PSDA
Research Paper – Family Law II
Female as Karta
Ms. Srishty Banerjee
Vivekananda School of Law and Legal Studies
Vivekananda Institute of Professional Studies
Divij Poddar
06417703818
IV – B
TABLE OF CONTENTS
Abstract................................................................................................................................3
Introduction .........................................................................................................................4
Ancient India.......................................................................................................................6
British India.........................................................................................................................7
Constitution of India............................................................................................................9
Hindu Succession (Amendment) Act, 2005.......................................................................12
Cases..................................................................................................................................14
Conclusion.........................................................................................................................17
Bibliography......................................................................................................................18
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ABSTRACT
The father guards her during virginity, the husband guards her in youth, the sons guard
her in old age; the woman is never fit for independence.1 – Manu.
Inheritance of property rights of Hindu women have always been restricted and limited
since time immemorial. Even though women were never absolutely excluded from inheriting
ancestral property, their shares of inheritance were significantly less than that of their male
counterparts. Position of females in this regard has undergone several changes over centuries.
The ancient Hindu texts allow women to inherit and own property but completely shuns
responsibility in the hands of women, therefore not entitling them to become Karta of their
respective families.
This paper aims to systematically inspect and expound upon the development and
evolution of rights of women in regards to inheritance of Joint Hindu Family property and their
finally achieved right to be Karta – the head – of their Joint Hindu Family, from which they were
disqualified, as they were not deemed to be entitled to become coparceners in the Joint Family
property.
1
Laws of Manu, Verse 9.3, Chapter IX, George Buhler, Sacred Texts of the East, Vol. 25.
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INTRODUCTION
According to many scholars the roots and customs of Hinduism date back to more than
4,000 years, making it arguably the oldest religion in the world, with more than 900 million
followers Hinduism is the third largest religion in the world today. Yet, the traditional law fails to
place men and women on an equal footing.
According to Section 6 of the Hindu Succession Act, 1956, in a Hindu Undivided Family
(HUF), the share in the coparcenary property of a Hindu male dying intestate used to devolve
upon his sons - coparceners - only and not upon his daughters. On 9th September 2005, Section 6
of the Hindu Succession Act was amended by the Hindu Succession (Amendment) Act, 2005 1
which removed this discrimination by giving equal rights to daughters under the Mitakshara
coparcenary property as that to a son.
Customarily, the burden of management of the Hindu Undivided Family property rested
upon the Karta, who looks after the day to day expenses of the family along with other trusted
and vital responsibilities. Until the enactment of the Hindu Succession (Amednment) Act, 2005
Karta was a right conferred on birth of the first-born male, while female members of the family
were not entitled to be coparceners of the Hindu Joint Family. Interestingly, even subsequent to
the enactment of the Amendment Act of 2005, there was no clarity on whether the senior-most
female member could become the Karta of the Hindu Undivided Family as the amendment only
dealt with inheritance laws and not management of the Hindu Undivided Family property. This
issue was addressed in a judgment of the High Court of Delhi – of Sujata Sharma vs. Manu
Gupta, 2016.2
2
Sujata Sharma vs Manu Gupta (2016) 226 DLT 647.
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In this paper I intend on giving a brief highlight on the traditional law and customs and
their evolution over the centuries, from the ancient period to their perception under the British
Rule, to the enactment of the Constitution of India, and the recently enacted Amendment Act,
followed by important judgments delivered by the Indian Judiciary.
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ANCIENT INDIA
The Sanskrit saying “Na stri swatantramarhati - Swatrantam Na Kachit Striyah” 3 meant
that women were unfit for any independent existence and such was the rule of ancient Hindu
society. No property has been mentioned for women in the Hindu scriptures. However, after
marriage a woman could possess a limited range of property, called Stridhan – which may
include movable assets or even immovable assets. Yet, the woman was never the absolute owner
of her stridhan, because according to Manu, the wife along with her property belongs to her
husband.
The multiplicity of succession laws in India made the Hindu property laws even more
complex and intricate. Women had mere right to be maintained out of the joint family fund and
property. Under the Mitakshara system, joint family property devolves by survivorship within the
coparcenary. Mitakshara law also recognizes inheritance by succession but that is only in regards
with separate property of the individual – male or female, while not discriminating against
women.
In traditional Hindu society, women were entitled to property known
as stridhan (women's property), which they primarily received on marriage – clothes, jewelry,
and in even real estate. Women were denied rights to the ancestral property, and their right over
succession to the family property was limited. Later, the 19th and 20th centuries under the British
rule witnessed enactment of several pieces of legislation that were intended to remove the
barriers to full and equal property rights for Hindu women.4
3
A.M. Bhattachajee, Hindu Law and the Constitution 120 (2 d ed., E.L. House 1994).
4
Halder, D., & Jaishankar, K. (2008). Property Rights of Hindu Women: A Feminist Review of Succession
Laws of Ancient, Medieval, and Modern India. Journal of Law and Religion, 24(2), 663-687.
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BRITISH INDIA
Hindu customary laws and rules continued to be practiced well after the British invaded
the Indian Subcontinent. The inheritance laws, thus, continued to be governed by the
Mitakhshara and Dayabhaga schools of law till the beginning of the 20th century. During this
period, however, social reform movements raised the issue of amelioration of women's position
in society. Hindu Law of Inheritance (Amendment) Act, 1929 was the earliest legislation to bring
women under the of scope inheritance laws. 5 The Act recognized inheritance rights to the sister,
son’s daughter, and daughter's daughter – therefore, a limited restriction on the rule of
Survivorship.
Hindu Women's Right to Property Act (1937)6 was the first uniform law of succession for
Hindu women. This Act brought about revolutionary changes in the Hindu Law and subsequently
all its underling schools, and brought changes not only in the law of coparcenary inheritance but
also in the law of partition and alienation of property, inheritance and adoption. The Act of 1937
recognized 3 types of widows – (1) Intestate man’s widow; (2) Widow of a predeceased son; and
(3) Widow of a predeceased grandson of a predeceased father. The Act entitled the widow to take
an equal share as that of the son. But, the widow did not become a coparcener even though she
possessed a right akin to a coparcenary interest in the property and was a member of the Hindu
Joint Family. She was entitled only to a limited estate in the property with a right to claim
partition.
5
Hindu Law of Inheritance (Amendment) Act, 1929 (India Act II of 1929).
6
Hindu Women’s Right to Property Act, 1937 (India Act XVIII of 1937).
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Although the 1937 Act established limited rights for women in their intestate husband's
property, it did not guarantee any rights to them when the deceased had disposed of his property
by will.
These enactments now stand repealed.
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CONSTITUTION OF INDIA
The framers of the Indian Constitution took note of the adverse and discriminatory
position of women in the society and took special care to ensure that the State took positive steps
to ensure their equal status as men. Articles 14, 15(2) and 15(3), and 16 of the Constitution of
India, thus not only inhibit discrimination against women but also give way to the State to take
measures in form of positive discrimination in favor of women. These provisions are part of the
Fundamental Rights guaranteed by Part IV of the Constitution of India.
Hindu Succession Act, 1956 gave a blow to the ancient patriarchal practice of preventing
women to inherit property from male heirs, therefore, further preventing them from becoming
heads of their respective families – Karta. The Act, based on the Hindu Code Bill, was a uniform
law, which covered all the Hindus in independent India. Section 14 of the said Act clearly states
that any property acquired by a Hindu woman after 17th June 1956 will be her absolute property.
“The Bill converts women’s limited estate into an absolute estate just as the male when
he inherits gets an absolute estate in the property that he inherits and abolishes the right of the
reversioners to claim the property after the widow.” 7 The Hindu Code Bill was, therefore, the
first step towards abolishing the concept of limited estate for women.
According to the Act8, the definition of the property enumerated in Section 14(1) 9 of the
Act includes all types of property that were enumerated in the ancient text Vijananeshwar.
However, Section 14(2) retains the power of any person or the court to give limited estate to a
7
B.R Ambedkar, Law Minister of India, Remarks on the Hindu Code Bill 599 (C.A. (Leg.)D., Vol. IV, 9th
April 1948, pp. 3628-3633).
8
Section (14) (1) Hindu Succession Act, 1956.
9
Section 14 (1) - 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.
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woman in the same manner as a limited estate may be given to any other person. 10 Thus, Section
14 has had a retrospective effect11. It only converts a woman's estate into stridhan or absolute
estate after fulfilling two conditions – (i) ownership of the property must vest in her and it is not
limited ownership; and (ii) she must be in possession of the estate when the Act came into
force.12 The Act also ignores the case of a woman’s deceased husband’s property, other than for
her right to maintenance, the property cannot become her absolute property.
EFFORTS TO END INEQUALITY
Succession rights of Hindu women in India needed reforms, for which several researches
were undertaken by various bodies of the Government of India.
Hindu Succession (Andhra Pradesh) Amendment Act, 1985 made a remarkable
development. This law stated that the rights of the daughter are equal to that of the son, in any
circumstances. This law found the Mitakshara system to be in violation of the fundamental right
of equality guaranteed by Part IV of the Constitution of India. The States of Tamil Nadu,
Maharashtra and Kerala also amended their respective laws by including women as members of
the Coparcenary realm. However, these laws were not universal laws. Except for the southern
states who were already following the Marumakkattayam and Aliyasantana laws, other states of
India refused to deviate from the patriarchal tradition in case of property rights.
The 174th Law Commission took up the task to end this millenniums year-old custom
alienating women from inheriting property. It reaffirmed that social justice demands that a
woman must be treated equally, both economically and socially. "The exclusion of daughters
10
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.
11
Diwan, supra n. 13, at 354.
12
Deenadayal v. Raju Ram, 1970 S.C.R. 1019 (1970).
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from participating in coparcenary property ownership merely by reason of their sex is unjust.”
The Commission took into consideration the changes resulted after State enactments regarding
Mitakshara coparcenary property in Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and
Karnataka. The Commission felt that more reforms are needed to provide equal distribution of
property to both men and women. The law commission took a bold decision by recommending
changes in the ancient succession laws of Mitakhshara and Dayabhaga, thereby, amending the
existing Hindu Succession Act, (1956).13
This gave way to Hindu Succession (Amendment) Act, 2005.
13
174th Law Commission Report on “Property Rights of Women: Proposed Reforms under the Hindu Law”.
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HINDU SUCCESSION (AMENDMENT) ACT, 2005
The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right to become a
Coparcener in the Hindu Joint Family property. Section 6 of the Act guarantees equal rights to
the ancestral properties to daughters.
Section 6 of the Hindu Succession (Amendment) Act, 2005 – Devolution of interest in
coparcenary property – (1) In a Joint Hindu Family governed by the Mitakshara law, the
daughter of a coparcener shall –
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if had
been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as
that of the son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener.
(3) Where a Hindu dies, his interest in the coparcenary property of a Joint Hindu Family
governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the
case may be, under this amended Act and not by survivorship , and the coparcenary property
shall be deemed to have been divided as if a partition had taken place and –
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would
have got had they been alive at the time of partition, shall be allotted to the
surviving child of such pre-deceased son or daughter; and
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(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such would have got had he or she been alive at the time of the
partition, shall be allotted to the child of such pre-deceased child of the pre-
deceased son or of a pre-deceased daughter as the case may be.14
Hindu Succession (Amendment) Act, 2005 has a two-fold effect – (1) Women became
active members of the coparcenary property, enabling them to become the Karta; and (2) Women
became entitled to enjoy the right to property fully, and not limited.
Historically, the power of managing Joint Family property in the hands of women is not
entirely a new practice. According to the Dharma Shastra –
alienation can be done by the wife of an absent, or the widow of a dead manager, of
family property belonging to numerous minors, unable to enter into contractual
relationships in their own persons, yet reasonable for maintaining dependents and
carrying the various burdens of the family.15
14
Hindu Succession (Amendment) Act, 2005.
15
Garg Manisha & Nagar Neha, Student Authors, Can Women be Karta?
www.legalserviceindia.com/articles/kar.htm.
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CASES
Sujata Sharma vs. Manu Gupta
Even after the enactment of the Hindu Succession (Amendment ) Act, 2005 there was no
ambiguity pertaining to whether the senior-most female member could become the Karta of the
Hindu Joint Family as the amendment dealt only with inheritance laws and not management of
the Hindu Joint Family property. This very issue was sought after and addressed in a judgment of
the Delhi High Court in the matter of Sujata Sharma vs. Manu Gupta.16
Issue – The point of contention was whether the Plaintiff – Sujata Sharma – being the
eldest female member amongst the coparceners of the Joint Hindu Family, was entitled to be the
Karta of the said family.
Contention of the Plaintiff – The Plaintiff contended that Section 6 of the Amendment Act
of 2005 entitles women to avail all rights so available to Hindu males under the Mitakshara law.
Consequently, a daughter in a Hindu Joint Family is now recognized as a coparcener by birth and
has the same rights in the Hindu Joint Family property as that of a son. Referring to Tribhovan
Das Haribhai Tamboli vs. Gujarat Revenue Tribunal17 where the Supreme Court had held that
the management of Hindu Joint Family property is a right by birth and is regulated by seniority,
hence the Karta occupies a position superior to that of the other members. It was argued that
merely because the Plaintiff is a female, it cannot pose as a disqualification for being Karta,
given she is the eldest of the coparceners.
Contention of the Defendants: All arguments were rebutted by the Defendants on the
ground that Section 4 of the Act has to be read in the context in which it was enacted – only
16
Sujata Sharma vs. Manu Gupta (2016) 226 DLT 647.
17
Tribhovan Das Haribhai Tamboli vs. Gujarat Revenue Tribunal AIR 1991 SC 1538
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those customary rights have been overridden for which there is a specific provision in the Act. As
Section 6 of the impugned Act does not specifically refer to the expression Karta, the right of
becoming a Karta has to be adduced from the original text under the Hindu law. The Amendment
Act only recognized the right of a female member to inherit her share Family property but did
not extend to granting them any rights in the management of the Hindu Joint Family property.
Judgment – The High Court held that in view of Section 6 of the Amendment Act, the
proposition that female member of the joint family would have rights to inheritance in the Hindu
Joint Family property but at the same time will not be entitled to be appointed as a Karta is
legally untenable. The impediment which prevented a female member from becoming a Karta
was that of being a coparcener. Section 6 of the Amendment Act has given equal rights of
inheritance to both Hindu males and females. In view thereof, if the male member of a Joint
Hindu Family, by virtue of being the eldest born member can become Karta, the same shall be
applicable to the eldest female member of the family as well. It was further held that the marital
status of the Plaintiff does not alter her right to inherit coparcenary to which she has succeeded
after the death of her father.
NAGPUR POSITION
Hunoomanpersaud Panday vs. Mussumat Babooee Munraj Koonweree18
This case dealt with the powers of a widow mother as manager of property of her minor
son. The case was in ethos a case of manager-ship than of guardianship. The widow was not
tested to be who she was or in what capacity she purported to act, but whether the act was
necessary in the minor's interest as understood by the law.
18
(1856) 6 Moo Ind App 393.
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Pandurang Dahake vs. Pandurang Gorle19
A promissory not was passed by the widowed mother for necessity as guardian of her two
minor sons. The court held the widow to be de facto manager gaving managerial powers, not
empowering the sons to repudiate the debt.
I.T. Commissioner vs. Lakshmi Narayan20
The issue was whether Kesar bai, a widowed mother could enter into a partnership deal
as Karta of family comprising of herself and her minor sons. Pollock and Shevde JJ. – “it is true
that under the Mitakshara law no female can be a coparcener with male coparcener, presumably
because she do not possess the right of survivorship, but we do not think that either this right or
status of a coparcener is a sine qua non of competency to become the manager of a Joint Hindu
family of which she is admittedly a member. She was held to be Karta. Referring to Keshavbhai
vs. Bhagirathi, it was contended that if a female can act as a manager of a religious endowment
in which she has no personal interest, there is apparently no reason why she cannot act as the
manager of a joint family property in which she has personal interest.
19
ILR (1947) Nag 299.
20
(1948) 16 ITR 313 Nag.
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CONCLUSION
The quote as mentioned at the beginning of this paper correctly represents today’s
scenario and the tone used in the paper bends with the persisting problem. This is because
females were never given an equal position in society and were considered a liability. From the
historical aspect, women have been treated with inequality and this is the reason that many
people struggled to bring their status equal to men.
Under the Shastric Law, a daughter on marriage ceases to be a member of the parental
home, however, the Amending Act has changed her position, making it alien to Hindu patriarchal
notions. Though her position as de facto manager was recognized when widow mothers acted as
guardians of their minor sons, de jure conferment of the right eluded her.
The Law Commission has rightly observed that although the Hindu Succession
(Amendment) Act, 2005 has conferred equal rights upon the daughter of a coparcener there are
still feelings of reluctance in making her Karta. According to the Shastra, in the absence of the
senior-most male member a junior member may incur debts in respect to the needs of the family,
and in the absence of such male member a female member may also do so. Ancient Sanskrit texts
empower women to act as partial Karta in such instances when the husband is away or missing
or the son is yet to attain majority.
Earlier the reasoning which was given by the courts that women cannot become Karta
because only a coparcener is appointed as a Karta and women cannot become coparceners. But
after the amendment to Section 6 of the Hindu Succession Act, 1956 equal rights are given to
daughters in the Hindu Mitakshara coparcenary property as the sons have.
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The amendment of 2005 in the Hindu Successions Act has cleared the pathway for
women to be a coparcener in a Hindu Joint Family and has entitled them to become the Karta.
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