Prop­erty Rights of Women

Accommodation Times - - Front Page - By S R Agar­wal Ad­vo­cate

The suc­ces­sion to an im­mov­able prop­erty is gov­erned by the pro­vi­sions of the Hindu Suc­ces­sion Act, 1956. The prop­erty owned by a women may be a self ac­quired prop­erty or an an­ces­tral prop­erty in­her­ited ei­ther from the side of the fa­ther or that of the hus­band. A self ac­quired prop­erty means the prop­erty ac­quired through self earn­ings and sav­ings or by way of a gift or a will from any rel­a­tive or friend, pro­vided the terms of the gift or the will does not pre­scribe a re­stricted es­tate in such prop­erty, such as a hus­band may be­queath the prop­erty to his widow, sub­ject6 to the con­di­tion to en­joy the prop­erty dur­ing her life time and af­ter her death, it was to re­vert back to the heirs of the hus­band or to whom­so­ever he wanted. As re­gards in­her­i­tance of the an­ces­tral prop­erty re­lat­ing to in­tes­tate suc­ces­sion, it was gov­erned un­der the tra­di­tional Hindu law be­fore cod­i­fi­ca­tion and en­act­ment of the Hindu Suc­ces­sion Act, 1956, by the Rule of Sur­vivor­ship among the mem­bers of the co­parce­nary, with­out in­clud­ing the fe­males in it. For the first time af­ter the en­act­ment of the said Act, a Hindu woman got the right to in­herit an equal share in the co­parce­nary prop­erty, like a male mem­ber, if the de­ceased had left be­hind him sur­viv­ing a male rel­a­tive of Class 1 le­gal heirs as spec­i­fied in the sched­ule of the said Act such as widow, daugh­ter, mother and so on in case of par­ti­tion among the co­parceners and since a fe­male was not the co­parcener, she could not claim the par­ti­tion of the prop­erty. The ex­clu­sion of a daugh­ter from par­tic­i­pat­ing in the co­parce­nary own­er­ship con­trib­uted to her dis­crim­i­na­tion on the ground of the gen­der. With a view to re­mov­ing this gen­der dis­crim­i­na­tion and giv­ing equal rights to the daugh­ters in the Hindu Mi­tak­shara co­parce­nary, the said Act has been amended

As per pro­vi­sions of Sec­tion 14 of the said Act, a fe­male Hindu is now an ab­so­lute owner of the prop­erty with full own­er­ship rights and not as a lim­ited owner and she can dis­pose of the same by way of a gift or a will to whom­so­ever or in a man­ner she wishes.

by an Amend­ment Act No: 39 of 2005 with ef­fect from the 9th Septem­ber 2005, whereby a daugh­ter be­came a co­parcener by birth in her own right in the same man­ner as the son and with the same rights in the co­parce­nary prop­erty, as if she would have been a son. Ear­lier Sec­tion 23 of the said Act dis­en­ti­tled a fe­male heir to ask for par­ti­tion in re­spect of a dwelling house wholly oc­cu­pied by a Joint Fam­ily un­til the male heirs chose to di­vide their re­spec­tive shares therin. By the said Amend- ment Act, the said Sec­tion No: 23 has been deleted w.e.f. 09.09.2005, mean­ing therby that a fe­male heir can now de­mand par­ti­tion of a dwelling house like a male mem­ber. Prior to the said amend­ment by the said Cen­tral Act of 2005, a sim­i­lar pro­vi­sion has been made in Andhra Pradesh, Tamil Nadu, Ma­ha­rash­tra and Kar­nataka with ef­fect from 05.09.1985, 25.03.1989, 22.06.1994 and 30.07.1994 in that or­der. In view of these amend­ments, a daugher, even af­ter her mar­raige, con­tin­ued to be a cpar­cencer of the HUF of her fa­ther, in ad­di­tion to her be­ing a mem­ber of the HUF of her hus­band. How­ever, in Ker­ala, joint fam­ily sys­tem has been abol­ished by the Ker­ala Joint Hindu Fam­ily Sys­tem (Abo­li­tion) Act, 1975. There­fore, as per pro­vi­sions of Sec­tion 14 of the said Act, a fe­male Hindu is now an ab­so­lute owner of the prop­erty with full own­er­ship rights and not as a lim­ited owner and she can dis­pose of the same by way of a gift or a will to whom­so­ever or in a man­ner she wishes. How­ever, she will have lim­ited own­er­ship or re­stricted es­tate in the prop­erty ac­quired by her by way of gift or un­der a will, of the in­stru­ment of gift or will so pre­scribes. In case of her dy­ing in­tes­tate i.e. with­out leav­ing be­hind a will, her prop­erty, whether self ac­quired or an­ces­tral shall de­volve on her le­gal heirs i.e. sons, daugh­ters and hus­band and fail­ing them other cat­e­gory of the re­la­tions, as pre­scribed in Sec­tion 15 of the said Act in or­der of suc­ces­sion and the man­ner of the dis­tri­bu­tion among the heirs as per Sec­tion 16 of the said Act. It is a mis­con­cep­tion that a widow, af­ter re­mar­raige, is di­vested of her share in the prop­erty of the hus­band. Merely be­cause the wife has re­mar­ried, she does not loose her right to suc­ceed to her de­ceased hus­band's prop­erty. (Re­fer to the case of THANKAM V/S RA­JAN, re­ported as AIR-1999-Ker-62). How­ever, where a Hindu mar­ried dies in­tes­tate and is­sue­less or in the ab­scene of a son or daugh­ter or the chil­dren of any pre­de­ceased son or daugh­ter, prop­erty in­her­ited by her from her fa­ther or mother shall de­volve upon the le­gal heirs of her fa­ther and the prop­erty in­her­ited by her from her hus­band or her fa­ther-in-law shall de­volve upon the heirs of the hus­band, as per the pro­vi­sions of Sec­tion 15 of the said Act and ruled by the Hon'ble Supreme Court in the case of Smt Ra­jathia­mal. In other words, the prop­erty in­her­ited by a woman from her fa­ther or mother, in such an even­tu­al­ity, would pass on nei­ther to her hus­band nor the heirs of her hus­band, but it would re­vert back to the heirs of her fa­ther. Thus, a Hindu woman has noe full right, ti­tle and own­er­ship in­ter­est in her­self ac­quired prop­erty and share in the an­ces­tral prop­erty as an ab­so­lute owner and not as a lim­ited owner, ex­cept the prop­erty ac­quired by her by way of gift or un­der a will with re­stric­tive con­di­tion of en­joy­ment dur­ing her life time. By way of the said amend­ment in the year 2005, con­fer­ring a co­parce­nary sta­tus on a daugh­ter, a hindu woman, even af­ter mar­riage, may act as a karta of the HUF of her fa­ther if her brother is younger to her, though she can't act as such for the HUF of her hus­band and the law needs evo­lu­tion on the point of daugh­ter act­ing as a karta of the HUF of her fa­ther, par­tic­u­larly af­ter her mar­riage, as it may not be har­mo­nious for keep­ing good re­la­tions with her broth­ers and other re­la­tions in her fa­ther's fam­ily.

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