Right to Property

Gurulingappa Savadi was the head of a Hindu joint (intergenerational) family who died in 2001. In 2002, his grandson brought a suit to partition the family property, alleging that only Mr. Savadi’s widow and two sons were co-owners of the property upon Mr. Savadi’s death. The suit asserted that Mr. Savadi’s two married daughters were not entitled to any share of the property, since they were born prior to the Hindu Succession Act (codified customary/personal law), and therefore could not be treated as coparceners (persons who share jointly with others in an inheritance). The trial court agreed that the daughters had no right to a portion of the family property. The trial court also rejected the alternate contention that with the passage of the Hindu Succession (Amendment) Act, 2005, daughters are entitled to equal shares of property. The daughters appealed until the case reached the Supreme Court.

On 1 February 2018, the Supreme Court reversed the lower court ruling, in particular holding that the 2005 legislative amendment decisively settled the matter in favor of the appellants. The amendment states that any daughter of a coparcener by birth becomes a coparcener and is entitled to the same rights and liabilities with respect to the property as a son. In the present case, suit for partition was filed in the year 2002. However, during the pendency of this suit, the aforementioned amendment came into force, as the partition decree was awarded by the trial court only in the year 2007. Thus, the rights of the appellants became crystallised in the year 2005, and this should have been considered by the lower courts. Though Mr. Savadi died in 2001 and the amendment is not retroactive, it applies to the present case because the partition became final only when the decree was issued from the lower court. The amendment was passed in the interest of gender equality under the law, and daughters now have the same rights as sons with respect to commonly owned property partitioned after the amendment to the Act, regardless of when they were born. The Court noted that the law relating to a joint Hindu family has undergone unprecedented changes. It further elaborated that “[T]he said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener…These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected.”

As Mr. Savadi left behind a widow, two sons, and two daughters, the Court held that each of the daughters who appealed the decision is entitled to one-fifth of the family property.


In 2006, the Government of West Bengal agreed to let Tata Motors Ltd. (Tata Motors) construct and operate a car manufacturing unit in their state (Small Car Project). Accordingly, the West Bengal Industrial Development Corporation, Ltd. (WBIDC) acquired approximately 1000 acres of agricultural land for the project pursuant to the Land Acquisition Act, 1894 (L.A. Act), affecting the livelihoods of approximately 25,000 people – farmers, sharecroppers, landless laborers, and rickshaw pullers. The claimants in this case were five farmers and small landowners. Objections were filed with the Land Acquisition Collector, who concluded subsequently that the land was being taken for a public purpose, namely employment creation and socio-economic development. The Collector then made an award of compensation to the existing landowners and the land was acquired by WBIDC. The acquisition proceedings were challenged before the High Court of Calcutta and were dismissed.

As a result of numerous local protests, the Small Car Project was halted and relocated to the State of Gujarat in 2008. The new Government of West Bengal then enacted the Singur Land Rehabilitation and Development Act, 2011 (Singur Act) for the purpose of taking over the land covered by the lease to Tata Motors. Tata Motors challenged the constitutionality of the Singur Act before the Supreme Court of India (Court), arguing that it conflicts with the earlier L.A. Act and that the government cannot change its mind simply because a new political party takes power.

In considering the validity of the land acquisition, the Court rejected the arguments of Tata Motors. In relation to the preliminary objection regarding a change in political power, the Court noted that it is well established that a state government can change earlier laws especially if they were against public policy.

The Court determined that the land acquired by WBIDC for Tata Motors was not for a public purpose under the L.A. Act, but rather by the state government for a company. In this context, the previous government exercised its eminent domain power (i.e. the right of a government or its agent to expropriate private property for public use, with payment of compensation) without following the required procedure set forth in the L.A. Act (namely Sections 3(f), 4, and 6, and VII), depriving those who lost their land of their constitutional and fundamental rights. Further, the Court found that the inquiry contemplated under 5-A2 of the L.A. Act was not duly conducted by the Collector as some of the objectors had not been given a chance to be heard and the Collector denied their objections without genuine consideration.

The Court quashed the acquisition of the landowners’ land, declaring it illegal and void. The Court ordered the Government of West Bengal to conduct a survey to determine what land needed to be returned, and then to return it. The Court further ordered that the compensation which had already been paid to the landowners not be recovered by the state government, as reparation for having been deprived of the occupation and enjoyment of their lands for ten years; and permitting the landowners who had not already withdrawn their compensation to do so.


The Supreme Court of Vanuatu cited CEDAW and used it as a guide in formulating a principle for distribution of matrimonial assets. The Court held that there is a presumption of joint or equal ownership of all matrimonial assets.


A law in Nepal gave preference to males regarding ancestral property inheritance. The Forum for Women, Law and Development asked the Supreme Court of Nepal to overturn this law, citing CEDAW, which had the status of national law in Nepal. Instead of striking down this law directly, the Court ordered the government to pass legislation within one year to rectify the situation. However, the government did not do so. Thus, while the Court considered international human rights norms in making its decision, its decision was ultimately ineffective.

The plaintiff challenged a provision of the Japanese legal code. The provision stated that the intestate share guaranteed by Japanese law to an illegitimate child shall be one-half of the share guaranteed to a legitimate child. The Supreme Court of Japan ruled that this was constitutional. Although the Court cited the ICCPR, it nevertheless seemed to decide in opposition to it, in particular Article 24. The decision was made with ten justices in the majority and five in the dissent. The five dissenting justices asserted the importance of Article 26 of the ICCPR. They opined that the Court was divided over how heavy the legal weight of international human rights treaties should be in the Japanese legal system.

(found in ''Incomplete Revolutions and Not So Alien Transplants: the Japanese Constitution and Human Rights'' by Sylvia Brown Hamano, 1 U. PA. J. CONST. L. 415, 477)

Australia: Wik Peoples v Queensland [1996] HCA 40

In June 1993 the Wik and Thayorre Peoples made a native title claim in the Federal Court for land on Cape York Peninsula. The area of land being claimed included two pastoral leases. The claimants argued that native title and pastoral rights had coexisted in the area for many years, demonstrating that it was possible for the two sets of rights to apply to the one piece of land. The judgment of the Federal Court was that the pastoral leases had extinguished native title, a decision that the plaintiffs appealed in the High Court.

In 1996, by a four to three majority, the High Court ruled that a pastoral lease does not give exclusive possession of the land to the pastoralist and therefore does not completely extinguish native title. The ruling stipulated that the two sets of rights to land can coexist, but where there is a conflict, the rights of the pastoral lease will take precedence.


The Howard Liberal-National government introduced legislation to amend the Native Title Act, known as the Wik 10-point plan. The amendments made extensive changes to the original Native Title Act. They asserted the rights of landholders and lessees, gave more power to state governments for extinguishment and imposed a ‘registration test’ on claimants. The registration test meant that each native title application had to meet strict criteria before being assessed. The bill was passed in 1997.

Sir Howard Gibbs, Legal Heritage Centre