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The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c14.s2: Section 2. Widow's Right of Inheritance

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c14.s2

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Section 2. Widow's Right of Inheritance

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The proprietary rights of the wife during the coverture have been already considered in the last chapter. We shall discuss now her rights during widowhood. Let us first take up the question of her right to inherit her husband's proporty.

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We have already seen that there was a general prejudice in early times against allowing women to hold property. Even the wife, who was regarded as the husband's co-owner in the family property, had only very limited rights as against her consort. It is then no wonder that for a long time widow's right to inherit her husband's property should have remained unrecognised. Vedic texts, which declare women to be incapable of inheriting any property¹, are particularly aimed against the widow. Joint family of the patriarchal type was the order of the day; males alone could be coparceners in it, women being allowed only a maintenance. In early times the custom of Niyoga was very common; so widows without sons were very few. A vast majority of widows therefore used to get their husbands’ shares, if not directly as their heirs, at least indirectly as the guardians of their minor sons. Very often they used to marry, and so the question of giving them a share in their dead husbands’ property would not arise at all. The refusal to recognise the widow as an heir to her husband was thus causing not much actual hardship in society.

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¹ तस्मात्स्त्रियो निरिन्द्रिया अदायादीः। *T. S.*, VI, 5, 8, 2. ताः (स्त्रियः) नात्मनश्चनेशते न दायस्य चनेशते ॥ *S. Br.*, IV, 4, 2, 13. तस्मात्पुमान् दायादः स्त्री अदायादी । *M. S.*, IV., 6, 4.

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We therefore find that down to *c.* 300 B. C., the right of the widow to inherit her husband’s property was not recognised by any jurist. Vedic texts were definitely opposed to this right. Most of the Dharma-sūtra writers adopt the same attitude. Baudhāyana expressly rejects the widow’s claim on the authority of the Vedic texts referred to in the last para. Āpastamba lays down that in the absence of the son the property should devolve, not upon the widow, but upon the nearest *male sapiṇḍa*. If none such within seven degrees is in existence to claim the property, it should devolve upon the preceptor. If he also is dead, then it should be taken over by a disciple of the deceased to be spent for charitable purposes¹. This detailed scheme of Āpastamba about the devolution of property nowhere mentions or provides for the widow. The same is the case with Manu. He lays down that the property of a sonless person will first devolve upon his father, then upon his brother, and finally upon a *sapiṇḍa* and a *sakulya* in accordance to his propinquity. When none of these is forthcoming, first a preceptor, then a disciple, and finally the king should take it away¹. Elsewhere he recognises the mother also as an heir²; the widow is, however, nowhere mentioned as possessing any rights of inheritance. It is true that Kullūka, a 15th century commentator, no doubt contends that in *Manu smṛiti* IX, 185, though not expressly mentioned, the widow is intended to be understood as an heir after the son³; he is however obviously reading later ideas in the earlier text. There can be no doubt that Medhātithi, the 9th century commentator of Manu, is correct when he maintains that Manu has not recognised the widow as an heir at all⁴.

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¹ पुत्राभावे यः प्रत्यासन्नः सपिण्डः। तदभावे आचार्यः। आचार्या-भावेऽन्तेवासी हृत्वा धर्मकृत्येषु योजयेत्। दुहिता वा। II, 14, 2-4.

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¹ पिता हरेदपुत्रस्य रिक्थं भ्रातर एव च ॥ अनन्तरः सपिण्डाद्यस्तस्य तस्य हरेद्धनम् । अत ऊर्ध्वं सकुल्यः स्यादाचार्यः शिष्य एव वा ॥ X, 185, 187

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² अनपत्यस्य पुत्रस्य माता दायमवाप्नुयात् । IX, 217.

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³ न भ्रातरो न पितरः पुत्रा रिक्थहराः पितुः । पिता हरेदपुत्रस्य रिक्थं भ्रातर एव च ॥ While commenting upon this verse Kullūka says:— **अविद्यमानमुख्यपुत्रस्य पत्नीदुहितूरहितस्य च पिता धनं गृह्णीयात् ।** It will be noticed that there is nothing in the verse to justify the words **पत्नीदुहितूरहितस्य ।**

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⁴ Medhātithi’s commentary on this imporant verse is lost; we know of his views only from Kullūka’s reference to them; cf :— **अतो यन्मेधातिथिना पत्नीनामंशभागित्वं निषिद्धमुक्तं तदसंबद्धम् । पत्नीनामंशभागित्वं बृहस्पत्यादिसंमतम् । मेधातिथिर्निराकुर्वन् प्रीणाति सतां मनः ॥** On *Manu*, IX, 187.

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At about the beginning of the Christian era, both the Niyoga and the widow remarriage fell into disrepute as shown in Chapter V (*ante*, p. 174; p. 179). It was deemed to be more honorable for a widow to spend her remaining life in penances of religion than in pleasures of the family life. Leaders of society began to feel that if the widow was not to marry or get a son by Niyoga, she ought to be assigned a definite share in the family property. Early Dharmasūtra writers, however, were inclined to assign only a maintenance to the widow. This is the case with Kauṭilya also, who makes the widow's maintenance a charge upon the husband's estate, when it was resumed by the state¹.

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¹ अदायादकं राजा हरेत्स्त्रीवृत्तिप्रेतकदर्यवर्जम् । III, 5.

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It was, however, being felt that this was not a satisfactory arrangement. Jurists gradually began to come forward to plead for a better recognition of the widow's claim. Gautama put forth a modest proposal that the widow should be regarded at least as a coheir with other *sapiṇḍas*². In course of time the opinion in favour of the recognition of the widow's right began to grow stronger. Why should she get only a portion of the husband's estate, and not the whole of it? It was felt that she ought to be the sole heir and not a coheir. This view has been for the first time advocated by Vishṇu at about the beginning of the Christian era. He definitely lays down that the widow shall inherit the whole estate on the failure of sons³. About a couple of centuries later Yājñavalkya joined Vishṇu in championing the widow's

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² पिण्डगोत्रऋषिसंबन्धा रिक्थं भजेरन्स्त्री चानपत्यस्य । If we read here **स्त्री वानपत्यस्य** (in stead of **स्त्री चानपत्यस्य**) as is done in the Ānandāśrama edition of the work, the widow will be an alternative heir, and not a coheir.

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³ अपुत्रस्य धनं पत्न्यभिगामि । तदभावे दुहितृगामि । XVII, 43.

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In his *Pūrva Mīmāsā*, VII, 6, 14, Jaimini recognises the right of the wife to hold property. He is, however, probably referring to wives with husbands living, who alone were eligible to perform sacrifices according to him. It does not seem that Jaimini was inclined to recognise the widow as an heir to her husband. *Vishṇusmṛiti* would therefore be the first work to recognise this right, as stated in the text above.

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right; it is his verses which were mainly relied upon by British courts, when they recognised the right of inheritance of the widow on the failure of sons¹. It may be pointed out that the Upanishadic sage Yājñavalkya had divided all his property between his two wives, when he had renounced the world. It would therefore appear that the Yājñavalkya school was since early days more favourably inclined to recognise women's rights than was the case with other jurists.

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¹ पत्नी दुहितरश्चैव पितरौ भ्रातरस्तथा । तत्सुता गोत्रजा बंधुशिष्यसब्रह्मचारिणः ॥ एषामभावे पूर्वस्य धनभागुत्तरोत्तरः । स्वर्यातस्य ह्यपुत्रस्य सर्ववर्णेष्वयं विधिः ॥ II, 135-6.

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The proposal of Vishṇu and Yājñavalkya to recognise the widow as an heir was a sensational one. It affected the vested interests of male coparceners and therefore immediately provoked considerable and determined opposition. During the period 400-1000 A. D. jurists were divided into two schools, the orthodox one, which was not prepared to recognise the widow as an heir and the reformist one, which was bent upon agitating for the popularisation of its new reform.

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Nārada, Kātyāyana and king Bhoja of Malava (*c.* 1015- to *c.* 1055 A. D.) were the chief advocates of the orthodox view. Nārada lays down that if a man dies without any issue or heirs, his property should ultimately escheat to the king, who was to provide only a maintenance to the widow². It is clear that Nārada did not mind property escheating to the crown; he would not, however, allow it to be inherited by the widow. Kātyāyana apparently held an identical view¹. Bhoja would allow the widow to be an heir only if she submitted to Niyoga. This virtually amounted to denying her the right of inheritance, for Niyoga had become very obnoxious since 500 A. D., and no woman would have agreed to be a party to it. And even if she had consented, her ownership would have been a short-lived one; it would have terminated with the birth of the expected son.

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² अन्यत्र ब्राह्मणात्किन्तु राजा धर्मपरायणः । तत्स्त्रीणां जीवनं दद्यादेष धर्मः सनातनः । XIII, 52.

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¹ अदाधिकं रोजगामि योषिद्भृत्योर्ध्वदेहिकम् । अप्रास्य श्रोत्रियद्रव्यं श्रोत्रियेभ्यस्तदर्पयेत् ॥ Quoted by Vijñāneśvara at Yāj., II, 136. Kātyāyana and Bṛihaspati exist only in quotations and we often come across verses attributing contradictory views to them. Thus Vijñāneśvara at the above place also attributes the following verse to Kātyāyana, which clearly supports the widow’s right:— पत्नी पत्युर्धनहरी या स्यादव्यभिचारिणी । तदभावे तु दुहिता यद्यनूढा भवेत्तदा ॥ Similarly Devaṇabhaṭṭa ascribes a verse to Bṛihaspati, which concedes only a partial right of inheritance to the widow. See below p. 305 n. 2. It would appear that these books were not very carefully preserved and interpolations were often made in them by interested parties to support their own views.

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There were several thinkers who recognised this state of affairs as unsatisfactory, but had not the necessary courage to recommend that the widow should be recognised as a full heir. They proposed half way measures. Some of them recommended that the wife should be allowed to inherit property worth about 2,000 or 3,000, in addition to any Strīdhana that may have been given to her by her husband¹. Others thought that she should be permitted to inherit the moveables only². A third view was that the widow may be a deferred hair; she shonld be allowed to inherit on the failure of brothers-in-law, if her parents-in-law had no objction to the property devolving on her³.

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¹ > द्विसाहस्रः परो दायः स्त्रियै देयो धनस्य वै। भर्त्रा यच्च धनं दत्तं सा यथाकालमाप्नुयात् ॥ Vyāsa in Aparārka, p. 752. Silver Paṇa, roughly equal to a six anna piece, is the coin referred to in the verse. Its purchasing power at that time was equal to that of Rs. 2 today. Property worth 2,000 would be thus equal to property worth about Rs. 10,000 today. Mahābhārata, XIII, 82, 24 puts the limit at 3,000.

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² > यद्विभक्ते धनं किंचिदाध्यादि विविधं स्मृतम् । तज्जाया स्थावरं मुक्त्वा लभेत मृतभर्तृका ॥ वृत्तस्थापि कृतेऽप्यंशे न स्त्री स्थावरमर्हति । Bṛihaspati in *SCV*., p. 667. This text of Bṛihaspati is opposed to a number of other verses attributed to him, and may be of doubtful authority.

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³ > स्वर्यांतस्य ह्यपुत्रस्य भ्रातृगामि द्रव्यम् । तदभावे पितरौ हरेयाताम् ज्येष्ठा वा पत्नी । Śaṅkha in *Mit*. on Yaj., II, 136.

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The school of reformers, however, was not prepared to accept any such compromises. It insisted that the widows's right to inherit the full share should be recognised. It based its case on logic and reason. Bṛihaspati pointed out that the Vedas, the Smṛitis and sages of antiquity have unanimously declared that the husband and the wife are the joint owners of family property and together constitute one legal personality. A man therefore cannot be said to be completely dead as long as his wife is alive. How then can property pass on to another in the life time of the widow¹? Vṛiddhamanu points out that the widow can offer funeral obtations to her husband, and so she should be allowed to inherit his property². To remove any doubt in the matter, Prajāpati lays down that the widow has a natural right to inherit all her husband’s property, including moveables, immoveables, bullion, ornaments, stores, etc. Her right is not in the least affected even if her elderly relations, male or female, are alive. She will of course show them proper reverence, but hold the property in her own possession. If any male relation obstructs her peaceful enjoyment of the estate, it is the bounden duty of the king to punish him as a thief³.

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It is perhaps Jīmūtavāhana, who argues the widow’s case in the most masterly fashion. ‘There

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¹ आम्नाये स्मृतितन्त्रे च पूर्वाचार्यैश्च सूरिभिः ।

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शरीरार्धं स्मृता भार्या पुण्यापुण्यफले समा ॥ यस्य नोपरता भार्या देहार्धं तस्य जीवति । जीवत्यर्धशरीरे तु कथमम्यः स्वमाप्नुयात् ॥ Quoted in *Dāyabhāga*, Section XI.

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² अपुत्रा शयनं भर्तुः पालयन्ती पतिव्रता ।

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पत्न्येव दद्यात्तत्पिण्डं कृत्स्नमंशं हरेत च ॥ Quoted in *Mit.* on *Yāj.* II, 135-6.

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³ स्थावरं जंगमं हेम कुप्यं धान्यरसांबरम् ।

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आदाय दापयेच्छाद्धं माससंवत्सरादिकम् ॥ पितृव्यगुरुदौहित्रान्भर्तृस्वस्त्रीयमातुलान् । पूजयेत्कव्यपूर्ताभ्यां वृद्धानाथातिथींस्तथा ॥ तत्सपिण्डा ब्राह्मणा वा ये तस्याः परिपंथिनः । हिंस्युर्धनानि तान् राजा चौरदण्डेन शासयेत् ॥ Quoted in *Parāśaramādhava*, Vol. III, p. 536.

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These verses have been attributed to Bṛihaspati in the *Dāyabhāga*, Section XI.

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is no authority to hold that the ownership in the husband’s property, which the wife acquires at the marriage, terminates with the husband’s death. How then can it be argued that the wife’s right is destroyed the moment she is widowed? Nor can it be maintained that she is to utilise just as much of the income as may be necessary for her bare maintenance. Vishṇu says that the property of a person dying without sons will first devolve upon the widow, and then upon the daughter, parents, etc. Now it is admitted that in the above text the term property denotes the whole income of the estate, when construed with all other heirs like the daughter, the brother, parents, etc. How then can it have a restricted meaning when it is construed with the widow alone¹?

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¹ परिणयनोत्पन्नं भर्तृधने पत्न्याः स्वामित्वं भर्तृमरणान्नश्यतीत्यत्र च प्रमाणाभावात् सति पुत्रे तदधिकारशास्त्रादेव पत्नीस्वत्वनाशोऽवगम्यते ।.....। न च वर्तनौपयुक्तधनमात्राधिकारार्थं पत्नीवचनमिति वाच्यम् । ‘अपुत्रस्य धनं पत्न्यभिगामि तदभावे दुहितृगामि तदभावे पितृगामि’ इत्यत्र सकृच्छ्रुतस्य धनपदस्य पत्न्यपेक्षमकृत्स्नपरत्वं कृत्स्नपरत्वं च भ्रात्राद्यपेक्षमिवि तात्पर्यभेदस्यान्याय्यत्वात् । *Dāyabhāga*, Section XI.

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We have seen already how there were early texts, which did not recognise the widow as an heir and allowed her only a maintenance. The new school cleverly explained them away as referring to concubines or unchaste wives. The chaste widow, it was argued, could never be deprived of her inherent right to inherit the entire property of the husband². Now there can be no doubt that this interpretation, though ingenious, is altogether unjustifiable; earlier writers did undoubtedly intend to exclude from inheritance not only concubines and unchaste wives, but also chaste widows. Later champions of women’s rights could not follow the straightforward course of refusing to accept the opinions of their predecessors; they had to devise some means, whereby they could explain away the earlier contrary texts without showing any disrespect to their writers. Reform in Hindu social customs and institutions has usually taken this peculiar course owing to the great conservatism of the race.

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² यदुक्तं ‘स्त्रीणां तु जीवनं दद्याद्’ इति संवर्धनमात्रवचनं तद्दुश्शीलाधार्मिकसविकारयौवनस्थपत्नीविषयम् । Kullūka on *Manu*, IX, 186. यदपि नारदः ‘तत्स्र्त्रीणां जीवनं दद्याद्’ इति तदवरुद्धास्त्री परं पत्नीपदाश्रवणात् । *VMV.*, Sapratibandhadāya section.

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Let us resume our subject. The new school maintained that the widow’s right of inheritance was an inherent one. The only circumstance that could defeat it was unchastity. When we note the ideas current on the subject at that time, this condition would not appear to be an unexpected one. The modern law on this point is very peculiar. It allows an inheritance to devolve upon a widow, only if she is chaste at the time of its opening. Her subsequent unchastity, however, does not devest the estate.

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In spite of the able advocacy of the cause of the widow by the reform school, it took several centuries for her right to be recognised throughout India. The Deccan was more advanced in this respect than northern India. A writer of the 6th century B. C. observes that it is customary for the southerners to recognise the proprietary rights of women¹. Among the champions of widows’ rights the provenance of Bṛihaspati, Vyāsa and Prajāpati is not known, but Yājñavalkya was a southerner, and his commentator Vijñāneśvara hailed from the Deccan, as he was a court poet of the Chālukya emperor Vikramāditya VI. That the widow's right of inheritance, so enthusiastically advocated in the *Mitāksharā*, was actually recognised in contemporary Deccan can be proved from epigraphical evidence. A 12th century inscription from Karnatak, while describing the scheme of devolution of property current in a certain village, mentions the widow as the heir immediately after the son (*E. I.*, V, p. 28). An inscription from Tanjore district, belonging to the same century, declares that a lawfully wedded wife inherits the whole property of the husband, including land, cattle, slaves, jewels and other valuables (*S. I. E. R.*, for 1919, pp. 97-8).

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¹ गर्तारोहिणीव धनलाभाय दक्षिणाजी *Nirukta*, III, 5.

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The widow's right of inheritance came into recognition in northern India somewhat later. In the days of Kālidāsa (*c.* 400 A. D.), if a person died without leaving a son, his property used to escheat to the king, who had to provide merely a maintenance to the widow. This is quite clear from the *Śākuntala* episode of the merchant dying in the shipwreck, whose property was proposed to be immediately resumed by the zealous ministers of king Dushyanta. In Gujarat the widow's right of inheritance was not recognised down to *c.* 1200 A. D. King Kumārapāla of that province (1144-1173) admits frankly that his subjects were justified in their impression that their king always desired his rich subjects to die issueless, so that he may resume their property¹. A poet of his court tells us that it was this king who showed a magnanimity of mind, shown not even by kings born in the golden age like Raghu and Nahusha, and voluntarily forswore his right to the property of the 'weeping widow.'¹ It would be thus seen that this reform met with considerable opposition from the governments of the day, because it adversely affected their revenues. As a partial compensation, some of them introduced a death duty on the property of persons dying without sons (Graham, *Kolhapoor*, p. 333).

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¹ निष्पुत्रं म्रियमाणमाढ्यमवनीपालो हहा वाञ्छति । *Mohaparājya*, Act III.

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¹ न मुक्तं यत्पूर्वं रघुनहुषनाभागभरतप्रभृत्यैर्वीनाथैः कृतयुगकृतोत्पत्तिभिरपि। विमुञ्चन्सन्तोषात्तदिह रुदतीवित्तमधुना कुमारक्ष्मापाल त्वमसि महतां मस्तकमणिः॥ *Kumārapālaptatibodha*, p. 48.

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Most of the digest writers, who wrote subsequent to *c.* 1200 A. D., have recognised the widow's right of inheritance. We may therefore conclude that by *c.* 1300 A. D., the right had come to be sanctioned throughout the whole country.

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The Dāyabhāga school of Bengal liberalised the law still further in favour of the widow. The Mitāksharā school recognised the widow's right of inheritance, only if her husband had separated from the joint family before his death². An examination of the context of the verse in which Yājñavalkya mentions widow as the next heir, makes it clear that he intended to recognise her right, only if her husband was not a member of the joint family at the time of his death. This conclusion becomes further irresistible from v. 138, where Yājñavalkya lays down that when members of a family have reunited after separation, the surviving male coparceners will succeed the deceased, and not his wife¹. Vijñāneśvara is therefore correct in holding that according to Yājñavalkya only the widow of a separated coparcener can become an heir to her husband. Of course he could have liberalised the law still further by drawing further deductions from the text of Bṛihaspati, which declares that none can touch the property of a person as long as his wife is alive. He could have argued that whether the deceased was a member of the joint family or not, was an immaterial question. As long as the wife was alive, the husband ought to be regarded as living ; the inheritance will not open at all till the death of the wife. She must be therefore allowed to enjoy the property of her husband irrespective of the consideration, whether he had separated from the family or not before his death.

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² तस्मादपुत्रस्य स्वर्य्यातस्य विभक्तस्य असंसृष्टिनो धनं परिणीता स्त्री संयता, सकलमेव गृह्णाति इति स्थितम् । On *Yāj.*, II, 136,

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¹ संसृष्टिनस्तु संसृष्टी सोदरस्य तु सोदरः ॥ II, 131.

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Vijñāneśvara, however, was not prepared to take this step. He had included inherited property under Strīdhana, and he was probably reluctant to sanction a scheme of succession, whereunder extensive property would have automatically and very frequently passed out of the family to female Strīdhana heirs. He probably felt that if a coparcener effected a separation from the joint family, its members should have no grievance if his separated share passed as Strīdhana to his daughter. If, however, no separation had been effected, and the share of an undivided coparcener were still allowed to devolve on his wife, it would have passed out of the family with an alarming frequency, since unlike the Dāyabhāga school, the Mitāksharā school had declared this share as the Strīdhana of the wife. Most of the medieval jurists agree with the Mitāksharā and recognise the widow’s right of inheritance only when her husband was not a member of the joint family at the time of his death.

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To Jīmūtavāhana, the founder of the Dāyabhāga school, belongs the credit of liberalising the law still further in favour of the widow. We have seen above (*ante*, p. 268) that he would not include inherited property under Strīdhana. This was so, because he wanted to disarm social opposition to his revolutionary proposal to make the widow an heir to her husband, even when he was a member of the joint family at the time of his death. While anxious that every widow should inherit her husband’s share in the joint family property, he wanted to prevent it from going outside the family to Strīdhana heirs. He therefore did not include it under her Strīdhana.

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The Dāyabhāga law undoubtedly marks a further step in the expansion of the widow’s rights. It lays down that the widow can get her husband’s share in the family property, even if he happened to be a member of the joint family at the time of his death. Jīmūtavāhana relies upon a text of Bṛihaspati, which is silent about separation and declares that the property of a person can devolve upon his brother, only when he dies without leaving a son or a widow behind¹. He further points out that even when brothers are living as members of a joint family, according to his conception of this institution, each one has got his own share clearly determined, though not specifically separated by metes and bounds; it is then but fair that it should be earmarked for his wife¹. There is further nothing to prove that the wife's co-ownership in the husband's property, that arises at the marriage, automatically terminates at his death, if it happens while the family is still joint². It is therefore but fair that she should be allowed to inherit her husband's share irrespective of the consideration as to whether he had separated from the joint family or not.

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¹ यदा कश्चित्प्रमीयेत प्रव्रजेद्वा कथंचन । न लुप्यते तस्य भागः सोदरस्य विधीयते । अनपत्यस्य धर्मोऽयमभार्यापितृकस्य च । Section XI.

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¹ न हि संसृष्टत्वेऽपि यदेवैकस्य तदेवापरस्यापि किन्तु अविज्ञातैकदेशं तद्द्वयोः न तु समग्रमेव। *Ibid.*

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² See *ante*, p. 307, n. 1

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If the texts, on which Jīmūtavāhana had relied, had been utilised to their fullest capacity, they would have easily enabled him to declare that the estate which the widow inherits is an absolute and not a limited one. The widow is the living half of the husband, says Bṛihaspati;, and therefore no one can get the right to inherit the deceasd's property as long as she is alive. Now Jīmūtavāhana could have easily argued that the powers of the surviving half (the widow) cannot be less than those of the expired half (the husband), and so the widow's estate would be as absolute as that of her husband, she having the power of sale, mortgage or gift. He however did not take this step, but maintained that the widow had only a life estate in her inheritance. She could utilise its full income in any way she liked, but she could not touch its corpus.

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To understand Jīmūtavāhana’s reluctance to grant to the widow a full estate in her inheritance, we shall have to discuss the history of the question. The early jurists, like Vishṇu and Yājñavalkya, who have recognised the widow as an heir, have nowhere used any expressions to show that they regarded her as a limited heir. It is therefore possible to argue that they intended to invest her with the same full powers which they granted to other heirs like the son, the father or the brother, whom they have mentioned along with her. In the long discussion of the subject in the *Mitāksharā*, Vijñāneśvara also nowhere states or hints that the widow was a limited heir, having no right to dispose of the corpus of the property. In the concluding sentence of his discussion he states, ‘Therefore the chaste and regularly married wife of a person, who has died without leaving behind any sons, and who had separated from’ the jonint family and not reunited with it, inherits his entire property¹. He has introduced here several qualifying adjectives, very carefully chosen; but there is none to suggest that he regarded the widow’s estate as a limited one.

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¹ तस्मादपुत्रस्य स्वर्ग्रातस्य विभक्तस्यासंसृष्टिनो धनं परिणीता स्त्री सकलमेव गृह्णाति । At Yāj., II, 136.

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A number of other jurists, however, declare definitely that the widow is a limited heir. An authority quoted by the Mahābhārata states that the widow can only utilise the income of the property she has inherited; she can under no circumstances dispose of it². Kātyāyana states that the inheritance will revert to reversioners after the death of the widow, she having no power to dispose of it¹. Bṛihaspati, we have seen, was a fervent champion of the widow's rights, but even he expressly declares that her powers over her inheritance are limited; she cannot sell, mortgage or gift it away. He, however, permits a gift for religious purposes, which presumably was to be of a small portion only². Nārada declines to concede full powers to the wife even over her Strīdhana, if it comprised of any immoveable property. The wise have declared, says this sage, that transactions of landed property like sale, mortgage or gift, if made by women, are automatically invalid³.

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² स्त्रीणां स्वपतिदायाद उपभोगफलः स्मृतः । नापहारं स्त्रियः कुर्युः पतिवित्तात्कथंचन ॥ XIII, 82, 25.

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¹ अपुत्रा शयनं भर्तुः पालयन्ती पतिव्रता । लभेतार्मरणात्क्षान्ता दायादा ऊर्ध्वमाप्नुयुः ॥ Quoted in *SCV.*, p. 677.

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² मृते भर्तरि भर्त्रंशं लभेत कुलपालिका । यावज्जीवं हीनस्वाम्यं दानाधमनविक्रये ॥ व्रतोपवासनिरता ब्रह्मचर्ये व्यवस्थिता । धर्मदानरता नित्यमपुत्रापि दिवं व्रजेत् ॥ Quoted at *Ibid.*

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³ भर्त्रा प्रीतेन यद्दत्तं स्त्रियै तस्मिन्मृतेऽपि तत् । सा यथाकाममश्नीयाद्दद्याद्वा स्थावरादृते ॥ स्त्रीकृतान्यप्रमाणानि कार्याण्याहुर्मनीषिणः । विशेषतो गृहक्षेत्रदानाधमनविक्रयाः ॥ I, 26-27.

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To conclude, we find that even some of the warmest champions of the widow's right of inheritance like Bṛihaspati definitely declare her to be a limited heir, while others like Yājñavalkya and Vishṇu are merely silent on the point. No one specifically invests her with the power to dispose of the immoveable property in her inheritance, gifts for religious purposes being the only exception. It is therefore clear that down to the 12th century, the widow was intended to be given only a limited power over her inheritance. Society was, as shown already, very reluctant to recognise the widow as even a limited heir; it would have summarily rejected the case of her champions, if they had suggested that she should be invested with absolute powers over her inheritance.

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Late medieval period, *c.* 1200-1800 A. D., was the most conservative one in the history of Hindu customs and institutions. It, however, can claim the credit of attempting to extend the widow's powers over her estate in one direction. We have seen above how down to *c.* 1200 A. D., jurists were unwilling to concede to the widow the right to alienate her estate. Writers of legal digests after that date are seen to encourage the tendency to recognise this right under certain circumstances. There was a text of Bṛihaspati which, as pointed out already, permitted the widow to gift away a portion of her property for religious and spiritual purposes¹. Medieval writers like Devaṇabhaṭṭa and Nīlakaṇṭha particularly emphasise on this right. The former states that when sale or mortgage of the immoveable property was prohibited to the widow, what was meant was that she should not gift it away in one form or another to persons of questionable character like singers, dancers and actors². The latter maintains that women have inherent powers to make gifts for spiritual purposes³.

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¹ See *ante*, p. 315 n. 2.

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² **मृते भर्तरित्यस्मिन्दृष्टदानप्रतिरोधः । अदृष्टार्थदानविधानात्तदितरदृष्टार्थनर्तकादीनां दानादौ अस्वातन्र्थ्यप्रतिपादनार्थमिति मन्तव्यम् । एवं च धर्मदाने स्वातंत्र्यमस्त्येव । अपुत्रा शयनमादि कात्यायनोक्तमविभक्तवशाविषयम् ।** Pp. 667-7.

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³ **अदृष्टार्थदानतदुपयोग्याधमनादि भवत्येव ।** P. 86.

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Neither Devaṇabhaṭṭa nor Nīlakaṇṭha however states whether the consent of the next reversioners was necessary for validating such a transaction. The language which they have used would suggest that if the gift was a bona fide one for religious purposes, the widow could give it herself without the consent of the reversioners. The actual practice seems to have varied considerably. We have no recorded cases for northern India, but south-Indian inscriptions of the medieval period show that the silence of the authorities was interpreted differently by different persons and localities.

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There was one view that the express permission of the reversioners was an essential pre-requisite for such a transaction. It would be therefore better if the gift purported to be made jointly by the widow and the reversioners. Some inscriptions from south India show that this opinion was acted upon in practice on several occasions. Thus a 10th century epigraph from Mysore records a gift of land given by a widow and her brother-in-law (*E.C.*, XI, Holkere No. 33). The brother-in-law is obviously introduced here to show that the transaction had the full consent of the next reversioner. The widow alone could not have sold the property. A 12th century inscription from the same state records the donation given by a widow to a temple along with her brother-in-law and Śrīvaishṇavas. Here it is clear that the consent of not only the next reversioner but of the whole caste was deemed necessary to validate the transaction (*Ibid*, X, No. 100 A). A 13th century inscription from Madura district narrates how two childless widows wanted to give a garden to a temple, how their relations would not sanction the transaction, and how eventually they could achieve their object only by securing the permission of some other reversioners (*S. I. E. R.*, 1916, No. 401). It is quite clear from the above cases that the widow's estate was regarded as a limited one. The permission of the next reversioner, if not of the whole caste, was necessary to enable her to gift it even for a religious purpose.

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There are, however, other records equally numerous and hailing from the same part of the country, which record sales or gifts of landed property by widows made for religious purposes, but which are silent about any permission of the reversioners. A 12th century inscription from Trichinopoly district records the gift of a piece of land by a Brahmana widow made in favour of a temple; a 13th century inscription from Kolar district refers to a sale by a widow of her own share in her landed property; a 15th century record mentions a Brahmana widow building a temple and giving to it a gift of land for the spiritual benefit of herself and her husband; a 17th century inscription describes how a Brahmana lady gifted away a whole village to a temple¹. In none of these records it is anywhere mentioned or suggested that any of the widows had obtained the consent or permission of any reversioner for disposing her landed property. Had any such permission been received, it would have been surely mentioned, as was done by the persons who drew up the documents referred to in the last para. It is to be noted that these epigraphs were lithic deeds of title, intended to last for centuries ; it is natural to presume that they would have carefully mentioned all relevant circumstances that would have been necessary to prove that the transactions recorded were valid ones, and the donees had acquired full and unquestioned titles.

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¹ *I.M.P.* III, p. 1544; *E.C.*, X, Kolar No. 103; *I.M.P.*, I. p. 56; *E.C.*, XI, Holkere No. 80.

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The epigraphic evidence then shows that the custom differed with different castes and different localities in south India. Some sections of society felt that the permission of the reversioners was necessary to validate even a religious gift ; others thought that it might be dispensed with. When we note that our jurists all belonged to the priestly class, it need not be wondered that their general tendency should have been to give the widow an unrestricted power in the matter.

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While pleading for an unrestricted power to the widow to make gifts for religious purposes, Mitramiśra, a 17th century jurist of the United Provinces, uses some expressions, suggesting that he was half inclined to sanction bona fide sales or gifts made even for non-religious purposes. 'To those who contend' says he, 'that women have no right to sell or gift away their husbands' inheritance, we ask ; do you mean to maintain that even if the gift or sale in question has already become an accomplished fact, it would become invalid merely because it was made by a woman? This is unfair....Texts prohibiting sales etc. refer to the disposal of landed property made to vicious persons with the malicious purpose of defeating the rights of coparceners. They do not invalidate gifts etc. properly made. *Ownership gives the right of disposal as much over the immoveables as over the moveables, and an accomplished transaction cannot be unsettled even by a hundred sacred texts*¹. This principle would have undoubtedly invested the widow with full rights of disposal even over immoveable property. But Mitramiśra not only does not draw its natural corollary, but proceeds immediately to circumscribe its application. For he concludes his discussion with the observation, ‘It therefore follows that a widow can dispose of her immoveable property either for making a religious gift or for maintaining herself or for other proved necessities;²’ he does not add ‘or for any other purpose she may like.’ In spite of his liberal principles Mitramiśra was thus prepared to invest the widow just with those powers, which have been recognised in modern courts. It is clear that society was not yet prepared to grant the widow an unrestricted power over her immoveable inheritance.

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¹ सम्मुखमेव वचनार्थमादाय नास्त्येव स्त्रिया भर्तृरिक्थे दानविक्रयाद्यधिकार इत्याहुः । तत्रेदं वाच्यम् । किं तस्य तया कृतेऽपि दानादौ तत्स्वरुपानिष्पत्तिरेव । मन्वादिचनैः सकलभर्तृधनग्रहणे तस्या उक्ते सति तस्या अस्वतंत्रस्वत्वे दानादिस्वरुपानिष्पत्तेर्बाधित्वात्..........। दानादिप्रतिषेधवचनानि दुर्वृत्तं गूरुषं प्रति कुटुम्बदुःखदानार्थमेव दानक्रियादिप्रवृत्तिप्रतिषेधकानि न तु दानादिस्वरूपानिष्पत्तिप्रतिपादकानि । यथेष्टविनियोगार्हत्वलक्षणस्वत्वस्य द्रव्यान्तर इव स्थिरेऽप्यविशेषाद्वचनेनापि वस्तुनोऽन्यथाकरणाशक्त्या तत्प्रतिपा नानुपपत्तेरिति निरूपितम् । *VMS.*, p. 628-9

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² तस्माददृष्टार्थे दाने दृष्टादृष्टार्थे भरणार्थमाधौ विक्रये चास्त्येव पत्न्याः सकलभर्तृधनविषयेऽप्यधिकारः । नियमस्तु नटनर्तकादिदानानावश्यकताधेविक्रिय-निवृत्त्यर्थमिति सिद्धम् । *Ibid*, p. 630

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Should we now change the law and invest the widow with full powers over the immoveable property inherited by her? This is a question on which opinion is divided at present. Dr. Deshmukh's bill, introduced in 1936 in the Imperial Assembly, sought to invest the widow with this power, but the effort failed. The educated woman naturally feels it an insult that she should not have a power over her inheritance, which is conceded to the most illiterate and inexperienced villager. We must, however, note that even at present the widow can sell or mortgage her property for genuine necessities. The disability is that her powers in this connection are not unrestricted. This is of course a disability from one point of view, but also a protection from another. In the Punjab and Palestine, for instance, male peasants had unrestricted powers of alienation; the result was that many of them sold away their valuable lands and eventually became paupers, as they could not properly utilise or invest the sale proceeds. Eventually the governments of these provinces had to restrict these powers in the interests of the peasants themselves. We should not forget that 95 percent. widows are still uneducated, inexperienced and altogether innocent of the provisions of law. If they are given the right to dispose of their landed property, many of them will be induced by interested parties to enter into unwise transactions. The money realised from sale will not last long, and the majority of widows disposing of their property will eventually find that they have lost both the lands and their sale proceeds. Their condition will then become very pitiable. In the present circumstances, therefore, it is not in the interests of the widows as a class that they should have unrestricted power of alienation. A beginning, however, should be made by giving it to those widows, who possess certain minimum educational qualifications. This of course will often adversely affect the prospective rights of reversioners, but they have been already annihilated by the ruling of the Privy Council, which has given the widow in many parts of the country an unrestricted power of adoption. If coparceners cultivate friendly and cordial relations with the widow, there is no reason why she should wantonly defeat their expectations. She would then take as much interest in her husband's family as her coparceners, and would not normally stand in the way of its continued prosperity after her death by selling or willing away her share.

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Till 1937 it was only in Bengal where the Dāyabhāga law prevailed, that the widow could inhereit her husband's property, even if he had died as a member of the joint family. Outside Bengal, she was recognised as an heir, only if her husband had effected a separation from the joint family before his death. This was the law as it was laid down in the *Mitāksharā* and enforced in modern courts. The latter, however, were anxious to help the widow as much as they could, and sought to facilitate matters in her favour by decreeing that a person should be regarded as being separated from the joint family, not only when he had actually severed his connection, but also when he had merely communicated his intention of doing so to his other coparceners. This used to enable many persons, who did not share the traditional regard for the sanctity of the joint family, to secure the devolution of their shares upon their wives. Those wives, however, who did not advise their husbands to take this rather unpleasant step, got as a reward for their regard for the joint family, the misfortune of losing their right of inheritance to their husbands. This was undoubtedly an undesirable and anomalous state of affairs. The Hindu Women’s Right to Property Act of 1937 extends the Dāyabhāga principle to the whole of British India, and invests the widow with the right to inherit her husband’s share in the family property, irrespective of the consideration as to whether he had effected a separation from the joint family or not. This is a step in the right direction and will be adopted by Indian states also in the near future.

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