Right to property is a basic right which could be considered as emanated fundamental right under Article 21 of the Constitution of India, if we extend the meaning of the word “life” so far as land property is concerned of any raiyat due to reason that livelihood of majority persons living in rural India are maintained from the income of land property. In the instant case Mrinalini a widow having regard to the Women’s Right to Property Act got life interest over the property to enjoy the usufruct thereof for her maintenance of livelihood, which otherwise could be considered as for her maintenance of livelihood in terms of Article 21 of the Constitution of India at the present moment at the post constitution era. The conceptual idea of statutory codification of Hindu Women’s Right to Property Act, 1937 by providing the provision of “women’s estate” is a departure and/or a serious positive turn in social angle as well as in socio-economic field, in favour of women’s which earlier was not so recognised by any statutory codification save and except the “sastrik” provision of Hindu law in the nature of “Stridhan”. The Hindu Women’s Right to Property Act, 1937 accordingly provided a positive stipulation under Section 2 to this effect “notwithstanding any rule of Hindu law or custom to the contrary, the provision of Section 3 shall apply where a Hindu dies intestate”. In view of that, a new vista was opened or new window was opened, providing right to the property to a limited extent, as envisaged under Section 3 of the said Act by bringing it out from the shakle of Sastrik law and/or the custom and as such by non-obstante clause under Section 2, the legislatures by their wisdom allowed women to enjoy the property in the same share as of a son, subject to limitation under sub Section 3 of Section 3 as prescribed thereto, but with a provision of right to claim partition as a male owner. This is a historical approach of the legislature to provide the women’s right to property which naturally is nothing but a provision having an objective purpose to provide maintenance to the women and social and financial security under the said Act. To make a concrete stability of women’s right to property at par with the male member of the family guided by the Hindu law, the law was developed further by enacting Hindu Succession Act, 1956 whereby and whereunder a provision under Section 14 was made providing absolute ownership right without any embargo as made in earlier Hindu Right to Property Act, 1937 about life interest of the property and thereby absolute ownership right with right title and interest and possession was given in respect of properties “possessed” by the Hindu Women. The Hindu Women’s Right to Property Act, 1937 accordingly stood repealed by Section 31 of Hindu Succession Act, 1956 prior to repeal of the said section by repealing and amendment Act 1960 being Act 58 of 1960. The effect of such repeal under Section 31 of Hindu Succession Act, 1956 by reason of Section 6 of General Clauses Act, 1897 did not in any way affect the right already acquired by the widows under Hindu Women’s Right to Property Act, 1937 and repealing of Section 31 subsequently by repealing and amending Act, 1960, shall not be understood as reviving the two acts namely the Hindu Law of inheritance amendment Act, 1929 and Hindu Women’s Right to Property Act, 1937.
On interpretation of the word “property possessed by a female Hindu” stipulated in section 14 of Hindu Succession Act, it was opined by Court of law that even joint possession or symbolic possession through some other else would satisfy possession of Hindu women. The explanation of sub Section 1 and Section 14 defined the word property on considering the object and scope of Section 14 conferring greater right of women and objective purpose of the present section was two fold namely to remove disability of a female to acquire and hold property as an absolute owner and secondly to convert any estate already held by women on the date of commencement of the act as a limited owner, into a basic estate. As a natural corollary of that in case of her death intestate she becomes the fresh stalk of the deceased and the property devolves by succession on her own heirs. Section 14 otherwise is a section introduced as a step of practical recognition satisfying, Article 14 of the Constitution of India and to lift the women from a subservent position in the economic field to a higher pedastal, so that they could exercise full power of enjoyment and disposal of the proerty held by them as owners overcoming the revival limitation about their right of ownership and the male dominancy as was prevailing earlier. This issue was dealt with and considered by the Apex Court in details in a case Bai Vijaya v. Thakuri Bai Chalabhai reported in (1979) 3 SCC 300, by holding that enacting Section 14 of Hindu Succession Act, 1956 legislatures removed the traditional limitation on the power of disposition of property by female Hindu. Reliance is also placed to the judgement passed in the case Munnalal v. Raj Kumar reported in AIR 1962 SC 1493. The provision, Section 14, was given retrospective effect in view of very nature of right vested to the female Hindu converting limited right of women’s estate to absolute ownership.
The conflict of opinion in between different High Courts on the question of prospectivity or retrospectivity of the statute has been finally settled by the Supreme Court in the case Kotturi Swami v. Veeravva reported in 1959 Suppl 1 SCR 968 corresponding to AIR 1959 SC 577 by holding, inter alia, that where a woman is in possession of property whether actual or constructive and she has acquired the property before the act came into effect, she becomes absolute owner and if the alienation of such property is made subsequent to commencement of the Act, the revertioners cannot question it though the alienation is not for any religious purpose or for any legal necessity of female. The Supreme Court further has considered the effect of Section 14 by holding that this salutary provision should not be ignored on technicalities about vesting or absolute ownership of the property to the Hindu women, in the case Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma reported in AIR 1996 SC 869.
The word “possession” of Section 14, has been judicially interpreted by the Apex Court to this effect that it should be considered in the broad sense and the property need not be in actual possession of the female. It is held further that it is sufficient if she has a right to recover possession according to law. This view expressed in the case Kothuruswami v. Veeravva reported in AIR 1959 SC 577 by holding that a property is said to be possessed by a person if she is a owner even though she may for the time being put out of actual possession or even though she is in constructive possession. The Apex Court considered this principle by holding, inter alia, that “possessed of ” word of the section is intended to gather all cases of possession in law in the case Mangal Singh v. Rattno (Smt.) reported in 1967 SC 1786. The constructive possession would be sufficient, also is the view expressed in the case Dindayal v. Raja Ram reported in (1970) 1 SCC 786.
Having regard to the conceptual idea of enacting Hindu Women’s Right to Property Act, 1937 and Section 14 of the Hindu Succession Act, 1956, it is abundantly clear that the legislatures at their wisdom practically had given the right to the women at par with the right with the male members of the female and that right was initially under the Hindu Women’s Right to Property Act, prescribing limited right as women’s estate, which was nothing but a right in the angle of providing maintenance and/or subsistence allowance and as a sequence same could be considered alike provision of livelihood under Article 21 of the Constitution of India being an emanated fundamental right at post constitution era. The word “life” of Article 21 of Constitution of India also engulf the maintenance/subsistence issue, to maintain the livelihood in that angle. The concept of Article 21 of Constitution of India could be applied in the instant case while adjudicating the right of Mrinalini as existing prior to omission of Article 19(1) (f) by Constitution (44th )Amendment Act, 1978 w.e.f 20.6.1979 over the non-agricultural land under Hindu Succession Act, 1956 and this right cannot be said to have been time barred for its effect and/or cannot be extinguished without any fair procedures of law by any other statutory enactment, overriding said right. A fundamental right or emanated fundamental right, is not barred by limitation, for its enforciability. There is also no question of waiver of any fundamental right or emanated fundamental right and also constitutional right under Article 300A. Since the right to livelihood was the objective purpose of enactment of Hindu Women’s Right to Property Act, providing limited life interest over the non-agricultural land and in some states it was for agricultural land also, the issue goes to the root of the point of constitutional right of property under Article 300A as well as the right under Article 21 by its extended meaning of the word “life” which encompass ‘livelihood’. This right in my view cannot be curtailed/restricted and cannot automatically be evaporated/extinguished by technicalities of limitation point as has been held by the Learned Tribunal below. Right of inheritance and succession over a property, cannot be the subject matter of limitation to allow the State who is a “model authority” to deprive women from exercising her right and/or to deprive the legal heirs of such women from the said right. [ Calcutta High Court (Appellete Side) Rahul Dey Sarkar & Ors vs The State Of West Bengal & Ors on 6 October, 2010 IN W. P. L. R. T No.246 of 2008]