Md Tarikul Islam :
Barrister-at-Law
Hindu widow’s rights of inheritance to her late husband’s property is the least known and little developed area of Hindu law and thus Hindu widows are being deprived of and thereby very often left to live a life without any means of survival. This area of Hindu law of inheritance is in dire need of much development.
Rights under present regime:
There are two schools of law regarding Hindu law of inheritance which are (i) the Dayabhagh School and (ii) the Mitakshara School. Hindu inheritance in Bangladesh is governed by the Dayabhagh School.
It is well settled law of both Dayabhagh and Mitakshara that the widow will inherit a share of her deceased husband’s property which she will hold and enjoy up to the end of her life (21 DLR 677). This is called “life estate” of a Hindu widow. The property held as life estate by a widow must of course return to the male hers of the deceased after the death of the widow. In the presence of a son or more, the widow gets an equal share as one son takes. In the absence of the son, the widow gets the entire property as “life estate” of her deceased husband left behind. In the presence of widow, deceased’s daughters cannot get any share of their father’s property. However, widow has the responsibility to provide for the maintenance of the unmarried daughters from their father’s property (13 DLR 232).
The nature and extent of widow’s life estate: The nature of widow’s estate has been extended remarkably in recent times. As long as the widow is alive, no one has any vested interest in the succession of the deceased husband (37 IC 171 PC 39 Mad 634 PC). Subject to restriction on alienation, the widow holds the property absolutely and she completely represents it (Sarkar Sastri’s P-664-667). Though a widow takes a limited estate, it is a proprietary estate in no way limited in interest, though it is limited in use (29 DLR 140 SC 154 SC, 108A 1993 BLD 415H). A widow can sell her life interest in the property or mortgage it or make a gift to it to anyone she likes (34 DLR 178). On the grounds of legal necessity, a widow can even alienate the property that she holds under the law of inheritance (42 DLR 59A).
Alienation of life estate by widow: Widow has the power to alienate the estate (i) for religious or charitable purposes (33 CWN 1042) and (ii) other purposes amounting to legal necessity (42 DLR 59A, 37 CWN 1001, 8 MIA 529).
Religious or charitable purposes may two folds: (i) performance of funeral and Sradha ceremonies of the deceased owner and the payment of debt (57 Cal 904); (ii) the performances of religious ceremonies of persons whose ceremonies the deceased owner was bound to perform eg Sradha ceremony of the husband’s mother etc and the religious or charitable acts which are supposed to conduce to the spiritual welfare of her husband (42 DLR 59A, 1994 BLD 415H). Pilgrimage to Gaya for performing the husband’s Sradha (but not pilgrimage to Benaras) is considered good religious purpose (29 DLR 139SC).
The following purposes have been held to amount to a legal necessity for which alienation may be made:
(i) Costs of taking out probate or Letters of Administration or a succession certificate in respect of the estate of the deceased owner;
(ii) Payment of arrears of Government revenue and of decrees of rent accrued due after the death of the deceased owner;
(iii) Maintenance of herself and of persons whom the deceased owner was bound to maintain, such as deceased’s mother, unmarried daughter etc.
(iv) Marriage of relations of the deceased owner, such as his daughter etc.
Widow’s rights of mutation: As the widow has clearly legal rights to own and possess the land and as she has the rights to even transfer then she should have the rights to get her name mutated to ensure that she could manage and maintain the property properly and enjoy the rights and title to it. As per Section 53C of the Transfer of Property Act 1882, to sell out the immovable property, the present owner is to mandatorily get his name mutated in the latest khatian prepared under the State Acquisition and Tenancy Act 1950. Mutation is also essential to enable the present owner to pay the land development tax to the Government and on the other hand Government treasury may also be enriched by the tax they would pay. So, mutation is essential for proper management of the land from the aspect of the owner and necessary to enable the Government to collect appropriate land development tax from the land owners.
Conclusion: On one hand, a branch of critiques suggest the present regime as quite insufficient and they claim legislative interference and pass a law to make Hindu widows and other women equally entitled as their male counterparts are. Other branch of thoughts; on the other hand, quite convinced that the present regime is quite effective and they oppose any kind of interference as the regime is part of their sacred belief in religion. We feel we may stand with any side of this debate. We welcome statutory interference to make the provisions of Hindu women’s rights of inheritance more straightforward and simple. In contrast, we also believe that the present regime is capable of providing rights to Hindu women and widows if the provisions are taken with due respect and implemented as it really should be. To draw the final thoughts, we feel that the issues relating to the appropriate implementation are the most worrying causes here to be dealt with. If we could ensure appropriate implementation of the present law of inheritance then the present regime must essentially usher great hopes for Hindu widows to live a decent respectful life with some means to survive.
Barrister-at-Law
Hindu widow’s rights of inheritance to her late husband’s property is the least known and little developed area of Hindu law and thus Hindu widows are being deprived of and thereby very often left to live a life without any means of survival. This area of Hindu law of inheritance is in dire need of much development.
Rights under present regime:
There are two schools of law regarding Hindu law of inheritance which are (i) the Dayabhagh School and (ii) the Mitakshara School. Hindu inheritance in Bangladesh is governed by the Dayabhagh School.
It is well settled law of both Dayabhagh and Mitakshara that the widow will inherit a share of her deceased husband’s property which she will hold and enjoy up to the end of her life (21 DLR 677). This is called “life estate” of a Hindu widow. The property held as life estate by a widow must of course return to the male hers of the deceased after the death of the widow. In the presence of a son or more, the widow gets an equal share as one son takes. In the absence of the son, the widow gets the entire property as “life estate” of her deceased husband left behind. In the presence of widow, deceased’s daughters cannot get any share of their father’s property. However, widow has the responsibility to provide for the maintenance of the unmarried daughters from their father’s property (13 DLR 232).
The nature and extent of widow’s life estate: The nature of widow’s estate has been extended remarkably in recent times. As long as the widow is alive, no one has any vested interest in the succession of the deceased husband (37 IC 171 PC 39 Mad 634 PC). Subject to restriction on alienation, the widow holds the property absolutely and she completely represents it (Sarkar Sastri’s P-664-667). Though a widow takes a limited estate, it is a proprietary estate in no way limited in interest, though it is limited in use (29 DLR 140 SC 154 SC, 108A 1993 BLD 415H). A widow can sell her life interest in the property or mortgage it or make a gift to it to anyone she likes (34 DLR 178). On the grounds of legal necessity, a widow can even alienate the property that she holds under the law of inheritance (42 DLR 59A).
Alienation of life estate by widow: Widow has the power to alienate the estate (i) for religious or charitable purposes (33 CWN 1042) and (ii) other purposes amounting to legal necessity (42 DLR 59A, 37 CWN 1001, 8 MIA 529).
Religious or charitable purposes may two folds: (i) performance of funeral and Sradha ceremonies of the deceased owner and the payment of debt (57 Cal 904); (ii) the performances of religious ceremonies of persons whose ceremonies the deceased owner was bound to perform eg Sradha ceremony of the husband’s mother etc and the religious or charitable acts which are supposed to conduce to the spiritual welfare of her husband (42 DLR 59A, 1994 BLD 415H). Pilgrimage to Gaya for performing the husband’s Sradha (but not pilgrimage to Benaras) is considered good religious purpose (29 DLR 139SC).
The following purposes have been held to amount to a legal necessity for which alienation may be made:
(i) Costs of taking out probate or Letters of Administration or a succession certificate in respect of the estate of the deceased owner;
(ii) Payment of arrears of Government revenue and of decrees of rent accrued due after the death of the deceased owner;
(iii) Maintenance of herself and of persons whom the deceased owner was bound to maintain, such as deceased’s mother, unmarried daughter etc.
(iv) Marriage of relations of the deceased owner, such as his daughter etc.
Widow’s rights of mutation: As the widow has clearly legal rights to own and possess the land and as she has the rights to even transfer then she should have the rights to get her name mutated to ensure that she could manage and maintain the property properly and enjoy the rights and title to it. As per Section 53C of the Transfer of Property Act 1882, to sell out the immovable property, the present owner is to mandatorily get his name mutated in the latest khatian prepared under the State Acquisition and Tenancy Act 1950. Mutation is also essential to enable the present owner to pay the land development tax to the Government and on the other hand Government treasury may also be enriched by the tax they would pay. So, mutation is essential for proper management of the land from the aspect of the owner and necessary to enable the Government to collect appropriate land development tax from the land owners.
Conclusion: On one hand, a branch of critiques suggest the present regime as quite insufficient and they claim legislative interference and pass a law to make Hindu widows and other women equally entitled as their male counterparts are. Other branch of thoughts; on the other hand, quite convinced that the present regime is quite effective and they oppose any kind of interference as the regime is part of their sacred belief in religion. We feel we may stand with any side of this debate. We welcome statutory interference to make the provisions of Hindu women’s rights of inheritance more straightforward and simple. In contrast, we also believe that the present regime is capable of providing rights to Hindu women and widows if the provisions are taken with due respect and implemented as it really should be. To draw the final thoughts, we feel that the issues relating to the appropriate implementation are the most worrying causes here to be dealt with. If we could ensure appropriate implementation of the present law of inheritance then the present regime must essentially usher great hopes for Hindu widows to live a decent respectful life with some means to survive.
