Hindu Women’s Property Rights underHWRTPA, 1937 Time and again the codification ofdiverse facets of Shastric Hindu Law have been made responding to the demand ofcurrent social exigencies and the original Sastric precepts have beenmodulated, altered and effaced in tune with the changing needs and aspirations.1Social reform movements during the British period raised the issue ofamelioration of women’s position in society. The earliest enactments whichattempted at reform of the Hindu law are Caste Disabilities Removal Act (ActXXI of 1850) and Hindu Widows Re-marriage Act (Act V of 1856) but the earliestlegislation bringing females into the scheme of inheritance is Hindu Law ofInheritance Act (Act II of 1929). This Act conferred inheritance rights onthree female heirs namely, son’s daughter, daughter’s daughter and sisters. Another landmark legislation duringthis period conferring ownership and improving the rights of women in propertywas the enactment of Hindu Women’sRight to Property Act, 1937 (hereinafter the 1937 Act). The Act was passedafter a series of protest against the subordinate legal status of propertyrights given to Hindu women, under the traditional Hindu law.
Theoriginal provisions of Hindu Women’s Right to Property Bill, introduced by G.V. Deshmukh, granted womenabsolute right to property and share to daughter in parental property but whenthe Act was passed the provisions were mutilated.
Daughters were excluded beinggiven share in parental property, w idows were granted only a limited right ofinheritance by introducing the English concept called ‘widow’s estate’ and itconfined women’s right to property within the limited sphere of inheritancerights of widows2.It came into effect on 14thApril 1937 and has no retrospective effect. As the Act was considered to bedefective, it was amended by the Hindu Women’s Rights to Property(Amendment) Act, XI of 1938 which was declared to have retrospective effect asfrom the 14th April 1937.3 The Act isnot retrospective4 and did not apply toproperty of any Hindu who dies intestate before the commencement of the Act5nor to the widow of a coparcener, who died before the Act came into force.
6The enactment of the 1937 Act strengthened the right of a widow as it providedfor the substitution of the widow in the place of her deceased husband in thecoparcenary so long as she was alive thereby striking at the root of Mitaksharacoparcenary by pruning the rule of survivorship and granting right of partition.This Act effects important changes both in the law governing the devolution ofa person’s separate property and in the law governing the interest which hemight have inherited joint family properties.7 However,the Act was neither a modification of the whole area nor did it amend the Hindulaw of inheritance in general.
8 The Act was later repealed by s. 31 of HinduSuccession Act, 20 of 1956 prior torepeal of the said section by repealing and amendment Act, 1960 being Act58 of 1960. The effect of such repeal under Section 31of Hindu Succession Act, 1956 by reason of Section 6 ofGeneral Clauses Act, 1897 didnot in any way affect the right alreadyacquired by the widows under HinduWomen’s Right to PropertyAct, 1937. (a) Objectivesand scope of the ActThe objective of the Act as setout in the Preamble is “to give better rights to women in respect of property.”by conferring larger rights upon women incomparison to what they enjoyed under the ordinary Hindu law. The Hindu Women’s Right to Property Act,1937 has for the first time conferred surviving widow the right to claimpartition of the property of the family to which her husband belonged,which right had been denied to her under the Hindu law texts. The Act also provides a positive stipulation thatwidow’s right in her deceased husband’s separate property or hisinterest in the joint family superseded any contrary rule of Hindu law orcustom. The Act gave right to widow in”any property”.
The expression prima facie included, unless somethingto the contrary came under from the other provisions of the Act, all forms ortypes of interest answering to the description of “property” in lawwhich also includes shebaitship.9It must be a heritable property. Scope of theAct itself was confined to property other than agricultural property andtherefore succession to agricultural property was not regulated by the Act.10 A widow under the Act couldclaim a share in the interest of her deceased husband in the non-agriculturalproperties owned and possessed by the family at the time of his death and alsoin the accretions arising therefrom, irrespective of the character of theaccretions.11The Federal Court ruled that the Hindu women’s rights to property act (central act 18of 1937) and the Hindu women’s rights to property (Amendment) act (central act11 of 1938) didnot operate to regulate succession of agricultural land in the Governor’sprovinces and it operated to regulate devolution by survivorship of propertyother than agricultural land as the agricultural land was outside the CentralLegislature’s powers under the Government of India Act, 1935.(b) Devolutionof Property under HWRTP Act,1937Hindu Women’s Right toProperty Act, 1937 (IND) (HWRTP Act, 1937) wasenacted to enlarge the rights of a class of persons, namely, the widow, andwhat was given to her was the representation of her husband in the familyestate in spite of the husband’s death. The Act for the first timestatutorily gave an enforceable right to a widow to demand partition of herdeceased husband’s coparcenary share, but with only limited rights over suchproperty known as the “Hindu woman’sestate”.
She was entitledto possess and use the property during her lifetime but on her death orremarriage, this share would revert to the surviving coparceners and didnot pass on to her heirs. The conceptual idea ofstatutory codification of Hindu Women’s Right to Property Act, 1937 by providing the provision of “women’s estate” is a departureand/or a serious positive turn in social angle as well as in socio-economicfield, in favour of women’swhich earlier was not so recognised by any statutory codification save andexcept the “sastrik” provision of Hindu law in the nature of “Stridhan”.12Formerly,the interest of the deceased coparcener in the undivided properties passed onto the other surviving coparceners by survivorship. Even before this Act waspassed, females who by marriage entered the undivided family were regarded asmembers of an undivided family but they were never given the status ofcoparceners. Section 313 ofthe Hindu Women’s Rights to Property Act, 1937, conferred upon the Hinduwidow the right to a share in the joint family property as also a right todemand partition like any male member of the family.
Section3(1) abrogated the general rule of Hindu law according to which a widowsucceeded to her deceased husband’s property only in default of male issue andshe was then entitled to the same share as a son along with or in default ofmale issue. Similar rights had been given by the two provisos attachedto section 3(1) to the widow of a predeceased son and also to thewidow of a predeceased son of a predeceased son. The Act gave such widows the sameinterest which her deceased husband had in the joint property and were placedin principle group of heirs consisting of son, son’s son and son’s son’s son.14 Theinterest of such widow under the Act was the same interest which her husbandhad in the coparcenery. The effect of that representation obviously was thatthe joint family continued as it was, and her interest was a fluctuatinginterest liable to normal incidence of increase or decrease which got settledonly when a partition was effected. Afterthe passing of the Act, it was no longer possible to apply the rule ofsurvivorship to the interest of a deceased coparcener if he left surviving himhis widow as the interest-of the deceased coparcener had now devolve upon hiswidow. The right to survivorship was suspended. The legal effect of thefiction was that the right of the other members of the joint family would beworked out on the basis that the husband died on the date when the widow passedaway.
She would have during her lifetime all the powers which her husband hadsave that her interest was limited to a widow’s interest. She could alienateher widow’s interest in her husband’s share; she could even convey her absoluteinterest in the same for necessity or other binding purposes. She could ask forpartition & separate possession of her husband’s share. In case she askedfor partition her husband’s interest should be worked out having regard to thecircumstances obtaining in the family on the date of partition. If she dividedherself from the other members of the family during her lifetime on her demisethe succession would be traced to her husband on the basis the property was hisseparate property. If there was no severance, the estate which the widow tookunder Section 3(2) did not, on her death, devolved on her husband’sheirs but passed by survivorship to surviving coparceners. The right of the coparceners to take by survivorshipwhich was in abeyance so long as the widow was alive comes into operation themoment she dies. The rule of survivorshiphas received a serious blow due to the result of these provisions.
Thenature of right conferred on the widow under the Act was personal and notheritable as Section 3(2) of the Act did not operate as severance ofinterest of the deceased coparcener; the right which a widow got under thatsection was not as heir of her deceased husband but was a statutory right basedon the recognition of the principle that a widow was the surviving half of herdeceased husband; that the incidents of that right were those specified in theAct; that such right was one personal to the widow and came to an end on herdeath.15Discussingon the position of Hindu widow under the Act, Rajamannar C. J. and Krishnaswami NayuduJ. in Jonnagadla Seethamma v.
Jonnagadla Veerana Chetty16held:”the status of a Hindu widow of a deceased member of a joint familygoverned by the Mitakshara under the provisions of the Act is not that of acoparcener, but that of a member of the joint family with certain specialstatutory rights. The death of a coparcener who is a member of a Hindu jointfamily does not effect a severance or disruption of the joint family, merelybecause he leaves behind him a widow who has certain statutory rights under theAct. The widow cannot be regarded in any sense as the widow of a dividedmember. The result is that the joint family will continue as before except thatthe widow would have a special limited statutory right.
“Theright to property was conferred on the widow without giving her the status of acoparcener. Though the Hindu widow on whom the interest of her deceasedhusband devolved would not be a coparcener properly so called but now she was amember of an undivided family who was entitled to the same interest in theproperties of the family as her deceased husband had.17 Supreme Courtwhile interpreting the meaning of “same interest” and explaining the scope ofthe provision held:18″the words “the same interest as hehimself had” in sub-sec. (2) of sec.
3 of the Act of 1937 clearly indicatethat the statute gave effect to the well settled doctrine of Hindu Shastric Lawthat the persona of the husband after his death continues through his wife whois the surviving half of the husband and the husband continues to live throughthe widow so long as the widow is alive. It was this concept of the Hindu Lawwhich was sought to be recognised and given effect to by the Act of 1937. Inthese circumstances, therefore, when the Legislature uses the expression”the same interest as he himself had” it would include all the bundleof rights possessed by the husband which would devolve on the wife and if therewere to be any limitations on those rights they were spelt out by sub-sec. (3)itself, namely that while the Hindu widow would have the same right andinterest as her husband, her interest would only be the limited interest knownas a Hindu woman’s estate. Sub-s. (2) of sec. 3 of the Act of 1937 furtherconferred on the widow the right of demand partition and on partition she wasentitled to get the same share as her husband.
Thus the position appears to bethat a Hindu widow was introduced for the first time into the Hindu coparcenaryhaving the same rights as her husband and became as it were a member of theHindu coparcenary with two qualifications. viz., (1) that she had only alimited interest; and (2) that she could not be a coparcener because havingregard to the nature of her entry into the family after marriage with herhusband there was no question of her getting interest in the Hindu coparcenaryby birth which is one of the most important incidents of a Hindu coparcenary.
All the other rights of a coparcener were duly conferred on her by the Act of1937.”She became entitled to theundivided interest of her deceased husband and took the ‘same interest as herhusband’ and not the ‘same rights as her husband’19.Though amended mitakshara law of inheritance gave widow the same rights incoparcenary as her deceased husband had in coparcenary property but courts haveconsistently held while interpreting the Act that she did not get the status ofcoparcener by the Act20.TheAct therefore had conferred a new right on the widow of a deceased coparcenerin modification of the pre-existing law. Certainly the widow was not raised tothe status of a coparcener though she continued to be a member of the jointHindu family as she was before the Act. The joint family would continue asbefore subject only to her statutory right. The Hindu conception that a widow wasthe surviving half of the deceased husband was invoked and a fiction wasintroduced, namely, that she continued the legal persona of the husband tillpartition.
Section 3(2) of the Act did notbring about a severance of interest of the deceased coparcener. It effect ofthis Act was not to cause the severance of status automatically on the death ofa coparcener, and that the family was to continue to be joint; in that case themanager was still be entitled to exercise his ordinary powers under Hindu law.21Until severance was brought about the family continued to be joint and somanager was clothed with all the powers as such a manager. In an undividedHindu family, before codification, the share of each coparcener was notdetermined until a partition was effected and during jointness it was liable tofluctuation by deaths or births in the family.
The position of a Hindu widow’sinterest in the family properties was somewhat analogous to the undivided rightof the coparcener at least so far as the manager’s powers of management andalienation were concerned; so that if the said interest of the Hindu widow wassought to be defeated by an unjustified alienation, she was entitled tochallenge it, just in the same manner as a coparcener had.22Since she had the same interest as her deceasedhusband, if her deceased husband had the right to protect the property againstmismanagement, waste or unjustified disposal of the family property, she alsogot the same right under the Act for the purpose of protecting her interest. 23The Act for the first timestatutorily granted rights to enforce partition of ancestral property. When she was given a right to enforce partition as a male member it meant to giveher the same right ofpartition which the coparcener had as “a male member” was made not tomake her a full-fledged coparcener but to give her the same right of partition which thatcoparcener had.24 If she chose not to enforcepartition, the joint family continued as before without severance of the jointstatus, with the incidents of coparcenary of fluctuation of interest ofcoparceners as well as that of such widow with the birth and death of acoparcener but subject to her statutory right25.
The widow succeeded to her husband’s fluctuatinginterest and therefore her share was determined on the date she filed forpartition. If she asked forpartition her husband’s interest was worked out on the date of demand ofpartition and share allotted to her. After partition from coparcenary whichthen vested in her, on her demise, the succession to the partitioned propertywas traced to her husband on the basis that the property was his separateproperty26but if there was no severance it devolved by survivorship to other coparcenersof joint family27. Having regard to the words used and, the nature of theinterest of a coparcener in a joint family governed by the Mitakshara law thatthe Legislature did not intend to give, and had not in fact given, the widowgreater rights than possessed by her deceased husband.28 When the Act says that she will have the same right as her husband had, itclearly meant that she was entitled tobe allotted the same share as her husband would have been entitled to had helived on the date on which she claimed partition.The interest devolving upon the widowneed not necessarily be either by survivorship or by inheritance but could alsobe in a third way i.
e., by statute and where the interest is taken by her under a statute it would be of a kind provided by the statute itself.29 The Hindu Woman’s Rights toProperty.
Act brought in its train a radical turn by conferring on Hindu widowthe right to demand partition of the coparcenary property and she is entitledto the share of the husband with limited interest. The Act did not lay down therules of succession to the property but only defined the rights of widow in theproperty. It did not touch upon the rights of daughter in the father’s separateproperty or share in joint family property. The intrusion of the widow upon thecoparcenary as a quasi-coparcener by the operation of the Hindu Women’s Rightsto Property Act, 1937 was a device to enable a widow to live separately and asher own mistress if she so wished, while at the same time preserving, so far aswas possible consistently with such an aim, the essential features of the maleissue’s ‘birth-right’, and the other coparceners’ right of survivorship.30 The reference to the interest of the husband and theright to partition as a male owner, are also indicative of the way ofimprovement in the Hindu Law in favour of a class of persons.
Both thesereferences clearly indicate that the improvement of the status of the widow wasmade within the framework of the customary Hindu Law.31 1 Rayani Appaiahv. Spl. Tahsildar, L.R. Addanki MANU/AP/0340/19872 Flavia Agnes,Family Law , Vol I Family Law and Constitutional Claims, Oxford UniversityPress, New Delhi, 2011 p.
353 Dr. VijendrerKumar, Mayne’s Treatise on Hindu Law and Usage, 17th Edition NewDelhi, 2014, p. 11864 S. 4 ofHWRTPAct, 19375 Umayal Achi v.
Lakshmi Achi, AIR 1945 FC 256 Moni Dei v.Hadibadhu, AIR 1955 Ori 737 S.Venkataraman,’The Hindu Women’s Rights to Property Act 1937′, The Madras Law Journal, vol.III, Sept, (Madras: 1937) ,p.818 PrakashChand Jain, Women’s Property rights under traditional Hindu law and the HinduSuccession Act: 1956 Some observations, JILI Vol 45 (2003) pg 5099 Angurbala Mullick vs Debabrata Mullick, AIR 1951 SC29310 In re Hindu Womens’ Rights to Property Act, AIR1941 PC 7211 Parappa Alias Hanumanthappa v. Nagamma , AIR1954 Mad 576 12 Rahul Dey Sarkar & Ors vs The State Of West Bengal, High Court of Calcutta, W. P.
L. R. T No.246 of 2008 decided on 6th October 201013 S. 3 of HWRTP Act, 1937(1)When a Hindu governed by the Dayabhaga School of Hindu law dies intestateleaving any property, and when a Hindu governed by any other school of Hindulaw…
. dies intestate leaving separate property, his widow, or if there ismore than one widow all his widows together, shall, subject to the provisionsof sub-section (3), be entitled in respect of property in respect of which hedies intestate to the same share as a son :Providedthat the widow of a predeceased son shall inherit in like manner as a son ifthere is no son surviving of such predeceased son, and shall inherit in likemanner as a son’s son if there is surviving a son or son’s son of such predeceasedson;Providedfurther that the same provision shall apply mutatis mutandis to the widow of apredeceased son of a predeceased son.(2)When a Hindu governed by any school of Hindu lawother than the Dayabhaga school or by customary law dies having at the time ofhis death an interest in a Hindu joint family property, his widow shall,subject to the provisions of sub-section (3), have in the property the sameinterest as he himself had.
“(3)Any interest devolving on a Hindu widow under theprovisions of this section shall be the limited interest known as a Hinduwoman’s estate, provided however that she shall have the same right of claimingpartition as a male owner.14 Vaijnath v.Guramma (1999) 1 SCC 29915 Movva Subba Rao v. Movva Krishna Prasadam Minor, AIR1954 Mad 22716 AIR 1950 Mad 785 17 Shivappa Laxman v. YellawaShivappa Shivagannavar, AIR 1954 Bom 4718 Controller Of Estate Duty, Madras Versus AlladiKuppuswamy AIR 1977 SC 206919 Dagdu v.
NamdeoAIR 1955 Bom 15220 Sukh Ram v.Gouri Shankar AIR 1968 SC 365 ; Satrughan Issar v. Sabujpari AIR 1967 SC 27221 Shivappa Laxman v.
Yellawa Shivappa Shivagannavar, AIR 1954 Bom 4722 Shivappa Laxman v.Yellawa Shivappa Shivagannavar, AIR 1954 Bom 4723 Bhagwant Amarsingh Teli vs Mt. Manmati And Anr.
AIR1959 MP 24924 Ranu Thaku Kokate v.Santu Goga Bhangare, AIR 1968 Bom 125 Seethamma v.VeeranaAIR 1950 Mad 78526 Mulla, 21stEdition27 Parappa v.Nagamma AIR 1954 Mad 576 (FB)28 M.
C. Chinniah Chettiar v. Sivagami Achi Alias SornamAchi , AIR 1945 Mad 2129 Potti Lakshmi Perumallu vs Potti Krishnavenamma, AIR1965 SC 825 30 JDuncan M Derrett, Law and the Predicament of the Hindu Joint Family, THEECONOMIC WEEKLY Vol. 12, Issue No. 7, 12 Feb, 196031 Govindram Mihamal v. ChetumalVillardas, AIR 1970 Bom 251