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Modern Asian Studies 25, 4 (199 ), pp. 791-809. Printed in Great Britain.
LUCY CARROLL
University of Texas
One may argue that it [i.e., dowry] is nothing but a gift of love and affection
by the bride's father who is not obliged to give any share to his daughter by
birth. Now, however, the law of succession has been changed, giving equal
right of inheritance to the daughter along with the son under the Hindu
Before the Hindu Succession Act I956, the Hindu daughter was
the Center for Asian Studies, University of Texas, Austin, for appointing me Visiting
Scholar in Residence, and to the staff and faculty associated with the Center for the
791
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LUCY CARROLL
792
absolute, estate. She was entitled to possess, use, and enjoy the pro-
perty, but not to waste or alienate it, during her tenure-i.e., usually
would bring her tenure to an end. When her tenure determined, the
property passed not to her heirs, but to the relatives of the last male
the property passed to the nearest heirs then living of her father. The
The Hindu Succession Act gave daughters and sons equal rights of
Act, however, did not affect the concept or constitution ofjoint family
property.
Mitakshara Hindu law who dies leaving two sons and two daughers.
Sons and daughters are simultaneous heirs under the Hindu Suc-
that each of the four children would take one-fourth of the estate. The
I/I2th-i.e., the son's interest in the property is five times that of the
the deceased in the property is simply obliterated on his death and the
there were three equal co-owners, each owning one-third of the prop-
property.
Hindu law. There are two main schools of Hindu law, Mitakshara
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or not it was ancestral property in the hands of the person from whom
remains joint family property in the hands of the person who has
taken his share. Any property inherited by a person from any relative
2 Strictly speaking, the son takes an interest in the property from the moment of his
conception, reckoned back from the date of his birth, at which time it becomes
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LUCY CARROLL
794
ate property the rule,3 joint property is the rule and separate property
although there can be a joint family with no joint family property and
the number of joint family estates. Consider a man with three sons
lifetime, A, each of his sons from the moment of their birth, and each
of his grandsons from the moment of their birth are co-owners of the
property. The family remains joint until A's death; after A's death a
3 'But ... the four generation rule of coparcenary rights and the right of partition
granted members did produce the fission of the ideal corporation. When partition
takes place the coparceners become independent owners and cannot any more
exercise survivorship rights in respect of one another. The property must descend according
to the ordinary rules of inheritance-to the issue of these separate owners.' S. J. Tambiah,
'Dowry and Bridewealth, and the Property Rights of Women in South Asia,' in J.
Goody and S. J. Tambiah, Bridewealth and Dowry (Cambridge: C.U.P., 1973), p. 78,
emphasis added.
he were an 'independent owner' as long as (i) he did not have a son at the time of the
partition, or (2) a simultaneous partition took place between himself and his son or
sons (partition during the father's lifetime is rare); but he may do so only until a post-
partition son is born to him. ('Son' here includes the son of a predeceased son and the
son of a predeceased son of a predeceased son.) If he had a son at the time of the
partition and if there were no simultaneous partition between himself and his son, the
obtained on the partition and such property will pass by survivorship to the other
coparcener(s) (i.e., the son or sons of the person who, temporarily being a sole
rules of inheritance'.
4 'Generally speaking, the normal state of every Hindu family is joint. Presumably
every such family is joint in food, worship and estate. In the absence of proof of
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BCE
B1 C1 C2
Figure i.
partition occurs and all A's sons separate. After partition B and his
son Bi; and C and his sons Ci and C2 now constitute new joint
families, with the son holding an equal interest in the property with
his father.
had no son at the time of the partition from his brothers on their
to BI (who has now separated from B), or if a son were born to B after
automatically established.
The property that the sons of A divided on A's death was joint
between B and Bi, the property that each took was joint family,
whole of the property in his possession. But his situation is not that of
property is not altered by the fact that it is for the time being held by a
any of these sole coparceners, the son takes a birthright in the pro-
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LUCY CARROLL
796
perty in the hands of his father. The sole coparcener becomes one of
property.
sons B5 and C are widowers. The presence of A's widow would com-
Hindu Succession Act, the position of the widow or mother was and is
leave the family; the wife is brought in from outside and by the time
she has become a mother or a widow she has been incorporated into
sure, the mother or widow never achieves the status of a son of the
and BI, three individual estates were created, in the hands, respec-
individuals is and remains joint family property, and the birth of a son
E directly from their father A, or into the hands of B directly from his
A man may retain separate title to money he earns without the use
his own separate funds; and to property which he inherits from any
female or from a male other than his father, father's father, or father's
' As to the son hypothetically born to B after the partition between B and Bi, we
may assume that B remarried and that the partition between B and Bi took place on
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father's father. But all such property is only separate property in his
hands, at his will, and during his lifetime. During his lifetime a man
may convert his separate property into joint family property simply
ate during his lifetime, at his death it passes to his son and becomes, in
the son's hands, ancestral property in which the son's son will have a
coparcenary interest.
only temporarily, i.e., only until it passes by succession into the hands
what the situation would have been if after the partition between A's
sons, E had died without leaving spouse or child. The property in the
heirs are his two brothers, who take the property in equal shares. In
came from the father of B, C, and E, it comes into the hands of B and
To return to the original example of a man dying and leaving two sons
and two daughters and giving this anonymous man a family history,
let us assume that he is E, the son of A, that he did not die childless
after all, and that since the partition from his brothers he has married,
produced four children, and been widowed (figure 2). The property in
question is his share in the property of his father (A) which he took on
the partition from his brothers (B and C) after the death of their
birth of each son, the father's (E's) interest in the property was
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LUCY CARROLL
798
S1 S2 Dl D2
Figure 2.
reduced -to one-half by the birth of the first son, and to one-third by
the birth of the second son. (The interest of the first son, originally
his father.)
ary is that each coparcener is co-owner of the whole and that the
the joint family property would have passed by survivorship to his two
one-half each. (It needs to be emphasized that, not only can the
coparceners and decreased by the birth of males who take from birth a
Hindu Succession Act merely tinkered with it. Without disrupting the
that if the coparcener should leave any one or more of nine named
relatives" (eight of whom are women, the sole male being the
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of the joint family property had taken place immediately before his
death. In the present example, E's interest in the joint family property
at the time immediately before his death was only one-third, given the
property; this interest he retains. The son's interest after the death of
equals 5/I 2ths -as compared with the 6/I 2ths he would have taken in
the absence of the Hindu Succession Act, and as compared also with
coparceners will buy them out; more likely perhaps, the daughters
The share of I/i2th which the son takes by inheritance under the
Hindu Succession Act is, like that of his sister, an absolute share and
probably will do. However, even if he keeps the i/i2th share separate
in his hands and vis-a-vis his own sons, who will have the right in it
The son's coparcenary interest, frozen for a moment in time for the
the scene are as nothing compared with the complications arising from the fact that
within any one coparcenary there can simultaneously be one or several smaller
coparcenaries.
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LUCY CARROLL
800
decreased as deaths and births occur. If, for example, after the death
a sister to her brother. After E's death Si, as a coparcener (I/3rd) and
dies leaving no relative except his own siblings; his entire coparcenary
interest in the joint family property passes to his brother to the total
rule.8
ing her I/I2th share from her father's estate, would be inherited in
equal shares by her brothers and sister. Even if she were married, if
she left no child, her I/ 2th share would be inherited by her siblings,
who would take precedence over her own husband in regard to this
property.
virtue of the Hindu Succession Act, sons and daughters now succeed
evading the operation of the Hindu Succession Act, since on his death
" If Si had kept the 1/12th share he received by inheritance to his father as his
separate property, his sisters would share equally with the brother in this 1/I2th. If he
had merged this share with his coparcenary interest, it would pass as part of his
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801
joint property interest (as well as his separate property) to his sons,
heirs for maintenance until her marriage and her marriage expenses;
sure, the Mitakshara father could also leave a will bequeathing his
daughters, disinheriting the sons on the ground that since they had
were well enough provided for. One must doubt that such an event
After all, the same result, as far as joint family property is concerned
Muslim Law
9 For a discussion of Muslim law of succession, see Iucy Carroll, 'The Hanafi Law
70; and Lucy Carroll, 'The Ithna Ashari Law of Intestate Succession: An Introduc-
tion to Shia Iaw Applicable in South Asia,' Modern Asian Studies 19 (i985):85-124.
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LUCY CARROLL
802
law, even after the Hindu Succession Act, is much harsher in its
way a Hindu daughter can be deprived of her new rights under the
5/ 2ths and /I 2th under Mitakshara law. Even if the Muslim father
him, the Muslim daughter would still take I/gth. Further, Muslim
brother, so that on the death of Si each sister would take I/4th of his
Under Dayabhaga Hindu law, interests in and rights over joint family
property differ radically from those interests and rights under Mitak-
shara law. Firstly, no coparcenary exists between a man and his son:
both he has rights of absolute ownership and can sell, gift, or will it
"' A Muslim may dispose of more than one-third of his estate by will if such
disposition is ratified by the heirs. The share of any heir ratifying the excess bequest is
reduced, but the share of the non-ratifying heir is not reduced. For an example of the
calculations involved, see Lucy Carroll, 'Sunni Testate Succession: Some Queries,'
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gous to the situation under Muslim law when heirs elect to retain the
both Dayabhaga and Muslim law, the joint property owning unit is
son, but by the decision of the heirs to hold the property jointly and
[I]t is not necessary ... that the unity of possession ... should be destroyed
enough if the unity of ownership is destroyed, and the share of each coparcener
defined, so that any coparcener can say that he is the owner of a definite
owner of the whole and that the individual's interest should not and
coparcenaries.
l Supra note 4, p. 348; emphasis added. The passage continues: 'Thenceforth the
share of each member will on his death pass to his heirs. The members having
separated, the principle of survivorship ceases to apply.' These two sentences are very
misleading in that the share each member takes on a partition is ancestral property in
which his existing undivided sons and any subsequently-born sons possess coparcen-
ary interests; as between and among such members of the smaller coparcenary
not by inheritance.
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LUCY CARROLL
804
whether the property was joint family property or his own separate
son's son, son's son's son, or widow. In Dayabhaga law she occupied
fundamentally different that we are not talking about the same thing
whose son from birth becomes himself a co-owner, diluting and reduc-
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perty rights that could pose a threat to the property rights of other
passed not to her own heirs, but to the nearest heir then living of the
Returning again to E and his two sons and two daughters, let it now
1956 E's property would have passed by inheritance to his two sons in
equal shares. Under the Hindu Succession Act, his property, both
his four children, the Dayabhaga daughter taking I/4th of the joint
difference here is due to the fact that because under Mitakshara E's
sons took by birth an interest in the joint family property, only one-
third of the property passed under the Hindu Succession Act; all
If Si had then died, prior to I956 his property would have passed
equally with the brother; thus after 1956 both sisters (DI and D2) and
daughter. Since the son does not take a share of the Dayabhaga
the absence of a will, it all comes under the intestate provisions of the
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LUCY CARROLL
8o6
Reform Options
son could be given a right by birth in the joint family property. This
has one clear advantage in that the daughter, if she had such a
sons are members by birth. The statement of objects and reasons set
inheritance rights:
The Hindu Succession Act, 1956, governs the property rights of Hindus and
coparcenary under Hindu Mitakshara law and therefore they are not entitled
has led to the creation of socially pernicious dowry system with its attendant
social ills. In order to eradicate this ill by positive means which will
proposed to confer equal rights on Hindu women along with male members
and the dying out of other branches. The Andhra Pradesh Bill
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different status and quite a different set of rights and interests than
birthright has for men. Consider, for example, the following extract
The son's right by birth in the interest of his father in the joint family
Mitakshara. It deserves respect ... by all the legal systems of the world. It
gives economic security to every man from the day he comes into the world
... Although the right to maintenance given to a child also gives security to
him, yet the right by birth is still better. It is in addition to the right of
The right acquired by birth in the joint family property is a life-long right.'3
the difference between the rights of daughters and sons in the Mitak-
shara joint family property, not only under the traditional system, but
also as largely carried over into the present system under the Hindu
Succession Act. It apparently does not occur to him that the security
also apparently does not occur to him that the security he so highly
values and claims for himself is very greatly enhanced by the fact that
his sisters do not have birthrights in the property, a fact which swells
13 Ramesh Chandra Nagpal, Modern Hindu Law (Lucknow: Eastern Book Co.,
1983), p. 600.
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LUCY CARROLL
8o8
before I956 had the power of disposing of his property, both joint and
property.
for the Dayabhaga property owner, who has long enjoyed the right to
Concluding Remarks
essay, to the effect that the Hindu Succession Act 'gave equal right of
inheritance to the daughter along with the son','4 must not be allowed
to obscure the fact that the Act did not give the vast majority of Hindu
family property.
be very interesting and useful to know what effect the Hindu Suc-
Abstract legal rights are one thing; what happens down on the ground
and obtained her share of the property? If not, why not? Are
daughters even aware of their new rights? Are wills being used to
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809
disinherit daughters? etc., etc. The Hindu Succession Act has been in
force for thirty years and, as far as I am aware, there has been no
ticularly worth looking into the Dayabhaga situation, given the prob-
Appendix
TABLE I
I/4 (separate)
Muslim i/6
TABLE 2
I/3 (separate)
Muslim 1/4
Dayabhaga-post-1956 1/3
take 1/3.
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