The Gurupad vs. Heerabai85, and in Shyama

The judiciary constantly is behind the gender justice.

The fortification of women’s right to property is not a new thing in the life of Supreme Court or High Courts in India. The explanation I of section 6 of the Hindu Succession Act, 1956 (before 2005 amendment) was interpreted differently by the High Courts of Bombay, Gujarat, Orissa and Delhi in the cases84 where women’s rights to the property affected. The Supreme Court in Gurupad vs. Heerabai85, and in Shyama Devi vs. Manju Shukla86, held that the proviso of section 6 gave the formula for fixing share of the claimant and the share was to be determined in accordance with the explanation I by deeming that a partition had taken place a little before his death, which gave the clue for arriving at the share of the deceased.

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The Supreme Court in the matter of State of Maharashtra vs. Narayan Rao,87 held that it was no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the date of the birth of a male member of the family without her concurrence as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and it might also not be in the interest of such females.The Supreme Court in Narashimah Murthy vs.

Sushilabai held that a female heirs right to claim partition to the dwelling house of the Hindu dying intestate under section 23 of the Hindu Succession Act, 1956 would be deferred or kept in abeyance during the lifetime or even a sole surviving male heir of the deceased until he choose to separate his share or ceases to occupy it or lets it out. The idea of this section is to prevent the fragmentation and disintegration of the dwelling house at the instance of the female heirs, the detriment of the male heirs in the occupation of the house, by rendering the male heir homeless or shelterless. The more important observation was made by Supreme Court in a case where it was held that the eligibility of married daughter must be placed at par with an unmarried daughter for, she must have been once in that state, so as toclaim the benefit.

Hence once a daughter is made a coparcener on the same footing as a son then the right as a coparcener should be real in spirit and content. Hence hisspirit inspired the Indian Parliament to omit section 23 in toto from the Hindu Succession Act of 1956.  In order to give the women same footing right, it is pertinent to look forwardthe widow’s right to reside in a dwelling house. The family dwelling house should not be alienated without the widow’s consent or without providing her an alternative recommendation after she has agreed to the sale of the dwelling-house. In order to protect such right section 24 was omitted by the Hindu Succession Amendment Act of 2005.In case of Radhika vs. Aghnu Ram Mahto,92 the Supreme Court in respect of property right of daughter of second wife, held that, for the property inherited by a female Hindu from her father or mother, a female’s paternal side in the absence of her son, daughter or children of the predeceased son or daughter, the succession opens to the heirs of the father or mother and to the class I heirs, in the order specified in sub-section (1) of section 15 and in section 16 of the Hindu Succession Act of 1956.The Apex court in P.

S. Sairam vs. P.S. Rama Rao,93 held that the shares of the parties in the joint Hindu family property have to be determined in accordance with the provisions of section 6 of the Hindu Succession Act, 1956 and accordingly decreed in favor of seven daughters of the joint family along with male heirs accordingly. In a very recent case, the court by going negatively with women’s right to property disqualified the daughter in laws right to the father in laws property on the ground that the son had murdered his own father.

The court went through the matter on the ground of justice, equity and good conscience. Here in the case the sole male survivor, the son incurreddisqualification by murdering his own father. He could not inherit the property of father in view of section 25 and 27 of the Hindu Succession Act, 1956. His wife, who claimed to the property through him, could not have a better claim to the property of her deceased father in law.The Supreme Court in dealing with the gift related property held that thefather can gift of ancestral immovable property within a reasonable, limits inthe favor of his daughter.The court observed in a case, that the benefit of section 29A of the Hindu Succession Act, 1956 can be invoked only by major daughters if they are not married prior to the commencement of section 29A of the Act.If the property held by a female was inherited from her father or mother, in absence of any son or daughter of the deceased including the children of any predeceased son or daughter, it would only devolve upon heirs of the father and his sister who was the only legal heir of her father.

Deceased female Hindu admittedly inherited the property in question from her mother. The intent of the legislature is clear that if the property originally belongs to the parents of a deceased female, should go to the legal heirs of the father. Further the fact that a female Hindu originally had a limited right and later acquired the full right in any way, would not alter the rules of succession, given in sub-section (2) of section 15 of the Hindu Succession Act, 1956.