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Property rights of women

174th Law Commission Report And Property Rights Of Women- Reforms In Hindu Law


In this project, I shall focus on the 174th Law Commission report along with property rights of women in Hindu Law. The project shall be divided into two sections and a conclusion.

In the first section I shall deal with the old Hindu Law that divided property rights of women into Stridhan and limited estate. I shall also discuss the Women’s Right to Property Act, 1937.

In the second section, I shall deal with changes brought about by the Hindu Succession Act and the views given by the 174th Law commission report on certain aspects relating to women property.

In the conclusion, I shall deal with the suggestions made by the law commission report and shall also give my own views on them.

Section 1

Before 1956, the property of the woman was divided into two

  1. Stridhan
  2. Women’s estate

There was never an exact definition of Stridhan. According to the Smritikars, Stridhan constituted those properties which the woman received by gift from her relations. These gifts mostly included movable properties such as jewellery, ornaments etc. Gifts received from strangers at the time of ceremony of marriage or at the time of bridal procession also constituted Stridhan.

Stridhan implied absolute ownership of property for the female. She had full rights of alienation of property when she was a maiden or a widow. However, certain restrictions were placed on the woman with respect to disposal of such property when she was married. On marriage, the Stridhan was classified into two heads-

  1. Saudayaka- these were gifts of love and affection given to the woman from both the husband’s and parent’s side. Over these gifts, the woman had full rights of alienation. These included-

Gifts and bequests from relations – These gifts were made to a woman during maidenhood, coverture or widowhood by her parents or relations or by husband or its relations.

  1. Non Saudayaka- In these gifts, she had no right of alienation without the consent of her husband. These included the following gifts-
  1. Gifts and bequests from strangers- this property was given at the time of coverture or as a form of gift. During the husband’s life time these were under the husband’s control. After his death it came under the control of the woman
  2. Property acquired by self exertion and mechanical arts- A woman acquired property at any stage of her life by self exertion such a manual labour, employment, singing etc. These properties were also under the control of the husband
  3. Property purchased with Stridhan
  4. Property acquired by compromise
  5. Property obtained by adverse possession
  6. Property obtained in lieu of maintenance

The next type of property was women’s estate and the following properties were included in it-

  1. 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 Privy Council in Bhagwandeen v Maya Baee held that property inherited by a female from male is not her Stridhan but woman’s estate. A similar view was taken with respect to property inherited from females.
  2. Share obtained on partition- In Devi Prasad v Mahadeo the law was laid down that share obtained on partition was women’s estate.

The characteristic feature of women’s estate was that a female was a limited owner of the property. They were two limitations that were placed on her estate-

  1. She could not ordinarily alienate the corpus
  2. On her death the property devolved upon the next heir of the last full owner

The Privy Council observed in Janki v Narayanaswami that: “ Women’s right is of the nature of right of property, her position is that of owner, her powers in that character are however limited… So long as she is alive, no has vested interest in succession.”

With respect to these properties, the woman had power to

  1. Management
  2. Alienation
  3. Surrender

Power of Management: The woman had full power to management. She was the sole owner. She alone was entitled to the possession of the entire estate and she alone was entitled to its entire income. Her power of spending the income was absolute. She need not save but if she saved, it shall be her stridhan. She alone could sue on behalf of the estate and she alone could be sued in respect of it. She continued to be its owner until the forfeiture of estate, by her re-marriage, adoption, death or surrender.

Power of Alienation: With respect to alienation, the women could alienate her property under the following conditions –

  1. Legal necessity i.e for her own need and for the need of dependents of the last full owner
  2. For the benefit of the estate
  3. For the discharge of indispensable religious duties such as marriage of daughters, funeral rites of her husband etc. She could alienate for the benefit of the last full owner but not for her own spiritual benefit. She could alienate for religious acts that are not essential or obligatory but are still pious observances which conduce to the bliss of her deceased husband’s soul.

Power to Surrender: the law for this was laid down by the Supreme Court in Natwar v Dadu. It said that there were three conditions of surrender

  1. It must be for the entire estate though a small portion could remain for her maintenance
  2. Surrender must be made in favour of reversioners.
  3. Surrender must be bonafide and not device of dividing the estate among the reversioners.

This was the old Hindu law. An important step towards property rights of women was The Hindu Women’s Right to Property Act, 1937. It had effects on two things-

  1. Succession
  2. Mitakshara Coparcenary

Effect on Succession: The law on succession focused on the rights of widows. With respect to separate property within the Mitakshara School and all properties in the Dayabhaga School, the Act introduced three widows-

  1. Intestate’s own widow
  2. Son’s widow
  3. Son’s son’s widow

The widow took a share equal to the share of a son and, in default of the son took the entire property. If there were more than one widow, all them together took one share. In the case of Mitakshara joint family property, the widow of a deceased coparcenar took the same interest in the property which her husband had in the joint family property at the time of the death.

Effect on Mitakshara Coparcenary: Section 3 of the Act was relevant for this purpose. Section 3(2) laid down that in the joint family property, the widow of the deceased coparcener would have the same interest as he had. This was irrespective of the fact whether the deceased left behind a son or not. Section 3(3) gave the female same right of claiming partition as a male owner. It should be noted this act was not applicable if

  1. Deceased disposed off his land by will
  2. Disposal of agricultural lands was not included

This was the law before the 1956 statue. I shall discuss the changes brought about the 1956 statute and views of the law commission report on certain matters in the next section

Section 2

Hindu Succession Act, 1956 brought about a lot of changes. I shall first mention the changes brought about in the law that has been discussed in the previous section.

  1. Section 14 of the HSA abolished women’s estate. Though reversioners for women’s estate alienated before passing of act were relevant
  2. The old law of succession to Stridhan was abrogated and the new law of succession was laid down in Sections 15 and 16 of the HSA
  3. The property obtained by inheritance or through partition was now no longer part of women’s estate. It became her stridhan or absolute property
  4. The Hindu Women’s Right to Property Act, 1937 was repealed

The most important section, however with respect to women’s property is Section 14 of the Hindu Succession Act. The property that was limited estate becomes her full estate by virtue of Section 14 of the HSA. She can alienate it by gift or otherwise.

Before explaining section 14(1), it is important to mention section 14(2). It retains the power of any person or court to give limited estate to a woman in the same manner as a limited estate may be given to any other person.

Section 14(1) is subject to 14(2), and it states that any property that is acquired by a female, except which is covered by sub section (2), before the Act came into force and which is in her possession when the Act came into force will become her absolute property, and also the property that she acquires after the commencement of the Act, except for the property covered under Sub section (2) shall become her absolute property.

So section 14 gives absolute right to property to the female, to both properties acquired before and after the act.

For properties acquired before the commencement of the Act, there are two conditions-

  1. Ownership of property must vest in her
  2. She must be in possession of the estate when the Act came into force

She must be owner of property: The Supreme Court in Gummalappura v Setra laid down that: ‘ the word possessed in S. 14 is used in broad sense and in the context means the state of owning or having in one’s hand or power’. It follows from this that if the female cannot claim any title to property, then merely by virtue of her possession, she can become its absolute owner. It was laid down in Eramma v Verupanathat property possessed by a female Hindu , as contemplated by the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. Section 14 does not in anyway confer a title on the female Hindu where she did not, in fact, possess any. Thus, Section 14 cannot be interpreted so as to validate the illegal possession of a female Hindu, nor does it confer any title on a mere trespasser

The property must be in her possession: The term possession has been given a very wide interpretation. It includes both constructive and actual possession. Possession with trespasser has been considered to be constructive possession and so has possession with mortgagee, licensee or lessee. Possession has been considered co-extensive with ownership.

Thus, whenever the woman has the ownership of property vested in her, she will be deemed to be in, its possession, and if the ownership does not vest in her, even if she is in actual or physical possession, she will not be deemed to be in its possession within the meaning of the section.

It was held in Brajabanjhu v Lubaranithat when a widow holds an estate as an heir of her husband, on the coming into force of the Act, it becomes her absolute property.

The court resolved all controversies with respect to Section 14 in Radha v Hanuman and the present law is –

  1. Section 14 has qualified restrictive application: it converts only those women’s estates into full estates over which she has possession. Possession here means in the widest possible sense when the act came into force.
  2. Section 14 does not apply to those women’s estates over which a Hindu female has no possession when the Act came into force, in such a case the old Hindu law continues to apply.

The post act women’s property by virtue of section 14 is fairly simple. It converts all limited estate into absolute estate of the woman. The only problem is what comes within clause 2 of section 14. As mentioned, section 14(2) still continues concept of limited estate in certain cases. In Sameshwar v Swamithe court explained the distinction between sub section (1) and (2). It said that if acquisition of property by a female Hindu can be related to her previous right or interest in the property, such an acquisition, although as a limited owner or an acquisition of property in a limited sense, will confer absolute ownership on the day of the commencement of act. However if there is no relation to antecedent interest in the property, then clause 2 shall apply.

Now that it is clear, as to what changes have been brought about by the HSA, 1956 it is important to focus on the 174th Law Commission report. This law commission report discusses the discrimination that exists with respect to women. First it deals with the historical background of laws that were present. I have discussed all of this in detail in section 1, so I shall not be mentioning that. The report discusses in great detail about the need to abolish coparcenary and about women becoming part of coparcenary. Since daughters have become coparceners by virtue of 2005 amendment, I shall omit this part of the report as well. The problems in Section 23 and 30 of the HSA that has not been changed shall be my focus.

Section 23 of the Act denies a married daughter the right to residence in the parental home unless

  1. Widowed
  2. Deserted
  3. Separated

It also denies it from demanding a share in the house, if the house is occupied by a son. Why has so much importance been given to the son? Why shouldn’t the daughter get a right to a residence? If the object of the section is to give primacy to the rights of the family than individual, then why is the provision there for the son? It should either be there for both or for none.

Another inequity is Section 30 of the Act. It allows any Hindu to dispose off by will or other testamentary disposition any property capable of disposition ( including the undivided interest in a Mitakshara coparcenary ) in accordance with the provisions of the Indian Succession Act. If this is allowed to stand, then the right of daughter and widow can be diminished at will.

The above were the lacunae in law that were presented by the commission. The report presents various recommendations all of which has been discussed in the conclusion with my analysis.


The 174th Law commission report made the following recommendations-

  1. Make daughter coparcener- this has been done by 2005 amendment
  2. Delete section 23 of the Act- this has yet not been done

It also left the problem of testamentary succession as it is.

The committee gave very contradictory suggestions. The suggestion to make daughter coparcener was indeed the need of the hour, however, so was the need to eliminate the arbitrary nature of willing away property in section 30. The law commission report committed a huge disaster by not looking into that. Suggestion of section 23 being deleted is really good and should be carried out.

I think that if

  1. Section 23 is deleted
  2. Arbritariness in section 30 is deleted

Only then shall more rights be given to daughters and women because at present, because of these sections present certain discriminations can take place.


Books and Texts

  1. Diwan P, Modern Hindu Law, 20th ed., Allahabad Law Agency, New Delhi, 2009
  1. 174th Law Commission Report

List of Cases

  1. Bhagwandeen v Maya Baee———————————————(1867) 11 MAI 487
  1. Devi Prasad v Mahadeo————————————————–(1912) 39 IA 121
  1. Bijoy v Krishna————————————————————44 I.A 87
  1. Janki v Narayanaswami—————————————————(1916) 43 I.A 207
  1. Natwar v Dadu————————————————————-AIR 1954 SC 61
  1. Ramsumran v. Shyam—————————————————–1922 PC 356
  1. Sitaji v Bijendra————————————————————AIR 1954 SC 601
  1. Radharani v Brindarani—————————————————-AIR 1936 Cal 392
  1. Kamla v Bachulal———————————————————-AIR 1957 SC 434
  1. Mahabir v Shashi Bhushan———————————————–AIR 1981 Cal 74
  1. Gummalappura v Detra—————————————————AIR 1959 SC 577
  1. Eramma v Verupana——————————————————AIR 1966 SC 1879
  1. Deendayal v Raju Ram—————————————————AIR 1970 SC 1019
  1. Mangal v Rattno———————————————————-AIR 1967 SC 1786
  1. Kotturswami v Vieravvai———————————————–(1956) SCJ 437
  1. Brajabanjhu v Lubarani————————————————-AIR 1996 Ori 50
  1. Radha v Hanuman——————————————————-AIR 1966 SC 216
  1. Sameshwar v Swami—————————————————-AIR 1970 Pat 348

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