daughter's right of inheritance
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It is a research paper on daughters right of inheritance falling under the Family law.TRANSCRIPT
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Daughter's Right of Inheritance in India: A Perspective on the Problem of Dowry Author(s): Lucy Carroll Source: Modern Asian Studies, Vol. 25, No. 4 (Oct., 1991), pp. 791-809Published by: Cambridge University PressStable URL: http://www.jstor.org/stable/312753Accessed: 18-03-2016 04:08 UTC
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Modern Asian Studies 25, 4 (199 ), pp. 791-809. Printed in Great Britain.
Daughter's Right of Inheritance in India:
A Perspective on the Problem of Dowry
LUCY CARROLL
University of Texas
One may argue that it [i.e., dowry] is nothing but a gift of love and affection
by the bride's father who is not obliged to give any share to his daughter by
birth. Now, however, the law of succession has been changed, giving equal
right of inheritance to the daughter along with the son under the Hindu
Succession Act, I956.1
Given the exclusion of daughters as heirs to the property of their
father, dowry represented-and arguably still represents in the vast
majority of Hindu families-the daughter's major right in the pro-
perty of her own family. The attempt to abolish or to render illegal
dowry transactions is to negate even further the daughter's property
rights in her family of birth. Although most textbooks on Hindu law
contain statements to the effect that the daughter's right to main-
tenance until marriage and to her marriage expenses (which would
certainly include something in the way of dowry) is in lieu of a share
in the family property, it would be a gross over-simplification to
suggest that exclusion from inheritance is the single cause of the
dowry system as it presently exists in India. Nevertheless, the prob-
lem of dowry should be seen in the context of other property rights of
the daughter, and criticism and condemnation of the dowry system
should be coupled with advocacy of reform of the daughter's rights as
an heir to the property of her natal family.
Before the Hindu Succession Act I956, the Hindu daughter was
Paper presented at the University of Texas, Austin, April 2, 1986. I am indebted to
the Center for Asian Studies, University of Texas, Austin, for appointing me Visiting
Scholar in Residence, and to the staff and faculty associated with the Center for the
gracious hospitality which was extended to me during my tenure.
R. Jaganmohan Rao, 'Dowry System in India-A Socio-Legal Approach to the
Problem,' Journal of the Indian Late Institute 15 (1973):617-25, at p. 620.
oo26-749X/91/$5.oo + .oo ? I991 Cambridge University Press
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excluded from succession to her father's property by the presence of a
son, a son's son, a son's son's son, or a widow. Further, when a
woman did succeed to property, she held it in limited, as opposed to
absolute, estate. She was entitled to possess, use, and enjoy the pro-
perty, but not to waste or alienate it, during her tenure-i.e., usually
until her death, but in some circumstances marriage or remarriage
would bring her tenure to an end. When her tenure determined, the
property passed not to her heirs, but to the relatives of the last male
holder; in the case of a daughter succeeding to her father's property,
the property passed to the nearest heirs then living of her father. The
woman's tenure merely delayed or postponed succession from one
male owner to another male owner in the context of a system of
succession which confined full ownership rights to men.
The Hindu Succession Act gave daughters and sons equal rights of
intestate succession to the property of their father, and abolished the
woman's limited estate in the context of intestate succession. (The
limited estate may still be created by a will.) The Hindu Succession
Act, however, did not affect the concept or constitution ofjoint family
property.
Thus, for instance, consider succession to a man governed by
Mitakshara Hindu law who dies leaving two sons and two daughers.
Sons and daughters are simultaneous heirs under the Hindu Suc-
cession Act and take in equal shares. It might, therefore, be assumed
that each of the four children would take one-fourth of the estate. The
actual result, however, is that each of the sons becomes entitled to
5/I2ths of the property and each of the daughters takes a share of
I/I2th-i.e., the son's interest in the property is five times that of the
daughter's share. To understand this result, it is necessary to under-
stand something about the joint family as a property owning unit.
It is first necessary to establish a few basic propositions.
Devolution of property. Property can devolve either by inheritance or
by survivorship. Property passing by inheritance devolves on
intestacy (i.e., in the absence of a will) on the heirs of the deceased as
defined by law. When property passes by survivorship, the interest of
the deceased in the property is simply obliterated on his death and the
interests of the surviving co-owners are augmented. If, for instance,
there were three equal co-owners, each owning one-third of the prop-
erty, and one dies in circumstances where survivorship applied, there
would now be two equal co-owners, each owning one-half of the
property.
Hindu law. There are two main schools of Hindu law, Mitakshara
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LUCY CARROLL
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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA
and Dayabhaga. Dayabhaga is more or less confined to Bengal and
Assam, while Mitakshara enjoys dominion over the rest of India.
Within the Mitakshara tradition there are regional variations.
Joint and separate property. Particularly in Mitakshara Hindu law, the
distinction between ancestral or joint family or coparcenary property
on the one hand, and separate or self-acquired property on the other,
is very important. Any property coming into a person's hands, by
inheritance or survivorship, on the death of his father, father's father,
or father's father's father is ancestral property in his hands, whether
or not it was ancestral property in the hands of the person from whom
it passed to him. Thus, separate property becomes, by virtue of
devolution to a direct male descendant, ancestral property in the
hands of the person taking the property. It is also important to note
that any property obtained on a partition of joint family property
remains joint family property in the hands of the person who has
taken his share. Any property inherited by a person from any relative
other than his father, paternal grandfather, or paternal great-grand-
father is his separate property.
In Mitakshara, separate property devolves by inheritance; joint
family/ancestral property devolves by survivorship. The Mitakshara
son takes an interest in joint family property at the moment of his
birth;2 he takes no interest in his father's separate property as long as
his father is alive.
The Mitakshara Coparcenary
The joint-property owning unit, the coparcenary, is distinct from the
joint family, as the latter unit is defined in sociological or anthropo-
logical contexts. In the context of this paper joint family is used as a
synonym for coparcenary, and joint family property is used as a
synonym for coparcenary property. The coparcenary is composed of
male agnates to a maximum depth of four generations, who hold in
common ownership property which devolves by survivorship. Mem-
bership in the coparcenary is by birth and takes effect from the
moment of birth, but membership is only open to sons. The moment
he is born, a son takes a coparcenary interest in the joint family
property equal to that of his father. Daughters do not take such a
2 Strictly speaking, the son takes an interest in the property from the moment of his
conception, reckoned back from the date of his birth, at which time it becomes
apparent that the fetus was male.
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LUCY CARROLL
proprietary interest; they are not eligible to be members of the
coparcenary; they are only entitled to maintenance until their mar-
riage and to their marriage expenses (including, of course, 'dowry').
Contrary to the apparent assumption of S. J. Tambiah that joint
family property is an ideal and that frequent partition renders separ-
ate property the rule,3 joint property is the rule and separate property
the exception, and usually a very temporary exception at that.
Indeed, the legal presumption is that every Hindu family is joint,4
although there can be a joint family with no joint family property and
there can also be joint family property without a joint family.
Rather than creating separate estates, partition actually increases
the number of joint family estates. Consider a man with three sons
and three grandsons (figure i). Assume it is a Mitakshara joint family
and the property consists of property inherited by A from his father,
together with savings accumulated from the income of that property
and additional property purchased out of such savings. During A's
lifetime, A, each of his sons from the moment of their birth, and each
of his grandsons from the moment of their birth are co-owners of the
property. The family remains joint until A's death; after A's death a
3 'But ... the four generation rule of coparcenary rights and the right of partition
granted members did produce the fission of the ideal corporation. When partition
takes place the coparceners become independent owners and cannot any more
exercise survivorship rights in respect of one another. The property must descend according
to the ordinary rules of inheritance-to the issue of these separate owners.' S. J. Tambiah,
'Dowry and Bridewealth, and the Property Rights of Women in South Asia,' in J.
Goody and S. J. Tambiah, Bridewealth and Dowry (Cambridge: C.U.P., 1973), p. 78,
emphasis added.
To be sure, an individual can deal with the property he obtained on a partition as if
he were an 'independent owner' as long as (i) he did not have a son at the time of the
partition, or (2) a simultaneous partition took place between himself and his son or
sons (partition during the father's lifetime is rare); but he may do so only until a post-
partition son is born to him. ('Son' here includes the son of a predeceased son and the
son of a predeceased son of a predeceased son.) If he had a son at the time of the
partition and if there were no simultaneous partition between himself and his son, the
partition merely results in a smaller coparcenary being created; no 'independent
owner' emerges, even temporarily. If he did not have a son or if a simultaneous
partition did take place, a temporary situation of 'independent ownership' results.
The moment a post-partition son is born to such an 'independent owner', a new
coparcenary is created as respects the property which the 'independent owner'
obtained on the partition and such property will pass by survivorship to the other
coparcener(s) (i.e., the son or sons of the person who, temporarily being a sole
coparcener, temporarily had rights of 'independent ownership'), not by 'the ordinary
rules of inheritance'.
4 'Generally speaking, the normal state of every Hindu family is joint. Presumably
every such family is joint in food, worship and estate. In the absence of proof of
division, such is the legal presumption.' S. T. Desai (ed.), Mulla-Principles of Hindu
Law (i4th edn, Bombay: N. M. Tripathi, 1978), p. 284.
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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA
A
B C E
B1 C1 C2
Figure i.
partition occurs and all A's sons separate. After partition B and his
son Bi; and C and his sons Ci and C2 now constitute new joint
families, with the son holding an equal interest in the property with
his father.
In order for individual estates to be created from these groupings,
there would have to be further partitions between B and Bi, and
among C, CI, and C2. However, if a partition occurs between, for
example, B and BI, the situation of individual estates that results is
only temporary, as it is only temporary in the case of A's son E, who
had no son at the time of the partition from his brothers on their
father's death. As soon as a son is born to E, or as soon as a son is born
to BI (who has now separated from B), or if a son were born to B after
the second partition, a new coparcenary unit is immediately and
automatically established.
The property that the sons of A divided on A's death was joint
family, ancestral, property. When the further partition occurred
between B and Bi, the property that each took was joint family,
ancestral, property. During the temporary period when B, Bi, and E
each hold joint family property without a co-owner (i.e., without an
individed son), each possesses rights of an absolute owner over the
whole of the property in his possession. But his situation is not that of
an owner of separate or self-acquired property; he is simply a sole
coparcener in possession of joint family property. The character of the
property is not altered by the fact that it is for the time being held by a
single coparcener; it is not converted into separate property; it was and
remains joint family property. Such being the unalterable character of
the property in the hands of B, B I, or E, the moment a son is born to
any of these sole coparceners, the son takes a birthright in the pro-
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LUCY CARROLL
perty in the hands of his father. The sole coparcener becomes one of
two coparceners, each of whom possesses an equal interest in the
property.
It is important to note that in figure I it is assumed that A and his
sons B5 and C are widowers. The presence of A's widow would com-
plicate the situation on the partition between A and his sons.
Similarly, the presence of a wife of B or C would complicate the
situation on a partition between B and Bi or among C and his sons.
Since space is limited and the emphasis of the present discussion is on
the position of daughters, these details will have to be passed over.
Nevertheless, it is worthy of comment that both before and after the
Hindu Succession Act, the position of the widow or mother was and is
considerably superior to that of the daughter. The daughter is born to
leave the family; the wife is brought in from outside and by the time
she has become a mother or a widow she has been incorporated into
the family to a degree that the daughter herself never achieves. To be
sure, the mother or widow never achieves the status of a son of the
family, but in comparison with the daughter, her position is superior.
To reiterate: After the partition among the sons of A and between B
and BI, three individual estates were created, in the hands, respec-
tively, of B, Bi, and E. However, the property in the hands of these
individuals is and remains joint family property, and the birth of a son
to any of these men results in the immediate establishment of a new
coparcenary unit. Such a joint property unit is established automati-
cally by the operation of the law, completely independently of the
wishes of B, B I, or E. Any property which came into the hands of B or
E directly from their father A, or into the hands of B directly from his
father B, is ancestral property in which the son, respectively, of B or E
or BI acquires an interest on birth equal to the interest of his father.
An increment in the value of joint family property is joint family
property; accumulations of income from joint family property are
joint family property; property purchased out of the income of joint
family property is joint family property; income earned through the
use of joint family property is joint family property; etc.
A man may retain separate title to money he earns without the use
ofjoint family funds or property; and to the property he acquires with
his own separate funds; and to property which he inherits from any
female or from a male other than his father, father's father, or father's
' As to the son hypothetically born to B after the partition between B and Bi, we
may assume that B remarried and that the partition between B and Bi took place on
B 's insistance because he realized that his father intended to remarry.
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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA
father's father. But all such property is only separate property in his
hands, at his will, and during his lifetime. During his lifetime a man
may convert his separate property into joint family property simply
by declaring it so to be and treating it as such (there may be tax
advantages in so doing). Even if he keeps his separate property separ-
ate during his lifetime, at his death it passes to his son and becomes, in
the son's hands, ancestral property in which the son's son will have a
coparcenary interest.
Thus, separate property is constantly being converted into
ancestral or joint family property; the converse occurs much less
frequently and when it occurs, the property remains separate property
only temporarily, i.e., only until it passes by succession into the hands
of a direct male descendant of any male owner. For an example of the
conversion of joint family property into separate property, consider
what the situation would have been if after the partition between A's
sons, E had died without leaving spouse or child. The property in the
hands of E is ancestral, joint family, property, but he is a sole
coparcener; there is no co-owner who could take the property by
survivorship and the property, therefore, passes by inheritance. His
heirs are his two brothers, who take the property in equal shares. In
the hands of B and C, the property which E had obtained on the
partition becomes separate property. Although the property originally
came from the father of B, C, and E, it comes into the hands of B and
C by inheritance to their brother, not to their father. For this reason it
is separate property, not ancestral or joint family property, in their
hands. When the property passes to the sons, respectively, of B and C,
it will become in their hands joint family property once again.
Devolution under Mitakshara Law
To return to the original example of a man dying and leaving two sons
and two daughters and giving this anonymous man a family history,
let us assume that he is E, the son of A, that he did not die childless
after all, and that since the partition from his brothers he has married,
produced four children, and been widowed (figure 2). The property in
question is his share in the property of his father (A) which he took on
the partition from his brothers (B and C) after the death of their
father, plus accumulated profits and increments.
By definition a coparcenary exists between E and his sons. On the
birth of each son, the father's (E's) interest in the property was
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LUCY CARROLL
E
S1 S2 Dl D2
Figure 2.
reduced -to one-half by the birth of the first son, and to one-third by
the birth of the second son. (The interest of the first son, originally
one-half, was also reduced to one-third by the birth of a second son to
his father.)
Actually, a very fundamental principle of the Mitakshara coparcen-
ary is that each coparcener is co-owner of the whole and that the
interest of any particular coparcener can only be worked out at a
partition which terminates the joint family as a property owning unit.
The very definition of the shares destroys the coparcenary. Thus, it is
a violation of this fundamental principle to assign interests in the joint
family property to E and his sons; it is, however, impossible to explain
the situation without allocating fractional interests in the property.
Under the pre-1956 law, on the death of E his undivided interest in
the joint family property would have passed by survivorship to his two
sons, thereby increasing their interests in the joint family property to
one-half each. (It needs to be emphasized that, not only can the
Mitakshara coparcener's interest in the joint family property not be
defined except at a partition terminating the coparcenary, but in the
meanwhile it is a fluctuating interest, being enlarged by deaths of
coparceners and decreased by the birth of males who take from birth a
coparcenary interest.) The daughters would have taken no share or
interest in the property; if unmarried, they would have remained
entitled to maintenance until their marriage and to their marriage
expenses and dowry.
Rather than attempting a wholesale reform of this system, the
Hindu Succession Act merely tinkered with it. Without disrupting the
coparcenary unit and without actually partitioning the coparcenary
property, the Act intervenes to give some right of inheritance to the
female relations of a coparcener at his death. This is does by providing
that if the coparcener should leave any one or more of nine named
relatives" (eight of whom are women, the sole male being the
D)aughter; widow; mother; daughter's son; daughter's daughter; son's daughter;
son's widow; son's son's daughter; son's son's widow.
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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA
daughter's son), the coparcenary interest of the deceased does not
pass by survivorship but by inheritance to his heirs as defined by the
Hindu Succession Act. The daughter is one of the named relatives
whose presence precludes the property passing by survivorship.
Since the coparcenary interest of the deceased coparcener is to pass
by inheritance, it is necessary to determine what that interest is. This
is done by calculating the deceased coparcener's share as if a partition
of the joint family property had taken place immediately before his
death. In the present example, E's interest in the joint family property
at the time immediately before his death was only one-third, given the
presence of his two sons. It is this one-third interest which passes by
inheritance in equal shares to his four children, each taking I/4th of
this I/3rd or I/I2th. In addition to this I/i2th share which he obtains
by inheritance, each son possesses by virtue of his birth an interest
immediately prior to his father's death equivalent to I/3rd of the
property; this interest he retains. The son's interest after the death of
E and notional redistribution of the property is thus I/3rd plus I/ I 2th
equals 5/I 2ths -as compared with the 6/I 2ths he would have taken in
the absence of the Hindu Succession Act, and as compared also with
the i/I2th taken by his sister because of the Act.
The daughters take their shares as absolute, separate shares; they
do not become members of the coparcenary unit by virtue of the
ownership of these shares. Perhaps one or more of the male
coparceners will buy them out; more likely perhaps, the daughters
may be encouraged to forego their shares in favour of their brothers.
The share of I/i2th which the son takes by inheritance under the
Hindu Succession Act is, like that of his sister, an absolute share and
his separate property vis-a-vis his coparcener brother, unless he elects
to convert it into joint family property, which for convenience he
probably will do. However, even if he keeps the i/i2th share separate
from his brother in the larger coparcenary, it is joint family property
in his hands and vis-a-vis his own sons, who will have the right in it
from birth. This then is the beginning of a new smaller coparcenary
within the larger coparcenary.7
The son's coparcenary interest, frozen for a moment in time for the
purpose of the notional calculation, becomes immediately a fluctuat-
ing coparcenary interest again, capable of being increased or
7 The complications which arise because of the presence of a mother or widow on
the scene are as nothing compared with the complications arising from the fact that
within any one coparcenary there can simultaneously be one or several smaller
coparcenaries.
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decreased as deaths and births occur. If, for example, after the death
of E, S dies (leaving neither wife nor child), his coparcenary interest
passes by survivorship to the other son S2, the daughters taking no
share in the interest of their deceased brother in the family property.
The sister is not a relative whose presence prevents the rule of
survivorship from operating. The point to be emphasized here is that
a daughter's position vis-a-vis the property of her natal family is not
simply or merely defined by her relationship to her father. She is also
a sister to her brother. After E's death Si, as a coparcener (I/3rd) and
as an heir (I/I2th), had a very considerable interest in the family
property, an interest five times that of the daughter's share. He then
dies leaving no relative except his own siblings; his entire coparcenary
interest in the joint family property passes to his brother to the total
exclusion of his sisters because of the operation of the survivorship
rule.8
On the other hand, if Di had died unmarried, her property, includ-
ing her I/I2th share from her father's estate, would be inherited in
equal shares by her brothers and sister. Even if she were married, if
she left no child, her I/ 2th share would be inherited by her siblings,
who would take precedence over her own husband in regard to this
property.
Separate Property under Mitakshara
Prior to 1956, the daughter was excluded from succession to her
father's separate property no less than to his joint family property by
the presence of a son, a son's son, a son's son's son, or widow. By
virtue of the Hindu Succession Act, sons and daughters now succeed
in equal shares to any separate property of their father.
A Mitakshara father can severely alter his daughter's rights of
succession to his separate property by converting it during his lifetime
into joint family property. Further, a coparcener can at any time
renounce his coparcenary interest in favour of the other coparceners.
The property then passes by pre-mortem survivorship, effectively
evading the operation of the Hindu Succession Act, since on his death
the renouncing coparcener holds no interest in the coparcenary pro-
" If Si had kept the 1/12th share he received by inheritance to his father as his
separate property, his sisters would share equally with the brother in this 1/I2th. If he
had merged this share with his coparcenary interest, it would pass as part of his
coparcenary interest exclusively to his brother S2.
LUCY CARROLL 800
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DAUGHTER S RIGHT OF INHERITANCE IN INDIA
perty and there is nothing in respect of which the Hindu Succession
Act could operate.
Testate Succession under Mitakshara
Prior to i956 the Mitakshara coparcener generally could not dispose
of his undivided coparcenary interest by will. (The Bombay and
Madras schools of Mitakshara did permit such wills.) The right to
dispose of his coparcenary interest by will was conferred upon all
Mitakshara coparceners by the Hindu Succession Act. Thus the
Mitakshara father E in figure 2 could have left a will bequeathing his
joint property interest (as well as his separate property) to his sons,
thereby disinheriting his daughters. The unmarried daughter would,
in these circumstances, be able to proceed against the estate and the
heirs for maintenance until her marriage and her marriage expenses;
the married daughter would have no claim on the property. To be
sure, the Mitakshara father could also leave a will bequeathing his
coparcenary interest (as well as his separate property) to his
daughters, disinheriting the sons on the ground that since they had
already taken by birth considerable interests in the property, they
were well enough provided for. One must doubt that such an event
has often happened in the 30 years since I956.
While the power of testamentary disposition is a matter to be kept
in mind in other contexts, it is unlikely that wills would commonly be
used to disinherit the Mitakshara daughter under the present law.
After all, the same result, as far as joint family property is concerned
(and remember that separate property can be converted into joint
family property simply by declaring it so to be), can be more easily
attained by a much more familiar (to the Mitakshara coparcener)
process-the simple renunciation of coparcenary interest.
Muslim Law
Muslim law is frequently criticized because it gives daughters a share
equal to only half that taken by a son.9 However, Mitakshara Hindu
9 For a discussion of Muslim law of succession, see Iucy Carroll, 'The Hanafi Law
of Intestate Succession: A Simplified Approach,' Modern Asian Studies 17 (i983):629-
70; and Lucy Carroll, 'The Ithna Ashari Law of Intestate Succession: An Introduc-
tion to Shia Iaw Applicable in South Asia,' Modern Asian Studies 19 (i985):85-124.
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LUCY CARROLL
law, even after the Hindu Succession Act, is much harsher in its
treatment of the daughter as an heir to joint family property in the
presence of a son. Further, given the fact that a Muslim is permitted
to dispose of a maximum of only one-third of his estate by will,'? the
Muslim daughter cannot be totally disinherited by her father in the
way a Hindu daughter can be deprived of her new rights under the
Hindu Succession Act by the simple expedient of a will, or the Mitak-
shara daughter deprived of any inheritance to her father's interest in
joint family property by the even simpler renouncement by him in
favour of his other coparceners.
If E in figure 2 were a Muslim, each of his sons would take a share
of I/3rd and each daughter i/6th of his estate, as compared with
5/ 2ths and /I 2th under Mitakshara law. Even if the Muslim father
left a will exercising the maximum testamentary power permitted to
him, the Muslim daughter would still take I/gth. Further, Muslim
law recognizes the sister as an heir to the property of her childless
brother, so that on the death of Si each sister would take I/4th of his
estate, S2 taking half of his brother's property.
The Dayabhaga Coparcenary
Under Dayabhaga Hindu law, interests in and rights over joint family
property differ radically from those interests and rights under Mitak-
shara law. Firstly, no coparcenary exists between a man and his son:
the son acquires no interest at birth in the ancestral property held by
his father; he acquires an interest in this property only on the death of
his father. Secondly, the rule of survivorship has no application in
Dayabhaga law. All Dayabhaga property passes by inheritance in specific and
defined shares. There is no distinction between joint family and separate
property either in the mode of devolution or in the heirs who take.
Further, there is no distinction between joint family and separate
property in regard to the owner's power of dealing with it; in regard to
both he has rights of absolute ownership and can sell, gift, or will it
away at his pleasure.
The Dayabhaga 'coparcenary', as it is often called, really is not at
"' A Muslim may dispose of more than one-third of his estate by will if such
disposition is ratified by the heirs. The share of any heir ratifying the excess bequest is
reduced, but the share of the non-ratifying heir is not reduced. For an example of the
calculations involved, see Lucy Carroll, 'Sunni Testate Succession: Some Queries,'
Islamic and Comparative Law) Quarterly 4 (1984):204-9; and F. M. Kulay, 'Rejoinder to
Lucy Carroll,' Islamic and Comparative Law Quarterly 6 (i986):92-5.
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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA
all analogous to the Mitakshara coparcenary. It is much more analo-
gous to the situation under Muslim law when heirs elect to retain the
property in an undivided state and hold it as tenets-in-common. In
both Dayabhaga and Muslim law, the joint property owning unit is
created, not automatically by the operation of the law on the birth of a
son, but by the decision of the heirs to hold the property jointly and
undivided. Like Muslim heirs, Dayabhaga heirs inherit and hold
property in definite, defined, and unfluctuating shares. There is no
requirement that the property be divided and distributed among the
individual heirs, and the heirs may continue in joint possession of
undivided property in which each owns a definite and unfluctuating,
although undivided, interest.
The distinction between the Mitakshara coparcenary and the
Dayabhaga coparcenary is well illustrated by Mulla's discussion of
the termination of a Mitakshara coparcenary:
[I]t is not necessary ... that the unity of possession ... should be destroyed
and specific portions of the property assigned to the coparceners. It is quite
enough if the unity of ownership is destroyed, and the share of each coparcener
defined, so that any coparcener can say that he is the owner of a definite
share, one-third or one-fourth. Nothing further need be done. The members
may continue joint in possession, but the coparcenary is destroyed."
In other words, what characterizes the ordinary state of affairs in the
Dayabhaga coparcenary, signalizes the end of the Mitakshara
coparcenary. So fundamental to the ideology and philosophy of the
Mitakshara coparcenary is the principle that each coparcener is co-
owner of the whole and that the individual's interest should not and
cannot be ascertained during the life of the coparcenary, that the
definition of shares terminates the coparcenary unit and effects a
partition, even if the property itself remains undivided and possession
continues to be joint. However, as has been stressed before, in the
destruction of a Mitakshara coparcenary is the birth of multiple new
coparcenaries.
l Supra note 4, p. 348; emphasis added. The passage continues: 'Thenceforth the
share of each member will on his death pass to his heirs. The members having
separated, the principle of survivorship ceases to apply.' These two sentences are very
misleading in that the share each member takes on a partition is ancestral property in
which his existing undivided sons and any subsequently-born sons possess coparcen-
ary interests; as between and among such members of the smaller coparcenary
created by partition of the larger coparcenary succession will be by survivorship and
not by inheritance.
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LUCY CARROLL
Devolution under Dayabhaga Law
There was no distinction under the pre-I956 law in regard to the
devolution of property held by a Dayabhaga male depending on
whether the property was joint family property or his own separate
property; his undivided interest in joint family property as well as his
separate property passed by inheritance to the same heirs in the same
hierarchy of preference. The absence of a rule of survivorship in
Dayabhaga meant that a daughter might well figure as an heir to her
father's joint family property, which she could never do in Mitak-
shara, unless her father were a sole surviving coparcener.
Before 1956 in both Mitakshara and Dayabhaga the daughter was
an heir to the separate property of her father if he left neither son,
son's son, son's son's son, or widow. In Dayabhaga law she occupied
the same position as an heir to her father's interest in joint property.
In Mitakshara law the other coparceners (e.g., her father's brothers,
nephews, etc.) would take the property by survivorship, ousting the
daughter. There being no succession by survivorship in Dayabhaga,
the daughter succeeded by inheritance to her father's share of joint
property no less than to his separate property. Thus, as is so often
remarked, a woman could be a member of the Dayabhaga coparcen-
ary-a very shocking state of affairs from the Mitakshara point of
view. However, the meaning of the terms 'coparcener' and 'coparcen-
ary' in Dayabhaga and Mitakshara are so dramatically and
fundamentally different that we are not talking about the same thing
in spite of using the same words.
In Mitakshara a coparcener is one who jointly with others owns
property in which he possesses an imprecise and fluctuating interest
which can only be determined by a partition; who has the right of
succeeding by survivorship to the interests of other co-owners; and
whose son from birth becomes himself a co-owner, diluting and reduc-
ing the interests of other co-owners.
In Dayabhaga a coparcener is an individual owner of a precise
share in undivided property-a share which is definite and unfluctu-
ating; in which no one acquires any interest as long as he is alive; and
which will pass by inheritance to his own heirs, not by survivorship to
other owners of shares in the undivided property.
In the Dayabhaga coparcenary, a female coparcener is not the
threat to the fundamental basis of the institution in the way that a
female coparcener would be in the Mitakshara system. There is no
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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA
risk of the female Dayabhaga coparcener or her descendants succeed-
ing by survivorship to the property of other coparceners, because all
coparceners own precise shares that pass by inheritance to the heirs of
the individual owner, not by survivorship to other coparceners. The
children of a female Dayabhaga coparcener acquire by birth no pro-
perty rights that could pose a threat to the property rights of other
coparceners, because children of no coparcener acquire any property
rights at birth. And in any case, prior to I956, the Dayabhaga
daughter, like the Mitakshara daughter succeeding to her father's
separate property, took a limited estate. On her death, the property
passed not to her own heirs, but to the nearest heir then living of the
last male owner (i.e., the nearest heir to her father).
Returning again to E and his two sons and two daughters, let it now
be assumed that the family is governed by Dayabhaga law. Prior to
1956 E's property would have passed by inheritance to his two sons in
equal shares. Under the Hindu Succession Act, his property, both
joint family property and separate property, passes in equal shares to
his four children, the Dayabhaga daughter taking I/4th of the joint
family property as opposed to the Mitakshara daughter's i/i2th. The
difference here is due to the fact that because under Mitakshara E's
sons took by birth an interest in the joint family property, only one-
third of the property passed under the Hindu Succession Act; all
Dayabhaga property passes under the 1956 Act in intestate succession.
If Si had then died, prior to I956 his property would have passed
by inheritance to his brother; Dayabhaga did not recognize the sister
as an heir. Under the Hindu Succession Act, the sister is an heir
equally with the brother; thus after 1956 both sisters (DI and D2) and
S2 would succeed in equal shares to the property of their brother (Si).
The Mitakshara sisters took no share in the coparcenary property of
their brother because the rule of survivorship applied to the situation.
The absence in Dayabhaga of both male birthright in joint family
property and succession by survivorship means that the Hindu Suc-
cession Act had a much more comprehensive and dramatic effect on
the legal position of the Dayabhaga daughter than on the Mitakshara
daughter. Since the son does not take a share of the Dayabhaga
father's property on birth, all of the father's property passes by
inheritance. Since all Dayabhaga property passes by inheritance, in
the absence of a will, it all comes under the intestate provisions of the
Hindu Succession Act which make sons and daughters simultaneous
and equal heirs.
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LUCY CARROLL
Reform Options
There are two approaches that could be taken toward amelioration of
the Mitakshara daughter's position.
Option I: Creation of birthrightforfemales. The daughter as well as the
son could be given a right by birth in the joint family property. This
has one clear advantage in that the daughter, if she had such a
birthright, could not be disinherited either by her father's will or by
his renunciation in favour of the coparceners (renunciation cannot be
in favour of any particular coparceners and must be in favour of the
coparcenary group as a whole).
Such an approach was in fact taken by the Bill under consideration
in Andhra Pradesh a couple of years ago which proposed to make
daughters members of the coparcenary by birth in the same way that
sons are members by birth. The statement of objects and reasons set
out with the Andhra Pradesh Bill is particularly interesting because of
the direct connection it makes between the dowry problem and
inheritance rights:
The Hindu Succession Act, 1956, governs the property rights of Hindus and
provides for devolution of property. Women are not members of the
coparcenary under Hindu Mitakshara law and therefore they are not entitled
to claim partition in coparcenary property, and such exclusion of daughters
has led to the creation of socially pernicious dowry system with its attendant
social ills. In order to eradicate this ill by positive means which will
simultaneously ameliorate the condition of women in Hindu society, it is
proposed to confer equal rights on Hindu women along with male members
so as to achieve the constitutional mandate of equality by suitably amending
the said Act.'2
However, this approach very quickly runs into complications.
These complications basically arise because of the rule of survivorship
obtaining in the Mitakshara coparcenary and the fear that a non-
agnate of the property-owning group (e.g., daughter's daughter or
daughter's son) might end up with a coparcenary right to a major
interest in the property simply through the operation of survivorship
and the dying out of other branches. The Andhra Pradesh Bill
immediately encountered problems concerning the position of the
daughter's children. Clearly it seemed, if a woman were to be made a
coparcener by birth, she would have to be a coparcener with quite a
2 Quoted in Manushi, Aug.-Sept. 1983, p. 8.
8o6
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DAUGHTER'S RIGHT OF INHERITANCE IN INDIA
different status and quite a different set of rights and interests than
those possessed by a male coparcener.
Option 2: Abolition of birthright and survivorship. This approach has the
advantage of tremendous simplicity, coupled with the fact that it
would assimilate the Mitakshara system to that of the Dayabhaga,
thus constituting a step in the evolution of a Uniform Civil Code. The
suggestion that the right by birth presently enjoyed by Mitakshara
males be abolished-simple, obvious, and elementary as it may
appear to the outsider-is nothing less than revolutionary in the
context of the immense emotional appeal that the concept of male
birthright has for men. Consider, for example, the following extract
from Ramesh Chandra Nagpal's recent tome on Hindu law:
The son's right by birth in the interest of his father in the joint family
property should be admitted in all schools. It is a commendable rule of the
Mitakshara. It deserves respect ... by all the legal systems of the world. It
gives economic security to every man from the day he comes into the world
... Although the right to maintenance given to a child also gives security to
him, yet the right by birth is still better. It is in addition to the right of
maintenance. Again, the right to maintenance is lost on attaining majority.
The right acquired by birth in the joint family property is a life-long right.'3
The contradistinction Mr Nagpal is here making between the right
to maintenance and the proprietary right from birth neatly sums up
the difference between the rights of daughters and sons in the Mitak-
shara joint family property, not only under the traditional system, but
also as largely carried over into the present system under the Hindu
Succession Act. It apparently does not occur to him that the security
he so highly values for himself could be equally desired by women. It
also apparently does not occur to him that the security he so highly
values and claims for himself is very greatly enhanced by the fact that
his sisters do not have birthrights in the property, a fact which swells
considerably the share he obtains by and from his birth.
With the abolition of male birthright and survivorship, all Mitak-
shara property, like all Dayabhaga property, would pass by
inheritance and be governed by the Hindu Succession Act. Under the
Hindu Succession Act the daughter is an equal and simultaneous
intestate heir with the son.
One must stress the daughter's rights as an intestate heir, because
of the right of a Hindu to leave a will. The Dayabhaga owner even
13 Ramesh Chandra Nagpal, Modern Hindu Law (Lucknow: Eastern Book Co.,
1983), p. 600.
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before I956 had the power of disposing of his property, both joint and
separate, by will; prior to the Hindu Succession Act a Mitakshara
coparcener generally could not so dispose of his interest in joint
property.
The disadvantage of reform which improves the position of the
Mitakshara daughter as an intestate heir (as opposed to reform along
the lines contemplated by the Andhra Pradesh Bill which aimed to
give daughters a birthright in the property) is that the intestate heir
can be disinherited by will. The Dayabhaga daughter, whose position
the 1956 Act so dramatically improved, is presently in this situation,
i.e., capable of being disinherited by will.
Perhaps it might be worth considering adopting in Hindu law the
principle of Muslim law which limits the testamentary freedom of an
individual to a given proportion of his estate (in Muslim law this
proportion is one-third), and requires the remaining bulk of the prop-
erty to pass according to the rules of intestate succession.
A restriction on testamentary disposition would be a new disability
for the Dayabhaga property owner, who has long enjoyed the right to
dispose of his property by will. But it would not be a 'new' disability
on the Mitakshara holder of interest in joint family property because
prior to I956, except in Bombay and Madras states, he had no power
to dispose of this interest by will.
Concluding Remarks
Casual assertions, such as the quotation with which I commenced this
essay, to the effect that the Hindu Succession Act 'gave equal right of
inheritance to the daughter along with the son','4 must not be allowed
to obscure the fact that the Act did not give the vast majority of Hindu
women anything approaching equal rights with her brother in the
family property.
While we ponder the problem and consider reform options, it would
be very interesting and useful to know what effect the Hindu Suc-
cession Act has had on Dayabhaga succession in actual practice.
Abstract legal rights are one thing; what happens down on the ground
is often something quite else. Has the Dayabhaga daughter claimed
and obtained her share of the property? If not, why not? Are
daughters even aware of their new rights? Are wills being used to
'4 Supra note i.
8o8 LUCY CARROLL
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DAUGHTER S RIGHT OF INHERITANCE IN INDIA
disinherit daughters? etc., etc. The Hindu Succession Act has been in
force for thirty years and, as far as I am aware, there has been no
research into its actual impact and implementation. It would be par-
ticularly worth looking into the Dayabhaga situation, given the prob-
ability that reform will (eventually) be in the direction of assimilating
the Mitakshara coparcenary to that of the Dayabhaga.
Appendix
The following tables summarize the position of E's
daughter (figure 2) in the situations discussed in the text.
TABLE I
E dies: daughter's share in E's estate*
Mitakshara-pre- 1956 None (joint & separate)
Mitakshara - post- 956 1/12 (joint)
I/4 (separate)
Muslim i/6
Dayabhaga-pre- 1956 None
Dayabhaga- post- 1956 I/4
TABLE 2
E has died; now Si dies: sister's share in brother's estate**
Mitakshara - pre-1956 None (joint & separate)
Mitakshara-post-1956 None (joint)
I/3 (separate)
Muslim 1/4
Dayabhaga-pre- 1956 None
Dayabhaga-post-1956 1/3
* If daughters and sons inherited equally, daughter
would take 1/4.
** If sisters and brothers inherited equally, sister would
take 1/3.
809
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