Owning Land, Being Women

Inheritance and Subjecthood in India

Amrita Mondal

• Publisher: De Gruyter
• Year: 2021
• Topic: Social Sciences
• Print ISBN:
  9783110690361
• Subtopic: Indian & South Asian History
• eBook ISBN:
  9783110690538
• Index: Social Sciences

Owning Land, Being Women enquires into the processes that establish inheritance as a unique form of property relation in law and society. It focuses on India, examining the legislative processes that led to the 2005 amendment of the Hindu Succession Act 1956, along with several interconnected welfare policies. Scholars have understood these Acts as a response to growing concerns about women's property rights in developing countries.

In re-reading these Acts and exploring the wider nexus of Indian society in which the legislation was drafted, this study considers how questions of family structure and property rights contribute to the creation of legal subjects and demonstrates the significance of the politico-economic context of rights formulation. On the basis of an ethnography of a village in West Bengal, this book brings the moral axis of inheritance into sharp focus, elucidating the interwoven dynamics of bequest, distribution of family wealth and reciprocity of care work that are integral to the logic of inheritance. It explains why inheritance rights based on the notion of individual property rights are inadequate to account for practices of inheritance.

Mondal shows that inheritance includes normative structures of affective attachment and expectations, i.e., evaluatively-charged imaginaries of the future that coordinate present practices. These insights pose questions of the dominant resource-based conceptualisation of inherited property in the debate on women's empowerment. In doing so, this work opens up a line of investigation that brings feminist rights discourse into conversation with ethics, enriching the liberal theory of gender justice.

Part I: Property Rights and the State

1 Moments of Inheritance

1.1 Introduction

This chapter focuses on inheritance law within the broader subject of Hindu law¹ – the body of law that governs areas of family life such as marriage, maintenance, adoption, guardianship and inheritance of Hindu citizens² of India. This body of family law has been understood as personal law of Hindus during colonial period and continued to be recognised under this nomenclature. Recognising the politically charged nature and chequered history of community specific plural family law systems, this chapter follows the established consensus that Hindu law (in the form of personal law as operates today) has been historically constructed by British colonial rule that transformed principles of family law governing Hindus.³ This process was considerably furthered by post-Independence codification of Hindu law. Keeping this in mind, this chapter sketches a brief outline of significant legal reforms that are considered to advance women’s propertied status. In doing so I concentrate on how women’s rights in Hindu family property are consolidated mainly in relation to the Hindu Succession Act 1956 (HSA 1956) and its subsequent amendment in 2005 (HSAA 2005).

1.2 Women’s Proprietary Position in the Hindu Family

The saliency of the HSA 1956 is that it is an Act to amend and codify the law of intestate succession, making it uniformly applicable to all Hindus, and thereby mitigating any differences that arose in the past due to regionally diverse systems of Hindu law. However, the 1956 Act does not completely abrogate the previous system of regionally divergent Hindu laws. Previous laws are abrogated as far as they are inconsistent with the Act.⁴ Even in its 2005 amendment the codified legal system of Hindu family property as established by the 1956 Act, continues to retain aspects of regionally variant traditions of Hindu law, which came to be called ‘schools’ in Anglo-Hindu law.⁵ Therefore, a discussion of how exactly legal changes confer equal rights to women in family property cannot be fully grasped without a clear understanding of the structure of Hindu family property and its internal differentiation within different schools of Hindu law. I will discuss few characteristics of two widely recognised Hindu schools of inheritance – Mitakshara and Dayabhaga.⁶ Main purpose of discussing these two schools is to highlight the distinction between the principles of acquiring property by an individual within the family, different forms of property within the family that follow different rules of devolution which continue to guide the basic principles of succession until today. These different forms of property continue to exist as the categories of joint family property/Hindu Undivided Family (HUF) property and separate/self-acquired/individual property in Hindu succession law, laws of testamentary succession as well as Indian tax law. I discuss different forms of property under Dayabhaga and Mitakshara because the post-Independence codified Hindu succession law has recognised and protected no other regional system of family property structure except that of Mitakshara. However, Dayabhaga remains equally important firstly, because historically it applies to Bengal (location of my field). Secondly, legislative enterprise (1941–1956)⁷ that led to the codification of Hindu succession law initially identified Dayabhaga as relatively ‘modern’ or ‘progressive’ development of Hindu law.⁸ In addition, I will mention the 1937 Anglo-Hindu Act of women’s property rights, which preceded the HSA 1956 to trace the debate regarding the exclusion of agricultural land from the purview of succession law to delineate the junctures where the independent republic of India departed from or sought legal reform to confer women more rights in family property.

Forms of Property and Women’s Position in Mitakshara and Dayabhaga

[A]s far as succession and inheritance are concerned, the Hindu joint family is above all important because it most fundamentally influences the way property is held, and consequently passed on from one person to the other.

(Rocher 2012:167)

1. Principles of Acquiring Property: Under both the Schools, the default position of the Hindu family is considered as joint or undivided property-owning collective with a neat distinction between head of the family and other members. However, in the Dayabhaga School, the head of the family remains sole owner and single decision-maker for the entire family property until his death, whereas in the Mitakshara School, the role of the head of the family is limited to that of a manager, his power being restricted by certain male members’ right of ownership in the family estate by virtue of being born. (Rocher 2012:175) Thus, the fundamental difference between these two legal systems is based on how property is acquired within a family, that is, whether through right of property by birth (Mitakshara) or right of property by succession (Dayabhaga). This difference leads to different forms of property and related rules of ownership and inheritance.

2. Forms of Property and Rules of Inheritance: a) Joint family property, b) Separate (individual) property, c) Stridhana (Women’s wealth).

a) Joint family property: The Mitakshara joint family is understood to operate in a manner similar to English common law property-holding structure of coparcenary or a family collective as a single legal entity holding property in its own right. Following the doctrine of a son’s ownership by birth Mitakshara allows only a male child to become a coparcener who has a fluctuating interest depending on the death and birth of males in the joint family.⁹ Hence, the legal structure of the Mitakshara coparcenary entails joint property transmission by rule of survivorship – it does not devolve from one generation to the next; instead, it operates based on descent. However, this fluctuation in individual share of the coparcener is notional. Individual share in the joint property arises only when the estate is called for partition by any of the coparcener and formally divided. Up until then the Mitakshara joint family property is a single, undivided estate. Neither the Karta (the main manager) nor any other coparcener can ordinarily alienate (transfer of property as gifts, sales, mortgage) the joint family property.

On the other hand, under the Dayabhaga School, sons have no right by birth in any property, and all property devolves from one generation to the next following rule of succession. This arrangement of joint property devolution is understood as similar to the rules of tenancy-in-common in English common law. So long, the father or the head of the joint family is alive, he holds the absolute ownership rights over all movable and immovable joint family properties. whether ancestral or gained through his father or acquired by himself during his tenure. He is allowed to dispose of both movable and immovable property as long as his actions do not interfere with the sustenance of the family. (Rocher 2012:306–307) Family members had access to the family’s ancestral property, but their share in joint property comes into existence only after the death of the father or the male family head.¹⁰ One’s individual share is actualised at the event of a formal partition.

Women’s position: Women in the Mitakshara joint family could not become coparcener, hence they could not have a right of ownership in the joint family property by birth like sons. However, Under Dayabhaga, direct order of succession in joint family devolution included both male and (some) female heirs.¹¹

b) Separate (individual) property: Even though the demarcation between separate property and joint property is problematic, to put it broadly, any acquisition of property through the means of gift, individual skill, profession, trade or vocation would be regarded as separate property owned exclusively by the member of the Hindu joint family.¹² Under Mitakshara, the distinguishing feature of separate property is that it belongs exclusively to the owner, and following the rule of succession, it devolves to his heir. Thus, in Mitakshara School property inheritance follows both the rule of survivorship and the rule of succession, depending on the nature of the asset.¹³

A Dayabhaga man’s self-acquired property along with his share inherited from joint family property is considered his separate property. Thus, his entire estate (inheritance from commonly held ancestral property from and through the father, and self-acquired property) both devolve following the rules of succession at his death, which gives him absolute right to all his property during lifetime. Therefore, unlike a Mitakshara man’s property, the technical distinction between a Dayabhaga man’s separate and joint family property is of little importance in transmission to the next generation. This difference between Dayabhaga and Mitakshara is significant since it determines the limit of testamentary freedom which has a crucial gender implication – a point I will discuss towards the end of this chapter.

Women’s position: Under Dayabhaga, some women, as noted above, inherited a share of deceased male owner’s separate property, as well as his share in joint property. A woman under Mitakshara were entitled to maintenance from their male relatives as wives, widows, and unmarried daughters. As a widow she could inherit her husband’s separate property on condition of chastity and in the absence of three generations of male agnates. A daughter’s claim to inherit, unmarried given preference, came after a widow’s, that is, in the absence of a mother and three generations of male agnatic heir.

c) Stridhana (women’s wealth): Women’s property is considered another form of separate property. L. Rocher notes that the issue of stridhana “at once raises the problem of women’s rights to inheritance generally, and, on even more general level, the right to inheritance of those who are to succeed to a man who dies without leaving male issue.”¹⁴ (Rocher 2012:176) Broadly speaking, in textual tradition of Dayabhaga, “stridhana is defined as any property that woman may sell, give away, or use, independent of her husband’s control” (McGee 2002:39) and in that of Mitakshara, “stridhana includes not only wealth gained from inheritance but also earnings”. (McGee 2002:39)¹⁵ Given the dearth of any comprehensive legal definition regarding what constitutes stridhana and the manner of its disposal, in practical terms, it mainly amounts to movable gifts to the woman over which she has ownership claim. However, the immovable property acquired by inheritance through husband’s line or father’s line, is deeply vexed regarding whether it can be considered as stridhana. This distinction in terms of limits of ownership rights depending on the nature of asset continued to influence late colonial and post-Independence legal reforms.

3. Testamentary succession: It is generally held as scholarly consensus that law of wills was not a typical feature of Hindu law before Anglo-Indian period.¹⁶ With the Hindu Wills Act, 1870,¹⁷ the concept of testamentary bequest as a mechanism for transmission of wealth was introduced. All Dayabhaga-governed Hindu men were given testamentary freedom and the Hindu succession Act 1956 extended it to the Hindu women as well. The 1870 Act was re-enacted as the Indian Succession Act, 1925 which is still in force.¹⁸

The Rising Importance of Mitakshara – Changes Prior to the HSA 1956

I will present two Central Acts passed during British period that strongly influenced the whole apparatus of Hindu succession with a gender orientation. One among them is the Hindu Law of Inheritance (Amendment) Act, 1929 and the other, the Hindu Women’s Right to Property Act, 1937.)¹⁹

• 1. The Hindu Law of Inheritance (Amendment) Act, 1929 considerably changed the order of heirs at death of a person governed by Mitakshara. It includes in between father’s father and father’s brother – son’s daughter, daughter’s daughter, and sister, who were not heirs before the Act (except in Bombay and Madras), and upgraded the position of sister’s son as a legal heir. This Act applies only to Mitakshara-governed man’s separate property that is not held in coparcenary.
• 2. Among the pre-Independence enactments, regarding property and inheritance rights that affected Hindu women the most was The Hindu Women’s Right to Property Act, 1937. It defined more clearly the rights of wives as widows within their husband’s immediate and wider families. I summarise below the main disposition of this very important Act borrowing L. Rocher’s words:

When a Hindu dies intestate, his widow is entitled, with regard to the deceased husband’s separate property, to a son’s share; with regard to the deceased husband’s interest in a Hindu joint family property, she will have same interest as he himself had. She will have the same right of claiming partition as a male owner, but her interest shall be a limited one, known as a Hindu woman’s Estate [also known as Widow’s limited Estate] – which means that her right to alienate the corpus is restricted in the same way as that of a manager, and that, on her death, it passes on to her husband’s heir.

(Rocher 2012:192)

Again, especially in granting the widow the same ‘interest’ in joint family property as her husband had and granting her the ‘same right of claiming partition’ points to the Mitakshara coparcenary principle where the widow has been brought on par with her deceased husband’s rights, on condition of restricted power of alienation. It speaks of a tradition of legal reform that was concerned ...

Table of contents

• Title Page
• Copyright
• Contents
• Acknowledgements
• Introduction: Perspectives on Inheritance
• Part I: Property Rights and the State
• Part II: Family and Ownership
• List of Selected Acts, Bills and Legal Reports Discussed
• Index