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PATNA.
SUBMITTED TO
MR. SHAIWAL SATYARTHY
SUBMITTED BY
AHSAS MANIKANT
(7509)
FOURTH SEMESTER
ACKNOWLEDGEMENT
[1]
I owe the present accomplishment of my project to the faculty Mr. Shaiwal Satyarthy
whose
guidance helped me immensely; and to the help extended by the library staff
without which finding books would have been difficult. I would also like to thank my friends
who helped me immensely with materials throughout the project and without whom it
would have been difficult to complete it in the present way, and also to m y s eniors w hos e
this project. I would also like to extend my gratitude to all those unseen hands that helped me
out at every stage of this project.
AHSAS MANIKANT
[2]
INDEX
Introduction
Womans Property
Stridhan and Womans Estate
Enumeration of Womans Property
Succession to the property of a female Intestate
Section 15 applicable to absolute property of female
Separate scheme for succession of male and female intestate
Scheme of succession
Succession to general property
Property Inherited from Father
Analysis of the decision of Dhanistha Kalita v Rmakanta Kalita
Preventing the property going by doctrine of escheat
Constitutional validity of Section 15
Special rules for female governed by Marumakkattayam and
Aliyasantanal laws
Conclusion
Bibliography
[3]
RESEARCH METHODOLOGY
The researchers have adopted a purely Doctrinal method of research as the research paper discusses the
matter in which no field work is required for the same and the Doctrinal approach is perfectly suited for
the same.
Aims and Objectives:
The aim of the project is to present a detailed study of the Succession to the Property of a
Hindu Female through suggestions and different writings and articles.
Scope and Limitations:
Though Succession to the Property of a Hindu Female is an immense project and pages can be
written over the topic but because of certain restrictions and limitations we were not able to deal with
the topic in great detail.
Sources of Data:
The following secondary sources of data have been used in the project1. Books
2. Websites
Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.
[4]
INTRODUCTION
The Indian civilization is one of the oldest civilizations in the world and the Hindus form the
majority of this civilization. Trying to trace the original source of this religion is difficult as this
means going back to the time when written material was unavailable and most of the
communication was oral. There was no distinction between religion , law and morality during the
early days , and they were referred cumulatively as Dharma.
The Hindu Succession Act came into force on 17 th June , 1956 , with an objective of providing a
comprehensive and uniform scheme of intestate succession for Hindus. Prior to 1956 , different
communities within the Hindu religion were governed by different succession laws. There were
three major categories , besides the co-existence of a number of sub-communities , the Mitakshara
School , the Dayabhaga School and those adhering to the matriarchal system were subject to
different laws. Besides these the Mitakshara sub-schools had regional variations. Moreover , a
number of tribal communities following Hindu religion observed their own distinct rules of
succession. Amidst this maze , it was important and necessary for a uniform law that could be
applicable and more importantly accepted by the diverse population following Hindu religion.
Also , in the latter half of the nineteenth century , there was a strong establishment of the judicial
system. The Court settled controversial issues related to the personal laws and passed laws and
these laws were to be applied not just to the parties but to the entire communities also. Besides this
, several legislations were enacted with an aim to modify and reform all personal laws , including
the Hindus. The co-existence of textual Shastric Laws , several legislations , innumerable
customs and conflicting judicial precedents presented a confusing haze of laws necessitating
clarity and certainty and only solution in hand was codification.
Succession to the property of a Hindu is now governed by the provisions in Chapter II of the
Hindu Succession Act , 1956.1 Sections 18 to 28 deal with the general provisions relating to
succession. Sections 23 and 24 of the Act dealing with Special provision respecting dwelling
houses and Certain widows remarrying may not inherit as widows respectively have been omitted
by the Hindu Succession (Amendment) Act , 2005 (39 of 2005) Section 4 and 5 respectively (w.e.f
9-9-2005). The rules laid down in Sections 18 to 28 are supplementary to the ones laid down in
Sections 5 to 17. These rules however , are not merely explanatory , but some of them lay down
substantive rules involving legal principles.
[5]
WOMANS PROPERTY
Introduction
S ection 14 , H indu Succ es s ion Act , 1956 , has in troduced funda men tal chang es
in the H indu law of w o man s propert y. Before 1956 , the proper t y of w oman w as
divided into tw o heads :(a) S tridhan , and (b) Woman s Es tate
The H indu Woma ns Right to Propert y Ac t , 1937 conferred so me new rights of
inheri tance on certa in H indu fe ma les whi ch had the effec t of incr eas ing the bulk
of w oman s es tat e , but apart fro m its s ide repercus s ions on the joins famil y
s ys te m , it did not al ter the bas ic divis ion of w oman s proper t y in s tridhan and
wo ma ns es ta te. S ection 14 , H indu S ucces s ion Ac t , 1956 has abol is hed
wo ma ns es ta te and has virtu all y introdu ced Vij nanes hw ara interpr etat ion of
S tridhan. 2
Mitakshara , II , ix , 2.
3 Mitakshara , II , ix , 2.
[6]
been qualif ied and res tr icted in its appl icat ion b y our courts , in cons equence of
its dis agree ment w ith the view of other authorit ies . 5
A ccording to the Sm r itikar s , the s tr idhan cons titu ted thos e properties w hich
she receiv ed b y w a y of gift from rela tions w hich inc luded mos t l y movab le
propert y (though so me ti mes a hous e or a pie ce of land w as als o given in gift) ,
such as ornaments , j ew eller y and dres s es . The gift mad e to her b y s trangers at
the ti me of cere mon y of marr iage (before the nupti al fire) , or at the ti me of
bridal proces s ion als o cons titut ed her s tr idhan . Among the Co mme nta tors and
D iges t-w riters , ther e is a divergence of opinion as to w hat ite ms of propert y
cons titu te s tr idhan and w hat do not. Vij nanes hw ara co mme nting on the w ords
and the like in Yaj nava lk ya text expanded th e me aning of s tr idhan b y
includ ing properti es obtain ed b y inheri tanc e , purchas e , par tit ion , s eizure and
finding. (Th is expans ion w as not acc epted b y the P riv y Counci l
which resulted in the emergence of the concept of woman's estate). Jimutvahana gave a
different enumeration of stridhan, so did the sub-schools of the Mitakshara.
Whether the property is stridhan or woman's estate, mostly depends upon the source from
which it has been obtained.
A text of Manu that a wife , a son and a slave can have no property and that wealth they acquire belongs to the person to
whom they belong , is often quoted to show that Hindu law did not recognize any right of property of woman (VIII.) but Manu
himself recognizes several categories of stridhan. Manu Smriti , DL enumerates six kinds of stridhan. Vishnu enumerated
four kinds of stridhan 18 (Katyayana though enumerates six kinds of stridhan , his enumeration is from Manus (quoted by
the Dayabhaga IV , I , 19). According to Yajnavalkya stridhan was given to a woman by the father , mother , her husband or
her brother or by her at nuptial fire or presented on her supersession and the like is denomioa womans property. (Ya , II ,
143). The words and the like should be noted , as , an A basis of these words , Vijnaneshwara enlarged the meaning of
stridhan. GaotMB (XXVIII , 24-26) explicitly recognizing womans right to hold and dispose off property.
[7]
[8]
4.
Property
purchased
with
stridhan .In
all
schools
of
Hindu
law,
it
is
a well settled law that the properties purchased with stridhan, or with the savings of
stridhan, as well as all accumulations and savings of the income of
stridhan, constitute
stridhan.
5.
Property
acquired
by
compromise.When
person
acquires
property under a compromise, what estate he will take in it, depends upon the compromise
deed. In Hindu law there is no presumption that a woman who obtains property under a
compromise takes it as a limited estate. Property obtained by a woman under a
compromise whereunder she gives up her rights to her stridhan will be stridhan. When
she obtains some property under a family arrangement, whether she gets as stridhan or
woman's estate will depend upon the terms of the family arrangement.
6.
Property
obtained
by
adverse
possession .In
all
schools
of
Hindu
law, it is a settled law that any property that a woman acquires at any stage of her life by
adverse possession is her stridhan.
7.
Property
obtained
in
lieu
of
maintenance .Under
all
schools
of
Hindu law, the payments made to a Hindu female in lump sum or periodically for
her maintenance, and all the arrears of such maintenance constitute her stridhan. Similarly,
all movable and immovable properties transferred to her by way of an absolute gift in
lieu of maintenance constitute her stridhan.
8.
Property
obtained
by
inheritance.A
Hindu
female
may
inherit
property from a male, or a female. She may inherit it from her parent's side or from husband's
side. The Mitakshara considered all inherited property as stridhan. But the Privy Council in a
series of decisions held such property as woman's estate. In one set of cases, the Privy
Council held that property inherited by a female from males, is not her stridhan but woman's
estate 7 . In another set of cases, it took the same view in respect of property inherited from the
females. This is the law in all the schools except the Bombay school8. According to the
Bombay school, the property inherited by a woman from females, is her stridhan 9. As to the
property inherited from a male, the female heirs are divided into two : (a) those who are
7
Bhagwandeen v. Maya Baee, (1867) 11 M.A.I. 487; Thakur Dayhee v. Raj Baluk Ram (1966) 11 M.I.A. 140.
8 Sheo
Shanker v. Devi Saha, (1903) 25 All. 468; Sheo Partap v. The Allahabad Bank, (1903) 30 I.A. 209;
See also Gayadin v. Badri Singh, (1943) All. 230.
[9]
introduced
into
the
father's gotra by marriage, such as intestate's widow, mother, etc., and (b) those who are
born in the family, such as daughters, sisters, brother's daughters, etc. In the latter case
the inherited property is stridhan, while in the former case it is woman's estate. After the
coming into force of the Hindu Succession Act, 1956, she takes all inherited property as her
stridhan.
9.Share
obtained
on
partition When
partition
takes
place,
except
in Madras, father's wife, (not in the Dayabhaga school) mother and grandmother
take a share in the joint family property. In the Mitakshara jurisdiction,
including
Bombay10 and the Dayabhaga school, it is an established view that the share obtained
on partition is not stridhan but Womans estate. This property is also now her
absolute property or stridhan after the coming into force of the Hindu Succession
Act,1956.
10 The
Vyavahara Mayukha takes the view that such property is stridhan, but the Privy Council
'legislated' and held that such property is woman's estate; Devi Mangal Prasad v. Mahadeo, (1919) 39 I.A.
121.
[10]
11 With
respect to the stridhan property of a female Hindu, separate rules succession were provided
under different schools of Hindu law. Succession atac varied depending upon the character of the stridhan,
her marital status and 1** form of marriage. All these different rules are abrogated now and if the properwhatever may be the character, is held by a woman absolutely, is subject to ir- rules of ss 15 and 16 of the
Act.
[11]
12 See
5.
13 See
the Andhra Pradesh (Hindu Succession Amendment Act 1986), s 29A(ii); the Tamil Nadu Hindu
Succession Amendment Act 1990, s 29A(ii); the Karnataka Hindu Succession Amendment Act 1994, s 29A(ii);
and the Maharashtra Hindu Succession Amendment Act 1994, s 29A(ii).
14 Somaiah
v Rattamma AIR 1959 AP 244; Indu Bai v Vyankati AIR 1966 Bom 64; Renuka Bala v Aswin Kumar
AIR 1961 Pat 498; Bai Kamla v Chagan Lai AIR 1965 Guj 84.
15 Munuswami
v Rajammal AIR 1977 Mad. 228; Manikyamma v Venkatasubba Rao (1978) 1 Andh LT 274;
Pasmani v Patra Bala AIR 1981 Gau 42; Mahadevappa v Guramma AIR 1973 Mys 142; Harjesa v Laxman AIR 1979
Guj 45.
16 Ajib
Singh v
[12]
yet none of the other succession laws provide for separate schemes for male and female intestates.
A closer look at ss 15 and 16 also reveals that not only is a separate scheme of succession provided
in case of a female intestate, there is further divergence linked with the source of acquisition of
the property and on considerations of her marital status, and factors like whether she died leaving
behind children or issueless. With respect to the categorisation of heirs, in case of a married woman,
her blood relations are relegated to a very inferior placement in comparison to the entire category
of the heirs of her husband
SCHEME OF SUCCESSION
The Act provides for three different sets of heirs depending upon the source of acquisition of the
property of a female that is available for succession. Her property is divided into:
(1)
(2)
(3)
[14]
Property that a woman inherits from her brother, in the capacity of his sister, or from her husband's
brother as his brother's widow, would be her general property and would go under this section.
Section 15 provides:
General rules of succession in the case of female Hindus. (1) The property of a female
Hindu dying intestate shall devolve according to the rules set out in Section 16
(a) firstly
upon
the
sons
and
daughters
(including
the
children
of
any
(a)The
scheme
under
the
Hindu
Succession
Bill
(Bill
13)
of
1954
was
as
follows:
(i) firstly
17
(1997) 1 HLR 590 (All); Lachman Singh v Kirpa Singh AIR 1987 SC 1616; Gurnam
Singh v Ays Kaur AIR 1977 P&H 103; Mallappa Fakirappa v Shippa AIR 1962 Mys 140; Rama Ananda Patil v Appa
Bhima AIR 1969 Bom 205. See also Ram Katori v Prakashvathi 1968 All LJ 484 (wherein it was held that since the section
uses the term 'son and daughter' and not 'son and daughter
of the deceased', it would include the children of her husband also. The decision, which does not lay down a correct
proposition of law, was overruled by the Supreme Court in Lachman Singh's case, cited above.)
[15]
Clause (a)
This clause specifies seven heirs, the sons, daughters, including children of any
Son and Daughter : The terms 'son' and 'daughter' would include a woman's biological
or adopted, legitimate or even illegitimate children, but would not include a step-son or a
step-daughter. The marital status of the mother or the validity of her marriage is of no
consequence. The son and daughter may have been born to an unwed mother, or adopted by
a single woman, or born from different husbands, yet they would still, inherit together. Where the
mother was a party to a void or voidable marriage that was subsequently annulled, her
children born to her from this relationship would be legitimate and entitled to inherit from her.
The son and daughter inherit together and take the property in equal shares.
For example, as shown a Hindu woman W dies leaving behind a son S, born to her
from her first marriage, which ended in a divorce. Thereupon, she had a relationship with a
married man, H 2 as a result of which she gave birth to a daughter D. Upon her death, S and
D both, will inherit the property in equal shares.
[16]
H1
W
S
H2
D
Children of Predeceased Son and Daughter : Where a son or a daughter dies during
the lifetime of their mother, leaving behind a child, such child will be the primary heir and
would inherit along with the living son or daughter of the intestate, if any. However, in order
to be eligible for inheritance, such grandchildren must be the legitimate offsprings of their
parents, and born out of a valid marriage between them. Similarly, their deceased parents
should also be legitimate and born out of a valid marriage. For example, as illustrated a
Hindu woman W, gets married to an already married man H. This marriage is void as per
the provisions of the Hindu Marriage Act 1955. Two sons St and S2 are born to her. During the
lifetime of W, S2 dies, leaving behind a daughter S2 D.
S1
S2
S2D
Here, St alone will inherit her property, as S2D will not be deemed to be related to W. The
relationship in case of children born of a void and voidable marriage, is purely personal between the
parents and children and they are not deemed to be related to any other relative of either. Similarly,
where the grandchildren were born of a void or a voidable marriage annulled by the court, there
again, they would not be eligible to inherit the property of the intestate. For example, as shown , a
Hindu woman A dies, leaving behind a son S3 and a granddaughter D. Her second son S2 had got
[17]
married to W2, but had later discovered that his consent had been obtained by fraud. He filed a
petition in a court of law, for obtaining a decree of nullity. Meanwhile a daughter, D was born,
who had been conceived before the discovery of the fraud by S2. The court declared the marriage null
and void. S2 died and D was brought up by A, her grandmother. Now, A also dies. D will not be
entitled to inherit the property of A as children born of void and voidable marriages that are annulled
by the court, do not inherit the property of any relative of their parents.
A
S1
(S2)
W2
D
Children of a predeceased son or daughter will also be disqualified from inheriting the
property of the intestate, if before their birth, their parent (child of A), had ceased to be a
Hindu by converting to any other religion.
Husband : The term 'husband' refers to the spouse of a valid marriage, which had come
to an end with the death of the intestate. It does not include a divorced husband, but would
include a husband who had deserted the intestate or was deserted by her or was living apart
from her under a decree of judicial separation. The husband's immoral or even criminal
conduct, does not stand in his way of inheriting the property, unless he commits her murder.
The husband, who had been a party to a void marriage between himself and the intestate,
does not inherit from his wife, but where the marriage is voidable, he inherits even if a
petition praying for a decree of nullity might be pending in the court. But if the marriage is
declared a nullity, and the woman dies after such pronouncement, then he cannot inherit
from her
Widow of Male Descendants not a Primary Heir: It is interesting to note that while
under s 8, widow of a predeceased son and widow of the predeceased son of predeceased son are
class-I heirs of a male intestate, these relations do not inherit the property of a female intestate as her
primary heirs, but can inherit under cl (b), as heirs of her husband.
[18]
i)
ii)
iii)
H
S1
S2
The property will be divided into four equal parts, one each going to H, Sv S2 andD.
IIIustration (ii)
A Hindu female W, dies and is survived by her husband H, a living son S, an unmarried daughter D,
two children Sj and S2, of a predeceased daughter D2 and an illegitimate son S3.
S3
S1
S1
[19]
(D2)
The property will be divided into five equal parts, one each going to H, S, D and S3. The branch of the
deceased daughter D2, will be given one-fifth (l/5th) of the property, out of which S 7 and S2 will
take one-tenth (l/10th) each. The final shares will be as follows:
(S1 + S2) =1/5
S = 1/5
D = 1/5
S1 = 1/5x1/2 = 1/10
S3 = 1/5
S2 = 1/5x1/2=1/10
H = 1/5
Br
19
See Devinder Kaur v Ajit Kumar Sandhu (1995) 1 HLR 147 (P&H); Satyacharan v Urmila AIR 1970 SC 1714.
20
Seetha Lakshmianimal v Muthuvenkatarama lyengar AIR 1998 SC 1692
[20]
Since the brother is an heir under cl (iv), the step-son alone, will succeed to her property. As none of
the cl (a) heirs is present, it would be presumed that the property belonged to her husband and instead
of her, it is he who has died. His son would be his primary heir and would inherit his property.
When a woman marries more than once, the expression 'heirs of husband' refers to the heirs of her last
husband.
Heirs of the husband were placed next to the parents, in the fourth category, under the original
Hindu Succession Bill (Bill 13) of 1954. From there, they were relegated to the last category in the
amended Bill, but are placed even before the parents in the present Act.
[21]
23
Ayiammal v Subramania Asari AIR 1966 Mad 369; Kamneshwara Rao v Vasudeva Rao AIR 1972 AP 189.
24
Komalavalli Ammal v TAN Krishnamachari (1990) 106 Mad LW 598.
25
AjitSingh v State of Punjab 1983 HLR433(P&H); jai SinghvMughla(1967)ILRPunj 658.
26
Veera Raghavamma v G Subbarao AIR 1976 AP 377.
27
Radhika v Ahgnu (1996) 2 HLR 344 (SC).
28
Lachman Singh v Kirpa Singh AIR 1987 SC 1616; Janardhan Badrinarayan Patel v Ambalal Himatlal AIR 1999 Guj
162
[22]
In such cases, it is presumed that upon the death of the woman, her father had died, and his heirs
will be ascertained accordingly. But there appears to be an anomaly here, which has been noticed
and explained by all the writers on Hindu law. If a woman inherits the property from her mother
and dies issueless and her father is alive, would the property go to her father or his heirs? The
unanimous opinion seems to be that the property would be taken by the father, and it is
only in his absence, that it would go to his heirs. Where an unmarried woman inherits the
property of her father and dies, her father's sister will succeed to the property as the
father's heir.29 In Bhagat Singh v Teja Singh,30 two sisters inherited the property from their
mother. On the death of one, who died as an issueless widow, the other sister took the
property as her 'father's heir' and entered into an agreement to sell the same to a person
X. The deceased sister's husband's brother challenged the validity of this sale and claimed
the property as her heir under s 15(1) (b). The Supreme Court held that since both the
conditions were fulfilled, viz, she had inherited the property from one of her parents
(mother) and had died issueless, the property would revert to her father's heirs ie, the
sister in this case and the brother of her deceased husband would not be entitled to
succeed. In another case from Delhi, 31 an unmarried female inherited the property from her
mother and died leaving her brother and a widow of another brother. The brother claimed
the total property on the ground that he was the sole heir. The court held that as the
property is to revert to her father and will devolve as if it belonged to the father, on his heirs,
the deceased brother would be the son of the father, and another brother's widow would
be related to the father as the widow of a predeceased son. Thus, both of them will
inherit the property as class I heirs of the father, in equal shares. In
another case,32 a Hindu female died leaving behind her daughter from a
previous marriage and the second husband, and property that she had inherited
from her father. The husband claimed half of the property, as his deceased wife's heir, but
the daughter contended that since the property was inherited by her mother from the
29
Apurti v Suna Stree AIR 1963 Ori 166
30
AIR 2002 SC 1
31
Yoginder Parkash Duggal v Om Prakash Duggal 2000 AIHC 2905 (Del).
32
Radhika v Anguram [1994] 5 SCC 761
[23]
father, it would be inherited only by her issue (that is herself) and not by the husband.
The lower court decreed in favour of the husband, but the Supreme Court said that
property inherited by a female Hindu from 'her father or mother, in other words, the
female's paternal side', in the absence of her issue, goes back to the heirs of her father and
not to her husband. The Court held that since the deceased had inherited the property
from her parents, her daughter alone will be entitled to succeed and the husband here,
cannot inherit.
34
Mahesh Kumar Pate v Mahesh Kumar Vyas 2000 AIHC 485 (MP).
[24]
35
AIR 2003 Gau 92.
[25]
[26]
legislation and held that the rule of reversion, ie, property reverting to the family from where it was
inherited, was in furtherance of the clear objective of continuing the family unity. The petition was
rejected and the court held that it is not discriminatory. As aforesaid, it is only under Hindu
law that not only separate schemes have been provided for male and female intestates, but also
different sets of heirs and rules have been specified, linked with the source of acquisition of the
property. The argument that family unity can be protected by providing different sets of heirs,
appears strange. Are communities that are governed by a single scheme of succession, unable to
protect family unity? This whole scheme of s 15 and the nomenclature or description of heirs as
heirs of her husband, of her father or of her mother, shows that the legislature does not treat a
woman as an independent individual, and does not define her relationship with her heirs, in terms
of her own blood, but ascertained them with respect to the heads of the family in which she was a
member. If she received something from a family, 'let it not go to another family' in the absence of her
issue, seems to be the dominant purpose behind providing the exception in s 15(2). Her brother is
not her heir in the capacity of her brother, but can succeed as her father's heir. This whole exercise is
meaningless and there is no reason why it should not be scrapped and a uniform scheme governing
all Hindu intestates, irrespective of their sex, framed.
[27]
i)
ii)
i)
ii)
iii)
iv)
v)
Communities that were earlier adhering to the matrilineal systems, are also subject to the provisions of
this Act, which is largely based on the Mitakshara patriarchal pattern. However, the Act itself provides
for a deviation in the case of female intestates who were earlier governed by the Marumakkattayam and
Aliyasantana laws. The heirs of a female intestate here, are similar to the ones provided under the
general scheme, but the order of preference is different.
The property of a female is categorised into two, instead of three categories and the classification is as
follows:
general property of a woman; and
property inherited from her husband and father-in-law.
For succession to the general property, the heirs are grouped into the following classes:
sons and daughters (including the children of any predeceased son or daughter);
father and husband;
heirs of mother;
heirs of father; and
heirs of husband.
Here, in keeping with the principles of the matrilineal systems, the mother is preferred to both the
father, as well as the husband. Similarly, the heirs of the mother are preferred to both, the heirs of the
father and the heirs of the husband.
CONCLUSION
Thus the changes made by the Act in the area of inheritance to separate property, were in the nature of
modifications of earlier laws, and accorded a legislative recognition of the right of a widow. It was
a progressive step that strengthened her position, but it did not radically, depart from the old law.
However, the rights granted to the widow in the coparcenary property were revolutionary and ended
[28]
up making major inroads into the concept of coparcenary, that further deepened with later
legislative enactments.
The Act, as aforesaid, postulated that when a Hindu dies, having at the time of his death, an
interest in the Hindu joint family property, his widow shall have, in the property, the same interest as
he himself had.35
It therefore, provided for the substitution of the widow in the place of her deceased husband
in the coparcenary and so long as she was alive, her presence defeated the application of the
doctrine of survivorship. Her introduction in the place of her husband did not make her a
coparcener, but enabled her to enjoy his share in her own right, something that was not possible
before this Act.36 Her substitution did not disrupt the unity of possession in the coparcenary, nor
the joint family.37 Her situation was unique, as she could not be called a coparcener, nor could she be a
Karta,38 but she continued to be a member of the joint family39 and was empowered to claim a partition
and demarcation of this share.40 Till a partition was effected, she was represented by the Karta in
all family matters. She was entitled to possess and use the property and, as she was the owner for
life, on her death or remarriage, this share reverted to the surviving coparceners, as if the deceased
coparcener whose widow interrupted the survivorship, had died now.
Therefore we conclude that the Act concretised the rights of a woman in clear terms. It was through this
Act that for the first time, she could take the place of her husband in a Mitakshara coparcenary.
Yet, the Act was totally silent about the devolution of her estate after her death. Since her ownership
in this estate terminated on her death and she was not a fresh stock of descent, ie, this estate was not
heritable among her heirs, the question that arose was, who will succeed to this estate? The rule was
that, where she inherited the separate property of her husband, on her death, the property would go
to her husband's heirs, and where she inherited an undivided share in a Mitakshara coparcenary, on
her death, this share would go to the surviving coparceners, under the doctrine of survivorship.
BIBLIOGRAPHY
Books Referred
Family Law Lectures by Poonam Pradhan Saxena(publication lexis nexis second edition)
Modern Hindu Law by Paras Diwan( Allahabad Law Agency)
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