See Section 15(1) clauses a-e.

31

32
. See, Lakshmanan AR (Dr.)(Justice), LET US AMEND THE LAW, IT IS ONLY FAIR TO WOMEN , The Hindu Open
Page, 24th of July, 2011.
Accordingly, if a female dies without leaving any issue, then the property inherited by her from
her father or mother will not devolve according to the rules laid down in the five entries as stated
earlier, but upon the heirs of father. And secondly, in respect of the property inherited by her
from her husband or father-in-law, the same will devolve not according to the general rule, but
upon the heirs of the husband. On reading this the inequality on the basis of sex is blatantly
evident. First the property is given to the female and then it is revoked after her death. i.e on one
hand you call her an absolute owner and on the other hand an improper male biased approach is
taken.

The 174th Law Commission Report, Property Rights of Women; Proposed Reforms under the
Hindu Law, explains the situation as:

‘Scope Discrimination against women is so pervasive that it sometimes surfaces on a

bare perusal of the law made by the legislature itself. This is particularly so in relation to
laws governing the inheritance/succession of property amongst the members of a Joint
Hindu family. It seems that this discrimination is so deep and systematic that it has
placed women at the receiving end. Social justice demands that a woman should be
treated equally both in the economic and the social sphere. The exclusion of daughters
from participating in coparcenery property ownership merely by reason of their sex is
unjust. Since time immemorial the framing of all property laws have been exclusively for
the benefit of man, and woman has been treated as subservient, and dependent on male
support. The right to property is important for the freedom and development of a human
being.’

Dr. Justice AR Lakshmanan commented on this inequality which if not quoted here will do
complete injustice to this work.

‘The Hindu Succession Bill, 1954, as originally introduced in the Rajya Sabha, did not
contain any clause corresponding to Sub-Section (2) of Section 15. It came to be
incorporated on the recommendations of the Joint Committee of the two Houses of
Parliament. The intent of the legislature is clear that the property, if it originally belonged to
 the parents of the deceased female, should go to the legal heirs of the father. So also under
Clause (b) of Sub Section (2) of Section 15, the property inherited by a female Hindu from
her husband or her father-in-law shall also under similar circumstances, devolve upon the
heirs of the husband. It is the source from which the property was inherited by the female,
which is more important for the purpose of devolution of her property. The fact that a female
Hindu originally had a limited right and after acquiring the full right, would not, in any way,
alter the rules of succession given in Sub Section (2) of Section 15.’33

Furthermore, Archana Parasar explains the disparity as:

The supporters of the said approach contend that the joint family system has slowly eroded
and that an increasing number of nuclear and semi-nuclear families have replaced the
traditional Mitakshara Hindu joint family system. Women are also becoming more
economically independent. With the growth of the nuclear family, a married woman's
dependency on her natal family and continued closeness to it is much greater today even if it
was not so earlier. Most married women would prefer that their parents should be the more
preferred heirs to inherit her property if her children and husband are not alive. She would
also prefer that her sister and brother have a better right to inherit her property than her
brother-in-law and sister-in-law.34

Therefore, it is recommended that Section 15(1) should be modified to ensure that the general
order of succession does not place a woman's husband's heirs above those who belong to her
natal family like her father and mother and thereafter, her brother and sister. It is noteworthy that
when a man dies intestate, his wife's relatives do not even figure in the order of succession
despite the manner in which he may have acquired the property. Considering this view there
should be parity in the case of a female by applying the same rules as applicable to male's
property.

. Ibid
33

34
. See., Archana Parasar, Amit Dhanda Pradhan Saxena- Succession Laws and Gender Justice in Re-defining
Family Law in India, New Delhi.
 Kerala : A Case Study

The Hindu Succession Act recognizes Marumakkattayam law grants special status to it. 35
Marumakkattayam law is applicable to a considerable section of people living in Travancore-
Cochin districts of Malabar and South Kanara36. In South Kanara the system of law applicable is
known by the name if Aliyasantana. The Marumakkattayam system is followed by the non-
Brahmin castes and Nayar Community of Malabar, Cochin and Travancore. It is also the law
applicable to the Thiyyas and other cognate castes in North Malabar are also governed by this
system. The Bunts, the Billawas and the non-priestly class among the Jains in Kanara are
governed by the Aliyasantana laws. The Marumakkattayam and Aliyasantana law are a body
of custom and usage. The outstanding feature of the Marumakkattayam and Aliyasantana law is
that the inheritance is through nephews and nieces. In other words, it is based on the
matriarchate. Elsewhere in Hindu law, the members of the joint family trace their descent
through a common male ancestor, under the Marumakkattayam system, the members trace their
descent through a common female ancestress, and that is to say the descent is through the
female’s line.

The Marumakkattayam and Aliyasantana laws are essentially customary law and there is no
sacred writing binding on the followers of these systems. Even prior to the passing of the Hindu
Succession Act, the common law of Marumakkattayam and Aliyasantana has been considerably
modified by the statutory law. The Nairs (Nayars) of Kerala are a distinct group unlike other
Keralites by virtue of their customs and traditions. They had their own marital customs

35
. Section 17 of the Hindu Succession Act, 1956. Special provisions respecting persons governed by
Marumakkattayam and Aliyasantana laws. The provisions of sections 8, 10, 15 and 23 shall have effect in relation to
persons who would have been governed by the Marumakkattayam law or Aliyasantana law if this Act had not been
passed as if-
(i) for sub-clauses (c) and (d) of section 8, the following had been substituted, namely:-
"(c) thirdly, if there is no heir of any of the two classes, then upon his relatives, whether agnates or cognates.";
(ii) for clauses (a) to (e) of sub-section (1) of section 15, the following had been substituted, namely:-
"(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and
the mother;
(b) secondly, upon the father and the husband;
(c) thirdly, upon the heirs of the mother;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the husband.";
(iii) clause (a) of sub-section (2) of section 15 had been omitted;
(iv) section 23 had been omitted.
36
. See Mayne, Hindu Law and Usage, p. 971-94
(Sambandham),37 their own form of inheritance (Marumakkathayam). Their own art of warfare,
their own war goddess (Bhadrakali), their own cult of ancestor worship, and their own art form,
the Kathakali.38 Their swordsmanship and suicidal squads (Chavers) can be compared to that of
the Samurais of Japan and as the warrior class they used to look down upon manual work and
entrust their lands to tenants to till and plant. The Brahmins had classified them under the name
of the pure Sudras of Malayala, they were always an honored caste. Some think nair is the
honorific plural of nayan which is derived from the Sanskrit nayaka (leader). Others derive nair
from the naga (snakes) which they worship. The Brahmin-inspired Keralolpathi regards them as
the descendants of the Sudras who accompanied the Brahmin immigrants from outside Kerala.

The Nairs like almost all other Keralite tribes came from other parts, even of countries adjacent
to India, like Nepal . Some consider them to be early descendants of the Newars of Nepal. The
Kathakali which is a Nair art-form is closely related to Tibetan dances. Nair polyandry is very
similar to Tibetan marriage customs; in the mode of inheritance the Newars are like the Nairs;
like the Newars, the Nairs are distinguished by their lighter coloring, Mongolian features, and
smooth hair. The most remarkable thing about the Nairs is their style of pagoda-like temple
architecture and house construction which are almost identical with the Newar style of temples
and houses found all along the Kulu and Nepal Valleys. Serpent worship is another common
custom between the Newars and Nairs. As mentioned earlier, the settlers of Kerala came from
the northwestern parts of India and the Nepal Valley.

A theory that exists is that groups of Newars who were partially Aryanized and would be later
Dravidianized joined the Munda exodus and finally settled down in Kerala after a long period of

37
. On a suitable date fixed by the astrologer, the groom and his family would arrive at the house of the bride. They
would be entertained in the southern hall of the house which would be specially decorated for the ceremony. Two
big brass oil lamps and paras of paddy would be kept in the centre of the room, with a bunch of coconuts in front of
the lamp. The groom would be seated before the lamp. At the auspicious hour, and the bride would be brought in by
an elderly lady before the groom. With the permission of the elders of the bride, the bridegroom would present the
bride a wedding shawl or pudava . Once the bride receives the cloth she presents the bride groom with "thamboola"
(betel leaves and arecanut). Following this a feast would be given in the house and the ceremony would be
concluded. It may be stated that a Sambandham may take place only if the bride had already had her elaborate ritual
marriage known as Kettu Kalyanam previously. See, SAMBANDAM http://en.wikipedia.org/wiki/Sambandam as
accessed on 10/06/2013 at 11:27 hrs, IST.
38
. Kathakali  is a highly stylized classical Indiandance-drama noted for the attractive make-up of characters,
elaborate costumes, detailed gestures and well-defined body movements presented in tune with the anchor playback
music and complementary percussion. It originated in the country's present day state ofKerala during the 17th
century and has developed over the years with improved looks, refined gestures and added themes besides more
ornate singing and precise drumming.
sojourn in the eastern plains of Tamil Nadu. It is the Newar-Nair builders who have given Kerala
both the pagoda-type architectural style of the Hindu temples and the angular roof and dormer of
Kerala houses. It can be said that the Nairs were in Kerala before the Brahmins arrived in the
seventh century A.D. The Chera kings were Nairs, and the Nairs were also Dravidians and not
Kshatriya Aryans; the Brahmins, in fact, considered them as Sudras. However, the younger sons
of Brahmin families could form morganatic relationships (Sambandham) with Nair women, the
children remaining Nairs and thus introducing a new element in the race. This helped the junior
members of the Brahmin family to be relieved of their life-long bachelorhood without the
responsibility for supporting their wives and children from their family property. The rule of real
marriage was endogamous monogamy between Nairs especially between the daughter of a
maternal uncle and his nephew.

Conclusion

The framers of the Indian Constitution took note of the adverse and discriminatory position of
women in society and took special care to ensure that the State took positive steps to give her
equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit
discrimination against women but in appropriate circumstances provide a free hand to the State
to provide protective discrimination in favour of women. These provisions are part of the
Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the
Directive Principles which are no less fundamental in the governance of the State and inter-alia
also provide that the State shall endeavour to ensure equality between man and woman.
Notwithstanding these constitutional mandates/ directives given more than sixty years ago, a
woman is still neglected in her own natal family as well as in the family she marries into because
of blatant disregard and unjustified violation of these provisions by some of the personal laws.

Succession law does not exist in a vacuum. It achieves certain social purposes. Because it
involves the handing on of property from one generation to another the rules of succession allow
a particular form of society to be transmitted from one age to another. Clearly not all societies
have the same laws of succession. In some societies it is the perpetuation of traditional status
which is important. In others it is the transmission of property and wealth, perhaps within the
family group which is important. In the present scenario, when amendments are made to the
effect that women have been entitled to inherit property from her parental side as well as from
husband's side, it will be quite justified if equal right is given to her parental heirs along with her
husband's heirs to inherit her property.

Since the subject matter of the laws of succession fall in Entry 5 of the Concurrent List of the
Seventh Schedule to the Constitution. Therefore, Parliament as well as the State Legislatures are
competent to enact laws in this area. In case another State brings some third model of legislation
in this field, there is a likelihood of having still more diversity in the law. This would result in
the Directive Principles of State Policy not being adhered to which require the State to endeavour
to secure a uniform civil code throughout the territory of India. Accordingly, there is need to
have a central law enacted by Parliament under Article 246 of the Constitution.

Article 44 talks about a Uniform Civil Code  for the citizens ‘the state shall endeavor to secure
for the citizens a uniform civil code throughout the territory of India.’ On the one hand we have
Article 25, which gives the liberty to all to profess and propagate their religion. The state will not
glorify any particular religion. On the other hand Article- 44 though a directive principle but
fundamental in the governance of the country talks of a uniform civil code which can infringe the
freedom of religion as guaranteed under Article 25 and it can act tyrannical to the minorities.

The state is trying to play a dual role here. At one point of time it says that the state will not
propagate any particular religion and in the second breath it is amassing the role of religion itself.
The state is indulging itself into a sabotage to repress and suppress the minority right and
religion. This is what was done in Mohd Ahmed Khan v. Shah Bano Begum39 whereby the court
echoed his misapprehension about Islam. The court said that the fatal point in Islam is the
degradation of women. And to make things worse he declared that the actual and final solution
of the problem lay in the immediate enactment of a uniform civil code.

39
. 1985 2 SCC 556