AFTER Independence, we gave to ourselves a Constitution that had a vision of equality. We also enacted many laws, and important among them were laws that governed the Hindus. The aim of the Hindu Succession Act was to move the inheritance laws of the Hindus from a policy of gender inequality towards substantial equality. One may say that the Hindu Succession Act was one of the earliest legislations to reflect our Constitution’s vision. Before British colonial rule, the property rights of Hindu women were very limited. Even thereafter, and before Independence, the steps taken for enabling women economically by parity in succession and inheritance rights were small and tentative. In India, where formal social security is inadequate, having claim to inherited wealth, however small, may sometimes decide the difference between financial security and destitution.¹

In this paper I have chosen to comment on a case which shows how the Supreme Court in 1977 was in tune with our Constitution.² It has not been a steady march towards equality, but more of that later. This case is about the Hindu woman’s right to property. I first set out the laws as they were in ancient India, then the laws that were in force in Colonial India, then I set out the facts of the Tulasamma case and how it contrasts in approach with another more recent Supreme Court case and why I think this 1977 case is important.

In the Tagore Law Lectures 1878, Sir Gooroodas Banerjee said that the ancient law is remarkable for the stringency of its provisions against the proprietary rights of women. He also added that ‘nowhere were the proprietary rights of women recognized so early as in India.’³ According to P.V. Kane, even the Vedas mention stridhana. There are six sources from which this property came to the woman. While the ancient texts differed amongst themselves regarding the mode of devolution of the woman’s estate, almost all schools agreed that the heir to a woman’s stridhana was the mother, after the husband. From a discussion of the various texts in the Tagore Law Lectures referred to above, we see that even in ancient times when Manu said, ‘Na Stree Swatantryam Arhati’ (The woman does not deserve independence),⁴ the sages Devala and Kathyayana say that no one else but the woman has the right to dispose of her property. Devala Smriti says that a woman’s property is taken by her husband, mother, brother or father, if she leaves no issues.

 

Around the 12th century AD, there developed two schools of law, the Mitakshara and Dayabhaga. According to the former, the widow could only receive a limited estate which reverted on her death to her husband’s heirs. Even under the Dayabhaga, the widow could inherit from her husband in the absence of male heirs but she again took a limited interest. There was a semblance of recognition of women having autonomy over her property in the concept of stridhana, but even that was limited. During the 1920s and 1930s, many women’s organizations worked actively and systematically for the enactment of laws to achieve social reform, especially gender equality.

In 1934 the All India Women’s Conference had even passed a resolution asking for a Hindu Code that would remove women’s disabilities in marriage and inheritance. The Hindu Women’s Right to Property Act of 1937 gave to the Hindu widow the right to intestate succession, but it was still a limited estate. The Rau Committee was asked to suggest how the 1937 Act could be amended to bring about greater equality. There was strong opposition to it. Every religion has voices of tradition which are harsh on women, and it requires great courage to row against the tide. Some felt that it was only a few ultra-modern persons who supported the change, and there was also a fear that if women were given substantial rights in parental property, the families would break up.⁵ Renuka Roy said during the debates:

‘If those who today appear to be so concerned about Hindu society would give a little thought, they would agree with what the Honourable Law Minister said, namely, that you must repair if you want to survive. I do not know who has given a prerogative to some people to stand up for Hindu society. I do not consider those who wish to bind and fetter Hindu law, which has been changing with changing times throughout the centuries, to be the exponents of Hindu society and Hindu law and those who wish to improve it and bring it back once again to the culture and heritage of our forefathers as people against it.’⁶

 

It is interesting that the integrity of the Indian family is believed to rest on inequality in rights to property, and silence with regard to domestic violence. Any attempt to touch agricultural holdings or coparcenary property was seen as disruptive of the family, any legislative attempt to arm a woman against domestic violence is seen as breaking the home. The woman it seems is not ‘part’ of the family or home, which everyone is so zealous to protect.

 

The second Rau Committee which submitted a draft of the Hindu Code bill, received oral and written opinions and we find that 31% of the opinions were in favour of absolute estate for widows while 69% opposed it.⁷ The significance of the Hindu Code was described by B.R. Ambedkar in the following words:

‘No law passed by the Indian legislature in the past or likely to be passed in the future can be compared to it in point of its significance. To leave inequality between class and class, between sex and sex, which is soul of Hindu society, untouched and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap.’⁸

I argue that this gender discrimination will be eliminated from our society only when there is true economic equality, which includes rights of inheritance and succession. As observed by Devaki Jain:

‘And gender inequality is different from other forms of inequality, such as those based on economic, racial, ethnic, religious or colour criteria. Inequality between men and women enters the so-called ultimate unit of social organization, namely the household, the family. There can be inequality between sons and daughters, between a father and a mother. To my mind this is the most sensitive and basic inequality. It pervades class, caste, religion, colour and the usual boundaries of homogeneous formations.’⁹

Personal laws are not gender-equal and do not have truly equal laws of marriage, divorce and succession.

 

Hansa Mehta had said that the bill to codify Hindu Law was a revolutionary one and ‘though we are not quite satisfied with it, it will be a great landmark in the social history of Hindus.’ Sita Ram Jajjoo of Madhya Bharat had exclaimed, ‘Here we feel the pinch because it touches our pockets. We, male members of this House are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this House.’ No one listened to him. No one listens to such voices. And in times of identity politics and vote banks it is difficult to change them, only courts which have no constituencies must do it.

Jawaharlal Nehru said: ‘No people, no group, no community, no country has ever got rid of its disabilities by the generosity of the oppressor… The women of India will not attain their full rights by the mere generosity of the men of India. They will have to fight for them and force their will on the men folk before they can succeed.’¹⁰

When we read the debates, we hear not only the voices of women like Durgabai Deshmukh, Hansa Mehta and others, many men also sang the song of equality.

Chitra Sinha writes that there were four prominent narratives in the Hindu Code Bill discourse of the 1940s and 1950s. The first was the orthodox or religious narrative, which drew authority from the scriptures; the second was the liberal narrative which looked for legislation that was modern; the third was progressive legislation which was based on gender equality; the fourth narrative was the minority narrative. She writes that:

‘The gender narrative was embedded in the minority narrative due to the "double status disadvantage" of lower caste women. It may be noted that the orthodox narrative was in an antagonistic ideological position as compared to the other three narratives, as the other narratives were essentially progressive in nature and wanted to put Indian society on the path of modernization.’¹¹

 

A reading of the debates shows the deep differences amongst the people of the newly born country and the vision that was required to build a new India. A North-South divide in terms of culture, practice and custom was often apparent. The word ‘culture’ can be used positively to mobilize people in the struggle for human rights or abused by persons exercising certain power, e.g., the religious extremists. Why does this culture impose silence? It is because culture identifies who has the power and in almost all societies, women have less power than men, and the person who speaks on behalf of culture is the person who belongs to the dominant group and therefore, is often not the woman.¹²

Culture is not monolithic as we see in the debates around the Hindu Code. So while discussing the question of divorce, it was mentioned that the customary laws of South India permitted the practice. The Hindu Mahasabha leader, S.P. Mukherjee replied, ‘I say good luck to South India. Let South India proceed from progress to progress, from divorce to divorce.’ Some of those who debated the issue were of the opinion that South India, with its more liberal customs, seemed like an outside country!¹³

 

Jawaharlal Nehru wrote in his letters to the ministers about passage of legislation relating to Hindus: ‘they are not in any way revolutionary in the changes they bring about and yet there is something revolutionary about them. They have opened a barrier of wages and cleared the way somewhat for our women folk to progress.’¹⁴ ‘Somewhat’ is a very suitable term, for we still had coparcenary property, and agricultural holdings where women’s equality was as yet not recognized. Sucheta Kripalani said: ‘We are pledged to give women equal status in society… If men and women are to work equally, if they are to function as equal citizens of the state, if they are to fulfil their obligations towards the State, how can we have such discriminatory rules in the matter of property rights of women?’¹⁵

What happens outside the home is reflected inside and vice versa. The distribution of wealth, control and autonomy is not equal in the world and in the society as we see it. Power sharing within the four walls is unequal too: access to wealth, control of finances, and ownership is almost without exception skewed in favour of men. When I say four walls, I mean the four walls of a home, cutting across caste, class and creed; there are no exceptions. The Hindu Code debates were not easy, the status quoists felt that it was not necessary and it would give rise to disruption, discord, grouse and discontent. It was in this climate that the Act of 1956 was passed. It was a leap forward in bringing equality to women.

 

In what follows, I will analyse Tulasamma v. Shesha Reddy¹⁶ and contrast it with a 2009 Supreme Court decision in Om Prakash v. Radha Charan. These are the stories of two women, Tulasamma and Narayani Devi, which led to two Supreme Court judgements in 1977 and 2009. Both dealt with women’s right to property. I will illustrate the different approaches taken in the two judgements and then argue why the Tulasamma case continues to remain relevant, indeed important for gender justice in the realm of property rights. Before we go to the stories of these two women, we will look at the two provisions which are relevant to the two cases.

Section 14(1) of the Hindu Succession Act said that 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.

 

Section 15. General rules of succession in the case of female Hindus –

(i) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother.

(ii) Notwithstanding anything contained in sub-section (i), (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (i) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

Tulasamma’s husband, Venkatasubba Reddy, and his step-brother Sesha Reddy, were a joint family when Venkatasubba Reddy died. Tulasamma filed a petition for maintenance, which was converted as a suit. It ended in a decree, and when Tulasamma put it in execution, the parties arrived at a settlement which was certified by the executing court on 30 July 1949. According to this settlement, Tulasamma only had a life estate, with no power of alienation. She continued in pos-session and in 1961 she leased some properties and sold some properties. Sesha Reddy contended that these alienations were not binding on him and were valid only till her lifetime. The High Court held that S.14(1), which granted complete ownership rights (doing away with ‘limited estate’) to female Hindus, did not apply and the compromise decree was a decree as enumerated in S.14(2), which prescribed ‘restricted estate’ to property. Tulasamma took it to the Supreme Court.

 

When Tulasamma came to the Supreme Court, the High Courts had taken contrary views with regard to S.14(1) and S.14(2). The judgement in Tulasamma has discussed in detail both the views. The High Courts of Bombay, Punjab, Calcutta and Patna held the view that a right of maintenance claimed by a Hindu widow is a pre-existing right and any instrument or document under which properties are allotted to her would only be in recognition of that pre-existing right, and would not be a document under which a new right is conferred on her. So such properties would be covered by S.14(1). This meant that her right in the property will blossom into an absolute right.

In contrast, the High Courts of Orissa, Allahabad, Madras and Andhra Pradesh held that the right to maintenance is not a right to property and so any property allotted to her in lieu of maintenance is a fresh grant of title and therefore such documents would be covered by S.14(2). The Supreme Court considered several decisions and extracted the following principles.

The provisions of Section14 must be liberally construed in order to advance the object of the act, which is to enlarge the limited interest possessed by a Hindu widow that was in consonance with the changing temper of the times; the act was a revolutionary one and every attempt should be made to carry out the spirit of the act which has undoubtedly met a long-felt need and try to do away with invidious distinction between a Hindu male and female in the matter of interstate succession.

 

The Supreme Court disagreed with the decision of the Andhra Pradesh High Court in Gopisetty Kondaiah v. Gunda Subbarayudu, where it was held that the right to receive maintenance does not confer on the Hindu women a right title or interest in the property and also that the property given to the widow in lieu of maintenance would confer on her only a restricted estate. The Supreme Court held that Section 14(1) and the explanation thereto, which are couched in the widest possible terms, must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation. In fact, they felt that would set ‘at naught the legislative process of a part of Hindu law of the intestate succession and curb the social urges and aspirations of the Hindu women.’¹⁷

The role of the court in clarifying what is obviously the result of inapt draftsmanship, was expressed by Justice Bhagwati who wrote a concurring judgement on behalf of himself and Justice Gupta while the main judgement was written by Justice Murtaza Fazal Ali. Justice Bhagwati bemoaned the fact that though the inapt draftsmanship has created endless confusion, the legislature did not care to step in to remove the constructional dilemma faced by the courts and had adopted an attitude of indifference and inaction. He expressed the problems that may be caused by legislation which either because of inapt language or unhappy draftsmanship becomes counterproductive of the result it was intended to achieve.

 

This judgement records that the object of the legislature was to ‘wipe out the disabilities from which a Hindu female suffered in regards to ownership of property under the old Shastric law, to abridge the stringent provisions against proprietary rights which were often regarded as evidence of her perpetual tutelage and to recognize her status as an independent an absolute owner of property.’¹⁸

The importance of this judgement lies in the fact that the Supreme Court was fully conscious of the restrictions under which Hindu women were burdened with regard to their proprietary rights. They understood the object for which this law was enacted. They placed it in context with the Shastraic and pre-independence laws and found that no other conclusion was possible except to hold that Section 14(1) must be given as expansive an interpretation as possible, thereby limiting the scope of Section 14(2).

There were as many High Courts in favour of a restrictive interpretation as there were for a progressive one. There indeed was a deed under which Sesha Reddy arrived at a settlement with Tulasamma giving her only a limited estate. The refrain of fragmentation of holdings, which was heard over and over again during the course of the proceeding, could have been used here too by the Supreme Court, so that the property went back to Sesha Reddy after Tulasamma. But the learned judges fully understood that Section 14(1) must be given as liberal a reach as possible.

‘…(T)he Constitution obliged us to make value judgements on issues of major social and moral importance. The problem was not whether to make value judgements, but how to do so in a principled way that was true to the letter and spirit of the Constitution. Our Constitution is intensely value-laden. The values are not only implicit in its overall democratic design. They are explicitly set out in the Preamble, the founding provisions and the manner in which the Bill of Rights has to be interpreted.’¹⁹

The importance can be understood with clarity if we look at how the Supreme Court dealt with Narayani Devi’s case more than three decades later. Narayani Devi’s property was the fulcrum of the other case. On the death of her husband soon after the marriage, she was sent out of her matrimonial home. She had no children. She lived in her parental home for many years. She studied with her parents’ support, and then she went to work. Years later, she died in her parents’ home, leaving behind her surviving mother a substantial amount of money. Her mother claimed her estate, and so did her husband’s family. The decision of the High Court was in favour of the husband’s family. The legal representatives of Narayani’s mother went to the Supreme Court.

 

Section 15(1) gives the order of devolution of the estate of a Hindu woman who dies without leaving a will, heirs of husband are second in line; mothers third in line. But S.15(2) says that notwithstanding S.15(1) the properties inherited from her father or mother would go to the father’s heirs. The scope of a non-obstante clause is well known. Section.14(2) is subject to Section 14(1), but Section 15(2) overrides Section 15(1). Why did the Parliament enact Section 15(2)? It was obviously felt that what came from the Hindu woman’s parents should not go to the husband’s heirs.

Even otherwise, Section 15(1) falls short of the bar of equality. In his book Modern Hindu Law under the Constitution, Justice A.M. Bhattacharjee asked why should the source of acquisition determine the order of succession in the case of a Hindu woman when it does not do so in the case of a male Hindu? He observed that this can only be because ‘we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property (in the case of women) cannot be full but must be somewhat limited.’ I have already discussed that in ancient times, the rights of the woman over her stridhana was absolute, and on her death it went to her mother, brother and father. It is observed that Section 15(2) is made to prevent the property from passing into the hands of persons to whom justice would require it should not pass.

 

It is unfortunate that 60 years after our independence, and more than 50 years after the passing of the Hindu Succession Act, the Supreme Court could not be persuaded to hold that it would be unjust to let the husband’s heirs inherit the property that Narayani earned with the support of her parents and when she was with her parents.

The same court did not wait for Parliament to pass a law to prevent and protect women from sexual harassment. The court went ahead holding the torch of Vishaka. If not the Supreme Court who else could have explained why this provision was made and that the word ‘inherited’ was used because at the time of the Hindu Code the members only thought of dowry in the hands of a Hindu woman and not her earnings; and why justice and equity required that Narayani’s mother should have succeeded to her estate and not the husband’s family? Sadly, the inapt language and unhappy draftsmanship prevailed with the Supreme Court and the result was an obviously unhappy one.

Rajeswari Sunder Rajan rightly observed: ‘The majority of judgements in cases relating to women reveal ingrained sexist beliefs about women’s capacities, their social roles and their sexuality, making a female litigant’s success in courts in cases of marital disputes, inheritance, workplace discrimination, domestic violence, maintenance, rape and other gendered issues a chancy matter.’²⁰

 

This is why the Tulasamma case is to me that much more important – it is a beacon light, for it understood that the dark corners in the space of women’s property rights had to be illumined by law. The judgement was given in 1977, and even in 1991 there were attempts to reopen it,²¹ but the Supreme Court refused to take the retrograde step to reopen Tulasamma’s ratio. It is not easy to let go of property rights, nor to recognize rights not recognized hitherto. In Tulasamma, the judges do not quote from academic tomes to support their stand, they merely and clearly state why Tulasamma’s right cannot be anything but absolute. Res ipsa loquitor.

 

Footnotes:

1. https://www.livemint.com/opinion/online-views/opinion-how-changes-in-family-law-can-improve-household-finance-1548345298188. html

2. V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99.

3. Taken from ‘Woman’s Absolute Property in Hindu Law: Ancient and Modern’, Sri D. Ramalinga Reddy endowment lecture given by me on 24.3.2017 at the University of Madras, Department of Philosophy.

4. We claim that our Constitution is a living document and must change with the times. I would like to suggest a new meaning for this. The woman has the right not to be abandoned, and it is the duty of the father, spouse and child to take care of her in need.

5. Bina Agarwal, ‘ "Bargaining" and Legal Change: Toward Gender Equality in India’s Inheritance Laws’, IDS Working Paper 165, 2002.

6. Government of India, Lok Sabha Debates, Volume IV, Part II, 1955.

7. Bina Agarwal, 2002, op. cit.

8. Government of India, Report of the Hindu Law Committee (1947).

9. Devaki Jain, The Journey of a Southern Feminist. Sage/Yoda Press, Delhi, 2018.

10. Reva Som, ‘Jawarharlal Nehru and the Hindu Code: A Victory of Symbol Over Substance’, Modern Asian Studies 28(1), February 1994.

11. Chitra Sinha, ‘Rhetoric, Reason and Representations: Four Narratives in the Hindu Code Bill Discourse’. Available at https://uu.diva-portal.org/smash/get/diva2:874167/FULLTEXT02.pdf

12. Prabha Sridevan, Of Vineyard Equality. Lexlab Media, Thiruvananthapuram, 2016.

13. For example, the following debates – Pandit Mukul Bihari Lal Bhargava: May I ask humbly and respectfully every Honourable Member of this house whether there is any father or mother in this land of Hindus who will relish property from his or her daughter?

Shri L. Krishnaswami Bharathi: Why not? What is the harm?

Pandit Mukut Bihari Lal Bhargava: Perhaps my Honourable friend comes not from India but from an outside country.

Shri L. Krishnaswami Bharathi: I come from South of India.

Pandit Mukut Bihari Lal Bhargava: In India no father or mother will ever think of receiving anything from the daughter.

14. Jawaharlal Nehru, Letters to Chief Ministers 1947-64. Volume 4, 10 May 1956.

15. Chitra Sinha, op. cit., fn. 11.

16. (1977) 3 SCC 99.

17. V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99, p. 47.

18. Id., p.10.

19. Albie Sachs, The Strange Alchemy of Life and Law. Oxford University Press, 2010.

20. Rajeswari Sunder Rajan , ‘A Woman’s Worth, ‘Granta 130 (22 May 2015), available at https://granta.com/womans-worth/

21. Please see Thota Sesharatnamma v. Thota Manikyamma, (1991) 4 SCC 312. The judgment of Ramaswami J ‘Section 14 was subject of critical consideration in V. Tulasamma v. V. Sesha Reddy [1977] 3 SCR 261 and its ratio has become a Tulsidalam to Hindu women as locus classicus giving forward thrust to the constitutional goal according full ownership in the property, movable or immovable, held by her as full owner thereof, redeemed her from the shackles of the women estate known to Shastric law.