CHAPTER - 2

(A)
WOMEN’S PROPERTY:
A HISTORICAL BACKGROUND
(B)
HINDU WOMEN’S RIGHT TO
PROPERTY-POSITION BEFORE
PASSING OF THE HINDU WOMEN’S
RIGHT TO PROPERTY ACT, 1937
 CHAPTER -ii

(A)

WOMEN’S PROPERTY: A HISTORICAL BACKGROUND

The proprietary position of woman in any system of law represents the

thought and the feelings of the community. Hence the proprietary status which a
woman occupied in Hindu law was not only an index of Hindu civilization but also
correct criterion of the culture of the Hindu race.1
The position assigned by the Shastras to the widow and even to the
women in general, both in her family and society, was a state of dependence and
submission. "Day and night" says Manu, "must women be held by their protectors
in a state of dependence; even in lawful and innocent recreations, being too
much addicted to them, they must be kept by their protectors under their own
dominion."
"Through independence, the women go to ruin though born in a noble
family....." (Narada, XIII, 30.)
It was believed that the dependant and subservient status of women was
because of the fact that they were incompetent to perform sacrifices and to read
Vedas. Because of her dependent status her right of having property was also
treated with dislike or disfavour as there was general reluctance displayed by the
ancient Rishis to allow females to hold property. The cause of reluctance was
that in Smritis, property was intended for the performance of religious
ceremonies. The primary obligation of a person holding property was to perform
religious rites and ceremonies and a person was considered as a sort of trustee
for the performance of those rites and ceremonies. Since the females were
declared by the Smritis to be incompetent to perform religious ceremonies
(Manu, Chap. IX. Verse 10). Therefore, her right to. property was very nominal
and whatever little she used to get, that too was hedged with limitations. Foi
instance, her husband could exercise his veto even over certain kinds ol

1 Dr. Kulwant Gill, Hindu Women’s Right to Property in India, 1986 p. 528.

17
Stridhan. So the question of having absolute ownership in the true sense of the
term (which includes right of alienation) did not arise with regard to the property
which did not form her Stridhan. She had only the right to have and enjoy, that
property for her sustenance and maintenance during her lifetime and this type of
right in property was known as "Woman's Estate". In this chapter an attempt has
been made to study the nature, evolution and the development of the concept of
woman’s property through various stages of development.
CLASSIFICATION OF WOMEN’S PROPERTY:
The property of a Hindu woman can be classified into two categories:
(i) Those properties over which she has absolute ownership; and
(ii) Those properties over which she has limited ownership
Property falling under the former category are termed, as 'stridhana' and
that falling under the latter category are termed as 'woman's estate’. However,
under the scheme of the present Hindu Succession Act, 1956 any property
acquired by a Hindu female either before the commencement of the Act or
subsequent to it and which has been in her possession on the date of such
commencement, would be her absolute property, which can be termed as
Stridhan in the modern sense. The Act has dispensed with the distinction
between the Stridhan and woman's estate. It also dispenses with the distinction
with respect to the order of succession between stridhan and women’s estate
and a general rule of succession has been laid down under it.
1. STRIDHAN
Meaning of Stridhan: The word stridhan is composed of two words: Stri
(woman) and Dhana (Property). The word means the property belonging to a
woman or woman’s property. This is the etymological sense but the word has
a technical meaning given in law2. As observed in Rajamma Case.3 A gift
given to a Hindu woman before and after her marriage constitute woman’s
property. Thus conjunctively these two words imply that property over which a
woman has an absolute ownership. By the authors of different schools and

2 B.M. Gandhi, Hindu Law, 1999 p. 178

3 Rajamma vs. Varidarajula Chetti, AIR 1957 Mad 198.
 sects it has been used in different senses, yet it connotes a meaning which
comes out from the word itself. This term was for the first time used in Smritis
and in the Dharmasutra of Baudhayan which meant ‘woman’s absolute
property’. Under the modern Hindu law stridhan does not represent any
specific property but it includes ail those properties of a Hindu Woman Over
which she has absolute ownership and which is inherited by her Successors.
The two important differences between the term woman’s estate and stridhan
are:
(a) A Woman has a limited right of alienation with respect to the properties
coming under term woman’s estate. The right of alienation can be
exercised by her only in dire necessity, legal necessity, or in the interest
of the estate itself; however, with respect to stridhan she has an absolute
right of voluntary alienation of the property coming under it.
(b) In case of woman’s estate the property after the death of the woman
owner, is inherited by the descendants of the male known as
reversioners and not by the descendants of the woman but in case of
stridhan the property is inherited by the descendants of the woman
herself as was the rule under the old Hindu law”.
SMRITI WRITERS AND COMMENTATORS ON STRIDHAN:
In due course of time the term stridhan came to be understood through
the meaning given in the following three sources-
(i) According to smritis,
(ii) According to commentators, and
(iii) According to judicial decisions.

(i) Stridhan according to the smritikars

Manu: According to a text of Manu, there can be no property
belonging to woman, Son or a slave and whatever property is earned by
them, belongs to that person to whom the woman or slave belongs. It
does not mean that they cannot own any property rather it means that
they cannot alienate the property. Manu's view has also been supported

19
 by Gautam, He observed that a woman can own separate property but
she cannot alienate the same.
According to Manu "Adhyagni (whatever has been given at the
time of nuptial fire), Adhyavahanika (whatever has been given at the time
of departure of wife), Dattamprite karmani (given out of love and affection)
and given by the Father, Mother or the brother, all these are six types of
gifts which come under the term Stridhan.4
According to Vishnu Anything given to a woman by her father,
mother, sons and brothers or whatever is received by her at nuptial fire, or
whatever she receives from her husband at remarriage, or what she
receives from her relatives and the gifts received by her after marriage is
stridhan.5
According to Yagyavalkya To the above list enumerated by Manu
and Vishnu, the word 'adi' etc. has been added by Yajyavalkya.6
Vijyaneshwara, a commentator of Yajyavalkya Smriti, has enlarged the list
of properties coming under stridhan due to the use of this word ‘adi’. He
includes in the list all such properties acquired through gift, sale, partition
other lawful means.

Katyayana too while enumerating six kinds of stridhan, identified

two more things, under it earning through art and gifts received during
unmarried state and those gifts received when the bride went to marital
home as also those which was received by her during her widowhood.7
According to him father, husband, son or brother do not have a right to
use or alienate the property falling under stridhan of a woman. Any body
who uses the property without woman’s consent is liable to return the
same with interest and will also have to pay fine to the king. In case of
distress of husband or when he suffers from any disease or is being
tortured by the creditors, the woman can herself voluntarily contribute out
4 Dr. U.P.D. Kesari, Modem Hindu Law, 3rd edition, 2001, p. 357.
5 Supra note 4
6 Supra note 5
7 Supra note 6

20
 of the stridhan but the husband should reimburse her later on.
Other Smritikars like Apastamba, Vyas and Deval too have
discussed the stridhan on the similar lines. Upon composite study of the
views of these Smritikars on stridhan, Adhyagni, Adhyavahanik, Pritidatt
and gifts given by the father, brother or mother or relatives in shape of
money, Adhivednik, Shulk, or Anivadheya can be referred to as str idhan.
(ii) Stridhan according to commentators
The commentators of Vijnaneshwar i.e., Mitakshara and of
Jimutvahan i.e., Dayabhag are important in this respect. According to
Vijnaneshwara, the author of Mitakshara Stridhan includes -
a) Gifts given by the father, mother, husband and brothers;
b) Gifts given by the mother and other persons at the time of nuptial fire;
c) Gifts given at the time of 2nd marriage or gifts given to earlier wife when
the 2nd wife was brought in;
d) The property which is obtained through gifts, sale, partition, acquisition
and other means.
It may be submitted that the extension in the meaning of stridhan
by Vijnaneshwara has been because of the use of the word; 'Adi' i.e. by
Yajnavalkya Vijnaneshwara interpreting the word 'Adi' etc. remarked that
the above list is not final and it covers other properties also.

The author of 'Vyavahar Mayukha, Nilkantha has also approved of

the explanation given by Vijnaneshwara. For purposes of inheritance
stridhan has been divided into two categories:

a) "Paribhashik' which means that which has been accepted by woman

expressly
b) "Aparibhashik' which means those properties which are owned by a
woman otherwise.
Smritichandrika and Parnshar Madhavya accept the six kinds of
stridhan mentioned by Manu, but together with these, the word "Adya"
used by Yajnavalkyn has been interpreted by them in a restricted manner.
They opined that all the properties owned by a woman do not fall under
21
 the category of stridhan. In fact in these two commentaries the Pribhashik
meaning of Stridhan has been accepted. According to Vivad Chintamani
too stridhan covers other properties too which do not fall in the six kinds
recognized by Manu. But these commentaries do not mention the
meaning given by Mitakshara. According to Dayabhag only some of the
properties of woman fall under the head "Stridhan”. Only those properties
are referred to as stridhan which can be freely alienated by the woman.
Dayabhag interpreted the word ‘Adya’ referred to by Vijnaneshwara in
Yajnavalkya Smriti as 'Avam\ According to him such other properties are
covered under Stridhan which have been so mentioned by Yajnavalkya.
(iii)Stridhan According to Judicial Decisions
According to Privy Council, any property inherited by a Hindu
female either from a female or a male did not constitute stridhan. But in
the State of Bombay, a property received through inheritance was placed
in the category of Stridhan provided' that it was not inherited from a person
in whose family she enters.8
It was laid down by Privy Council in Bhagwan Das vs. Maina Bai,9
that property inherited by a Hindu female from her husband is not stridhan.
Hence such property is inherited by her husband’s collaterals and not by
her own heirs. In the same way in Shivshanker vs. Devi,10 it was laid down
that property received by daughter from her mother is not her stridhan
even if that property has been the stridhan of her mother and thus it
reverts to the heirs of her mother. Again in Devimangal vs. Mahadeo Pd.*11
the Privy council further laid down that the share coming under the
possession of a woman after partition is also not stridhan. Even in
Mitakshara, property received by a widow after partition is not her
stridhan, and after her death it reverts to her husband's heirs, unless there
has been any contract to the contrary.

8 Balwant Rao vs. Baji Rao, (1920) 7IA 213.

9 Supra note 8.
10 Supra note9.
11 34 IA 234 (PC).

22
 It has also been held that where a widow retains her possession for
more than 12 years over a joint family property against the heirs, it
becomes her Stridhan12 Similarly that property is also included under
stridhan which is obtained by a widow from government with permanent or
alienable rights13 Where a property is gifted to a woman at the time of her
marriage, is included in stridhan but if the donor is not known to her
previously then the husband has a superior authority over the property
gifted. According to Dayabhag immovable property gifted to wife by her
husband is not stridhan.14 However, earnings from stridhan or savings
therefrom fall under the head stridhan.15 In the same way the clothes and
ornaments of a woman are also treated as stridhan.16
The Punjab and Haryana High Court in Vinod Kumar Sethi vs.
Punjab State17 has given an important decision with respect to stridhan.
According to this High Court whatever has been received by a bride in
marriage or whatever has been gifted to her falls under stridhan. The court
divided the gifts and dowry given to her under three heads. First, those
items which are given to the bride for her exclusive use; secondly, those
which are to be used by her and her husband jointly and thirdly, those
which, are to be used by her husband and in laws. Over the first category
she has the exclusive right and she is the exclusive owner thereof; over
those coming under the second category the court's view was that by
saying that both the spouses have the right to use it will not extinguish the
right of ownership of the wife even then. In case the marriage breaks or
the marriage is dissolved then too the wife has the right to get back those
items and she can keep, them in her exclusive (possession. Thus
according to the above decision all such gifts and presentations which fall
under the first two categories are termed as stridhan. The property

12 Sham Kunwar vs. Wah Kunwar, 29 IA 132.

13 Brij Inder Singh vs. Rani Janki Kunwar, 5 IA 1.
14 Venkat vs. Venkat, 1 M 281.
15 Brij Inder Singh vs. Janki kunawar, 5 LA 1, Laxman vs. Kalicharan, (1873) 19 WR 292 PC.
16 Harikrishan Das vs. Sunder Bibi, 89IC 424.
17 AIR 1982 Punj 372.

23
 intended for joint use are under joint control and custody so long their
material life subsists.
In a later case namely, Pratibha Rani vs. Suraj Kumar 18 the
Supreme Court disagreed with the above view of the Punjab and Haryana
High Court and held that whatever gifts, presentations and dowry articles
are given to a woman in marriage, would be regarded as her absolute
property. All the gold ornaments, clothes and other items of dowry given at
the time of marriage to a Hindu female are her Stridhan and she enjoys
complete control over it. The mere fact that she is living with her husband
and using the dowry items jointly does not make any difference and affect
her right of absolute ownership over them. The view of Punjab and
Haryana High Court that the dowry goods become joint property of the
husband as well as of the wife and both of them exercise equal right and
control over them is incorrect. The court observed, it cannot be said that
once a woman enters her matrimonial home she completely loses her
exclusive stridhan by the same being treated as a joint property of the
spouses. In other words, if this view is taken in its literal sense the
consequence Would be to deprive the wife of the absolute character and
nature of her stridhan and make the husband a co-owner of the same,
such a concept is neither contemplated nor known to Hindu law of
Stridhan, nor does it appeal to pure common sense. It cannot also be said
that once a married Woman enters her matrimonial home her Stridhan
property undergoes a vital change so as to protect the husband, from
being prosecuted even if he dishonestly misappropriates the same.
SALIENT FEATURES OF STRIDHAN:
The salient features of Stridhan can be described as under:
1) The test as to whether it is Stridhan A Hindu female can secure the
property form numerous sources but every such property cannot be
Stridhan. Whether a property constitutes Stridhan depends upon the
following factors:

18 AIR 1985 SC 628

24
 (a) Source of the acquiring the property.
(b) The status of the female at the time of acquiring the property, i.e.
maidenhood, married status or widowhood.
(c) The school to which she belonged
2) Succession In the matters of succession to Stridhan, a new order of heirs
was provided under law which included her own heirs upon whom
Stridhan devolved after the death of the female. This rule does not apply
to the succession of woman’s estate. But now under the Hindu
Succession Act, 1956 the distinction between the two categories of
property have been abolished and an uniform rule of succession has been
provided with respect to stridhan.
3) Power of alienation A Hindu Female possessed absolute ownership over
stridhan and hence she enjoyed absolute right of alienation of such
property. She could voluntarily dispose it of After the Commencement of
the Hindu Succession Act, 1956, every property held by a Hindu female
on the date of the enforcement of Act, whether acquired prior or
subsequent to the Act, became her absolute property. Hence she has got
the absolute power to alienate the same at her volition.
SOURCES OF STRIDHAN:

Properties acquired from the following sources fall under the expression
Stridhan-
a) Gift received from relatives.
b) Gifts and bequests from strangers during maidenhood.
c) Property obtained in partition.
d) Property got in lieu of maintenance.
e) Property acquired by inheritance.
f) Property acquired through technical skill and art.
g) Property acquired by compromise.
h) Property acquired by adverse possession.
i) Property purchased with the earnings of the stridhan or with savings of
income from stridhan.

25
 j) Property acquired lawfully from sources other than those mentioned
above.
KINDS OF STRIDHAN AND ITS INCIDENTS:
a) Adhayagni - gifts given at the time of nuptial fire.
b) Adhyavaharika - gifts given to bride while going to her husband’s
house.
c) Prtidatta - gifts given to the daughters in law by mother and father in
law out of love and affection.
d) Patidatta - gifts given to her by her husband.
e) Padvannadanika - gifts given by the elders while wishing them and
paying them respect.
f) Anvadhyeyaka - gifts received from husband after her marriage.
g) Adhivedanika - gift given to first wife when the second wife was
brought
h) Shulk - money received for marriage
i) Bandhudatta - gifts given by relatives of mother and father.
j) Vritti - money given for maintenance and properties purchased from
the money given towards her maintenance.
k) Yavtaka - when the bride and bridegroom sat together after marriage
and received gifts i. e., the gifts given to wife during marriage .
l) Ayavtaka - those which did not fall in the yavtaka category mentioned
above.
m)Saudayika and Asaudayika - This kind of stridhan covers those
properties which are received by women from her husband, father or at
husbands' or father's house. The division of, stridhan by Katyayana
into Saudayika and Asaudavika depends upon right of alienation. She
has an absolute right over all the Saudayika Properties19. Over
Asaudayika Stridhan the husband too has the right of ownership.
n) Paribhashit and aparibhashit-Technical stridhan - Mayukha law divides

19Geeta Shlok, see Prof. U.P.D. Kesari 3rd edi.,2001, p. 361

26
 the stridhan into paribhashit and aparibhasit categories. The paribhasit
one is given to the woman before fire or at the time of her departure for
husband's home. Other properties given to her fall under aparibhashit
category.
RIGHTS OF WOMEN OVER STRIDHAN: .
The right depends upon the status and source of the stridhan-
Unmarried status - Any Hindu woman can dispose of the stridhan
voluntarily. However if she is minor, minority renders the incompetency to the
right of disposal.
Married status: The right of disposal of the stridhan varies with the nature
of the stridhan. For this purpose the stridhan has been divided into saudayika
and asaudayika stridhan. During., marriage the saudayika stridhan could be
alienated freely by her, but asaudayika stridhan could be alienated by her with
the consent of her husband only This rule is subject to the condition that where
husband and wife live together. Where both have departed, asaudayika stridhnn
can be disposed of by the wife even without the consent of her husband.20
Generally husband has no control over the stridhan of his wife, yet in emergency
he could still use and dispose the same without the consent of his wife. In
calamities or for religious purpose or if the wife has taken the stridhan, then its
return or repayment depended upon the wishes of the husband.21

During widowhood. - During widowhood the woman has an absolute and

unrestricted right of alienation of property, irrespective of the fact whether it has
been acquired prior or after the death of the husband.22 Thus she can alienate
the properties without any constraint. So far as the question of succession to the
property of a woman of bad character is concerned, her bad character does not
extinguish the blood relationship. Thus her near relatives, who have not
professed the profession of bad character, can inherit the property.23 Her

20 Shanta Bai Babarao vs. Ramchandra, 7 Boa 408 (1959).

21 Prof. U.P.D. Kesari, Modem Hindu Law, 3rd edition, 2001, p. 362
22 Brij inder Singh vs. Janaki Kunwar, 1 Cal. LR 318.
23 Hira Lai vs. Tripura, 40 C 650: WN679 (FB).

27
legitimate son will thus exclude her illegitimate daughter24 and her husband will
exclude his illegitimate son.25
So far as the dancing girls are concerned the rules of succession were
entirely different. These girls followed this practice due to their family custom or
due to their family trends. In their reference no distinction existed between
legitimate and illegitimate children. For these girls all children born to them were
on the same footing and were treated legitimate whether the daughters of such
girls were natural born, i. e., avras or dattaka, they inherited as daughters. In
Jagdamba vs. Saroswati26 it was held that a dasi putri and married daughter
inherited equal shares in their mother's property. This view has also been
approved by the Supreme Court.27
Succession to property of Devadasis and Dancing girls was carried out
according to the customs and prevailing usages. No coparcenary developed
between daughters and mothers. Hence no daughter could claim partition
against her mother28
STRIDHAN, ITS SUCCESSION UNDER HINDU SUCCESSION ACT, 1956:
The Hindu Succession Act, 1956 has abrogated the law relating to
Stridhan which existed prior to the incorporation of Section 14 in the Act. Section
14 provided that every property which was in possession of a Hindu female at the
time of the enforcement of the Act, whether acquired prior to or subsequent to
the Act, became her absolute property. The old law relating to the order of
succession to such property has been done away with and a new order of
succession has been introduced in its place, which included females as well. A
uniform law relating to various categories of heirs has been contained in Section
15 of the Act Since every property validly in her possession became her stridhan,
a full uniform law of succession to such property had become essential. Thus on
the death of a Hindu female intestate, her stridhan devolved according to the

24 Meenakshi vs. Himiyandi, .38 M 1144.

25 Jagannath vs. Narayan, 31 B 543.
26ILR 1950 Mad 553
27 1953 SCR 939.
28 Gangamma vs. Koppamal, 1939 M 139.

28
rules contained in Section 15 and 16, but in no case according to the old law.
Section 15 lays down that when a Hindu female dies intestate leaving her
stridhan, it would devolve upon the following categories of heir according to the
rules provided in Section 16 of the Act:
a) Firstly, upon sons and daughters(including the children of a predeceased
son or daughter) and husband;
b) Secondly, upon the heirs of husband;
c) Thirdly, upon father and mother;
d) fourthly, upon the heirs of father;
e) fifthly, upon the heirs of mother;
2. WOMEN’S ESTATE:
Meaning of woman’s estate and its nature: Widow who is a limited heir,
acquires the property for her life time but she is the owner of the property thus
inherited as a tenant. But her right of alienation is limited and after her death
the property does not pass to her heirs rather to heirs of the last full owner
thereof.29 Therefore, the characteristic feature of woman’s estate is that the
female take it as a limited owner, however, she is an owner of this property in
the same way as any other individual can be owner of his or her property
subject to basic limitation: (a) she cannot ordinarily alienate the corpus and;
(b) on her death it devolves upon the next heir of the last full owner.30 In Janki
vs. Narayaswami31, the Privy Council has observed.
“Her right is of the nature of right of property, her position is that of
owner; her powers in that characters are, however, limited. So long as she is
alive, no one has vested interest in succession.”
Earlier Moni Ram vs. Kerry32 the Privy Council said: the whole estate is
for the time vested in her absolutely for some purpose, though in some
respects for only a qualified interest. Her estate is an anomalous one, and
has been compared to that of a tenant in tail. It would perhaps be more

29 Proff. U.P.D. Kesari, Modem Hindu Law, 3rd Ed. 2001, p. 364
30 Bijay vs. Rrishana, 44, IA 87.
31 (1916)43I.A.207.
 correct to say that she holds an estate of inheritance to herself and the heirs
of her husband. But whatever her estate is, it is clear that until the termination
of it, it is impossible to say who are the people who will be entitled to succeed
as heirs to her husband. The succession does not open to the heirs of the
husband until the termination of the widow's estate.”
Her power of the disposal over the property is limited and it is the
limitation which goes to define the nature of her estate. These limitations are
not imposed for the benefit of the reversioners. Even when there are no
reversioners, the estate continuous to be a limited estate.
The followings constituted woman's estate-
(a) Property Obtained by inheritance
A Hindu female may inherit the property from a male or a female.
She may inherit it from the parent's side or husband's side, Mitakshara
has considered all the inherited property as stridhan. But the Privy Council
in a series of decision held that property inherited by a female from males,
is not stridhana but woman's estate.33 In another set of cases, it took the
same view in respect of the property inherited from the females. This is
the law in all the schools.34 According to Bombay school, the property
inherited by a woman from females, is her stridhana.35 As to the property
inherited from a male, the female heirs are divided into two: (1) those who
are introduced into the father's gotra by the deceased male by marriage
such as intestate's widow, mother etc, and those who are born in the
family such as daughters, sisters, brother’s daughter etc. in the latter case
the inherited property is stridhana, while in. the former case it is women's
estate.
(b) Share Obtained on Partition
When a partition takes place, except in Madras, father's wife (not in
Dayabhaga school) mother and the grandmother take a share in the joint

33 Bhagwandeen vs. MayaBaee, (1877) 11 MIA 487, Thakur Dyehee vs. Raj BalukRam, (1866) MIA 140.
34 She Shankar vs.Devi Saha, (1903) All 468, Sheo Part vs. The Allahabad bank, (1903) 30 1. 1909.
35 Kasserbai vs. Hansraj, (1906) 30 Bom. 130.

30
 family property. In Mitakshara jurisdiction, including Bombay36 In
Dayabhaga school it is in an established view that the share obtained on
partition is not stridhan but woman's estate.37
POWER OF MANAGEMENT:
Like the karta of a Hindu family, she has full power of the management.
Her position in this respect is somewhat superior to the karta. The karta is
namely a co-owner of the joint family, there being other coparceners, but she is
the sole owner, she has not to look after or bother about others. Thus she alone
is entitled to the possession of the entire estate and she alone is entitled to its
entire income. Her power of spending the income is absolute.38 She need not
save, and if she saves, it will be her stridhan.39 She alone can sue on behalf of
the estate and she alone can be sued in respect of it.40 She continues to be its
owner until the forfeiture of estate, by her marriage, adoption, death or surrender.
POWER OF ALIENATION OF WOMEN’S ESTATE:
Alienation, in jurisprudence, is one of the natural and necessary incidents
of all movable and immovable, tangible or intangible property. In fact, absolute
power of alienation is inherent in the absolute ownership of property. In ancient
India, since the basis of the Hindu social order was a joint Hindu family and not
an individual, absolute ownership of all property invariably resided with the
former. Therefore, in matters of alienation of property -especially immovable - the
real power did never lie in the hands of a father/head/karta alone. The Hindu law­
givers did not deem it fit to invest him with, such powers in spite of the fact that
he enjoyed sui-generis and unique position in the prevalent joint family system.
The law therefore, required the head or karta to collect all the male members of
his family and secure their consent before deciding upon the alienation of
property moveable or immovable except in the ordinary course for the
maintenance of the members of the family or for pious purposes. However, in

36 The Vijavahara Maynkha takes the view that such property is stridhana, but the Privy Council legislated'
and held that such property is woman's estate
37 Devi Prasad vs. Mahadevo, (1912) 391.A. 121
38 Ramsumran vs. Shyam, 1922 P.C. 356.
39 Sitaji vs. Bijondra, 1954 S.C. 601.
40 Radharam vs. Brindarani, 1936 Cal. 392.

31
exceptional situations the karta was deemed fully competent to take independent
decisions. Verse 28 of the Mitakshara talks about exceptional circumstances as,
"Even a single individual may conclude a donation, mortgage, or sale, of
immovable property, during'a season of distress for the sake of the family, and
especially for pious purposes."
Almost same circumstances have been mentioned in Verse 29, Chapter I,
Section 1 of Mitakshara, "While the sons and grandsons are minors, and
incapable of giving their consent to a gift and the like; or while brothers are so
and continue un-separated; even one person, who is capable, may conclude a
gift, hypothecation, or sale, of immovable property, if a calamity affecting the
whole family requires it, or the support of the family renders it necessary, or
indispensable duties, such as the obsequies of the father or the like, make it
unavoidable.” Thus the exceptional circumstances were:
a) Legal necessity.
b) Acts of indispensable duties.
c) Benefit of estate.
Women, obviously had absolutely no say in such matters in the male
dominated society. The Shastric law required only male members to be
convened and consulted. Even in matters regarding woman's estate the ancient
law giving sages did not dream of investing women with absolute powers of
alienation. They, in fact, enjoyed only limited ownership of property and hence
could not be given greater powers of alienation than those enjoyed by Kartas or
heads in the joint family system of society. Moreover, women, in those days were
held in such low esteem that they were considered to be wholly incapable of
managing and holding property as absolute owners Property, under exceptional
circumstances or otherwise, except the Stridhan only, were allowed to be
possessed by them merely as limited estate and nothing more. Hence a Hindu
widow’s estate meant only a qualified proprietorship with powers of alienation
only in cases of dire and justifiable necessity definite restrictions on her power of
alienation were not only considered to be important but also inseparable. The
law, therefore, did not permit her ownership of the deceased husband’s property

32
to extend beyond her life-span during which she could represent the estate so
long as she acted genuinely and sincerely in the interest of the estate. After her
death the property reverted to the heirs of her husband instead of going to her
heirs.
Enumerating the reasons of restraining and curtailing woman's power of
alienation of property Lord Justice Turner of the Privy Council, said in his speech
in the Collector of Masulipatam vs. Cavaly Vencata Narrainapah,41 that the
dependent status of women in that society rather than the idea of protecting the
interests of husband's heirs was chiefly responsible for this state of affairs. After
reference to a number of authorities on the subject. His Lordship noted that the
social position allowed to women in that hoary past was no more than that of
tutelage; and that like children they too, required protection. The law, therefore,
could not permit them to act independently especially in matters regarding
ownership and alienation of property.
M. N. Srinivasan offers almost the same opinion though with a rider. Legal
limitations, according to him, were not imposed upon woman's power of
alienation out of tender regard. For the rights of reversioners, for no such right
existed during her life span. For the reasons, therefore, we must look to her
social status, instead, which made it incumbent upon her to lead a simple life of
abstemious piety directed towards the acquisition of merit for the departed soul of
her husband by bidding adieu to the pursuits of sensual pleasure for its own
sake.
In order to understand the nature of widow's estate vis-a-vis her power of
alienation, we have to examine and analyse various texts, commentaries and
judicial decisions.
Mitakshara school of Hindu Law, did not intend to give only life interest to
women in property obtained either by inheritance or partition nowhere Mitakshara
distinguished rights of males from those of females. Vijnaneswara, the author of
Mitakshara, inclined heavily in favour of the fair sex. He supported his theory with
the help of the following text of Yajnavalkya:

41 M.N. Srinivasan, Principles of Hindu Law,1970, Vol. Ill, P. 2747.

33
 “......... What was given to woman by the father, the mother, the husband,
or as brother, or received by her at the nuptial fire, or presented to her on her
husband’s marriage to another wife, also any other separate acquisition, is
denominated a woman’s property.
Commenting upon the above text of Yajnavalkya, Vijnaneswara stated as
follows:
"That, which was given by the father, by the mother, by the husband, or by
a brother, and that, which was presented (to the bride) by the maternal uncles
and the rest(as maternal uncles, maternal aunts) at the time of wedding, before
the nuptial fire, and a gift on a second marriage, gratuity on account of
Supersession, as will be subsequently explained, (to a woman whose husband
marries a second wife, let him give an equal sum as a compensation for the
supersession).......... and also property she may have acquired by inheritance,
purchase, partition, seizure or finding, are denominated by Manu and the rest as
‘woman’s property’
According to Dr. P.V. Kane, Yajnavalkya and Vishnu among Smriti writers,
were probably the first to enunciate clearly the rule that the wife was the foremost
heir of a man dying without male issue. Brihaspati too, held the same view and
supported it with very cogent reasons. Vedas, Smritis and popular usage, he
argued held fair sex in such high esteem that a wife was deemed to be the better
half of man or literally speaking, the half portion of husband’s body, sharing in
equal proportion the consequences- sweet or bitter - flowing from his good or
equal deeds on this earth. A man survived by his wife, therefore, was deemed to
be alive in as much as his 'better half or half portion of his body still lived in his
wailing widow. That is why Brihaspati held, that a widow had a better title to the
property of her deceased husband in case of no surviving male issue to those of
all his kinsmen including nearest relatives like father, mother, brothers, etc.
Elaborating his argument further, he said that while a husband outliving his wife
consigned her body to 'his sacred flames’ the one whose fate it was to be
outlived must, embrace ‘his sacred flames' himself and be consumed by their
lapping tongues, having and consigning all his wordly effects to the care of his

34
better half-the wailing widow. And then to this, Brihaspati added as rider: To
inherit her husband's property a widow must not only be pious but also physically
chaste.42
However, Dayabhaga School neither minced matters nor words in
emphatically declaring that widow had no right whatsoever of alienation in any
manner of inherited property. She could only enjoy and that too, in very limited
sense, this property inherited after the demise of her husband provided she kept
"the bed of her Lord unsullied and abided with her protector."43 On her death the
property was to return to the husband's heirs.
Dayabhaga took note of various passages from Mahabharta which
permitted only a stingy and bare 'use' of husband's property by a widow. In
Dayabhaga, Chapter IX, Section 1, Verse 60 a passage from Mahabharta was
also quoted viz., "Thus in the Mahabharata, in the Chapter entitled Danadharma
it is said "For women, the Heritage of their husbands is pronounced applicable to
use. Let not woman on any account make waste of their husband's wealth.44
Jagannatha Turkupunchnun also quoted the following passage from
Mahabharata in his Digest:
“Simple enjoyment is declared to be the fruit which women gather from the
heritage of their lords; on no account should they waste the estate of their
husband.”45
What the term ‘use’ according to Dayabhaga included was explained in
Verse 61 of Section 1 of chapter XI as: Even use should not be by wearing
delicate apparel and similar luxuries: but since a widow benefits her husband by
the preservation of her person, the use of property sufficient for that purpose is
authorized. In the like manner (since the benefit of the husband is to be
consulted), even a gift or other alienation is permitted for the completion of her
husband’s funeral rites. Accordingly the author says, 'Let not women waste'.
Here 'waste' intends expenditure not useful to the owner of the Property.”

42 Dr. P. V. Kane, History of Dharamasastra, 1968, Vol. HI, p. 702-703.

43 Supra Note 43
44 Supra Note 44
45 Supra Note 45

35
 In fact the term 'use' was interpreted by Dayabhaga in a very narrow
sense and it meant bare subsistence. She could neither spend on personal
embellishments including fine clothes and cosmetics nor purchase other items of
luxury and physical comfort she was authorised to take only that much out of the
inherited property which was barely sufficient to make both ends meet. Apart
from this she was permitted to make a gift or even alienate a part of the inherited
property in order to complete the funeral rites of her husband. All other
expenditure on her part was sheer ‘wastage’ as it was in way 'useful’ to the
owner of the property. But where a widow could not otherwise arrange for means
of bare subsistence this school allowed her to alienate in any suitable manner for
the purpose Verse 60, Section 1, Chapter XI of Dayabhaga, read: "Hence, if she
be unable to subsist otherwise, she is authorised to mortgage the property; or if
still unusable she may sell or otherwise alien (sic) it for the same reason, is
equally applicable."
Dr. Mitra46 gose a step further when he opines that reversioners had no
right to impeach alienation of property by a widow in case it was affected to raise
funds, to support and maintain those relatives of her deceased husband whom
she was obliged to maintain out of his property after his demise.
Our sages also emphasised the importance of initiatory rites of the
children. According to them it was a duty, incumbent upon the late owner to
perform the initiatory rites of his children, and if he died without performing them,
the widow was bound to perform because if the ceremonies remained
unperformed, the spiritual welfare of the late owner to some extent was
jeopardised. Dr. Mitra47 made it clear that the only member whose; initiatory rites
the widow was to perform was the daughter and the initiatory rite in the case of
the daughter was her marriage. Her marriage was considered obligatory on the
widow because sages emphasised that if the girl attained puberty without being
married the future salvation of the ancestors would be forfeited. Verse 6, Section
II, Chapter XI of Dayabhaga, stated as follows:

46 Dr. J. Jolly, (Tagore Law Lectures, 1879), The Law relating to Hindu Widow, p. 302.
47 Ibid, p. 304

36
 “..........should the maiden arrive at puberty unmarried, through, poverty,
her father and the rest would fall to a region of punishment, as declared by holy
writ.... ”
Our sages have also advised the widow about the share in her husband’s
property which she should give to the Hindu Law it was considered obligatory on
the widow to pay the debts of her husband, otherwise the spiritual welfare of the
husband would be sacrificed. However, she was not justified in alienating the
property for the payment of her personal debts, unless the debts were the
consequence of prior debt owed by her husband.

As Hindu law in general and its Dayabhaga School in particular held the
deceased husband as the true proprietor though in absentia, all expenditure
incurred out of his estate on such acts beneficial to his soul were deemed not
only imperative but also lawful. These included making proper gifts to the late
husband’s relatives but not to her own at his funeral obsequies, and paying off
his debts so that he might not take birth in the family of his creditors as a woman,
slave or a quadruped. She, however, was not allowed to alienate property to
defray her own personal debts.48

It shall not be out of place to mention here that Nilakantha, the author of
Mayukha, was far more liberal in as much as he permitted widows to alienate
inherited estate; for all sorts of religious and charitable purposes though not
otherwise. Commenting upon the text of Katayana prohibiting alienation of
property by widows Nilakantha observed that it forbade gifts to unworthy person
only.49

According to Dr. Jolly,50 Mitramisra, the author of Viramitrodaya, too held

the same opinion. He however, was more explicit and forthright about a widow’s
right over her estate which he discussed at length in the chapter on obstructed
heritage. A Hindu widow, according to him was at liberty to use the entire

48 Supra Note 51
49 Supra Note 52
50 Dr. J. Jolly, (Tagore Law Lectures, 1883), Outline of History of the Hindu Law of Partition, Inheritance
& adoption p.254

37
inherited estate without indulging in wasteful expenditure and hence forbade
expenditure such as making gifts to unworthy persons like players, dancers and
other of illeopute; wearing costly and gaudy apparel, cosmetics and jewelry,
eating dainty dishes, and acquiring things other than necessities. She was
absolutely free to make gifts for charitable purposes and to spend on other
religious acts ordained by Dharma.51
According to Dr. Jolly, another Digest writer, Jumutavahana’s awfully
narrow view of Hindu widow’s rights over inherited estate failed to register itself
either as a shock or as surprise if considered in the light of extension of female
succession to undivided property found in the Bengal School of Hindu law. While
attacking the narrow views of Jimulavahana on the subject, he went to the extent
and asserted that the Bengal theory of Factum valet was applicable to women as
to men. That, however, was wrangling for victory rather than for truth, and what
Mitramisra actually wanted to establish was the following:
Women may use the entire property inherited from their husbands, but they are
not allowed to waste it.
(a) A wasteful use of property includes - (a) make presents to players,
dancers and the like unworthy persons; (b) wearing costly dresses and the
like and eating dainties and the like; (c)selling or mortgaging the property
otherwise than in cases of necessity, i.e., if they are unable to subsist
otherwise.
(b) Gifts made for religious purposes are always valid.
(c) The widow is not bound to preserve the whole property for his co-heirs.
They take after her death what is left of it.52
Lord Justice Turner, in the well-known case of Collector of Masulipatam
vs. Cavaly Venkata Narainappau,53 observed:
It is clear that under Hindu law, the widow, though she takes as heir, takes
a special and qualified estate compared with any estate that passes under the

51 G.C. Sarkar, Viramitrodaya Translation, Ch. Ill part 1, S.3, p. 141.

52 Dr. J. Jolly, (Tagore Law Lectures, 1883), Outline of History of the Hindu Law of Partition, Inheritance
& adoption p.259
53 (1859-61) 8 M.I.A. 529.

38
English law of Inheritance, it is an anomalous estate It is a qualified
proprietorship and it is only by the principles of Hindu law that extent, and, nature
of the qualification can be determined.54
The authorities quoted above establish the following points:
(a) The estate of a Hindu widow was not a life estate.
(b) She was a proprietor of the estate with a right of alienation.
(c) Each alienation by the widow in the exercise of that right must be judged
by the circumstances in which it was made.
In fact, according to Mr. Justice Mitter55, the widow was nothing more than
trustee for her life for the soul of her deceased husband and not for the heirs of
her husband. Her possession and enjoyment were in the right of her husband,
but his powers of alienation was pot transmitted to her. Until her death, "half of
the body of the husband" survived; and in the absence of the male issue, the
heirs could not be ascertained till her death. Only that gift or other alienation was
permitted which was for the completion of the husband's funeral rites or for her
subsistence. She could also give presents to the Sapindas and other relatives of
her husband at his funeral rites and to defray the marriage expenses of the girl
she as permitted to give a fourth part of her husband's estate.
The earliest and probably the most important case in, which the nature
and extent of the widow's interest came for consideration was Kasinautha Bysack
vs. Hurrosunderay. The brief facts of the case were that Hurrosundery Dossee,
the widow of Bishwanath Bysack, sued her husband's brothers to recover
possession of her husband's property, moveable as well as immovable. The
Supreme Court of Judicature at Bengal held (East, C.J. Presiding) that
Bishwanath Bysack having died without issue, the plaintiff, as his widow, was by
Hindu law entitled to an interest for her life in the whole of his immovable or
personal estate. A bill of revivor was afterwards filed by the defendants, and the

54 Supra Note 56
55 Mussamut Noomurto vs. Mussamut Doorga Konwar, SDR for 1850, p. 245. The same view was
expressed in Bijoy Gopal Mukerji vs. Krishan Mahishi Debi, I.L.R.(1907) 34 Pal. 329; Janaki
Ammal vs. Narayanasami, AIR 1916 P.C. 117 ; Bahadur Singh v: N. S. Sultan Husain Khan, AIR
1922 Oudh, 171; Kandhya vs. Mt. Raj Kunwar, AIR 1923 All. 367; Kesho Prasad Sigh Bahadur vs.
Chandrika Prasad Singh AIR 1923 Pat. 122

39
Supreme Court amended its decree by declaring "that the respondent
Murrosundary Dossee is entitled to the real and personal estate of her husband,
to be possessed, used, and enjoyed by her as a widow of a Hindu husband dying
without issue, in the manner prescribed by Hindu law.”
The case-law noticed earlier shows that the general rule of Hindu law was
that, as regards the property inherited by the widow from her husband, she was
incompetent to alienate it. This rule, however, was subject to one important
exception, viz. that the alienation by a Hindu widow was valid if made for legal
necessity. Thus, where there was a necessity for a transfer, the restriction
imposed by Hindu law on her power to alienate disappeared and the widow as
owner had the fullest discretion to decide as to what form the alienation should
assume.
Their Lordships of the Privy Council observed succinctly in janaki Ammal
vs.Narayanswami Aiyer.56 "Her right is of the nature of a right of property; her
position is that of owner; her powers in that character are however limited.”
Thus Woman's estate was owned by the woman, though from the point of
view of disposal her powers were limited. And in fact it was the limitation on her
power of disposal which defined the nature of her estate. The limitation was not
imposed, on the estate for the benefit of the reversion; even if there were no
reversioners, the estate was with the limitation. The principle restraining the
woman from disposing of the property had been explained by their Lordships of
the Privy Council in Collector of. Masulipatam vs. Narrainapah Vencata57 in the
following passage:
“It is admitted, on all hands, that if there are collateral heirs of the
husband, the widow cannot of her own alien the property except for special
purposes. For religious or charitable purposes, or those which are supposed to
conduce to the spiritual welfare of her husband, she has a larger power of
disposition than that which she possesses for purely worldly purposes. To
support an alienation for the last she must show necessity, on the other hand, it

56ILR (1887) XI Bom. 320 at p. 323

57 (1959-61) 8 M.I.A. 59.

40
may be taken as established that an alienation by her which would not otherwise
be legitimate, may become so if made with the consent of her husband's kindred.
But it surely is not the necessary or logical consequence of this latter proposition
that in the absence of collateral heirs to the husband, or on their failure, the fetter
on the widow's power of alienation altogether drops. The exception in favour of
alienation with Consent may be due to a presumption of law that where that
consent is given, the purpose for which the alienation is made must be proper.58
Thus, a female owner, being a holder of limited estate had limited power
of alienation Like a karta her powers were limited and she could like karta
alienate property only under the following exceptional circumstances as was also
stated by the Privy Council in Ramsumran Prasad vs. Shyam Kumari.59
a) For legal necessity. ...
b) For religious purposes.
c) For the benefit of the estate.

Whether or not a particular alienation fell in any of the above specified

purposes depended on the facts of each case. All that can be said is that if she
could establish that the alienation was necessary and was in accordance with the
principle of Hindu law, then and then only the alienation would be valid. At the
same time it was not void ab initio but was only voidable at the instance of
reversioners if it transgressed the limitations imposed by the Hindu law on the
power of alienation. This was affirmed by the judicial decisions60 also wherein it
was held that in Hindu law an alienation by a widow of her husband's estate
without legal necessity was not altogether void but it was prima-facie, voidable at
the option of the reversionary heir.
It may be noted that the judiciary has not defined any of the above three

58 (1859-61) 8 Moo. Ind. App. 529 atpp. 550-51

59 AIR 1922 P.C. 356.
60 Raja Modhu Sudan Singh vs. Hooke (1896-97) 24 I.A. 164; Sulin Kohan Banerjee
vs. Raj Krishna Ghose, AIR 1921 Cal. 582; Bipat Mahton vs. Kulpat; Mahton,
AIR 1934 Pat. 498; Pragash Choudhary vs. Dulbin Butant Kuer, AIR 1951 Pat, 457; Jugal Kiahora
Narain Singh vs. Charoo Chandra Sur, A.I. R. 1939 P. C. 159; Karamchand Haghanmal vs. Naraindas
Haghanmal, A I.R.1943 Sind 56; Kashirao Bhagul vs. Hotiram Hudgnlji , AIR 1951 Nag. 460;
Kalishanker Das v, Dhirendra Hath A.I. R. 1954 S. C. 505; Ganesh Mahanta v, Sukria Bewa , AIR 1963
Orissa 167.

41
purposes with any precision; in numerous cases an attempt has been made to
describe three exceptional circumstances when a widow could alienate her
widow's estate. Thus it is essential to study how they have been explained,
categorized and pin pointed in various cases. It is proposed to discuss the same,
a) Legal Necessity
The expression legal necessity did not occur in the original works
on Hindu law. It was coined by English lawyers who administered justice
in this country, but it concisely expressed the notion, in a generalized
form, of grounds which, in Hindu law, rendered the alienation by the widow
valid.
The word 'necessaries' used in common parlance means thing
which are indispensable and unavoidable for the life and health of a
person. The word 'necessary', however, is not confined in its strict sense
to such articles as are necessary to support life, but extends to articles fit
to maintain the particular person in the state, degree and station in life in
which he is; and, therefore, courts must not take the word necessaries in
its unqualified sense but with the qualification as above pointed out. What
is necessary is a relative fact, to be determined with reference to the
fortune and circumstances of the particular person; articles which to one
person may be more convenience or matters of taste, may in the case of
another be considered necessaries, where the usages of society render
them proper for a person in the rank of life in which he moves. In short,
necessaries would exclude things which are purely ornamental but the
term is not confined in its strict sense to such articles as are necessary to
the support of life, but extends to articles fit to maintain the particular
person in the state, station and degree in life in which he is. Thus articles
of mere luxury are always excluded though luxurious of utility are in some
cases allowed in the description of necessaries. Lord Phillimore in
Ramasumran Prasad vs. Mst. Shyam Kumari61 stated that “it should be
observed in limine that the word necessity, when used in this connection,

61 AIR 1922 P.C. 356 at p.357

42
 has a somewhat special almost technical meaning.”
The various heads under which legal necessities can be
enumerated may now be considered.
(i) Payment of Husband’s debts
Repayment of debt is not merely a legal obligation but its non­
payment is a sin under Hindu law. Brihaspati ordained, "he, who having
received a sum lent or the like, does not repay it to the owner, will be born
hereafter in his creditor's house, a slave, a servant, a woman, or a
quadruped. According to Narada if a very religious and devoted person
died indebted, the whole of the merit of his sacrifices and devotions would
belong to his creditors. The duty of relieving the debtor from these evil
consequences was placed, on the descendants. The sons were under
pious obligation to discharge their father's debt provided it was not
avyavaharika. Even father's power to discharge his antecedent debts, not
being illegal or immoral, was recognized under Hindu law and for the
repayment of such antecedent debts he could alienate the joint family
property
According the Mayne62 the liability of a person to pay debts
contractd by another arises from three different sources, viz first, the
religious duty of discharging the debtor from the sin of debts; secondly, the
moral duty of paying a debt contracted by one person whose assets have
passed into the possession of another; thirdly, the legal duty of paying
debt contracted by one person as the agent, express or implied, of
another, or having an authority conferred by Hindu law to act on behalf of
another.
(ii) Payment of Husband’s Time-Barred Debts
The question which pricked the minds of Hindus Jurists was
whether the payment of husband's time-barred debt could be regarded as
legal necessity. The law of Limitation only bars the recovery of a time-
barred debt by a debtor or his representative, if he voluntarily chooses to

62 Mayne, Hindu Law and Usages, 13th edition, 1995, p. 395

43
 do so. In a number of cases the learned judges of various High Courts63
ruled that since under the Hindu law the payment by a widow of a debt
due by her deceased husband, whether time-barred or not, was
considered to be a pious act, which would conduce to the bliss of the
departed soul, the widow should pay even a time-barred debt of her
husband. Mr. justice West of the High Court of Bombay in Chimnaji
Govind Godbole vs. Dinkar Dhoodey godbole64, Stated that the moral
obligation could not be obliterated by the circumstance that the law of
limitation barred or did not bar a suit against the widow for the recovery of
her husband’s debt. The estate passed to her as an aggregate, property
and obligation together, and she was at least justified in applying the one
to satisfy the other. The Madras High Court in Kodak vs. Subba,65 also
held that the debt was time-barred or not did not affect the question. She
was at liberty to pay her husband’s debts, although barred by limitation. It
was further observed that although the managing member of a joint Hindu
family could not as such revive a barred debt as against his coparceners,
it was competent to the widow of a deceased member of the family, who
represented the inheritance for the time being and in whom it was a pious
duty to pay her husband’s debts, to bind the reversioners by a mortgage
executed to secure such debts though they were barred at the time of its
execution. In Lukmeram vs. Khooshahslee,66 it was ruled that the
manager stood in a different position. He could act only with the assent,
express or implied, of the body of coparceners. In widow’s case, the
coparceners were reduced, to herself, and the estate centered in her. The
widow could, therefore, do what the body of coparceners could do subject

63 Chimnaji Govind Godbole vs. Dinkar Dhondey Godbole I.L.R. (1887)XI Bom, 320: Gauri Shankar
Singh vs. Shenanigan Misra I.L.R. (1924) 44 All. 384; Ashutosh Sitar vs. Chidam Mondal AIR 1930.
Call. 351; Tulshi Parade vs. Jagmohan Lai, AIR 1934 All. 1048; Darogi Rai vs. Basdeo AIR 1937 Patna
40; Chandrika Prasad vs. Bhagwan Das AIR 1940 Oud h, 93.Nammi Minni Nagiah vs. Papur Venkiah,
AIR 1950 Hyd. 50; Ajit, K. Saha vs. Nagendra, AIR 1960 Pal. 484.
641.L.R(1887)XI Bom.320 at p.323
651.L.R.(1890)13 Mad. 189 atp.190
661 Bom.455.

44
 to the condition that she acted fairly to the expectant heirs,
(iii)Daughter’s Marriage
Marriage, according to Shastras, is a religious act, a sanskara for a
man and a woman. Several texts lay down that it is an imperative religious
duty and moral obligation of a father, mother or other guardian to give a
girl in marriage before she attains puberty. According to texts, the
marriage of a girl by her father enjoined as a religious duty in order to
prevent him from being degraded and visited with sin, direct spiritual
benefit was conferred upon him by such a marriage. If a person is not in a
position to bear marriage expenses, then even joint family property could
be alienated. If the widow was the only surviving person, it was her duty to
give daughter in marriage. The question whether the alienation of property
made for the expenses of the daughter's marriage could be considered as
legal necessity, came for consideration before various High Courts and
the question was answered in the affirmative. Lord Gifford in Kassinath
Bysack vs. Hurra Sunday stated that Hindu widow had "for certain
purposes a clear authority to dispose of her husband's property and might
do it for religious purposes, including dowry to a daughter." In Sundrabai
Javji vs. Shivnarayana67 their Lordships observed that a gift could be
made at the time of or on the occasion of the marriage or any ceremony
connected therewith, and might also be made in fulfillment of a promise
made in connection with the marriage. Even the obligation continued till it
was discharged or fulfilled and such fulfillment might be subsequent to the
marriage. In Kudutamma vs. Narasimha Charyulu68, Milller, J., observed:
“If then a brother, finding that his sister, though married in his father’s life
time, has been for any reason left without a marriage portion which she
ought to have received, it is difficult to see how he can be held to have
exceeded his powers if he makes good the deficiency out of the family
property..........”

671.L.R.(1908) 32 Bom. 81.

68 17M.L.J. 528.

45
 (iv) Expenses for child marriage - not legal necessity

No doubt our sages provided that the girl should be married when
she could move naked in the family or before she attained the age of
puberty and the property alienated for the purpose was considered to be
for legal necessity. But at present because of the passing of the Child
Marriage Restraint Act, 1929, such alienation cannot be held as for legal
necessity because under this Act child marriage constitutes an offence, as
was observed by Mr. Justice Harnam Singh in Ghulam bhikh vs. Rustom69
Mr. Justice Bhandari in Hira Lai VS. Mt. Amri70 also held that a sum
advanced for the marriage expenses of the child being one for the
performance of an act which constituted on offence under the Child
Marriage Restraint ACT, 1929, could not be treated as one covered by
legal necessity

(v) Marriage of Daughter's Son

The marriage of a son in a Hindu joint family has been held to be as
such a samskara as that of the marriage of a daughter. Under Hindu law a
son occupied a special and privileged position. Daughter’s son known as
‘Putrikaputra’ was considered to be like a son’s son who was to offer
funeral oblation to his ancestors and was, therefore, particularly worthy of
honour. The Madras High Court in Mallayya vs. Bapi Reddi,71
Venkatasubba Rao vs. Anand Rao72 and Praisa Mudaliar vs. Nataraja
Udayar73 also held that the alienation of the purpose of meeting the
marriage expenses of a daughter’s son would be binding on the
reversioners provided it was shown that the limited owner acted not with
extravagance.
(vi) Marriage of the Nearest Reversioner
Even where a widow alienated some lands to meet the marriage

69 AIR1949 A. P. 354.
70 AIR 1951 Puj. 421
71 AIR1932 Mad, 28
72 AIR1934 Mad, 432
73 AIR1950 Mad, 337

46
 expenses of the nearest reversioner, the presumption was that the
circumstances justified alienation until contrary was proved by the party
challenging the alienation until contrary was proved by the party
challenging the alienation, as was held in Sevu Vandavan vs.
Narayanasami Iyer.74
(vii) For her own Maintenance
It was well settled that the widow could alienate her husband’s
property for paying off the debts incurred for her own maintenance. But
the important question which came for consideration was whether she
could alienate the same for her future maintenance or not?

Now hard and fast rule could be laid down with regard to the above
question. It all depended upon the circumstances. The judicial view
revealed that she was not supposed to starve and if the circumstances
were such that she could not maintain herself from the income of the
property, she could alienate the property for her future maintenance as
well. It was so held by the Madras High Court in P.Kuthalinga Mudaliar vs.
M.M. Shanmuga Mudliar75 and Neelambal Ammal vs. Rajarthanam Pilla.76
(viii) Maintenance of Dependents
In Sailabla Debi vs. Baikunath Ghose,77 debts contracted to
maintain the widowed sisters of the husband who were maintained by him
before his death and in Darbari Lai Gobind Saran78 debts incurred for the
support of the dependent relations in the family were considered for legal
necessity justifying alienation by widow.
(ix) Payment of Government Revenue
Borrowing money for the payment of government revenue was held
as legitimate for legal necessity provided the revenue could not be met out
of the available founds of the estate in Gajadhar Parshad Sahu vs.

74 AIR1926 Mad, 1078

75 AIR 1926 Mad, 1078
76 AIR 1926 Mad, 464
77 AIR 1956 Mad, 336
78 AIR 1926 Mad, 464

47
 Bindulbarhini Pershad79 and Ramanand Lai vs. Damodar Das80. It is so
because the government revenue and other government demands are
claims of government on the land and their payment must be made by the
estate and if these payments cannot be made out of the income and the
money has to be borrowed to make them, the estate is liable to satisfy the
debts.
(x) Canal Dues
Canal dues under the Northern India Canal and Drainage Act,
1873, stood on the same footing as land revenue for purposes of legal
necessity. The Act laid down that canal dues should be recovered from
the occupiers. Sections 36 and 45 of the Act provide that any sum which
has remained unpaid can be recovered by the Collector from the persons
liable as if it is an arrear of land revenue. In Tulsi Prasad vs. Mathur
Prasad81 the mortgage bond for Rs. 500 was executed by Mt. Mohani
Kunwar for the payment of canal dues. The bond was challenged on the
ground that there was no legal necessity as the payment did not stand on
the same footing as the government revenue. But the Court considered
the canal dues on the same footing as the land revenue for the purposes
of legal necessity.
(xi) Necessary Litigation
Alienation of the property made by the widow to meet the expenses
for a necessary litigation was considered to be for a legal necessity. In
order to meet the expenses incidental to the defence of the proceedings of
a criminal charge if the widow had to transfer her property, it was held to
be for legal necessity in Nobin Chander Chaudhari vs. Kherode Nath
Sur.82 The brief facts of the case were that the widow mortgaged the
property for setting aside the sale of the property which had been made in
execution of the decree for money. Money decree was passed against her

79 AIR 1924 All 902.

80 AIR 1916 Cal. 577
81 AIR 1942 All 110.
82 (1901-02) 6 Calcutta Weekly notes 648.

48
 as she could not pay the debt which she and her co-sharer took in order to
meet the expenses incidental to the defence of the proceedings of a
criminal case brought by a tenant alleging that his landlord had forged a
Kabuliyat. The loan and the mortgage were held to be for legal necessity
Jenkings, C.J., Bhjmaraddi vs. Bhaskar Gangadhar83 said that the costs of
litigation were a recognised head of legal necessity but the widow did not
have unlimited power of borrowing.
b) For Religious Purposes
Religion is a matter of faith with individuals or communities. According
to B.K. Mukherjee all that we understand by religious purposes or of object is
to secure the spiritual well being of a person or persons according to the
tenets of the particular religion, which he or they believe in. This may imply
belief in a future state of existence where a man reaps the fruits of his pious
acts done in one existence, and it may be connected with the idea of
atonement for past errors of a man and that of making peace with his Maker.
Our sages had given supreme importance to the spiritual merit, viz., Manu
said:
For, in the next world neither father, nor mother, nor sons, nor relations
stay to be his companions spiritual merit alone remains (with him).84
In Hindu system there is no demarcation between religion and- charity,
in fact charity is regarded as an essential part of religion. The Hindu religion
recognises the existence of a life after death and it believes in the law of,
Karma, according to which the good or, bad deeds of a man produce
corresponding results in the life or lives to come. All the Hindu sages
concurred in holding that charitable gifts were pious acts par excellence,
which could bring appropriate rewards to the donor.
Hindu religious and charitable acts from the earliest times were
classified under two heads, viz, Istha and Purta. By Istha was meant
sacrifices, rites and gifts in connectidn$$f^ f^ame; Purta on the other hand

------------------------------------ a 3 saositAS. 51
83 (1904) 6 Bom L.R. 628 gl<
84 Dr. J. Jolly, (TLL 1936) Manu Smriti, Ch. IV, lgliv|gij$ Aug. 1951, p. 78.
 meant and signified other pious and charitable acts which were unconnected
with any Srauta or Vedic sacrifices.
The feelings of piety and benevolence have an abiding place in human
heart, they must find expression in religious and charitable gifts. Therefore,
the Karta or manager of the joint Hindu family was given extended powers
and he could alienate not merely his own share but a portion of the joint
family for family necessity or for the benefit of family so as to bind the interest
of all the coparceners, no matter whether minor or adults. The foundation of
this doctrine could be found- in the text of Vyasa which was quoted and relied
upon by Vijnaneswara and which runs as follows:

"Even a single individual may conclude a donation, mortgage, or sale

of immovable property, during a season of distress, for the sake of the family,
and especially, for pious purposes."85
Vijnaneswara’s own view was that powers could be exercised by the
manager during minority of the other coparceners86 but later on it was settled
when there was a justifying necessity for the alienation, the other coparceners
would be bound even though they were adults.
The expression "Pious Purposes" in the text of Vyasa meant,
according to Mitakshara, "the indispensable religious duties, such as
obsequies of the father and the like."
Vijnaneswara gave one instance of the Dharmarthe, viz., obsequies of
the father and added "and the like". It is clear that the expression included all
other indispensable duties such as sradha, upanayanana and performance of
other necessary samskara For example, performance of marriage was
considered as samskara, therefore, performance of marriage of a member of
the joint family, particularly of daughters, was an indispensable duty, though it
was also covered under legal necessity. Thus the words "and the like"
indicated that the indispensable religious duties were not confined to the

85 Supra Note 42
86 Supra Note 89

50
 funeral obsequies merely, but extended to other religious ceremonies also
which were obligatory upon the karta to perform, in discharge of his duties as
head of the family.
Strictly speaking, no alienation of the joint family property could be
supported when religious rites were optional or personal in their character, but
Justice B. K. Mukerjea87 was of the view that the judicial opinion seemed to
be that a gift of small portion of the family estate by the karta could not be
questioned by other coparceners, when the object of the gift was meritorious
from the point of view of religion or charity, though there was no obligation on
the donor to make the gift.88 In the pronouncement of the Judicial Committee
in Gangi Reddi vs. Temmi Reddi89 a dedication of a portion of the family
property, which was small as compared with the total means of the family for
the purpose of carrying on choultry was held to be within the powers of karta
or father. Their Lordships were of the view that though running a choultry was
not an indispensable religious duty, it might be deemed to be settled that
even for optional religious works the manager was competent to transfer a
small portion of the family property.

c) For the Benefit of the Estate

It is indeed impossible even today to give a precise definition of the
term "benefit to the estate". An authoritative pronouncement of the Privy
Council in Palaniappa Chetty vs. Sreemath Devasikamony Pandara
Sangadhi90 bears testimony to it. Lord Atkinson, after review of previous
decisions indicated the ambit of 'benefit of the estate' as under:
“It is impossible to give a precise definition of it applicable to all cases,
and they do not............attempt to do so. The preservation, however, of the
estate from extinction, the defence against hostile litigation affecting it, the
protection of it or portions from injury or deterioration by inundation these and

87 Bijan Kumar, (T.L.L. 1936),The Hindu Law of Religious and Charitable Trust, p. 89.
88 Gopal Chand vs. Bahu Kumar (1834) 5 S.D.A. 24; Raghunath vs. Govind, I.L.R. (1686) 6 All. 16;
Sri Thakuiji vs. Nand Ahir, I.L.R (19) 43 All. 560; Ramlinga Chotti vs. Sivachidambara chetty,
I.L.R. (1919) 43 Mad. 440.
89 (1926-27) 54 LA. 106.
90 AIR 1917 P.C. 33.

51
 such like things would obviously be benefit. The difficulty is to draw the line as
to what are, in this connection, to be taken as benefits and what not.91
Although no precise definition of what was benefit to the joint family
estate could be given, but it was well established that jeopardising a property,
which was already the property of the joint Hindu family, for the purpose of
purchasing another property could never under any circumstances be
considered as benefit of the estate.92 Ever since the important
pronouncement in Hanuman Prasad vs. Mt. Babooee93 the terms "Necessity"
and "Benefit of the estate" were being used side by side. But the very fact the
learned Judges stated the power was limited and qualified and it can be
exercised right in case of need or to the ‘benefit of estate' prima facie
established that these two terms were different. There is no doubt that
anything which was necessary in the interests of the estate might be of
benefit to it as well. But the term 'Benefit' should be something different more
than that. In face 'Benefit' should be something different from compelling
necessity or the term ‘Benefit’ should seem to import a positive act done to
enlarge or improve the estate, and not merely a negative act such as
discharge of debts or averting of disaster. The term kutumbarthe which was
translated as ‘for the sake of the family' should not be given narrow meaning
but it should be interpreted so as to cover all cases of 'Benefit'. Patkar, J. in
Ragho vs. Zaga,94 observed that: "The explanation of the text of .Brihaspati by
the Mitakshara in verse 29 is by no means to be considered as exhaustive
and may be treated as illustrative and interpreted with due -regard to the
conditions of modern life."95
Mr. Justice Fazal Ali ventured to suggest in Baijnath Prasad vs. Binda
Prasad Singh96, that the same remarks, as pointed out by Patkar J., would
apply to the passages which had been quoted from the speech delivered by

91 M.N. Srinivasan, Principles of Hindu Law, 1970, vol.III, p.2747

92 Ram Bilas Singh vs. Ramyat Singh, AIR 1920 Pat. 441.
93 Moore’s Indian Appeals (1854-57) p. 393.
94 I.L.R. (1929) 53 Bom. 419.
95 Ragho v, Maga, I.L. R. (1929) 53 Both 419 at p. 426.
96 AIR 1939 P. 97 at p, 102

52
 their lordships in Palaniappa Chetty vs. Sreemath Devsikamony Pandara
Sannadhi.97 In that passage their Lordships simply enumerated certain
obvious cases of 'Benefit of the estate but the very fact that they took care to
emphasise that it was impossible to give a precise definition of the expression
applicable to all cases and that it was difficult to draw the line as to what are
benefit and what not, clearly indicated that they did not intend to lay down any
exhaustive rule on the subject.
On the basis of the preceding analysis of the case-law it could be
safely concluded that there was nothing in the observations of the Judicial
Committee of the Privy Council in Palaniappa Chetty vs. Sreemath
Devasikamony Sannadhi98 which justified the view that the transaction must
be of a defensive nature. An alienation by the widow could be justified if it was
an alienation which a prudent manager of the property would make though
there might not be an actual pressure on the estate, i.e., the only limitation
was that she, like a karta, must act with prudence and prudence implied
caution as well as foresight and excluded hasty, reckless and arbitrary
conduct It was essentially a question of fact arising in each individual case, as
to whether the alienation could be justified by the particular circumstances of
that case. Moreover, the expression 'Kutumbarthe, which was the textual
basis for the doctrine of 'Benefit' was elastic enough to accomplish all
transactions which a person would enter into in managing the property. When
dealing with transactions by a limited owner what one had to see was not the
actual result of the transaction but what might have been expected to be its
result at the time the transaction was entered into, and the degree of
prudence of the limited owner was no more than what was expected of any
other person holding a fiduciary character. So where the transaction was
honestly and properly entered into for the benefit of the family, the fact that
subsequent events transpired otherwise than anticipated, leading to non­
fulfillment of the expectations entertained, at the time could be no reason to

97 AIR 1917 P. C. 33
98 Supra Note 108

53
 condemn it as its propriety had to be judged on the facts and circumstances
then existing, unless it could be established that with ordinary foresight the
disappointing event that supervened could have been foreseen,
d) Alienation with the consent of the reversioners
The question which had agitated the minds of the Hindu jurists was
that if she alienated the property with the consent of the reversioners, then
what? Whether the consent of the reversioners relaxed the strict principle of
Hindu law? Whether the consent per- se validated an alienation by a widow or
other limited female heir which was not supported by any legal necessity?
The Smriti and the commentators thereon did not approve the view
that the widow and the next reversioners could do what they liked with the
estate. We find no reference in the Smritis to justify that the mere assent of
one who would be the heir if the widow died at the particular moment would
entitle the widow to make alienations at her pleasure or squander the estate
on purposes which the Smritis would have emphatically condemned.
However, in interpreting the term 'necessity' the question of the extent
of proof has often cropped up. Somehow or the other it was considered that
the best proof of necessity would be where the next reversioner consented to
an alienation by the widow. He was the man most interested in the
inheritance and he would not act against his interest. But the question
whether the consent per se validated the alienations made by the widow, had
a long history of fluctuations of opinion. It was for the first time mooted in the
well-known case of the Collector of Masulimpatam Cavaly Venkata" Lord
Justice Turner, in his speech, said:
“......on the other hand, it may be taken as established that an
alienation by her which would not otherwise be legitimate, may become so if
made with the consent of her husband’s kindred. But it surely is not the
necessary or logical consequence of this latter proposition that in the absence
of collateral heirs to the husband, or on their failure, the fetter on the widow’s
power of alienation altogether drops. The exception in favour of alienation

99 Moore’s Indian Appeals (1859-61) p. 529

54
 with consent may be due to a presumption of law that where the consent is
given the purpose for which the alienation is made must be proper.”
The opinion which was tentatively expressed in the collector of
Masulipatam's case, viz, that consent did not give force per se, but was of
evidentiary value, was corroborated by Some subsequent decisions. In Raj
Lukhee Dabea vs. Gokul Chunder Choudhary.100 Sir James Colvile, speaking
for the Judicial Committee of the Privy Council, observed, as follows:
.... But the kindred in such case must generally be understood to be all
those who are likely to be interested in disputing the transaction. At all events,
there should be such a concurrence of the members of the family, as suffices
to raise a presumption that the transaction was a fair one, and one justified by
Hindu law.
The above view of the Privy Council was subsequently followed by the
Bombay High Court in Varjjyan Rangji vs. Tula Kumari.101
In Varjiyan Rangji’s case102, the sale deed was made conjointly by a
Hindu widow and her daughter, named Bai Vakhat, who subsequently
predeceased her mother, of immovable property inherited by the widow from
her husband.
The grandsons of the second cousin of the widow's husband instituted
a suit to set aside the alienation for want of legal necessity. Sargent,J.,
speaking for the High Court, observed that 'In the present case the plaintiffs,
although distant heirs, were the heirs presumptive of Narotam at the time of
the sale, entitled to succeed in the even of Vakhat dying before her mother
without issue, and, as such, clearly interested in disputing the rule. Nor can
the mere concurrence of Bai Vakhat, albeit the nearest in succession, (having
regard to the state of dependence in which ail women are supposed by Hindu
law to have their being) be regarded as affording the slightest presumption
that the alienation was a justifiable one. On both these grounds we think, the

100 Moore’s Indian appeals (1869-70) p. 209.

1011.L.R (1881) 5 Bom 563.
1021.L.R(1884) 6 All 116.

55
 plaintiffs are entitled to succeed,
e) Ratification
As has already been discussed in the preceding pages that the
concept of reversioner validated the transaction, it made no difference
whether the consent was given by the reversioner before, at or after the
transaction. Ratification of the transaction is to be considered where the
consent was given after the transaction. Ratification in a broad sense moans
confirmation of a previous act. Chief Justice Subba Rao in Seetharamayya
vs. Sarva Chandrayya103 observed that the plaintiff, the son, had ratified the
transaction made by the widow under which he got the benefit after he
attained majority. As the plaintiff enjoyed the properties after he attained
majority absolutely for 35 years and sold the same as an absolute owner it
would be unreasonable to. hold that he had no knowledge of the transaction
and that he was dealing with the property only as an heir of his father, who
would be entitled to enjoy the property during the lifetime of the widow.
The same view was reiterated in Dodda Subba Reddi vs. Govinda
Reddi104. The brief facts were that the plaintiff was living in the house of the
grandmother. He purchased stamps, attested the document and identified his
mother at the Registrar's Office Could it be plausible that the plaintiff, who
was assisting the grandmother in bring about the document did not know the
contents of the document?
But mere attestation by a relative even though he might be the sole
contingent reversioners did not necessarily import concurrence as was
observed by the Privy Council in a number of cases viz., Raj Lukhee vs.
Gokul Chunder Choudhary,105 Hari Kishan Bhagat VS. Kashi Pershad Singh
and Hari Kishan Bhagat vs. Bajrung Sahai Singh106, Ranga Chandra Dhur vs.
Jagat Kishore Achariya Choudhary107 and pandurang Krishanji vs.

103 AIR 1955 Andhra Pradesh 68.

104 AIR 1961 Andhra Pradesh 430.
105 Moore’s. Indian Appeals (1869-70) p. 209.
106 (1915) 271.C. 674.
107 AIR 1916 P.C. 110.

56
 Harkendeya Tukaram.108 In fact attestation by itself would neither create
estoppel nor imply consent. Rather it proves that the signature of an
executing party has been attached to a document in the presence of the
witness.
Subsequently, the High Court-of Calcutta in Abhoy Churn Attarmoni
Dasee109, the Oudh Chief Court in Mathura Prasad vs. Jagat Bahadur Singh110
and in Balwant vs.Ram Pat,*111* the Allahabad High Court in Mst. Lakhpati vs.
Rambudh Singh112 in Ram Adhar vs. Bhagwan Singh113 and Anantoo vs.
Ramroop Tiwari114 followed the same principle. Thus, mere attestation of a
sale deed by the reversioner was not sufficient to fix him with the knowledge
of the deed attested or it was not considered to be conclusive by itself of the
fact that he was aware of the nature of the transaction or he was a consenting
party to an alienation by a Hindu widow, yet attestation combined with other
circumstances might amount to evidence of consent But if a reversioner, who
was a party to and was benefitted by a transaction entered into by a Hindu
widow or he had attested the document with full knowledge of its contents,
then he was precluded from questioning any part of it or, in other words, it can
be said that mere attestation could not be considered as conclusive proof of a
consent but the case of estoppel came in where circumstances were such
that the plaintiff had consented with full knowledge of the contents and if he
had done so, then he was precluded from disputing the validity of alienation
made by the widow as he was held in Ramagowda Annagowda vs.
Bhausaheb115 and in Jagannath Singh vs. Hunnarain Singh.116

Thus it can be concluded that though the decisions of the Privy Council
gave consent a high evidentiary value, they did not make it conclusive proof.
108 AIR 1922 P.C. 20.
109 (1909) 3 I. C. 415.
110 (1913) 18 I.C. 289.
111 AIR 1918 Oudh 75.
112 AIR 1915 All 255.
113 AIR 1925 All 209.
114 AIR 1925 All 692
115 AIR 1927 P.C. 227.
116 AIR 1960 Patna 565.

57
 It was not a presumption of law in the sense of presumption juris et de jure
but its effect is to afford strong corroborative evidence.
The reversioner, however, is not permitted to approbate and reprobate
in the same breath. Though it was a matter of option, the reversioner might
accept the alienation as valid of binding on him or he could repudiate it but
once he choose to affirm the alienation, it was binding on him and he could
not repudiate it later. For this one could safely refer to the law as laid down by
the Privy Council in Bajrangi Singh vs. Manokarnika Baksh Singh117 The
Judicial Committee held that if the next reversioner, either at the time of
alienation had consented or ratified the transaction, such transaction could
not be reopened by the person who happened to be the nearest reversioner
at the time of widow’s death. The same view was expressed in Kuppier vs.
Kotta Chinnaramier,118 in Bijoy Gopal Mukerji vs. Girindra Nath119 and in
sheshrao vs. Mansarama.120
Thus on the basis of the above case-law it can be summarised as
follows:
a. That the consent of reversioner will, if given bonafidly and for
consideration estop and bind the revesioner so consenting and those
claiming through him apart from the question of necessity or
proprietary.
b. The assent has a double aspect, not merely raising a presumption, but
also raising an estoppels against the person assenting even'though he
might not have received any consideration or benefit.
c. The consent must be shown to have been given with the
knowledge of the effect of what one was doing and an intelligent
intention to consent to such effect.
d. The acquiescence and ratification should be founded on full knowledge
of the facts and must be in relation to a transaction which was valid

117 (1910-11) 38 1.A.1,

118 (1912) 16 l.C. 493
119 AIR 1914 P.C. 128
120 AIR 1932 Nagpur 103

58
 itself and not illegal and to which effect may be given as against the
party by his acquiescence in, and adoption of, the transaction.

e. It is not necessary that the asset or ratification should be before or at

the date of the alienation; nor is assent required to be in any particular
form. Even a consent given Subsequently to alienation serves to
validate it, i. e., it makes no difference that it was after and not at the
time of transaction of sale because every adoption or ratification of an
act already done has retrospective effect and is equal to previous
request to do it.

f) Powers of Alienation under the Hindu Women’s rights to property ACT,

1937

The Hindu Women’s Rights to Property Act, 1937, ameliorative in

character, intended to give better rights to women in respect of property but
without interfering with the established Law relating to joint family. Sub­
sections (2) and (3) of Section 3 of the Act reveal that the legislature intended
that the Hindu widow should have in the joint family property the same
interest to qualify the nature of that interest i.e., it Would be a limited interest
known to Hindu law as "Woman’s Estate” or to use the correct expression
‘Hindu Widow's Estate." The very use of the word woman’s estate prima facie
established that she could alienate it for the purposes permitted under the
Hindu law i.e., “Legal necessity”, “Religious purposes” and “benefit of estate".
Thus the woman’s estate under the Hindu Woman’s Rights to Property Act,
1937 has all the characteristic features of woman’s estate which were there
under the old law. The widow’s powers of alienation have been discussed in
detail. Her powers under the 1937 Act are the same because the nature of
the property is the same. The act has only given a statutory, recognition to
her “woman’s estate”.

SURRENDER:
Surrender means renunciation of the estate by the female owner.121 She

121 Supra Note 53

59
has the power of renouncing the estate in favour of nearest reversioners.122 This
means that by a voluntary act, she can accelerate the estate of the reversioner
by conveying absolutely estate and thereby destroying her own estate. This is an
act of self-effacement on her part and operates as her death will. In Natwar vs.
Dadu,123 the Supreme Court held that it is the self effacement by the widow that
forms the basis of surrender and not the ex-facia transfer by which the
effacement is brought about.124 For a valid surrender, the first condition is that it
must be of, the entire estate125, though she may retain a small portion for her
maintenance126, second condition is that it must be made in a favour of the
nearest reversioner or reversioners, in case there are more than one of the same
category. Surrender can be made in favour of female reversioner also. The third
and the- last condition is that surrender must be bonafide, and not a device of
dividing the estate with the reversioners.127 When a Hindu female surrender her
estate the estate vests in the reversioners by the operation of law, and no act of
acceptance by the reversioners is necessary. No formalities are necessary. A
sale of estate for consideration, to the reversioners cannot be regarded as
surrender.128

ESTATE REVERTED TO NEXT HEIR OF THE LAWFUL OWNER-

REVERSION:

The second characteristic feature to the woman’s estate is that the female
estate is that the female owner does not form an independent stock of decent in
respect of it. On her death the estate reverts to the heir or heirs of the last full
owners as if the later died when the limited estate ceased. The Privy Council
said:
“The succession does not open to the heir of the husband until the

122 Devi Parsad vs. Gopal (1913) 40 Cal. 721, (F.B.) Per Mukheijee, J.
123 1954 S.C. 61.
124 Behari vs. Madho (1891) 19 LA. 30.
125 Natwar vs. Dadu, 1954 S.C. 61.
126 Chinammarapp vs. Nerayammal, 1966 Mad. 169.
127 Bhagwan Kaur vs. Dhamukdhari 1919 P.C. 75.
128 Sureshwar vs. Maheshrani, (1920) 471.A. 233.

60
termination of the widow’s estate upon the termination of estate, the property
descends upon those who would have been heir of the husband if he had leaved
up to and died at the moment of her death.”129
Such heirs may be male or female. They are known as the 'reversioners.'
So long as the estate endures there are no reversioners though there is always a
'presumptive reversioner' who, has only a spes-successions (an exception).130
The reversioners are also not like the remainder man of a life estate. The powers
of Hindu female holding woman's estate are more comprehensive than that of a
life tenant.
The reversioners take the property of the female when her estate
terminates. Her estate terminates on her death. But it can terminate even during
her life time. By surrendering therestate she can terminate it. There were other
modes of termination also. Before 1956 a posthumous son divested a widow or
daughter; an adoption made by the widow of coparcener divested the widow of
the sole surviving coparcener. On her own adoption she was divested of the half
of the property. If she had inherited it from her husband in certain circumstances
her remarriage lead to forfeiture of estate (if she got the right of remarriage by
virtue of the Hindu widow remarriage Act, 1856). In such cases the property
passed to the reversioners.

RIGHT OF REVERSIONERS:
What are the rights of the reversioners in respect of improper handling of
the estate by the female owner? The cases of improper handling of estate are
mainly two:
(i) She may use the property wastefully and
(ii) She may alienate improperly.
The allied question is: Have the reversioners a right to prevent her from
doing any of these acts during her life-time? The answer is in the affirmative It
was in this context that the expression. Presumptive reversioners came into

129 Moni Ram vs. Kerry, (1880) 7 LA. 115.

130 Kalipblra vs. Palani, 1953 S.C. 195.

61
vogue. The reversioners have mainly three rights as follows:
1) They can sue the woman holder for an injunction to the restrain waste.
However, the right cannot be used to harass or to prevent the female from
using and enjoying the Property.
2) They can in a represented capacity sue for a declaration that an alienation
made by the widow is null and void and will not be binding on them after
the death of the widow But by such a declaration the property did not
revert to the woman nor do the reversioner became entitled to it. The
alienee could still retain the property so long as the widow was alive.
3) They can, after the death of the woman or after the termination of estate,
file a suit for declaration (or possession or both) that alienation made by the
widow was improper and did not bind them.131 Recently, the Supreme
Court said that when a Hindu female holder of woman’s estate make
improper alienation, the reversioners are not bound to institute a
declaratory suit during the life-time of the female holder. After the death of
the woman, they can sue the alienee for possession of the estate treating
the alienation as a mullity.132

Section 14 of the Hindu Succession Act, 1956 has abolished woman’s

estate, yet reversioners are still relevant in respect of woman’s estate alienated
by her before June 17,1956, the commencement of Hindu Succession Act.

131 Bijoy vs. Krishana, (1907) 34 I. A. 87. Where the alternation remedies of reversioners are set out.
132 Radha vs. Hanuman, 1966 S.C. 216.

62
 (B)
HINDU WOMEN’S RIGHT TO PROPERTY - POSITION BEFORE
PASSING OF THE HINDU WOMEN’S RIGHT TO PROPERTY ACT,
1937
The best way to judge the position-of a nation is to find out the status of
women in reality the status of women is the measuring rod for assessing the
standard of culture of any age. Thus the social status of women in a country
represents the social spirit of the age.133

The rights of women to succeed to any property vary from one religion to
other depending on the personal laws followed by them. The religion played a
very important role in the devolution of property on the woman in the earlier days.
Initially the entire law of succession was uncodified but with the advent of modern
governments and legislatures, most of the succession laws have been codified
and consolidated. However there is no uniformity in the succession law relating
to women following different religions134.

In India, the women enjoyed a secondary status with regard to the

succession. This unequal status was sought to be removed by certain
legislations governing different religions like The Hindu Women's Rights to
Property Act, 1937, The Hindu Disposition of Property Act, 1916, The Hindu
Inheritance (Removal of Disabilities) Act, 1928, The Indian Succession Act, 1925,
and The Cochin Christian Succession Act, 1902.

The law relating to testamentary succession among Hindus, Christians

and Parsis etc., is contained in the Indian Succession act, 1925. It does not
make any distinction between the rights of women and men under a will.

It is proposed to review the familial or social, legal and political position of

woman as wife, widow and a daughter in the various stages of development of
Hindu law. This position is traced in the historical perspective from Vedic period

133 Dr, Kulwant Gill, Hindu Women’s Right to Property in India, 1986, p.528
134 G.B. Reddy, Women and Law 2nd Ed., 1998 p. 42

63
to the modern era. However, to draw a conclusion about the position of women
is difficult and complicated problem. Diametrically opposite views about the
worth, nature and importance of women have been expressed in the same
period there are different schools of thought. The one school believes that a
woman is the pest gift of God to man. She brings prosperity when she is properly
treated and respected and has been called "Lakshmi", the goddess of wealth and
prosperity. The holiest object in the world is a virtuous woman, a tear of sorrow
rolling down from her eyes melts the heart of even a mighty tyrant. The second
school of thought holds the view that the best way to reach God is to avoid
women. Sage Agastya says as stated by A.S. Altekar Women combine the
fickleness of the lightening, the sharpness of weapon and the swiftness of the
eagle.135 Shakespeare has said, Fraility, thy name is woman." They were of the
view that woman is the source of all evils, her love is to be dreaded more than
the hatred of man; the poor young men who seek women in matrimony are like
fish who go to meet the hook.”

Dr. A S. Altkar136 suggests that to ascertain the position of women in

Hindu society, one should study their position in different circumstances, e.g.

(i) When the circumstances are abnormal, e.g., in wartime.

(ii) When the circumstances are normal, i. e., in peace time.

ABNORMAL CIRCUMSTANCES:

Dr. A. S. Altekar is of the view that the situation, where the woman had the
misfortune of falling into the hands of the enemies, is the rent touchstone to test
the genuineness of society's sympathy towards the weaker sex; it enables up to
find out how far man is prepared to rise above the prejudice of his sex and judge
the woman by an equitable standard. A survey of the past shows that the attitude
of the society was very stiff and unsympathetic if the women had the misfortune

135 Dr. A.S. Altekar, The Position of Women in Hindu Civilization, 1987, p. 320
136 Ibid, p. 305.

64
of falling into the hands of enemies. They found it impossible to get re-admission
in their family and society. We have very clear cut historical example of Sri Ram
Chandra, who refused to accept back Sita after the overthrow of Ravana.

There is no doubt that certain Smriti writers137 hold the contrary view. But
later on the advice of the Smriti writers was silently brushed aside and the door of
Hinduism were once for all closed to such women. The reason for this might
have been the establishment of Muslim rule Under the Muslim rule it was not
easy for women. Who had been captured and married by Muslims, to be
accepted back by their Hindu relations. Rather new notions of purity were mainly
responsible for the refusal of society to admit back such women.

NORMAL CIRCUMSTANCES: ^

A study of the ancient literature reveals that in the normal circumstances

to the position was not very satisfactory. For example, killing of women was
regarded as a very disgraceful act. It was stated that the killing of women was
equal to that of killing a Sudra. It however does not, refer to the gravity of the
crime, but to the theological dogma that the status of women was equal to that of
the Sudra.138

Generally nothing is to be construed in a vacuum and it particularly so in

knows the position of Hindu women. Without a brief passing reference to the past
the matter cannot be put in the correct perspective. Thus we proceed to discuss
the familial or social, legal and political position of women as daughter, wife and
widow in different periods.

The proprietary position of women in Hindu Law must be determined by

its rules concerning the domain of woman over things or the equivalent of things.
There are several modes by which such dominion may be acquired.139 Manu

137 Supra Note 4

138 Dr. A. S. Altekar, The Position of Women in Hindu civilization, 1987, p. 317
139 Dawarka Nath Mitter, The Position of Women in Hindu law, 1984, p.433.

65
mentions seven lawful means of the acquisition of property140 and he places
inheritance at the top of them of all.

EARLY LEGAL CONCEPTIONS:

In order to find out the early legal conceptions relative to the inheritance
of women in Hindu Law, we must turn to the evidence furnished by Vedas; for,
they represent the first phase in the evolution of Hindu Jurisprudence. It has
been affirmed in two of the leading commentaries, Dayabhaga and
Viramitrodaya, that there is text of Vedas which is simple authority for the
general exclusion of women from inheritance. The Writers of these two treaties
base their conclusion on text of Baudhayana, the reputed founder of one of the
school of the Block Yajurveda, who says that female are generally incompetent
to inherit and quotas in turn a passage of his Veda to support his opinion. The
text is as follows Nirindriya Hyadayadah Strionritam.141 It may be translated
thus:

“Devoid of prowess and incompetent to inherit, women are useless. The

commentators have differed not a little as to the precise meaning of this text.
Some of them contend that the text can have no possible application to the
inheritance of women.142 Upon this Vedic text it has been based that one of the
fundamental principles of the Hindu law of inheritance has been the general
exclusion of the female sex. The theory has been adopted by most of the
modern writers on Hindu Law; and the true meaning and authenticity of the text
upon which it is based requires discussion, before the theory can be set aside
in favour of another. It is therefore, necessary to examine how the text has been
interpreted by the leading commentators. It will be further necessary to consider
whether the passage quoted by Baudhayana does really occur in the Vedas.
Jimutavahana refers to this Vedic text in order to support his conclusion that

140 Supra Note 7

141 Supra Note 8
142 The meaning of Vedic text according to some writers is women are considered disqualified to drink the
somajuice and receive no portion of it at the sacrifice.

66
text of Manu, “To the nearest Kinsman (Sapinda) the inheritance next belongs,
excludes female sapindas”. He says, "A woman is entitled, proceeds not to the
heritage; for females and persons deficient in an organ of sense or member, are
deemed incompetent to inherit." The construction of this passage is woman is
not entitled to heritage. But the succession of the widow and certain others, viz.,
the daughter, the mother and paternal grandmother, takes effect under express
texts, without any contradiction to this maxim.143

In Viramtrodaya, the Vedic context quoted by Baudhayana is noticed in

three places. Mitramisra concludes his discussion thus: "As for the text of Smriti
viz., Therefore women are devoid of the senses (nirindriya) and incompetent to
inherit and for the text of Manu based upon it, namely. Indeed the rule is that
women are always devoid of the senses and incompetent to inherit, these are
both to be interpreted to refer to those women whose right of inheritance has no1
been expressly declared. Haradatta also, has explained these texts in, this verv
way in his commentary on the Institutes of Gautama, called Mitakshara. Bui
some commentators say that the term 'incompetent to inherit' implies censure
only by the reason of its association with the term 'devoid of the senses.' This is
not tenable; because it cannot be admitted that the portion, namely, incompeteni
to inherit; is prohibitory and not condemnatory, for it cannot to be held to be ar
absolutely superfluous precept in as much as taking of heritage by Women maj
take place under the desire for property. But the portion ‘devoid of the senses
is to be somehow explained as being a Superfluous precept, and purporting the
dependence of women on men; for the negation, what is contrary to the nature
meaning as it does of .things is objectionable. Hence what has been said above
forms the best interpretation. The venerable Vidyaranya, however, has in his
commentary on the institute to Parasara. explained the above text of Sruti ir
different way. The term incompetent to inherit indicates the wife is not entitled tc
share in case of her retirement to a forest; the term Anindriyas (rendered above
into devoid of the senses) embodies the reason for the same; for it appears fron

143 Supra Note 9

67
the text; viz., female not entitled to taste somajuice; the text being laudatory of
the retirement of the wife into forest on the death of the husband. Then again in
another place where the author deals with the right of paternal grandmother to
inherit, he comments as follows on the same Vedic text cited above. Agreeably,
however, interpretation put upon the text of Sruti, therefore women are devoid of
the senses etc. by the venerable Vidyaranya which previously cited, this text
does not all prohibit women’s right of succession.

So the rules of inheritance given by the ancient law givers were meager.
The reason probably was that property was held invariably by the members of a
joint family and separate acquisitions were in considerable, there was no
necessity to lay down detailed rules of inheritance. On the death of a member in
a coparcenary his male issue took his interest, though it is now usual to speak of
it as passing by survivorship to the entire coparcenary, according to stricter.
Conception, the interest of a coparcener, on his death went as unobstructed
inheritance to his son, grandson and great grandson. It was only when he died
without male issue, it passed by survivorship to other coparceners. The germs of
inheritance, therefore, to be found in the unit of the coparcenary which consisted
of oneself and his son, grandson and great grandson. On the death of a man
who was divided from his coparcenary, his son, grandson and great grandson
were to the persons entitled to his estate.

It has often been stated that women were, as a rule, excluded from
inheritance in the earliest times. It is true, no doubt, that the rights of women as
heirs have been the subject of controversy till the age of the commentators.

LACK OF LEGAL KNOWLEDGE:

There was no necessity for elaborate rules of law, when people in

consciously followed the prevailing practices of enjoying property. When disputes
arose property was then held by the family as the unit of society Under the
Patriarchal system, the father represented the, family and had complete control
over it. On his death the family and properties passed under the care of the
successors to the head of the family.

A few important rules are discernible:

i. Primogeniture was the settled law of the succession in the ancient

India. The death of a member did not affect the corporate existence of
the family which was to be maintained intact. In that unit the first born
would become the leader of the family, entitled to the family property
as his birth right.

ii. In the course of time equal distribution of the property among the sons
came to be recognised? though the normal mode of enjoyment of the
property was the joint family system or communistic system, the rival
principle of individual ownership reared its head at an early stage in
the history of Hindu Law and both existed together. The principle of
primogeniture helped to preserve the joint family system. The text in
Taithriya Samhita "they distinguished the eldest son by the heritage"
recognizes the superior right of the first bom. On the other side there
was rule of equality illustrated by texts like, "Manu divided his wealth
equally among his sons." On examination of the Smritis, it is patent
that original rule or primogeniture had been gradually declining giving
place to the equable rule of equal distribution.

iii. The germs of inheritance according to law are to be formed in the unit
of coparcenary consisting of sons, grandsons and the great
grandsons.

The primary heir, when the heritage does not pass to the family
as a whole, was no doubt the son. In normal cases, the son would be
son of body born in lawful wedlock. The aurasa son was the best type
of son from the religion point of view. But besides the aurasa son,

69
 there were subsidiary admission of the strangers into the family and
such admission was justified by fictitious extensions of consanguinity.
Though no uniform principle was adopted, it would appear that among
subsidiary sons those with slightest trace of blood connection even
though illegitimate, were preferred to those whose relationship was
only artificially created.

iv. In course of time, fresh principles of conduct got established. Besides

the son, ruled had to be framed regarding persons entitled to succeed
to the property of a deceased and the order in which they could claim
priority. The rules stated by some of Smriti writers are:

a) Gautama: Persons allied by the funeral or lations, bearing the same family
name and connected with the same Rishi shall share the estate of
childless owner or the widow shall take the estate.

b) Budhayana: on the failure of sapindas, sakulya are heirs, if there be none,

the spiritual preceptor the pupil or the priest takes the inheritance.

c) Apastamba: If there is no male issue, nearest kinsman inherits or in

default of kindred the preceptor or failing him disciple or the daughter may
take the inheritance.

In Smritis, no undue importance should be attached to the omission of ail

female relations as heirs, as the rules of inheritance themselves were very
scanty. While in some respects the position of woman particularly that of the
daughter, the wife and mother, was high, passages derogatory to women,
scattered in the earliest literature have been taken to spell the inferior status of
women.144 The father protects a woman in her childhood, husband during youth;
her son in old age, a woman is never fit for independence.145 In the case of
inheritance to the property of men, males were preferred to women as heirs

144 Dr. J. Jolly, (T.L.L., 1883), Outline of History of Hindu Law of Partition, Inheritance and Adoption, p.
192.
145 Supra Note 12

70
while in the case of inheritance to woman’s property, women were preferred to
women as heirs, but neither were completely, excluded from inheritance to the
others property. Neither brothers, nor parents but sons are, heirs to the
deceased, but if he leaves no sons, the father instead of brothers takes the
share.

The rights of women to maintenance were, in every case very substantial

right in the family on the whole. It seems that some of the later commentators
erred in drawing adverse inferences from vague references to women's
succession in the earlier Smritis The view of 'Mitakshara’ on the matter, which
are unmistakable, ought to be decisive, Vijnanesvara nowhere endorses the view
that women are incompetent to inherit. He does not even refer to the Vedic text
He points out that the text of Narada which declares dependence of women is
not incompatible with their acceptance of property. Vijnanesvara does not accept
the position that the chains of such females only to be admitted as have the
support of express text On the other hand, he holds that paternal grandmother
who is not mentioned in any special text is entitled to inherit as gotraja sapindas
and from what he says in II, V,5 it is quite clear that the wives of the other lineal
ancestors also are entitled to succeed as gotraja sapindas, Vijnanesvars's view
on these points which are followed by other commentators and by the courts are
conclusive against the assumption that there is any general principle of Hindu
Law that women are excluded from inheritance unless named in the ancient
texts His definition of sapinda and his postponing the father to the mother, the
grandmother to grandmother, the great grandmother, as well as his treatment, of
Stridhana are clear indication in the same direction.

The law in all the states, except in Madras and Bombay, is that women are
in general, excluded from inheritance to the estate of a man who dies without
issue. Till recently, the recognized exceptions were widow, the daughter, the
mother146, the father’s father, the father’s mother and also female lineal

Guru Gobind v. Anand Lai (1970)5 Beng, L. R.15, 37 (FB); Nanki Vs Gauri Shankar (1905) 28 All.
187, Vikram Singh v. Parbati, 1961 All. 97.

71
ancestresses above the last. 147

STATUTORY HEIRS & THEIR RIGHTS:

Daughter, daughter’s daughter and sister have been admitted as heirs

under Mitakshara law and placed immediately after a father’s father and before a
father’s brother.

DAUGHTER IN LAW AND GRAND DAUGHTER-IN-LAW:

The Hindu women’s Right to Property ACT 1937 has made the widow of a
man’s predeceased son as well as his own widow, heir to his property, both
alongwith and in default of his male issue.148

RIGHT OF WIDOW:

The right of the widow to succeed as heir to her husband was recognized
tow thousand years ago. Virdha Manu, Yajnavalkya, Vishnu, Brihaspati,
Katyayana, Sanka Likhita and Devata fully recognized her right to succeed to
her husband. Narada’s refusal to recognize her, evidently after the time of
Vishnu and Yajnavalkya, is puzzling. It must have been due to a difference in
the usages of his country, where remarriage, evidently prevailed as, about the
same time; Brihaspati is most emphatic in her favour. She is, in fact, the first heir
to the property of a man who dies without male issue.149

In all the authoritative digests and commentaries, the widow's right of

succession to her husband is universally acknowledged.

Widow heir to separate Property- Vijnanesvara’s conclusion is that the

widow is entitled to inherit to her husband, if he died separated and not reunited
and left no male issue. It is immaterial whether the division was in status only or
was followed by a division by metes and bounds. The text of Mitakshara is,

147 Jagdamba v. Secretary of State (1889) 16 Cal, 367, 373.

148 The act does not affect succession to estate descendible to a single heir.
149 Sheo Singh v. Mt. Dakho 1870) 6NWP 382,406, So, by local custom, a widow is sometimes

72
therefore, it is settled rule, that a wedded wife, being chaste, takes the whole
estate of a man, not subsequently reunited with them, dies leaving no male
issue150 and this rule which necessarily followed from the view taken by the
Mitakshara of the rights of undivided members, applied, till recently, in the
Mitakshara jurisdiction. Even where a man died undivided but left separate or self
acquired property, his widow succeeded to it though the undivided left separate
or self acquired property, passed by survivorship to his coparceners, as was
settled by Shivaganga case. Their lordship referring to the Mitakshara(ll, !, 39)
observed: “the text is propounded as a qualification of the larger and more
general proposition in favour of widows and consequently in construing it we
have to consider what are the limits of that qualification rather than that are the
limits of the rights.”151 According to Dayabhaga, on the other hand, which
proceeded on the ground of her right to offer funeral obligations to her deceased
husband, a widow succeeded to her husband’s share when he was undivided
just she would succeed to the entire property of one who was separated.152 But
as in a Dayabhaga joint family the husband is held quasi severalty, the distinction
is merely a verbal one.

RIGHT OF DAUGHTER:

The Daughter, from the earliest time, was recognized as a heir, probably
at first as an appointed daughter and later whether appointed or not. By the time
of Kautilya, daughters were heirs.153 A text of Manu states her right of
inheritance: “A son is even as one’s self, and the daughter is equal to son; so
long as she there as father’s own self, how can any other take property.154 Some
of the commentators on Manu read the text as referring only at an appointed
daughter. But the word used is Duhita (daughter) and not putrika (appointed
daughter). The appointed daughter was already dealt with by his two previous

150 Rewan Persad V. Mt. Radha (1846), 4M 1 A 137, 148,152.

151 Tikari v. Tikari (1878) 51A 160; 4 Cal. 190.
152 Durag Nath v. Chintamani (1904) 31 Cal. 214.
153 Supra note 12
154 Supra note 21

73
verses 127 and 128. Brihaspati who closely follows Manu clearly understood it to
refer to an unappointed daughter for he himself says, "a daughter, like son,
springs from each member of man, how then should any other mortal inherit the
father’s property while she lives155, Vishnu, Yajnavalkya and Katyayana also
recognize the right of daughter. The

The Mitakshara, citing the text of Katyayana Brihaspati declares that "the
daughter inherits in absence of wife", holds that in the case of daughters
ownership in the father’s wealth arises by birth itself as in case of sons.156 The
Smritichandrika and following it, the Viramitrodaya, as well as the
Vivadachintamani understand the text of Manu as referring to unpointed
daughter and reject the contrary view of other commentators.

RIGHT OF MOTHER:

The mother is not mentioned as a heir by Gautama, Baudhayana,

Apastamba or Vasistha, her claim and that of the grandmother, are expressly
asserted by Manu. “A mother shall obtain the inheritance of a son, who dies
without leaving issue, and the mother be dead, the paternal grandmother shall
take estate.157

Vishnu also inserts the mother in the list of heirs next after the father158
und Yajnavalkya places both parents after the daughters159. Her claim is also
mentioned by Brihaspati and Katyayana160. Narada states her right to share on
partition by the sons after the death of their father, but does not refer to her as an
heir.161

155 Supra note 22

156 21 MLJ (Journal), p. 317.
157 Supra note 23
158 Supra note 25
159 Supra note 26
160 Supra note 27
161 Supra note 28

74
RIGHT OF GREAT GRANDMOTHER:

The right of paternal great grandmother, though not mentioned in any

text, is expressly deduced by the Mitakshara saying "In this manner upto seventh
must be under stood the succession of smanagotra sapindas162 The Subodhini
commenting on the Mitakshara carries the enumeration further by including as
heirs the paternal Grandmother’s mother and grandmother and states some rules
apply in the case of samanodakas. Accordingly in Jagdamba Koer vs. Secretary
of State the wives of lineal ancestors beyond the great grandmother were held to
be heirs.

RIGHT OF SISTER:

The sister is also declared entitled to take share either upon an original
partition or after a reunion163; but this is a different thing from taking as heirs
Brihaspati says, if there be a sister, she is entitled to share of his property. This
law regarding the wealth of one destitute of issue and who has no wife or
father.164 A passage from Sankha and Likhita, "A daughter shall take the
woman’s property, and she is alone, is heir to the wealth of mother’s son who
leaves no male issue, would certainly seem to be a direct affirmation of the right
to a sister to succeed to her brother.” A text of Brihaspati is quoted in Jagan
Nath’s Digest, "But she who is his sister is next entitled to take the share, in law
concerns him who leaves no issue, nor wife nor father, nor mother;”165 and
Kulluka, explaining Manu, IX, 212 referring to a reunited brother affirms the
sister’s succession if he leaves neither son nor wife nor, father, nor mother
Nanda Pandita and Balam Bhatta interpret the next of the Mitakshara which
gives the inheritance to brothers, as including sisters, so that the brothers take
first and sisters next, but this order is opposed to the whole spirit of the Banaras
law. It if not accepted even by Mauykhya, which makes the sister come in after

162 Supra note 29

163 Supra note 30
164 Supra note 31
165 Supra note 32

75
the grandmother under different text and the interpretation has been rejected by
the judicial committee.166

HINDU WOMEN AND SUCCESSION - POSITION OF HINDU WOMAN

BEFORE 1956 IN BRIEF:

The Hindu law of intestate Succession has been codified in the form of
The Hindu Succession Act, 1956, which bases its rule of succession on the basic
Mitakshara principle of propinquity, i.e., preference of heirs on the basis of
proximity of relationship. Prior to 1956, there used to be two major schools of
Hindu law viz. Mitakshara and Dayabhaga which laid down different principles of
succession. There was no uniformity in the rights of the Hindus following different
schools to succeed to the property of a Hindu who died intestate i.e., without
leaving a will behind him.

Therefore, before 1956, the property of a Hindu woman was divided into
two heads viz. (a) Stridhan (b) Woman's Estate. Stridhan literally means
woman's property. The Hindu law interpreted Stridhan as the properties received
by a woman by way of gift from relations. It included movable as well as
immovable properties. The texts relating to Stridhana except in the matter of
succession are fairly adequate and clear. Manu defined Stridhana as that what
was given before the nuptial fire, what was given at the bridal procession, what
was given in token of love and what was received from a brother, a mother, or a
father?167 The property inherited by a woman from a male or female was not
considered as Stridhana and it was not her absolute property for the purpose of
inheritance168. However Bombay school considered the property inherited by a
woman form a male other than widow, and mother etc. as Stridhan. Under all
schools of Hindu law, the property obtained by a woman in lien of maintenance
by adverse possession and property purchased with Stridhan was considered as
Stridhan.

166 V. May, IV, 8,119; Bhagwan v. Warubai (1908) 32 Bom. 300, 311
167 Mayne, Hindu Law and Usage, 13th Ed. 1995 p. 875
168 Mst. Devala v. Rup. Sir, AIR 1960 MP: 1959 Jab. U. 598.

76