The earliest legislation with regard to right of female inheritance was made in 1929 called the Hindu Law of Inheritance Act, 1929. This Act conferred inheritance right to three female heirs son’s-daughter, daughter’s-daughter and sister. Thus, bringing about restrictions on the exclusive Rule of Survivorship. The next legislation was the Hindu Women’s Right to Property Act 1937. This Act enabled the widow to succeed along with the son of the deceased in equal share to the property of her deceased husband. However, the widow was entitled only to limited estate in the property i.e. life estate and could not dispose of the property during her life time.
Hindu Succession Act,1956
In 1950, while framing the Constitution, Articles 14, 15(2) & (3) and 16 of the Constitution of India, sought inter alia to restrain practice of discrimination against women and made equal treatment of women a part of the fundamental rights guaranteed under the Constitution. In line with the above Constitutional objective, the Parliament enacted the Hindu Succession Act, 1956 i.e. the Principal Act. This Act applies to all Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and comprehensive system of inheritance and applies to all Hindus, whether governed by Mitakshara or Dayabhaga School of Hindu Law.
However, Section 6 of the Principal Act as originally enacted retained substantially the Rule of passing of property in a coparcenary by survivorship, although it did give rights of testamentary disposition to Hindu males in respect of his properties including his coparcenary share. The erstwhile Section 6 of the Principal Act (pre-amended Section 6) inter alia provided that the interest of a coparcener in the coparcenary property if not disposed of by Will under Section 30 of the Principal Act, would devolve in terms of pre-amended Section 6.
The main part of pre-amended Section 6 provided that the right of male Hindu at the time of his death in the coparcenary property will devolve by survivorship. However, the proviso provided that if the deceased coparcener has any female relatives specified in Class I of the Schedule to the Act, then the property will devolve in terms of pre-amended Section 6. The Explanation 1 provides that there would be notional partition immediately before his death so as to allocate the share in the coparcenary to the deceased coparcener.
It is interesting to note that the Hindu Code Bill wanted to do away with the Mitakshara coparcenary completely. However, the same was opposed to and the erstwhile Section 6 was enacted in the Principal Act. Consequently, if a partition took place in the coparcenary property, then each male coparcener would get his share and the mother and wife/widow would not become a coparcener but would get a share in the coparcenary property. But a daughter would get no share in the coparcenary property.
The daughter would only get a share as one of the heirs on the death of coparcener, out of the share of the deceased in the coparcenary property on notional partition, in view of proviso to pre-amended Section 8 of the Principal Act. In terms of Section 30 of the Principal Act, a Hindu male can dispose of his entire property including his interest in coparcenary property by testamentary disposition/ Will and also in the process deprive his female heirs of any share.
Reference
Prasanta Kumar Sahoo & Ors. Versus Charulata Sahu & Ors. (2023)