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Published: Fri, 02 Feb 2018
Inheritance Under Traditional Hindu Law
One of the most significant ideas behind the evolution of family was to provide security to the members. The joint and undivided Hindu family is the normal condition of the Hindu society. An undivided Hindu family is ordinarily joint, not only in estate, but also in food and worship. The joint family system comes first and law of inheritance is of later growth. According to dharma sastra it is the duty of the house holder to provide that safety and security to children, the old and the infirm and the other such members of the family who cannot be independent. Normally the senior most male member is seen as the guardian figure who exercises control over all affairs of the family. Though under traditional Hindu law women were given very few rights and were considered to be subservient to the male members of the family.
Through various commentaries and digests, two principal schools of Hindu law, Mitakshara and Dayabhaga came into existence. These schools had their own operational areas and were recognised in different parts of India. The Mitakshara school owes its nomenclature to Vijnanesvara’s commentary of that name on the yajnavalkya smritis.The Dayabhaga is a digest on the law of inheritance written by Jimutavahana. The Mitakshara school had a widespread existence and was popular in almost whole India except Bengal and its surrounding areas where Dayabhaga prevailed. These schools were born out of diverse and opposing doctorines and marked a new stage in the evolution of Hindu law. The Mitakshara is subdivided into four minor schools: 
Maharashtra or Bombay School (Western India)
Dravida or Madras School (Southern India)
Of these two schools, Mitakshara was considered to be more biased against women and gave them the least of the right to inherit property. Though Dayabhaga was also biased but it still recognised more rights for the women and was thus considered to be a liberal school. Then, Britishers decided to overhaul the Hindu law and passed many more legislations to reform it and provide women with many more rights. Some of the legislations passed by Britishers are following: 
The Hindu Widows’ Remarriage Act, 1856
The Hindu Inheritance (Removal of Disabilities) Act, 1928
The Hindu Law of Inheritance (Amendment) Act, 1929
The Hindu Women’s Right to Property Act, 1937
These laws proved to be the ones which improved the conditions of women and also recognised the rights of inheritance of women. They also proved to be the basis for the passing of various acts regarding Hindu law after independence such as Hindu Succession Act, 1956.
In this paper, the researcher will be discussing in detail about the position of women regarding inheritance under traditional Hindu law and the changes affected by Britishers with their laws.
Inheritance Under Traditional Hindu Law
Dharma sastra exhibits a very pragmatic and practical approach and acknowledges that ultimately and for a variety of reasons, individuals do want to be independent and set up their own homes. Dharma sastra seeks to safeguard the interests of different sections of the society and here, the endeavour is to balance the interests of the individual within the family, and at the same time to prevent disintegration of the family as a social unit, and avoid fragmentation of economically and sustainable units of property. Since Hindu society has always been a patriarchal society, property rights of male members of the family were always supreme and were considered to be more appropriate than family members. Although, constant efforts were made during that era to provide for women as mothers, daughters-in-laws etc. a right to property.
If we look at the commentaries and the Vedic age, amongst the dictates of manu, hinting at the negation of rights of women to be owners of property, there are still ample references, indicating that a woman was always capable of owning property. However, there was a lot of difference between theory and the practice which was actually followed. According to the texts, she could hold property but actually the property given to women was meagre to the property given to man. Also, she didn’t have absolute right to dispose of the property and restrictions were placed on her.  The restrictions were considered to be necessary by our traditionally patriarchal setup and it was thought that if women were given absolute freedom then they will neglect their marital obligations and management of household affairs. As declared by Narada, “The transactions of a woman had no validity, especially the gift, hypothecation or sale of a house or field. Such transactions were valid only when they were sanctioned by the husband or on a failure of the husband, by the son.” 
Before the codifying of Hindu law, there were different commentaries and digests which decided on the inheritance issues among hindus and as the time grew these commentaries acquired ex cathedra character. The result was that two rival schools of inheritance, the Mitakshara school and the Dayabhaga school, came into existence. Regarding the origin and development of these schools, it has been said by the Privy Council, “The remoter sources of Hindu law are common to all the different schools….Works universally or generally received became the subject of subsequent commentaries. The commentator put his own glosses on the ancient text, and his authority having been received in one and rejected in another part……., schools with conflicting doctrine arose. Thus, Mitakshara which is universally accepted by all the schools except that of Bengal as of highest authority……; and the Dayabhaga,…., prevails in Bengal.”  The smritis used by Vijnanesvara and Jimutavahana in establishing the principles of these schools was same but it was their different interpretation of these smritis which resulted in both these rival doctrines. The fundamental difference between the two schools is with regard to the principle on the basis of which the right to inheritance is to be determined. These schools born of diversity of doctrines marked a new stage in the evolution of Hindu law. The common principle on which both of them rely is that a sapinda inherits the deceased’s property.  This is also where differences arise as to how sapindas should be understood for inheritance issues. Under Mitakshara law, community of blood is to be preferred to community in the offering of religious ablations is the governing factor whereby the right to inherit arises whereas under Dayabhaga, the right arises from spiritual efficacy i.e. the capacity for conferring spiritual benefit on the manes of paternal and maternal ancestors.  Under Mitakshara law, only agantes could inherit the property no matter how distant they were to the deceased which meant that the property could go to a distant male cousin but not to one’s own daughter’s son. However, under Dayabhaga law, the view was more of liberal and allowed cognates to inherit the property such as a person can inherit his maternal grandfather’s property if he had no son.  According to Mitakshara law, each son acquires an equal interest in his father’s property as soon as he is born and on his father’s death gets the property by survivorship whereas under Dayabhaga, the son doesn’t acquire any interest in father’s property by birth and his rights regarding the property are determined only after father’s death. Thus, the Mitakshara shows a clear sign of following a strong patriarchal system whereas Dayabhaga showed a clear departure from set norms and a dilution in traditional patriarchal structure.
According to Dayabhaga(Bengal) school, the only females who can inherit the property of a male are the widow, daughter, mother, father’s mother and father’s father’s mother. The Madras school, in addition to the above mentioned five heirs, also recognises three more heirs known as bandhus which are brother’s daughter, brother’s son’s daughter and father’s brother’s daughter.  According to all schools, except Bombay, a female who has inherited property from a female relation is not the wholesome owner of the property and is known as a limited owner of the property.  Except in case of fulfilling indispensable religious and charitable purposes including for spiritual benefits to her husband, a woman doesn’t have a right to alienate such property. The limitation is with respect to the power over its disposal and the inability to transmit this estate to her own heirs, but otherwise she had full powers to possess it and appropriate the income generated from it. During her lifetime, no person had any right of succession over that property, though after her death the property passed on to the next heir of the male from whom she inherited it. With regard to the property inherited from female relation relations also, the concept of limited ownership was present. In Bombay school, other than five females mentioned above, the other females who had the right to inherit the property as heirs were daughters of descendants and ascendants and collaterals within five degrees and widows of gotraja sapindas. Female heirs under this school are divided into two following classes: 
Those who come into the gotra of the deceased owner, by marriage i.e. wife of the deceased and the wives of his sapindas and samanodakas.
Those who are born in the gotra of the deceased owner but pass by marriage into different gotra and their daughters such as a daughter, daughter’s daughter, sister, niece, father’s sister and the like.
Under the first class females have limited ownership of the property whereas under class (ii), the female heirs become the absolute owners of the property. Such property is considered to be stridhana and thus governed by Mitakshara law. In cases of property inherited from females, they become the absolute owners of the property.
Dayabhaga follows the principle that sons can divide the ancestral wealth only after the death of both the father and the mother. Here, the son is given a position of prominence and widow’s seemingly absolute right to the property is circumscribed by the rights of the son. Though, in case of more than one widow, it is said that partition is as per the widows, it is submitted that the reference to equal number of sons signifies that the mother’s right to partition is limited by the sons and that each widow is allowed to take an equal share temporarily.  As opposed to Dayabhaga, in Mitakshara, as mentioned above, son is vested with an interest in the property since his birth. The wife loses her position of equality and her status as the joint owner with the husband. Though Vijnanesvara says that a man should give an equal shar to his wife and sons are also supposed to give their mother an equal share after father’s death. 
According to Hindu family system, the daughter becomes part of her husband’s family and accordingly is entitled to inherit property from her husband or son. However, in case of unmarried daughter, dharma sastras have clearly laid down that such daughters have right to be maintained by her father and brothers. It has been laid down by Manu that each brother must give one-fourth of the share to his unmarried sister.  According to Mitakshara, the expression one-fourth did not mean one-fourth of each brother’s share but only one-fourth of the share the daughter would have received if she were a son. This interpretation greatly reduces the share of a daughter and is biased against them. Though, it is, in general, according to the usual pattern followed by Mitakshara as usually it gives the son a superior right to inherit as compared to daughters.
As we all know that women always had limite ownership of the property they inherited which has been reiterated in the Privy Council’s judgement:
“her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but so long as she is alive no one has any vested interest in the succession”  The estate of a Hindu widow is an absolute one subject to certain restrictions.
As far as the rights of a sonless widow to inherit the property are considered, Mitakshara has clearly laid down that sonless widow can inherit the separate estate of the husband i.e. his self acquired property and his share in ancestral property if he has separated from the family. However, she gets no share in the husband’s ancestral property if he was undivided or had rejoined the family, though husband’s family had to maintain her in that case.
Changes Under British Rule
The attitude and behaviour pattern of Hindu society changed drastically during British regime due to education and western impact on socio cultural life in India.
The above mentioned laws are not the only one passed by Britishers in order to overhaul the Hindu law but these are laws which were in some ways related to the inheritance among Hindus. The Hindu Law of Inheritance (Amendment), 1929 was the first legislation which properly dealt with inheritance among Hindus and added the son’s daughter, the daughter’s daughter and the sister in rank of heirs in all parts of India which were under Mitakshara law. Earlier, only Bombay and Madras states recognised their status.  This was the most important change introduced by the law and by this it was thought that more and more women would be able to get their overdue in property.
The most significant legislation passed by the Britishers regarding inheritance was the 1937 act  which was later amended in 1938. While the object of the act was to confer new rights of succession upon the widows, it not only alters the order of succession, but involved in many far reaching consequences in many areas of Hindu law, particularly for Mitakshara coparcenaries. It was prospective in application  and applied to property other than agricultural property  and impartible estates which went to a single heir either due to custom or otherwise. This act was revolutionary in the sense that it over rode all earlier customs which were against the provisions of this act and thus, was a bold step by the Britishers. It was passed basically to convert the liability of maintenance from the responsibility of others, to her own concern.  This concept of limited ownership was to help the female to maintain herself without being dependent on others for sustenance. The act governed the devolution of the property of a male Hindu only and didn’t talk about property inherited from females.  By leaving the property inherited from females untouched, this act only resulted in further increasing of the gap between the successions as female property was devolved on the basis of traditional Hindu principles. This act made widows eligible to ask for their shares from the son and entitled a widowed daughter-in-law and a widowed grand-daughter-in-law to share along with the male issue and the widow.  The widow was given the right to inherit along with the male issue the deceased’s property, if governed by Mitakshara law or all the deceased’s property along with the male issue if governed by Dayabhaga law.  If there are more than one widows, then everybody together will be entitled to the share of the son. The words “the same shares as a son” means that she will inherit in a manner similar to a son so as the relevant section will apply both when there are multiple heirs or widow is the only heir. The rights granted to the widow in the coparcenary property were avant garde and made major inroads into the concept of coparcenary. In a Mitakshara undivided family, the widow of a deceased coparcener was given the same interest as he himself had in the joint family property.  Also, this defeated the doctrine of survivorship as was declared by Madras High Court in Saradambal v. Subbarama Aiyar,  “The act has taken away the rule of survivorship and allowed the property to descend to his wife. Once the rule of survivorship no longer operates, there is nothing to preclude a creditor from attaching the property.” Her introduction in the place of her husband did not make her a coparcener but just made her a member of the joint family with some special statutory rights which didn’t exist before the act.  However, she was conferred the right to claim partition and demarcation of her share as a male member and she acquired the status of a coparcener in possession for filing a suit for partition though that is to acquire rights to a Hindu women’s estate.  The succession of the widow to her husband is by inheritance and not by survivorship as she didn’t have any right since her birth and became co-owner only after her husband’s death.  Though act provided widows with many rights, there was no overall change in the coparcenary and it left the rights of other family members untouched. While the deceased coparcener’s interest was vested with his widow, his male issue still continued to be coparcener along with other male family members with mutual rights of survivorship.  Under classical Hindu law, an unchaste widow was disqualified from inheriting the property but this act was completely silent on this issue and didn’t anywhere recommend for disqualification. In Akoba Laxshman v. Sai Genu,  it was held by the court that the act confers upon the widow a right of succession notwithstanding any rule of Hindu law, an unchaste widow wil not be disqualified from inheritance. This view was also upheld by the Calcutta High Court in Suraj Kumar Sardar v. Manmadhanath.  Though, now this view has been struck down by the decision of full bench of the Madras High Court in Ramayya v. Mottayya,  where it held that S. 2 of the act did not have the effect of abrogating the rule excluding an unchaste widow from succession to her husband’s property. Though the act conferred many rights on the widow but it could not be considered to have made further inroads into traditional Hindu law than was warranted. Also, the right of a widow to demand maintenance automatically rejected as she got the property in lieu of maintenance and could demand maintenance only in cases where the act didn’t apply i.e. families having only agricultural land or/and impartible estates.
It can be easily concluded that during the women had been denied their right to inheritance since traditional Hindu law has been recorded. Under traditional Hindu law, they were not considered to be appropriate to inherit the property of their father or their husbands. It was thought that if women would be given charge of any property than they will neglect all the duties accorded to them under traditional law. Dayabhaga seemed like providing some respite to the women but Mitakshara was very much biased against the women. Though, some changes were introduced by the Britishers by enacting some hard hitting legislations but they didn’t prove to be far-reaching. Under British rule, women were provided with a right to inherit and also, they were considered to be of equal level as that of co-parcener in certain situations regarding inheritance. But still these laws didn’t confer too many rights on the women and in certain situations they were still governed by Mitakshara and Dayabhaga. It was only after the passage of The Hindu Succession Act, 1956 and its amendment in 2005 that women were given equal rights as son and their share was recognised. But it was these laws which paved way for the Hindu Succession Act and all other progressive acts. It was only after the Britishers dared to encroach upon this forbidden field of personal law that the rights of women were recognised.
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