FAMILY LAW -II

TOPIC: JOINT HINDU FAMILY,COPARCENARY AND CLASSIICATION OF

PROPERTY

SUBMITTED BY:- SUBMITTED TO:-

MOHAMMAD ARISH
Dr. K.Y. DANIYAL
B.A. LLB (HONS.)

5thSEMESTER[3RD YR]

ROLL NO. :- 67

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. K.Y. Daniyal,
ma’am, who gave me the golden opportunity to do this wonderful project on the topic-
Joint Hindu family property and coparcenary property which also help me in doing a lot
of research and I came to know about so may new things I am really thankful to them.

Thanking You,

Mohammad Arish

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 TABLE OF CONTENTS

1. INTRODUCTION………………………………………………. 4

2. HINDU JOINT FAMILY UNDER MITAKSHARA LAW……..4

3. CONSTITUTION OF HINDU JOINT FAMILY…………………5

4. PRESUMPTION OF UNION……………………………………..6

5. HINDU COPARCENARY……………………………………….6

6. INCIDENTS OF COPARCENARSHIP……………………….....7

7. DISTINCTION BETWEEN JOINT HINDU FAMILY AND HINDU

COPARCENARY…………………………………………….....8

8. SUCCESSION LAWS IN GENERAL AND HINDU LAW IN

PARTICULAR…………………………………………………..10

9. POSITION OF WOMEN MARRIED INTO THE JOINT FAMILY

AFTER THE AMENDMENT…………………………………...12

10. SECTION 4(2) OF THE ACT LEFT UNTOUCHED- TENURIAL

RIGHTS………………………………………………………….13

11. CONCLUSION…………………………………………………14

12. REFERENCES…………………………………………………..16

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INTRODUCTION

The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to the
ancient patriarchal system where the patriarch or the head of the family was the unquestioned
ruler, laying down norms for the members of his family to follow, obeyed by everyone in his
family, and having an unparallel control over their lives and properties. At the root was the
general family welfare or promotion of family as a unit for which personal interests of the family
members could be sacrificed. Under Hindu law therefore the joint family system came first in
historical order and the individual recognition of a person distinct from the family came later.
The ancient system generally treated the property acquired by the members of the family as
family property or the joint property of the family with family members having one or the other
right over it. With gradual transformation of the society and recognition of the members of the
family as independent in their own right, concept of separate property and rules for its
inheritance were alive anywhere else in the world developed. This dual property system, though
considerably diluted', has survived the lashes of time, the judicial and legislative onslaught and
the Hindu society still recognizes the joint family and joint family property as unique entities
having no similar concept alive anywhere else in the world.

As far as coparcenary is concerned, the primary purpose of understanding the concept of

Mitakshara coparcenary was spiritual nature. A coparcenary in relation to the father is the person
who can offer a funeral cake to him. This capability to offer spiritual salvation by the
performance of funeral rites was with the son, son’s son(grandson) and son of a son of a
son(Great grandson) and as a consequence of it they were conferred a right by birth in the
property of the father. This religious aspect that associated it primarily with relationships and
spiritual benefits and not merely from the property perspective were totally sidelined later by
legal aspect. The revenue authorities view coparcenary purely from the property angle. Presently
it is understood to ascertain the rights and obligations of the members in the joint family property
that is also called the ascestral property or the coparcenary property.

HINDU JOINT FAMILY UNDER MITAKSHARA LAW

The Hindu joint family is a normal condition of the Hindu society. Its origin can be
traced to the ancient patriarchal system where the patriarch or the head of the family
was the unquestioned ruler, laying down norms for the members of his family to
follow, obeyed by everyone in his family and having an unparallel control over their
lives and properties. Therefore, under Hindu law the joint family system came first in
historical order and the individual recognition of a person distinct from the family
thereafter. The ancient system generally treated the property acquired by the member
of the family as family property or the joint property of the family with family

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members having one or the other right over it. With gradual transformation of the
society and recognition of the members of the family as independent in their own
right, concept of separate property and rules for its inheritance were developed. This
dual property system, though considerably diluted,1 has survived the lashes of time,
the judicial and legislative onslaught and the Hindu society still recognizes the joint
family and joint family property as unique entities having no similar concept alive
elsewhere in the world.

CONSTITUTION OF HINDU JOINT FAMILY

The institution of a Hindu Joint Family is peculiar to the Hindu jurisprudence and has
its origin in ancient orthodox texts and writings of Smritikars etc. Though, it originated
in the propagation of the theory of despotism and autocracy in the father, yet by efflux
of time, such a concept considerably loped down so as to confer equal rights on his
sons by birth. The introduction of coparceners by birth into the family considerably
whittled down the absolute power of the father. Several other inroads into such unitary
rights and privileges of the father, where incursions had to be made with the growth of
society and the appreciation of the value of individual rights, resulted in the
enlargement of the body constituting the joint Hindu family.
A joint Hindu family consists of all male members lineally descended from a common
male ancestor and includes their wives unmarried daughters and adopted children. A
daughter on marriage ceases to be a member of her father's family and becomes a member
of husband's family. The Smritis and Commentaries make a mention of the words
kutumba or avibhakta kutumba for joint or undivided family. A joint or undivided
family is the normal condition of Hindus which is ordinarily joint in food, worship and
estate (Creature of Law). In Surjit Lal v. Common. I.T.,2 the Supreme Court
elaborates that outside the limits of coparcenary, there is a fringe of person males and
females, who constitute an undivided family. There is no limit to the number of
persons who compose it, nor to their remoteness from their common ancestor and to
their relationship lineally or laterally with one-another. To be a member of the family
one may be added by birth, marriage or adoption. A female who comes in the family
by marriage becomes sapinda of her husband. The joint family is thus a larger body
consisting of a group of persons who are united by the knot of sapindaship arising by
birth, marriage or adoption.

1 1 While in the State of Kerala the concept of joint family has been abolished, four States to begin
with by introducing unmarried daughters as coparceners. The Hindu Succession (Amendment) Act,
2005 has brought equality and presently a daughter and a son are members of their father's joint
family in an identical manner.
2
1976 HLR (SC) 146

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PRESUMPTION OF UNION

The joint and undivided family is the normal feature of Hindu society. There is a
presumption in Hindu law that a family is living in a state of union, unless the
contrary is proved.3 The presumption is stronger in case of nearer relationship but gets
weaker in case of remoter relationship.4 The general principal is that every Hindu
family is presumed to be joint unless the contrary is proved, but this presumption can
be rebutted by direct evidence or by course of conduct. But there is no presumption
that a joint Hindu family possesses joint family property, it is only an adjunct of the
joint family. In M. Gowdappa v. Ramachandra5, the Supreme Court has held that the
burden of proving that any particular property is joint family property is therefore, in
the first instance upon the person who claims it as coparcenary property. But if the
possession of a nucleus of the joint family property is either admitted or proved, any
acquisition made by a member of the joint family is presumed to the joint family
property.
Hindu joint family is not a corporation and it has no legal entity distinct and separate
from its members.6 It is also not a juristic person7, and is represented by Karta or head
of the family in relation to the affairs of the family in relation to others.

HINDU COPARCENARY
The primary purpose of understanding the concept of Mitakshara coparcenary was
spiritual in nature. A coparcener in relation to the father is a person who can offer a
funeral cake to him. This capability to offer spiritual salvation by the performance of
funeral rites was with the son, son of a son (grandson), and son of a son of a son
(great-grand son) and as a consequence of it they were conferred a right by birth in the
property of the father. This religious aspect that associated it primarily with
relationship and spiritual benefits and not merely from the property perspective was
totally sidelined later by the legal aspect. The revenue authority's view was that
coparcenary purely from the property angle. Presently it is understood to ascertain the
rights and obligations of the members in the joint family property that is also called as
ancestral property or the coparcenary property.
A Hindu coparcenary is a much narrower body than the Hindu joint family. It
includes only those persons who acquire by birth an interest in the joint or coparcenary

3
Govind Das v. Kuldip Singh, AIR 1971 Del 151
4
V.R. Virupakshaiah v. Sarvamma, AIR 2009 SC 1481
5
AIR 1969 SC 1076.
6
Chotelal v. Jhandelal, AIR 1972 All 424
7
Ram Kumar v. CIT, AIR 1953 All 150

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property and these are the sons, grandsons and great grandsons of the holder of the joint
property for the time being, that is to say, the three generations next to the holder in
unbroken male descent. The essence of a coparcenary is unity of ownership with the
necessary appendage of unity of possession. No coparcenary can commence without a
common male ancestor, though after his death it may consist of collaterals such as
brothers, uncles, cousins, nephews etc. A coparcenary is purely a creature of law
and cannot be created by contract. But the adopted person may be introduced as a
member of the coparcenary and after the death of common ancestor coparcenary of
brother can be created. Ordinarily, a coparcenary will end with the death of the
surviving coparcener, very interestingly but if surviving coparcener dies leaving a
widow having authority to adopt a son to him, coparcenary will be continued. The
reason is that a family cannot be ended if there is a possibility of adding any male
member to it. It should be very well remembered that though every coparcenary must
have a common ancestor to start with, it is not to be supposed that every coparcenary is
limited to four degrees from the common ancestor. After the death of common ancestor
or any other last holder of the property, the fifth in descent from him would become a
member of the coparcenary, provided his all three immediate male ancestor i.e., the
father, grandfather and the great grandfather had not predeceased the last holder, for
that is another important rule of Hindu law that whenever a break of more than three
degrees occurs between any holder of property and the person who claims to enter the
coparcenary after his death, the line ceases in that direction.

INCIDENTS OF COPARCENARSHIP
The main incidents of coparcenership under the Mitakshara law are :

1) The lineal male descendants of a person upto the third generation acquire
on birth ownership in the ancestral properties of such person.
2) Such descendants can at any time work out their rights by asking for
partition.
3) Till partition, each member has got ownership extending over the entire
property conjointly with the rest.
4) As a result of such co-ownership, the possession and enjoyment of the
properties is common.
5) No alienation of the property is possible without the concurrence of the
coparceners unless it is for necessity.
6) The interest of a deceased member lapses on his death to the survivors.
7) A coparcenary under the Mitakshara School is a creature of law and
cannot arise by act of parties except in so far that, on adoption, the adopted
son becomes a coparcener with the adoptive father as regards the ancestral

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 properties of the latter.8

DISTINCTION BETWEEN JOINT HINDU FAMILY AND HINDU

COPARCENARY
A Hindu coparcenary is distinct from a Hindu undivided family. There are two
schools of Hindu law, the Mitakshara and Dayabhag. A Hindu coparcenary is a
special feature of Mitakshara law and there is a clear distinction between a joint family
and a Hindu coparcenary. As observed by the Supreme Court in Surjit Lal v. V. CIT,9 a
Hindu coparcenary is a much narrower body than the joint family. The main points of
distinction between these are that joint Hindu family consists of all persons lineally
descended from a common ancestor and includes their wives and unmarried
daughters. On the other side, all those members of the joint family who get an interest
by birth in the joint family property are the members of the coparcenary.10 The
Mitakshara School entitles a son to a right equal to his father in the joint family
property by birth. Under the Hindu law the word "son" has a technical meaning. Son
includes the son, the son's son and the son's son's son. Coparcenary commences with
a common ancestor and includes a holder of joint property and only those males in his
line who are not removed from him by more than three degrees. The daughter was not
given a right by birth in the joint family property.

Both the concepts of "Mitakshara Coparcenary Property" and "Hindu joint family
property" are often mistaken for each other. There may be some degree of overlapping
between the two, but yet they are distinct from each other in some respect.
The issue of their differentiation has come into focus in Hardev Rai v.
Shakuntala Devi and Others.11 In this case, the appellant and the respondent's father
entered into an agreement for the sale of some immovable property.

8
State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330
9
AIR 1976 SC 109
10
State of Maharashtra v. Narayan Rao (1985) 2 SCC 321
11
AIR 2008 SC 2489

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AN INTRODUCTION TO HINDU SUCCESSION
(AMENDMENT) BILL, 2004
Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the
law made by the legislature itself. This is particularly so in relation to laws governing the
inheritance/succession of property amongst the members of a Joint Hindu family. It seems that
this discrimination is so deep and systematic that it has placed women at the receiving end.
Recognizing this the Law Commission in pursuance of its terms of reference, which, inter-alia,
oblige and empower it to make recommendations for the removal of anomalies, ambiguities and
inequalities in the law, decided to undertake a study of certain provision regarding the
property rights of Hindu women under the Hindu Succession Act, 1956 in its
174th Law Commission Report on “Property Rights of Women: Proposed Reforms under Hindu
Law”. The study is aimed at suggesting changes to this Act so that women get an equal share in
the ancestral property.

The proposed amendments to the Hindu Succession Act once again raise the question, do we
need reform for Hindu women, or for women generally, regardless of the religion to which they
belong? And what exactly constitutes reform, what does gender justice mean for women in the
realm of family laws? For the moment it seems that the UPF government has decided to give
Hindu women a fair deal in the matter of inheritance, forgetting other women. There seems no
stated public policy objective as to why only Hindu law needs reform to make it gender just and
no other laws. A statement of policy would be much appreciated to evaluate the present move.

The Government on December 19, 2004 has introduced a legislation in the Rajya Sabha to
amend the Hindu Succession Act providing for equal rights to daughters with regard to
ancestral property. The Hindu Succession (Amendment) Bill, 2004 follows recommendations of
the Law Commission regarding reform of the Hindu Law on property rights of women. The
Bill, introduced by Law Minister H R Bhardwaj, proposes to remove the discrimination
in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the
"Hindu Mitakshara Coparcenary Property" as the sons have. The section 23 of the present act
disentitles a female heir to ask for partition in respect of a dwelling house, wholly
occupied by a joint family until male heirs choose to divide their respective shares. The Bill
proposes to omit section 23 to remove the disability on female heir with regard to getting share
of the ancestral property. This amendment which lays down comprehensive system of
inheritance will apply to every Hindu and also Buddhist, Jain or Sikh. Andhra Pradesh, Tamil
Nadu, Karnataka and Maharashtra have already made necessary changes in the law giving equal
rights to daughters in the ancestral property.

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SUCCESSION LAWS IN GENERAL AND HINDU LAW IN
PARTICULAR

Universally, succession is either testamentary or intestate. In either case, it comes into existence
on the death of the property owner. In almost all countries of the world, a person has the right to
make a will in relation to his or her own property in favour of anyone.

Muslim Personal Law places a restriction on the extent of property that can be willed, leaving
the other portion to devolve on heirs. Only one-third of a man’s property can be willed; two-
thirds will devolve on Koranic heirs, which include children and parents in varying shares.
Female heirs inherit half that of male heirs. Some countries have imposed restrictions by law on
testamentary succession, prohibiting a person from willing away his entire property in
exclusion of his heirs, as a matter of public policy. Certain countries do not permit a person to
disinherit totally, a female heir. In counties that have traditionally discriminated against
women, this had been found to be a necessary provision.

In Christian law, intestate succession to all property is determined by the Indian Succession
Act. A man’s widow and children, male and female, inherit equally. However, a man may, by
will, bequeath his or her property to anyone, totally disinheriting his own children and widow.
Until 1982 however, Syrian Christians were governed by a local law, which limited a
daughter’s claim in her father’s estate to Rs. 5,000, the rest going to the sons. Mary
Roy successfully challenged this law and the Indian Succession Act now governs
succession to property.

Mitakashara school of Hindu law recognizes a difference between ancestral property and
self-acquired property. It also recognizes a coparcenary. A coparcenary is a legal institution
consisting of three generations of male heirs in the family. Every male member, on birth, within
three generations, becomes a member of the coparcenary. This meant that no person’s share in
ancestral property could be determined with certainty. It diminished on the birth of a male
member and enlarged on the death of a male member. One of the coparceners, generally the
senior, was the karta, that is, the manager. Women could never become members of the
coparcenary. Any coparcener had the right to demand partition of the joint family. Once a
partition took place, a new coparcener would come into existence, namely the
partitioned member, and the next two generations of males would form the new
coparcenary. As the member who sought a partition got his property from his ancestors,
the property became ancestral property and hence capable of being coparcenary property.
Coparcenary rights did not exist in self-acquired property, which was not thrown into the
common hotchpotch of the joint family.

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Thus, the concept of a birthright, at which a person acquires rights on his birth even if the
ancestor is still alive, was fundamental to an understanding of the coparcenary. In fact, the birth
of a male child diminishes the right of the ancestor instantly, as each coparcener has an equal
share in the undivided whole.

As contrasted with this, inheritance, whether testamentary or intestate, is a right that accrues on
the death of a person. Inheritance can only be in that property which a man leaves on his death.
Until then, a person has an unrestricted right to enjoy the property or alienate it.

The Hindu Succession Act was enacted in the 1950s, in an attempt to reform Hindu law and
make it more gender just, and it was clarified that the death of a man would result in a deemed
partition of his share in the joint property. This partitioned share would then be distributed
equally among his children and widow. His self-acquired property would be divided equally
among his sons and daughters and widow. To the extent that the Act provided for the equal
distribution of self-acquired property and the equal distribution of the property deemed to be
partitioned, it was a progressive move. But the son’s birthright was kept intact. Thus the son had
both birthright in ancestral property and a right to inherit equally in self-acquired property.

The proposed Hindu Succession (Amendment) Bill, 2004 now attempts to make daughters
coparceners at birth in ancestral property. To begin with, the amendment will only benefit those
women who are born into families that have ancestral property. There is no precise definition of
ancestral property. Given the fact that families have long since been fragmented and the fact that
the joint family system is on the decline, it is not at all clear whom this law will benefit. It
cannot apply to self-acquired property. No person by birth will acquire any rights in
self-acquired property. In today’s context, most property is self-acquired and that property must
follow principles of succession under the different succession laws. Moreover, its owner can
dispose off such property during his lifetime by gift. It can be bequeath by will to anyone of his
choice (except in Muslim law, where only one-third of the property can be willed to people
other than Koranic heirs). The proposed amendment notwithstanding, a Hindu father can
disinherit his wife or daughter by will, in his self-acquired property. The amendment therefore
by itself cannot offer much to Hindu women. What is more, under the laws of certain states, it
will actually disadvantage widows, as the share of the daughter will increase in comparison to
the widow. The amendment is not at all well thought out and can play women against each
other. There is no equity in that. Thus, though seemingly progressive, it does nothing more
than make a political point, that the state is committed to abolishing discrimination against
women, but only Hindu women.

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POSITION OF WOMEN MARRIED INTO THE JOINT
FAMILY AFTER THE AMENDMENT

Hindu law not only recognised the coparcenary, but also the Hindu joint family, which was a
more inclusive institution. All women of the family be they daughters or wives, were members
of the Hindu joint family. They had an absolute right to be maintained out of the
joint family properties. Daughters have a right to stridhan and to marriage expenses. Wives and
widows had the right to be maintained for life out of joint family property. It was this regime of
property laws among Hindus that was sought to be "reformed" by the Hindu Succession Act,
1956 and by other Hindu laws. It was in the 1950s that this unqualified right to be maintained
was eroded, with the introduction of the right to divorce. Under unmodified Hindu law,
a woman’s marital status could not be altered by divorce, as divorce was not permitted. This
right to maintenance could be secured by a charge on the property of the joint family. The so-
called reforms of the 1950s introduced the right to divorce without simultaneously giving the
divorced wife the right to her share of the joint family property; divorce meant an expulsion
from the joint family and the loss of the right to be maintained. Thus the seemingly progressive
right to divorce has turned out to be nothing more than the right to a divorce, on pain of losing
the right to the use of joint family property. The proposed amendment only makes the position
of the female members of the joint family worse. With a daughter along with the sons acquiring
a birthright, which she can presumably partition at any time, the rights of other members of the
joint family get correspondingly diminished. While the reforms of the 1950s disadvantaged a
divorced wife, the reforms of the present times will disadvantage married women as well. Until
now, the only protection women had in the marital home was the status of being married, which
carried with it the right to be maintained, not only by the husband, but by the joint family and its
assets as a whole. Thus married women who lived in a joint Hindu family had the protection of
the family home. This protection will now stand eroded, to the extent that the total divisible
amount gets reduced.

Something similar will happen to Hindu widows. Daughters will acquire a birthright in Hindu
joint family property, mothers stand to lose a portion of the cake, as an inheritance.
Since Hindu law does not grant any rights to wives in marital property, their only chance of
getting anything was on an inheritance, as equal share with the sons and daughters, if the
marriage was subsisting on the death of the husband. On divorce, of course, even that right to
inheritance disappears.

The proposed amendment is ill thought out. It is impossible to graft reforms on a system of
coparcenary, which had a certain internal logical consistency. It was based on the premise that
daughters leave the family on marriage, and women become members of the joint family on
marriage and acquire rights. The patch work of the 1950s maintained the rights of the male

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coparceners and destroyed the rights of a daughter-in-law of a joint family by making it
possible for her to be divorced without a share of joint family property. The reforms of the
current period will destroy the rights of other categories of women, particularly widows, who
will now find that family cake diminished even further.

It is birthright in Hindu law that is the root of the problem. Birthright by definition is a
conservative institution, belonging to the era of feudalism, coupled as it was with the rule of
primogeniture and the inalienability of land. When property becomes disposable and self-
acquired, different rules of succession have to apply. It is in the making of those rules that
gender justice has to be located. What the proposed amendment does is to reinforce the
birthright without working out its consequences for all women.

Justice cannot be secured for one category of women at the expense of another. It is impossible
to deal with succession laws in isolation. One has to simultaneously look at laws of
matrimonial property, divorce and succession to ensure a gender just regime of laws.
The present bill does nothing of the kind.

SECTION 4(2) OF THE ACT LEFT UNTOUCHED- TENURIAL

RIGHTS

The unamended HSA 1956 contains two explicit sources of gender inequality and one implicit
one. One, the Act, Section 4(2), exempts significant interests in agricultural land: it leaves
untouched provisions of tenurial laws concerning the fixation of ceilings, fragmentation of
agricultural holdings or devolution of tenancy rights in such holdings. Hence, interests in
tenancy land devolve according to the order of devolution specified in the tenurial laws, which
vary by state. In the southern and most of the central and eastern states, these laws are silent on
devolution, so inheritance can be assumed to follow the HSA. In a few states, the
tenurial laws specify that the HSA or the ‘‘personal law’’ will apply. But, in the northwestern
states of Haryana, Punjab, HP, Delhi, UP and J&K, the tenurial laws do specify the order of
devolution and these are highly gender unequal. Here primacy is given (as under the ancient
Mitakshara system) to male lineal descendants in the male line of descent and women come
very low in the order of heirs. Also, a woman gets only a limited estate and loses the land if she
remarries (as widow) or fails to cultivate it for a year or two. Moreover, in UP and Delhi, a
‘‘tenant’’ is defined so broadly that this unequal order of devolution covers all agricultural land.

Two, females have rights to smaller property shares than males. Under the HSA (excepting
Hindu matrilineal communities), the separate property of a Hindu male dying intestate
devolves, in the first instance, equally on his sons, daughters, widow and mother (plus specified
heirs of predeceased sons or daughters). If previously governed under the Dayabhaga system,

13
this rule applies also to ancestral property. But, if previously governed by Mitakshara, the
concept of joint family property is retained. In the deceased man’s ‘‘notional’’ share in the
Mitakshara coparcenary, sons, daughters, widow and mother (and other Class I heirs) are
entitled to equal shares. But sons, as coparceners, also have a direct right by birth to
an independent share in the joint family property, in addition to their shares in their
father’s portion; while female heirs (daughter, widow, mother) have a right only in the deceased
man’s ‘‘notional’’ portion. Also, sons can demand partition of the Mitakshara coparcenary
while the women cannot. Hence even to get their part of the ‘‘notional’’ share, women have to
await partition by males. Moreover, a man can convert any part of his separate property
into coparcenary property, which can further reduce women’s inheritance. Three, the Act gives
a person unrestricted testamentary rights over his/her property. In practice, the provision can be
used to disinherit female heirs. Since the HSA 1956 was passed, five states have amended it.
Maharashtra, Karnataka, TN and AP have included daughters as coparceners in
joint family property, while Kerala has abolished joint family property altogether. No state has
amended the provisos on agricultural land.

The 2004 Bill follows the route of the Maharashtra et al amendments. It does not address the
HSA’s gender inequalities comprehensively. First it will not redress inequality in agricultural
land — the most important form of rural property. Gender equality in agricultural land can
reduce not just a woman’s but her whole family’s risk of poverty, increase her
livelihood options, enhance prospects of child survival, education and health, reduce domestic
violence and empower women. It is therefore critical that in amending the HSA, all agricultural
holdings be brought within the Act’s purview. (Also, at the state level, amending tenurial laws
to remove gender discriminatory devolution rules is imperative).

CONCLUSION

Third, the 2004 Bill retains unrestricted rights to testation. Restricting testamentary rights to,
say, half or two-thirds of the property, as found in some other jural systems in India and Europe,
would be a step in the right direction. The 2004 Bill is based on the recommendations
of the Law Commission’s 174th Report 2000, and reproduces its shortcomings. In
1999, the Law Commission had fielded a questionnaire to NGOs and experts, soliciting
responses to alternative proposals for amendments, such as whether or not to bring all
agricultural land under the HSA, and whether to abolish joint family property altogether or
make daughters coparceners on the same basis as sons — 81 per cent of the responses favoured
bringing gender equality in the inheritance of agricultural land and a substantial
percentage supported the abolition of joint family property. But on both counts the
Commission took the conservative route. It did not touch agricultural land and only

14
recommended making daughters coparceners. These weaknesses went unnoticed by women’s
groups.

However, if the 2004 Bill is debated in Parliament (and I hope it will be) it provides a window
of opportunity for women’s groups to mobilise and ask for a more comprehensive amendment
than the Bill proposes, one that brings all property, including agricultural land, on par, abolishes
joint family property, and partially restricts testation.

The statement of objects and reasons of the proposed law refer to the guarantee of equality for
women in Article 14 and 15 as a justification for the amendments. One may legitimately ask the
question, are these guarantees available only to Hindu women? These considerations will apply
across the board to all women of all communities. Why do only Hindu women need equality
in succession and why not Muslim women? The exercise undertaken in the manner it has been
will only reinforce the system of separate and discriminatory personal laws. Reform must be
sought in those commonly agreed areas that will benefit all women. There is no law
concerning the family that does not have a negative impact on women of all
communities. The major gap in our laws is the absence of rights for women within a marriage in
all personal laws. This gap needs to be filled by law reform. A uniform law on marital
property will go a long way in securing the rights of women. In any event, reform of marital
property law and of succession laws must be discussed simultaneously. Otherwise, we will be
left with an uncertain inheritance.

To attempt reform without considering the status of all women of all communities is an exercise
doomed to failure. What is needed is a national debate on the rights of all women and the
movement towards a common gender just law for all women. The strategy of demanding
reform for Hindu women alone, or supporting it, is counterproductive for the women’s
movement as it reinforces reactionary modes of thinking and leaves out of its purview large
segments of women in this country. While the government may have its own reasons
for adopting a strategy of focusing on Hindu law, there is no reason for us not to raise the
demand of a gender just civil code for women generally. If ever there was an opportunity, it is
now. The Muslim Personal Law Board has itself come up with the proposal that triple talaq
must be discouraged and that marriage must be by a standard nikahnama. We have come a long
way from 1986, when the Muslim Women’s (Protection of Rights on Divorce) Act was passed.
We have in place a government that has shown a desire to engage in debate with civil society.
The opportunity must be seized to discuss the rights of all women and not just Hindu women.

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REFERENCES

Books

1. Flavia Agnes, “Women & Law in India”, Oxford University Press, New Delhi (2000)
2. R.K.Agarwala, “Hindu Law”, 20th Ed. Central Law Agency, Allahabad (2002)
Articles

1. Amrito Das, “Notional Partition – A Critique”, AIR 2004 Journal 149

2. Indira Jaising, “An Unequal Reform”, Communalism Combat, No.104 (January 2005).

3. Bina Agarwal, “ABill of her own”, Times News Network (December 23, 2004).
4. “Hindu Succession Bill”, Outlook India, New Delhi December 20, 2004.
Statutes

1. Constitution of India

2. Hindu Succession Act, 1956

3. Hindu Succession (Amendment) Bill, 2004

Reports

1. 174th Law Commission Report (2000) on “Property Rights of Women”, Ministry of Law,
Government of India, New Delhi.

Websites

1. www.manupatra.com

2. www.lawmin.nic.in

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