Hindu Sastric precepts have been modulated, altered and effaced

Hindu Women’s Property Rights under
HWRTPA, 1937  Time and again the codification of
diverse facets of Shastric Hindu Law have been made responding to the demand of
current social exigencies and the original Sastric precepts have been
modulated, altered and effaced in tune with the changing needs and aspirations.1
Social reform movements during the British period raised the issue of
amelioration of women’s position in society. The earliest enactments which
attempted at reform of the Hindu law are Caste Disabilities Removal Act (Act
XXI of 1850) and Hindu Widows Re-marriage Act (Act V of 1856) but the earliest
legislation bringing females into the scheme of inheritance is Hindu Law of
Inheritance Act (Act II of 1929). This Act conferred inheritance rights on
three female heirs namely, son’s daughter, daughter’s daughter and sisters. Another landmark legislation during
this period conferring ownership and improving the rights of women in property
was the enactment of Hindu Women’s
Right to Property Act, 1937 (hereinafter the 1937 Act). The Act was passed
after a series of protest against the subordinate legal status of property
rights given to Hindu women, under the traditional Hindu law. The
original provisions of Hindu Women’s Right to Property Bill,  introduced by G.V. Deshmukh, granted women
absolute right to property and share to daughter in parental property but when
the Act was passed the provisions were mutilated. Daughters were excluded being
given share in parental property, w idows were granted only a limited right of
inheritance by introducing the English concept called ‘widow’s estate’ and it
confined women’s right to property within the limited sphere of inheritance
rights of widows2.
It came into effect on 14th
April 1937 and has no retrospective effect. As the Act was considered to be
defective, it was amended by the Hindu Women’s Rights to Property
(Amendment) Act, XI of 1938 which was declared to have retrospective effect as
from the 14th April 1937.3 The Act is
not retrospective4 and did not apply to
property of any Hindu who dies intestate before the commencement of the Act5
nor to the widow of a coparcener, who died before the Act came into force.6
The enactment of the 1937 Act strengthened the right of a widow as it provided
for the substitution of the widow in the place of her deceased husband in the
coparcenary so long as she was alive thereby striking at the root of Mitakshara
coparcenary by pruning the rule of survivorship and granting right of partition.
This Act effects important changes both in the law governing the devolution of
a person’s separate property and in the law governing the interest which he
might have inherited joint family properties.7 However,
the Act was neither a modification of the whole area nor did it amend the Hindu
law of inheritance in general.8 The Act was later repealed by s. 31 of Hindu
Succession Act, 20 of 1956 prior to
repeal of the said section by repealing and amendment Act, 1960 being Act
58 of 1960. The effect of such repeal under Section 31of Hindu Succession Act, 1956 by reason of Section 6 of
General Clauses Act, 1897 did
not in any way affect the right already
acquired by the widows under Hindu
Women’s Right to Property
Act, 1937.  (a)    Objectives
and scope of the ActThe objective of the Act as set
out in the Preamble is “to give better rights to women in respect of property.”
by conferring larger rights upon women in
comparison to what they enjoyed under the ordinary Hindu law. The Hindu Women’s Right to Property Act,
1937 has for the first time conferred surviving widow the right to claim
partition of the property of the family to which her husband belonged,
which right had been denied to her under the Hindu law texts. The Act also provides a positive stipulation that
widow’s right in her deceased husband’s separate property or his
interest in the joint family superseded any contrary rule of Hindu law or
custom. The Act gave right to widow in
“any property”. The expression prima facie included, unless something
to the contrary came under from the other provisions of the Act, all forms or
types of interest answering to the description of “property” in law
which also includes shebaitship.9
It must be a heritable property. Scope of the
Act itself was confined to property other than agricultural property and
therefore succession to agricultural property was not regulated by the Act.10 A widow under the Act could
claim a share in the interest of her deceased husband in the non-agricultural
properties owned and possessed by the family at the time of his death and also
in the accretions arising therefrom, irrespective of the character of the
accretions.11
The Federal Court ruled that the Hindu women’s rights to property act (central act 18
of 1937) and the Hindu women’s rights to property (Amendment) act (central act
11 of 1938) did
not operate to regulate succession of agricultural land in the Governor’s
provinces and it operated to regulate devolution by survivorship of property
other than agricultural land as the agricultural land was outside the Central
Legislature’s powers under the Government of India Act, 1935.(b)   Devolution
of Property under HWRTP Act,1937Hindu Women’s Right to
Property Act, 1937 (IND) (HWRTP Act, 1937) was
enacted to enlarge the rights of a class of persons, namely, the widow, and
what was given to her was the representation of her husband in the family
estate in spite of the husband’s death. The Act for the first time
statutorily gave an enforceable right to a widow to demand partition of her
deceased husband’s coparcenary share, but with only limited rights over such
property known as the “Hindu woman’s
estate”. She was entitled
to possess and use the property during her lifetime but on her death or
remarriage, this share would revert to the surviving coparceners and did
not pass on to her heirs. The conceptual idea of
statutory codification of Hindu Women’s Right to Property Act, 1937 by providing the provision of “women’s estate” is a departure
and/or a serious positive turn in social angle as well as in socio-economic
field, in favour of women’s
which earlier was not so recognised by any statutory codification save and
except the “sastrik” provision of Hindu law in the nature of “Stridhan”.12Formerly,
the interest of the deceased coparcener in the undivided properties passed on
to the other surviving coparceners by survivorship. Even before this Act was
passed, females who by marriage entered the undivided family were regarded as
members of an undivided family but they were never given the status of
coparceners. Section 313 of
the Hindu Women’s Rights to Property Act, 1937, conferred upon the Hindu
widow the right to a share in the joint family property as also a right to
demand partition like any male member of the family. Section
3(1) abrogated the general rule of Hindu law according to which a widow
succeeded to her deceased husband’s property only in default of male issue and
she was then entitled to the same share as a son along with or in default of
male issue. Similar rights had been given by the two provisos attached
to section 3(1) to the widow of a predeceased son and also to the
widow of a predeceased son of a predeceased son. The Act gave such widows the same
interest which her deceased husband had in the joint property and were placed
in principle group of heirs consisting of son, son’s son and son’s son’s son.14 The
interest of such widow under the Act was the same interest which her husband
had in the coparcenery. The effect of that representation obviously was that
the joint family continued as it was, and her interest was a fluctuating
interest liable to normal incidence of increase or decrease which got settled
only when a partition was effected. After
the passing of the Act, it was no longer possible to apply the rule of
survivorship to the interest of a deceased coparcener if he left surviving him
his widow as the interest-of the deceased coparcener had now devolve upon his
widow. The right to survivorship was suspended. The legal effect of the
fiction was that the right of the other members of the joint family would be
worked out on the basis that the husband died on the date when the widow passed
away. She would have during her lifetime all the powers which her husband had
save that her interest was limited to a widow’s interest. She could alienate
her widow’s interest in her husband’s share; she could even convey her absolute
interest in the same for necessity or other binding purposes. She could ask for
partition & separate possession of her husband’s share. In case she asked
for partition her husband’s interest should be worked out having regard to the
circumstances obtaining in the family on the date of partition. If she divided
herself from the other members of the family during her lifetime on her demise
the succession would be traced to her husband on the basis the property was his
separate property. If there was no severance, the estate which the widow took
under Section 3(2) did not, on her death, devolved on her husband’s
heirs but passed by survivorship to surviving coparceners. The right of the coparceners to take by survivorship
which was in abeyance so long as the widow was alive comes into operation the
moment she dies. The rule of survivorship
has received a serious blow due to the result of these provisions. The
nature of right conferred on the widow under the Act was personal and not
heritable as Section 3(2) of the Act did not operate as severance of
interest of the deceased coparcener; the right which a widow got under that
section was not as heir of her deceased husband but was a statutory right based
on the recognition of the principle that a widow was the surviving half of her
deceased husband; that the incidents of that right were those specified in the
Act; that such right was one personal to the widow and came to an end on her
death.15
Discussing
on the position of Hindu widow under the Act, 
Rajamannar C. J. and Krishnaswami Nayudu
J. in Jonnagadla Seethamma v.
Jonnagadla Veerana Chetty16
held:”the status of a Hindu widow of a deceased member of a joint family
governed by the Mitakshara under the provisions of the Act is not that of a
coparcener, but that of a member of the joint family with certain special
statutory rights. The death of a coparcener who is a member of a Hindu joint
family does not effect a severance or disruption of the joint family, merely
because he leaves behind him a widow who has certain statutory rights under the
Act. The widow cannot be regarded in any sense as the widow of a divided
member. The result is that the joint family will continue as before except that
the widow would have a special limited statutory right.”The
right to property was conferred on the widow without giving her the status of a
coparcener. Though the Hindu widow on whom the interest of her deceased
husband devolved would not be a coparcener properly so called but now she was a
member of an undivided family who was entitled to the same interest in the
properties of the family as her deceased husband had.17 Supreme Court
while interpreting the meaning of “same interest” and explaining the scope of
the provision held:18″the words “the same interest as he
himself had” in sub-sec. (2) of sec. 3 of the Act of 1937 clearly indicate
that the statute gave effect to the well settled doctrine of Hindu Shastric Law
that the persona of the husband after his death continues through his wife who
is the surviving half of the husband and the husband continues to live through
the widow so long as the widow is alive. It was this concept of the Hindu Law
which was sought to be recognised and given effect to by the Act of 1937. In
these circumstances, therefore, when the Legislature uses the expression
“the same interest as he himself had” it would include all the bundle
of rights possessed by the husband which would devolve on the wife and if there
were to be any limitations on those rights they were spelt out by sub-sec. (3)
itself, namely that while the Hindu widow would have the same right and
interest as her husband, her interest would only be the limited interest known
as a Hindu woman’s estate. Sub-s. (2) of sec. 3 of the Act of 1937 further
conferred on the widow the right of demand partition and on partition she was
entitled to get the same share as her husband. Thus the position appears to be
that a Hindu widow was introduced for the first time into the Hindu coparcenary
having the same rights as her husband and became as it were a member of the
Hindu coparcenary with two qualifications. viz., (1) that she had only a
limited interest; and (2) that she could not be a coparcener because having
regard to the nature of her entry into the family after marriage with her
husband there was no question of her getting interest in the Hindu coparcenary
by birth which is one of the most important incidents of a Hindu coparcenary.
All the other rights of a coparcener were duly conferred on her by the Act of
1937.”She became entitled to the
undivided interest of her deceased husband and took the ‘same interest as her
husband’ and not the ‘same rights as her husband’19.
Though amended mitakshara law of inheritance gave widow the same rights in
coparcenary as her deceased husband had in coparcenary property but courts have
consistently held while interpreting the Act that she did not get the status of
coparcener by the Act20.The
Act therefore had conferred a new right on the widow of a deceased coparcener
in modification of the pre-existing law. Certainly the widow was not raised to
the status of a coparcener though she continued to be a member of the joint
Hindu family as she was before the Act. The joint family would continue as
before subject only to her statutory right. The Hindu conception that a widow was
the surviving half of the deceased husband was invoked and a fiction was
introduced, namely, that she continued the legal persona of the husband till
partition.Section 3(2) of the Act did not
bring about a severance of interest of the deceased coparcener. It effect of
this Act was not to cause the severance of status automatically on the death of
a coparcener, and that the family was to continue to be joint; in that case the
manager was still be entitled to exercise his ordinary powers under Hindu law.21
Until severance was brought about the family continued to be joint and so
manager was clothed with all the powers as such a manager. In an undivided
Hindu family, before codification, the share of each coparcener was not
determined until a partition was effected and during jointness it was liable to
fluctuation by deaths or births in the family. The position of a Hindu widow’s
interest in the family properties was somewhat analogous to the undivided right
of the coparcener at least so far as the manager’s powers of management and
alienation were concerned; so that if the said interest of the Hindu widow was
sought to be defeated by an unjustified alienation, she was entitled to
challenge it, just in the same manner as a coparcener had.22
Since she had the same interest as her deceased
husband, if her deceased husband had the right to protect the property against
mismanagement, waste or unjustified disposal of the family property, she also
got the same right under the Act for the purpose of protecting her interest. 23The Act for the first time
statutorily granted rights to enforce partition of ancestral property. When she was given a right to enforce partition as a male member it meant to give
her the same right of
partition which the coparcener had as “a male member” was made not to
make her a full-fledged coparcener but to give her the same right of partition which that
coparcener had.24 If she chose not to enforce
partition, the joint family continued as before without severance of the joint
status, with the incidents of coparcenary of fluctuation of interest of
coparceners as well as that of such widow with the birth and death of a
coparcener but subject to her statutory right25.
The widow succeeded to her husband’s fluctuating
interest and therefore her share was determined on the date she filed for
partition.  If she asked for
partition her husband’s interest was worked out on the date of demand of
partition and share allotted to her. After partition from coparcenary which
then vested in her, on her demise, the succession to the partitioned property
was traced to her husband on the basis that the property was his separate
property26
but if there was no severance it devolved by survivorship to other coparceners
of joint family27. Having regard to the words used and, the nature of the
interest of a coparcener in a joint family governed by the Mitakshara law that
the Legislature did not intend to give, and had not in fact given, the widow
greater rights than possessed by her deceased husband.28 When the  Act 
says that she will have the same 
right  as her husband had, it
clearly meant that she was entitled  to
be allotted the same share as her husband would 
have  been entitled to had he
lived on  the  date 
on which  she claimed partition.
The interest  devolving upon the widow
need not necessarily be either by survivorship 
or by  inheritance but could also
be in a third way  i.e.,  by statute and  where 
the interest is taken by  her  under 
a statute it  would  be of a kind 
provided  by the  statute itself.29 The Hindu Woman’s Rights to
Property. Act brought in its train a radical turn by conferring on Hindu widow
the right to demand partition of the coparcenary property and she is entitled
to the share of the husband with limited interest. The Act did not lay down the
rules of succession to the property but only defined the rights of widow in the
property. It did not touch upon the rights of daughter in the father’s separate
property or share in joint family property. The intrusion of the widow upon the
coparcenary as a quasi-coparcener by the operation of the Hindu Women’s Rights
to Property Act, 1937 was a device to enable a widow to live separately and as
her own mistress if she so wished, while at the same time preserving, so far as
was possible consistently with such an aim, the essential features of the male
issue’s ‘birth-right’, and the other coparceners’ right of survivorship.30 The reference to the interest of the husband and the
right to partition as a male owner, are also indicative of the way of
improvement in the Hindu Law in favour of a class of persons. Both these
references clearly indicate that the improvement of the status of the widow was
made within the framework of the customary Hindu Law.31    

1 Rayani Appaiah
v. Spl. Tahsildar, L.R. Addanki MANU/AP/0340/1987

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2 Flavia Agnes,
Family Law , Vol I Family Law and Constitutional Claims, Oxford University
Press, New Delhi, 2011 p. 35

3 Dr. Vijendrer
Kumar, Mayne’s Treatise on Hindu Law and Usage, 17th Edition New
Delhi, 2014, p. 1186

4 S. 4 of
HWRTPAct, 1937

5 Umayal Achi v.
Lakshmi Achi, AIR 1945 FC 25

6 Moni Dei v.
Hadibadhu, AIR 1955 Ori 73

7 S.Venkataraman,
‘The Hindu Women’s Rights to Property Act 1937′, The Madras Law Journal, vol.
III, Sept, (Madras: 1937) ,p.81

8 Prakash
Chand Jain, Women’s Property rights under traditional Hindu law and the Hindu
Succession Act: 1956 Some observations, JILI Vol 45 (2003) pg 509

9 Angurbala Mullick vs Debabrata Mullick, AIR 1951 SC
293

10 In re Hindu Womens’ Rights to Property Act, AIR1941 PC 72

11  Parappa Alias Hanumanthappa v. Nagamma , AIR
1954 Mad 576 

12 Rahul Dey Sarkar & Ors vs The State Of West Bengal, High Court of Calcutta, W. P. L. R. T No.246 of 2008 decided on 6th October 2010

13 S. 3 of HWRTP Act, 1937

(1)
When a Hindu governed by the Dayabhaga School of Hindu law dies intestate
leaving any property, and when a Hindu governed by any other school of Hindu
law……. dies intestate leaving separate property, his widow, or if there is
more than one widow all his widows together, shall, subject to the provisions
of sub-section (3), be entitled in respect of property in respect of which he
dies intestate to the same share as a son :

Provided
that the widow of a predeceased son shall inherit in like manner as a son if
there is no son surviving of such predeceased son, and shall inherit in like
manner as a son’s son if there is surviving a son or son’s son of such predeceased
son;

Provided
further that the same provision shall apply mutatis mutandis to the widow of a
predeceased son of a predeceased son.

(2)
When a Hindu governed by any school of Hindu law
other than the Dayabhaga school or by customary law dies having at the time of
his death an interest in a Hindu joint family property, his widow shall,
subject to the provisions of sub-section (3), have in the property the same
interest as he himself had.”

(3)
Any interest devolving on a Hindu widow under the
provisions of this section shall be the limited interest known as a Hindu
woman’s estate, provided however that she shall have the same right of claiming
partition as a male owner.

14 Vaijnath v.
Guramma (1999) 1 SCC 299

15 Movva Subba Rao v. Movva Krishna Prasadam Minor, AIR
1954 Mad 227

16 AIR 1950 Mad 785

 

17 Shivappa Laxman v. Yellawa
Shivappa Shivagannavar, AIR 1954 Bom 47

18 Controller Of Estate Duty, Madras Versus Alladi
Kuppuswamy AIR 1977 SC 2069

19 Dagdu v. Namdeo
AIR 1955 Bom 152

20 Sukh Ram v.
Gouri Shankar AIR 1968 SC 365 ; Satrughan Issar v. Sabujpari AIR 1967 SC 272

21 Shivappa Laxman v.
Yellawa Shivappa Shivagannavar, AIR 1954 Bom 47

22 Shivappa Laxman v.
Yellawa Shivappa Shivagannavar, AIR 1954 Bom 47

23 Bhagwant Amarsingh Teli vs Mt. Manmati And Anr. AIR
1959 MP 249

24 Ranu Thaku Kokate v.
Santu Goga Bhangare,  AIR 1968 Bom 1

25 Seethamma v.
VeeranaAIR 1950 Mad 785

26 Mulla, 21st
Edition

27 Parappa v.
Nagamma AIR 1954 Mad 576 (FB)

28 M.C. Chinniah Chettiar v. Sivagami Achi Alias Sornam
Achi , AIR 1945 Mad 21

29 Potti Lakshmi Perumallu vs Potti Krishnavenamma, AIR
1965 SC 825

30 J
Duncan M Derrett, Law and the Predicament of the Hindu Joint Family, THE
ECONOMIC WEEKLY Vol. 12, Issue No. 7, 12 Feb, 1960

31 Govindram Mihamal v. Chetumal
Villardas, AIR 1970 Bom 251