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Hindu Women's Right To Property Act, 1937 : A Path Not So Paved

"He, who has a why to live for, can bear with almost any how."    Friedrich Nietzsche

The Constitution of India grants rights to every Indian citizen, especially in the shape of fundamental rights, irrespective of his caste, creed, gender, and race, for his protection, assertion, defence, and livelihood. Articles 14, 15, and 16 of the Constitution not only deter discrimination against women but also, in appropriate circumstances, provide a free hand to the State to implement protective discrimination, especially in favour of women. Despite the equality so guaranteed by the Indian Constitution, and other laws, women in India were not entitled to any share in the property held by a male, in earlier times.

In older times, much before the enactment of any codified law for the governance of Hindu property and much prior to the adaption of the Constitution of India, the property of a Hindu male was inherited by males only. Though there are adequate proofs in the historical Vedas and commentaries which justify that women were capable of holding property, however, they were not given any such rights. Moreover, the transactions carried out by them were considered to be without any legal recognition and were often subjected to custom. The property held by a Hindu woman was bifurcated into Stridhan and Non-Stridhan. The former was further divided into Saudayika and Non-Saudayika. While a woman had absolute rights over her Stridhan(Saudayika) property, she only had a limited right with regard to other properties held by her.

Before the enactment of the Hindu Women's Right to Property Act 1937, women were not entitled to a share in the joint family property, and succession was governed by survivorship. As per the rules of survivor ship, on the death of a member of a joint and undivided family, his share in the joint family property would pass on to the surviving coparceners, which included only the male members of the family. Thus, prior to 1937, there were no codified laws to deal specifically with the Hindu woman's right to property. Where disputes arose, they were settled in accordance with the customary practices.

The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights. With the introduction of the Hindu Women's Right to Property Act, 1937, the widow of the deceased husband now had a right to her husband's property after his death. Unlike previously, where the property was divided among the surviving coparceners by the doctrine of survivorship, now it was the widow who had the sole right to such property. However, she only had limited rights (popularly called "limited estate") over such property, which remained with her till her death. The said enactment, which was passed after much voicing of discontent over the unsatisfactory condition of women's rights, came as a huge protection for women who were widows and were left unprovided for with nothing after the death of their husbands. The act clearly lays down that it shall be applicable only to cases where no testament regarding succession has been made by a Hindu male and he dies intestate. The intent of the said act was only to provide protection to widows by recognising their right to a limited estate even after the death of their husband. The rights and protection offered under the 1937 Act were not only to the widow of the deceased but also included the widow of a predeceased son and also the widow of a predeceased son of a predeceased son (widow granddaughter-in-law), but no other female, including a daughter, was included in the ambit of the said act. The said law was made applicable to all schools of Hindu law, including Dayabhaga and Mitakshara.

Section 3 of the 1937 Act, deals with the devolution of property. It lays down that "Devolution of property:-

(1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.

(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies."

Though the said Act nowhere defines the word "property" and a cursory reading of section 3 clearly shows that the equal property as to a son, were given to the widow, predeceased son's widow and predeceased grandson's widow, but when the said Act came into force then the same was voiced opposition and resentment on the ground that agricultural land cannot be said to be included in the said Act, and no limited right in the agricultural property can be said to be given to a widow woman on that accord.

The said conflict about exclusion of agricultural land from the purview of 1937 Act, was settled by a decision of Federal Court in AIR 1941 Federal Court 72.

The following questions were considered by the Federal Court:-

"(1) Does either the Hindu Women's Rights to Property Act, 1937 (Central Act, 18 of 1937), which was passed by the Legislative Assembly on 4th February, 1937, and by the Council of State on 6th April 1937, and which received the Governor-General's assent on 14th April 1937, or the Hindu Women's Rights to Property (Amendment) Act, 1938 (Central Act, 11 of 1938), which was passed in all its stages after 1st April 1937, operate to regulate (a) succession to agricultural land? (b) devolution by survivorship of property other than agricultural land?

(2) Is the subject of devolution by survivorship of property other than agricultural land included in any of the entries in the three Legislative Lists in Sch. 7, Government of India Act, 1935?"

The observations of the Federal Court relevant for the present purposes were:-

"..........After 1st April 1937, the Central Legislature was precluded from dealing with the subjects enumerated in List II of Sch. 7, Constitution Act, so far as the Governors' Provinces were concerned. Laws with respect to the "devolution of agricultural land" could be enacted only by the Provincial Legislatures (entry No.21 of List II), and "wills, intestacy and succession, save as regards agricultural land" appeared as entry No.7 of List III, the Concurrent List. Act 18, read with the amending Act of 1938, endeavoured to improve the position of Hindu widows in two classes of cases (a) where by the operation of the principle of survivorship the widow is excluded from enjoyment of the share of her husband in property which he held jointly with other coparceners; and (b) where, even apart from the rule of survivorship, the widow is excluded from claiming any share in her husband's estate by reason of the existence of sons, grandsons or great-grandsons of the deceased who under the law take in preference to the widow. Provision is also made for securing a share to a widow even in cases where her husband had pre-deceased the last male owner (S.3 (1), first proviso). The Act purports to deal in quite general terms with the "property" or "separate property" of a Hindu dying intestate, or his "interest in joint family property"; it does not distinguish between agricultural land and other property and is therefore not limited in terms to the latter."

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The questions were answered by the Federal Court as under:-

"......(1) The Hindu Women's Rights to Property Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938, (a) do not operate to regulate succession to agricultural land in the Governors' Provinces; and (b) do operate to regulate devolution by survivorship of property other than agricultural land.

(2) The subject of devolution by survivorship of property other than agricultural land is included in entry No.7 of List 3, the Concurrent List."

The said decision of the federal court lays down that the Act of 1937 shall not apply to or include agricultural land. Thus, what was welcomed as a revolution for the protection of widows' rights was held to be available only for granting limited rights in properties other than agricultural land.

After the said decision, many states, like UP, Bihar, Maharashtra, and a few others, amended the 1937 Act and passed an extension bill in order to make the 1937 Act applicable to include agricultural land in its ambit.

However, there were many States, including the erstwhile Punjab, where no such extension to include agricultural land was provided. The decision of the Federal Court (Supra) was also considered by a Division Bench judgement of the Punjab and Haryana High Court in Hari Dass v. Hukmi, 1965 AIR (Punjab and Haryana) 254. The Division Bench was seized of the matter arising out of a decision by a Single Bench of the High Court whereby the suit filed by the appellant therein was dismissed.

While holding that Act 18 of 1937 was not within the legislative competence of the Central Legislature when it was enacted so far as agricultural land was concerned, the learned single judge was of the view that on the enactment of the Constitution, the shadow that had been cast on it was lifted, inasmuch as under List III of the Seventh Schedule, item 5, the subject-matter of "Wills, intestacy, and succession" came within the concurrent field without the qualification which was attached to that subject in the Government of India Act, in item 7 of List III. It relied on a decision of the Supreme Court in Bhikaji Narain v. State of Madhya Pradesh, AIR 1955 Supreme Court 781, and observed -

"The impugned Act had suffered only from a temporary eclipse and the shadow which had been cast on the impugned Act was the Constitution of India *****"

Thus, the question before the Division Bench was whether the Act of 1937 was applicable to agricultural land after the coming of the Constitution of India.

The Division Bench, relying upon the decision of the Federal Court in Umayal Achi v. Lakshmi Achi, AIR 1945 Federal Court 25, and the Lahore High Court in Udham Kaur v. Parkash Kaur, AIR 1945 Lahore 282, held that:-

"In the present case Act 18 of 1937 as interpreted by the Federal Court and the Lahore High Court governed evolution and succession of property other than agricultural land. It was a valid piece of legislation qua that property. There was no question of any shadow being removed after the Constitution came into force and there had to be fresh legislation in order to make Act 18 of 1937, applicable to agricultural land also. In this view of the matter the decision of the learned Single Judge cannot be sustained on the main point."

Thus, it was held that even after the coming of Constitution of India came into force, the cloud casted upon inclusion of agricultural land under the 1937, was not removed and the said Act shall not govern the succession in respect to thereof. It may be mentioned that the Federal Court in Umayal Achi v. Lakshmi Achi, AIR 1945 Federal Court 25 (Supra) as relied upon by Division Bench had further relied upon the decision of Federal Court in 1941 AIR federal Court 72 to hold that agricultural land shall not be included under the 1937 Act.

In the meantime, with the passage of time and development, a codified law to deal with the succession and inheritance of Hindu's was passed and Hindu Succession Act, 1956 came into force on 17th of June, 1956.

The said Act repealed all the previous Acts and, by virtue of section 4, unless expressly provided, had an overriding effect on all the Acts, usages, and customs with respect to any matter for which provision was made in the act.

Furthermore, by virtue of section 14 of the said Act, any limited right given to a woman in movable and immovable property, whether given before or after the commencement of the Act, shall be deemed to be her absolute property by virtue of section 14(1).

Section 14(2), on the other hand, carved out an exception to the said rule, stating that property acquired by a Hindu female by way of gift, will, or any other instrument, or a decree or an award, conferring restricted rights to her, shall not become her absolute property by virtue of section 14.

14. Property of a female Hindu to be her absolute property:-

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Thus, after the coming of the Hindu Succession Act, 1956, any property that was held by a Hindu female, whether before or after the commencement of the said act and which does not fall under the exception of 14(2), shall be held by her in an unrestricted and absolute manner. The word "possessed" as incorporated in section 14 was further held by various judgements of the Supreme Court to include any kind of remote possession, be it constructive, physical, or even a right to possess.

The result of the incorporation of this section led to a situation whereby all the limited rights given to a female Hindu under the 1937 Act became absolute by virtue of section 14(1) of the Hindu Succession Act. However, by virtue of judicial precedents as discussed above, the said section was unable to provide any benefit to the Hindu Female with respect to any agricultural lands, as the same was held to be not included in the ambit of 1937 Act, and no Hindu Widow was entitled to even a limited right in the agricultural land under the 1937 Act.

The ratio of exclusion of agricultural land under the 1937 Act, was again put to test by the Supreme Court in Vaijnath v. Guramma 1999 AIR (SC) 555 whereby, while examining the scope of 1937 Act viz a viz Hyderabad (application of Central Acts) 1952, held that there is nothing in the 1937 Act which would exclude the agricultural land. Thus, it was held that federal court judgement shall not apply and the said Act shall also be deemed to include agricultural land. It was held that :-

"............The language of the Hindu Women's Right to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words 'property' as well as 'interest in Joint Family Property' are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women's Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women's Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present context would clearly cover agricultural lands under the word 'property'. This Act also received the assent of the President under Article 254(2) and, therefore, it will prevail.

The appellants, however, rely upon a subsequent Act passed by the State of Hyderabad, namely, Hyderabad Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1954. Section 2 of the said Act provides that "term 'property' in the Hindu Women's Rights to Property Act as in force in the State of Hyderabad shall include agricultural land. This Act received the assent of the President on 15th October, 1954 and was published in the State Gazette dated 22nd of October, 1954. It was submitted that prior to the enactment of the Hyderabad Hindu Women's Right to Property (Extension to Agricultural Lands) Act, 1954, the Hindu women's Right to Property Act as enacted in 1952 would not apply to agricultural land. The High Court has rightly negatived this contention. A subsequent Act cannot be used to interpret the provisions of an earlier enactment in this fashion. The language of the earlier Act is wide enough to cover agricultural land also. In the entire Hindu Women's Right to Property Act, 1937, there is nothing which would indicate that the Act does not apply to agricultural land. The word 'property' is a general term which covers all kinds of property, including agricultural land. A restricted interpretation was given to the original Hindu Women's Right to Property Act, 1937 enacted by the then Central Legislature, entirely because of the legislative entries in the Government of India Act, 1935, which excluded the legislative competence of the Central Legislature over agricultural lands. Such is not the case in respect of the Hindu Women's Right to Property act, 1937, as enacted by the State Legislature of the State of Hyderabad. The ratio of the Federal Court judgment, therefore, would not apply......"

The ratio of the scope of the 1937 Act to include agricultural land was again tested by the Supreme Court in Babu Ram v. Santokh Singh (Deceased) through LR's, 2019 AIR SC 1506, whereby the Supreme Court was dealing with a judgement of the Himachal High Court with respect to the inclusion of agricultural land with respect to the right of premption under section 22 of the Hindu Succession Act, 1956. While dealing with the aspect and scope of section 22 to include agricultural land, the Supreme Court discussed the comparison between the Government of India Act, 1935 and the Constitution of India. It also discussed various judgements under the 1937 Act, including the Federal Court judgement whereby agricultural land was excluded from the scope of the 1937 Act. While specifically holding that section 22 of the Hindu Succession Act 1956 should apply to agricultural land also, it was held that:-

"13. In the aforesaid background, we are called upon to decide the applicability of Section 22 of the Act in respect of agricultural lands. Before we consider the issues in question, we must refer to the decision of this Court in Vaijanath and ors. v. Guramma and anr., 1999(1) RCR (Civil) 210 : (1999) 1 SCC 292. In that case matters pertaining to intestacy and succession relating to joint family property including agricultural land, were dealt with by a state law which had received the assent of the President. Following observations of this Court, are relevant for the present purposes:-

"8. There is no exclusion of agricultural lands from Entry 5 which covers Wills, intestacy and succession as also joint family and partition. Although Entry 6 of the Concurrent List refers to transfer of property other than agricultural land, agriculture as well as land including transfer and alienation of agricultural land are placed under Entries 14 and 18 of the State List. Therefore, it is quite apparent that the Legislature of the State of Hyderabad was competent to enact a Legislation which dealt with intestacy and succession relating to Joint Family Property including agricultural land. The language of the Hindu Women's Rights to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words 'property' as well as 'interest in Joint Family Property' are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women's Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women's Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present context would clearly cover agricultural lands under the word 'property'. This Act also received the assent of the President under Article 254(2) and, therefore, it will prevail."

14. When the Federal Court was called upon to consider the matter, Entry 21 of List II of 1935 Act had inter alia dealt with "transfer, alienation and devolution of agricultural land". It was in the exclusive domain of the provincial legislatures. The idea that the provincial legislatures were alone entitled to deal with matters relating to "transfer, alienation and devolution of agricultural land" was again made clear in Entry 7 of List III by expression "...succession, save as regards agricultural land" which dealt with concurrent powers. The provincial legislature had thus exclusive competence with regard to transfer, alienation and devolution of agricultural land. In the circumstances, the Federal Court had answered the first question that the provisions of Hindu Women's Rights to Property Act, 1937 and Hindu Women's Property (Amendment) Act, 1938 would not regulate succession to agricultural lands in the provinces.

15. But the situation underwent considerable change after the Constitution of India was adopted.

(i) The subjects "Transfer, alienation of agricultural land" are retained in the State List in the form of Entry 18 but the subject "devolution" was taken out.

(ii) As against earlier Entry 7 of List III where the subject, "succession" came with express qualification, "...save as regards agricultural land", that qualification is now conspicuously absent in comparable Entry 5 in the present List III. The expression in Entry 5 today is "...intestacy and succession". The changes indicated above as against what was earlier available in Entry 21 of List II and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows "succession" in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to "transfer, alienation of agricultural land" which are transfers inter vivos, the competence under Entry 18 of List II is with the State legislatures but when it comes to "intestacy and succession" which are essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as State legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will have to be dealt with...."

The judgement in Babu Ram's case laid down that after the coming into force of the constitution of India, any distinction that was there earlier with respect to the State list and Central list stands removed, and resultantly, no distinction can be made between agricultural and non-agricultural land. The Supreme Court clearly discussed the scope of the 1937 Act and the Federal Court judgement and many subsequent judgements which were passed on the basis of that judgement to hold that since the said distinction between state property list and Central list is no longer good, the word property, for all intents and purposes, shall be deemed to include agricultural land too.

Thus, with the said question having been decided in favour of the widow, holding that the provisions of the 1937 Act shall apply to agricultural land as well. The unrest that was caused by earlier decisions of the Federal Court and other judgements following that has been put to rest. As a result, it can safely be inferred that any restricted or limited right that the Hindu Widow derived in a property under the 1937 Act and which was acquired after the coming of Indian constitution, shall become her absolute property under section 14(1) of the 1956 Act.

(The author is a practicing advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

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