The Constitution of India provides that every person is entitled for equality
before law and equal protection of the laws and thereby prohibits
discrimination on the basis of caste, creed and sex. The discrimination on the
basis of sex is permissible only as protective measures to the female citizens
as there is need to empower women who have suffered gender discrimination for
centuries. Empowerment of women, leading to an equal social status with men
hinges, among other things, on their right to hold and inherit property.
Civilized societies across the globe ensure that women's inheritance rights are
more secure than those of men because women take on the tremendous
responsibility of producing and nurturing the next generation. In India,
women's rights have suffered serious setbacks among all communities. Before
1956
Despite the Hindu Succession Act being passed in 1956,
which gave women equal inheritance rights with men, the mitakshara coparcenary
system was retained and the government refused to abolish the system of joint
family. According to this system, in the case of a joint family, the daughter
gets a smaller share than the son . While dividing the father's
property between the mother, brother and sister, the share is equal.
property between the mother, brother and sister, the share is equal.
The Constitution of India enshrines the principle of
gender equality in its Preamble and Parts III, IV and IVA pertaining to
Fundamental Rights, Fundamental Duties and Directive Principles respectively.
The Constitution not only grants equality to women, but also empowers the State
to adopt measures of positive discrimination in favour of women. And now as
India becomes increasingly aware of the need for equal rights for women, the
government can't afford to overlook, property rights have a deep impact on the
national economy. The need to dispense gender justice raises deep political
debate and at times acrimony in legislative forums. This enthused the ?house?
to move a bill to make amendments in the Hindu Succession Act, to secure the
rights of women in the area of property.
The aim is to end gender discrimination in Mitakshara
coparcenary by including daughters in the system. Mitakshara is one of the two
schools of Hindu Law but it prevails in a large part of the country. Under
this, a son, son's son, great grandson and great great grandson have a right by
birth to ancestral property or properties in the hands of the father and their
interest is equal to that of the father. The group having this right is termed
a coparcenary. The coparcenary is at present confined to male members of
the joint family, it has been further elucidated in the project.
The Hindu Succession (Amendment) Act, 2005 is a landmark.
After 50 years, the Government finally addressed some persisting gender
inequalities in the 1956 Hindu Succession Act (1956 HSA), which itself was
path-breaking. The 2005 Act covers inequalities on several fronts:
agricultural land; Mitakshara joint family property;
parental dwelling house; and certain widow's. The amendment has come into
operation from 2005; our project makes an analysis of this amendment, in that
specifically dealing with changes brought in the woman's property rights in
Mitakshara joint family property, what effects it will have on the position of
women, loopholes in the amendment, its advantages and disadvantages and few
suggestions to make it more effectual.
What Is Mitakshara Coparcenary?
Coparcenary literally means Joint inheritance or heirship of property. Also called parcenary. Coparcenary is a narrower body of persons within a joint family, and consists of father, son, son's son, son's son's son. The disparity in the property rights on the basis of gender is deep rooted and can be traced back to the ancient times. Traditional Hindu inheritance laws evolved from the ancient texts of Dharmashastras and the various commentaries and legal treatises on them. In particular, the Mitakshara and the Dayabhaga legal doctrines, dated around the twelfth century AD govern the inheritance practices among the Hindus. In most of northern and parts of western India Mitakshara law is prevalent.Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with
every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. The Mitakshara law also recognizes inheritance by succession but only to the property separately owned by an individual male or female. Females are included as heirs to this kind of property by Mitakshara law.
Coparcenary literally means Joint inheritance or heirship of property. Also called parcenary. Coparcenary is a narrower body of persons within a joint family, and consists of father, son, son's son, son's son's son. The disparity in the property rights on the basis of gender is deep rooted and can be traced back to the ancient times. Traditional Hindu inheritance laws evolved from the ancient texts of Dharmashastras and the various commentaries and legal treatises on them. In particular, the Mitakshara and the Dayabhaga legal doctrines, dated around the twelfth century AD govern the inheritance practices among the Hindus. In most of northern and parts of western India Mitakshara law is prevalent.Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with
every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. The Mitakshara law also recognizes inheritance by succession but only to the property separately owned by an individual male or female. Females are included as heirs to this kind of property by Mitakshara law.
Position Of Woman (In Regards To Property Rights) Prior
To Enactment Of Hindu Succession Act, 1956-
Since time immemorial the framing of all property laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. Prior to the Act of 1956, Shastric and Customary laws, which varied from region to region, governed Hindus and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to diversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex.
But, however the social reform movement during the pre-independence period raised the issue of gender discrimination and a number of ameliorative steps were initiated. The principal reform that was called for, and one which became a pressing necessity in view of changed social and economic conditions, was that in succession there should be equitable distribution between male and female heirs and the Hindu women's limited estate should be enlarged into full ownership (however that actually never happened). The only property over which she had an absolute ownership was the Stridhan meaning women's property.
Since time immemorial the framing of all property laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. Prior to the Act of 1956, Shastric and Customary laws, which varied from region to region, governed Hindus and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to diversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex.
But, however the social reform movement during the pre-independence period raised the issue of gender discrimination and a number of ameliorative steps were initiated. The principal reform that was called for, and one which became a pressing necessity in view of changed social and economic conditions, was that in succession there should be equitable distribution between male and female heirs and the Hindu women's limited estate should be enlarged into full ownership (however that actually never happened). The only property over which she had an absolute ownership was the Stridhan meaning women's property.
Prior to Hindu Law of Inheritance Act, 1929-
Prior to this Act, the Mitakshara law also recognizes
inheritance by succession but only to the property separately owned by an
individual, male or female. Females are included as heirs to this kind of
property by Mitakshara law. Before the Hindu Law of Inheritance Act 1929, the
Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female
relations as being entitled to inherit namely - widow, daughter, mother
paternal grandmother, and paternal great-grand mother . The Madras sub-school
recognized the heritable capacity of a larger number of female's heirs that is
of the son's daughter, daughter's daughter and the sister, as heirs who are
expressly named as heirs in Hindu Law of Inheritance Act, 1929.The son's
daughter and the daughter's daughter ranked as bandhus in Bombay and Madras.
The Bombay school which is most liberal to women, recognized a number of
other female heirs including a half sister, father's sister and women married
into the family such as stepmother, son's widow, brother's widow and also many
other females classified as bandhus.
Hindu Law of Inheritance Act, 1929-
This was the earliest piece of legislation,
bringing woman into the scheme of inheritance. This Act, conferred inheritance
rights on three female heirs i.e. son's daughter, daughter's daughter and
sister (thereby creating limited restriction on the rule of survivorship).
Hindu Women's Right to Property Act (XVIII
of), 1937-
This was the landmark legislation conferring ownership
rights on women. This Act brought about revolutionary changes in the Hindu Law
of all schools, and brought changes not only in the law of coparcenary but also
in the law of partition, alienation of property, inheritance and adoption . The
Act of 1937 enabled the widow to succeed along with the son and to take a share
equal to 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 joint family. The widow was entitled only to a
limited estate in the property of the deceased with a right to claim partition
. A daughter had virtually no inheritance rights. Despite these enactments having brought important changes
in the law of succession by conferring new rights of succession on certain
females, these were still found to be incoherent and defective in many respects
and gave rise to a number of anomalies and left untouched the basic features of
discrimination against women. These enactments now stand repealed.
Constitutional Provisions ensuring Gender
Equality-
The framers of the Indian Constitution took note of the
adverse condition of women in society and a number of provisions and safeguards
were included in the Constitution to ward off gender inequality. In this
context, Articles 14 , 15(3) and 16 of the Constitution can be mentioned. These
provisions are part of the Fundamental Rights guaranteed by the Constitution.
Part IV containing Directive Principles of State Policy, which are no less
fundamental in the governance of the State to ensure equality between man and
woman such as equal pay for equal work. The Directive Principles further
endorses the principle of gender equality, which the State has to follow in
matters of governance. Similarly, Part IVA of the Constitution enshrining the
Fundamental Duties states that:
It shall be the duty of every citizen of India -
(e) ... to renounce practices derogatory to the dignity of women...
(e) ... to renounce practices derogatory to the dignity of women...
Despite these provisions for ensuring equal status,
unfortunately a woman is still not only neglected in her own natal family but
also the family she marries into because of certain laws and attitudes.
Position Of Woman After Enactment Of Hindu Succession
Act, 1956-
After the advent of the Constitution, the first law made at the central level pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956 (hereinafter called the HSA). This Act dealing with intestate succession among Hindus came into force on 17th June 1956. It brought about changes in the law of succession and gave rights, which were hitherto unknown, in relation to a woman's property. The section 6 of Hindu Succession Act, 1956 follows as:
After the advent of the Constitution, the first law made at the central level pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956 (hereinafter called the HSA). This Act dealing with intestate succession among Hindus came into force on 17th June 1956. It brought about changes in the law of succession and gave rights, which were hitherto unknown, in relation to a woman's property. The section 6 of Hindu Succession Act, 1956 follows as:
Devolution of interest in coparcenary property. -
When a male Hindu dies after the commencement of this Act, having at the time
of his death an interest in a Mitakshara coparcenary property, his interest in
the property shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship.
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship.
Explanation 1. For
the purpose of this section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted
to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or not.
Explanation 2. Nothing
contained in the proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the
deceased or any of his heirs to claim on intestacy a share in the interest
referred to therein.
Section 6 deals with the devolution of the interest of a
male Hindu in coparcenary property it says that if a male Hindu dies leaving
behind his share in Mithakshara Co-parcenary property , such property will pass
on to his sons, son's son's, son's son's son by survivorship, on surviving
members. In case there are female relatives like daughter, widow, mother,
daughter of predeceased son, daughter of predeceased daughter, widow of
predeceased son, widow of predeceased son of a
predeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by succession and not by survivorship . And while recognizing the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left him surviving a female relative specified in Class I of Schedule I, or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession under this Act and not by survivorship. The rule of survivorship comes into operation only: - Where the deceased does not leave him surviving a female relative specified in Class I, or a male relative specified in that Class who claims through such female relative; and · When the deceased has not made a testamentary disposition of his
undivided share in the coparcenary property.
predeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by succession and not by survivorship . And while recognizing the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left him surviving a female relative specified in Class I of Schedule I, or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession under this Act and not by survivorship. The rule of survivorship comes into operation only: - Where the deceased does not leave him surviving a female relative specified in Class I, or a male relative specified in that Class who claims through such female relative; and · When the deceased has not made a testamentary disposition of his
undivided share in the coparcenary property.
As pointed out above that the main provision of this
section deals with the devolution of the interest of a coparcener dying
intestate by the rule of survivorship and the proviso speaks of the interest of
the deceased in the Mitakshara Coparcenary Property. Now, in order to ascertain
what is the interest of the deceased coparcener, one necessarily needs to keep
in mind the two Explanations under the proviso. These two Explanations give the
necessary assistance for ascertaining the interest of the deceased coparcener
in the Mitakshara Coparcenary Property. Explanation I provides for ascertaining
the interest on the basis of a notional partition by applying a fiction as if
the partition had taken place immediately before the death of the deceased
coparcener. Explanation II lays down that a person who has separated himself
from the coparcenary before the death of the deceased or any of the heirs of
such divided coparcener is not entitled to claim on intestacy a share in the
interest referred to in the section. Under
the proviso if a female relative in class I of the schedule or a male relative
in that class claiming through such female relative survives the deceased, then
only would the question of claiming his interest by succession arise. The
Supreme Court in 1978 Gurupad v. Heerabai and reiterated later in 1994
in Shyama Devi v. Manju Shukla wherein it has been held that the
proviso to section 6 gives the formula for fixing the share of the claimant and
the share is to be determined in accordance with Explanation I by deeming that
a partition had taken place a little before his death which gives the clue for
arriving at the share of the deceased.Section 6 can further be understood
by the following-Example: If ?C? dies leaving behind his two sons only, and no
female heirs of class I then property of ?C? passes to his sons by survivorship
since there are no female relatives like daughter or any other member specified
in the class I of first schedule. In case ?C? dies leaving behind two sons and
three daughters, then property of ?C? will pass on to his sons and daughters by
succession in the following manner.
Firstly property of "C" is divided
between "C" and his two sons. The shares of "C"
and his two sons are, C gets one-third and each son one-third.
The sons are entitled to the equal share of the property
along with the father. But the daughters are entitled to the share in the share
of the deceased ?C? along with other sons. So the sons will get one-third of
the property and a share, which is one-fifth in the share of deceased ?C?. Hence
the daughter does not take equal share with the son.
However, section 6 did not interfere with the special
rights of those who are members of a Mitakshara coparcenary except to provide
rules for devolution of the interest of a deceased in certain cases. The Act
lays down a uniform and comprehensive system of inheritance and applies,
interalia, to persons governed by Mitakshara and Dayabhaga Schools as also to
those in certain parts of southern India who were previously governed by the
Murumakkattayam, Aliyasantana and Nambudri Systems. The Act applies to any
person who is a Hindu as defined in section 2 of HSA . But now the question the
question is whether, the Hindu Succession Act actually gave women an equal
right to property or did it only profess to do so. Significantly, the
provisions regarding succession in the Hindu Code Bill, as originally framed by
the B.N.Rau Committee and piloted by Dr.Ambedkar, was for abolishing Mitakshara
coparcenary with its concept of survivorship and the son's right by birth
in a joint family property and substituting it with the principle of
inheritance by succession. These proposals met with a storm of conservative
opposition. The extent of opposition within the Congress or the then government
itself can be gauged from the fact that the then Law Minister Mr.Biswas, on the
floor of the house, expressed himself against daughters inheriting property
from their natal families.
The retention of the Mitakshara coparcenary without
including females in it meant that females couldn't inherit ancestral property
as males do. If a joint family gets divided, each male coparcener takes his
share and females get nothing. Only when one of the coparceners dies, a female
gets a share of his share as an heir to the deceased. Thus the law by excluding
the daughters from participating in coparcenary ownership (merely by reason of
their sex) not only contributed to an inequity against females but has
led to oppression and negation of their right to equality and appears to be a
mockery of the fundamental rights guaranteed by the Constitution. Hence
this very fact necessitated a further change in regards to the property rights
of women, and which was done by the Hindu Succession (Amendment) Bill, 2004.
The State Amendments
The idea of making a woman a coparcener was suggested as early as 1945 in written statements submitted to the Hindu Law Committee by a number of individuals and groups; and again in 1956, when the Hindu Succession Bill was being finally debated prior to its enactment an amendment was moved to make a daughter and her children members of the Hindu coparcenary in the same way as a son or his children. But this progressive idea was finally rejected and the Mitakshara Joint family was retained.
The idea of making a woman a coparcener was suggested as early as 1945 in written statements submitted to the Hindu Law Committee by a number of individuals and groups; and again in 1956, when the Hindu Succession Bill was being finally debated prior to its enactment an amendment was moved to make a daughter and her children members of the Hindu coparcenary in the same way as a son or his children. But this progressive idea was finally rejected and the Mitakshara Joint family was retained.
The concept of the Mitakshara coparcenary property
retained under section 6 of the HSA has not been amended ever since its
enactment. Though, it is a matter of some satisfaction that five states in
India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka
have taken cognizance of the fact that a woman needs to be treated equally both
in the economic and the social spheres. As per the law of four of these states,
(Kerala excluded), in a joint Hindu family governed by Mitakshara law, the
daughter of a coparcener shall by birth become a coparcener in her own right in
the same manner as the son. Kerala, however, has gone one step further and
abolished the right to claim any interest in any property of an ancestor during
his or her lifetime founded on the mere fact that he or she was born in the
family. In fact, it has abolished the Joint Hindu family system altogether
including the Mitakshara, Marumakkattayam, Aliyasantana and Nambudri systems.
Thus enacting that joint tenants be replaced by tenants in common.A list of the
legislation passed by the five states is set out below and
the legislation is annexed as Annexed "1"
the legislation is annexed as Annexed "1"
· The Joint Hindu Family System (Abolition) Act, 1975,
Kerala.
· The Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
· The Hindu Succession (Tamil Nadu Amendment) Act, 1989.
· The Hindu Succession (Karnataka Amendment) Act, 1994.
· The Hindu Succession (Maharashtra Amendment) Act, 1994.
· The Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
· The Hindu Succession (Tamil Nadu Amendment) Act, 1989.
· The Hindu Succession (Karnataka Amendment) Act, 1994.
· The Hindu Succession (Maharashtra Amendment) Act, 1994.
The Hindu Succession (Amendment) Act, 2005
The Hindu Succession (Amendment) Act, 2005 was seeks to make two major amendments in the Hindu Succession Act, 1956. First, it is proposed to remove the gender discrimination in section 6 of the original Act. Second, it proposes to omit section 23 of the original Act, which disentitles a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein. However in the instant project
we have focused specifically on the changes brought in Section 6 in regards to the position of woman and has made a clause-by-clause consideration of the section thus amended.
The Hindu Succession (Amendment) Act, 2005 was seeks to make two major amendments in the Hindu Succession Act, 1956. First, it is proposed to remove the gender discrimination in section 6 of the original Act. Second, it proposes to omit section 23 of the original Act, which disentitles a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein. However in the instant project
we have focused specifically on the changes brought in Section 6 in regards to the position of woman and has made a clause-by-clause consideration of the section thus amended.
Section 6 of the Hindu Succession Act, 1956 has been
restated for convenience-
Devolution of interest in coparcenary property. - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship.
Devolution of interest in coparcenary property. - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship.
Explanation 1. For
the purpose of this section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted
to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or not.
Explanation 2. Nothing
contained in the proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the
deceased or any of his heirs to claim on intestacy a share in the interest
referred to therein.
The Hindu Succession (Amendment) Act, 2005-
6 (l). Devolution of interest in coparcenary property.
6 (l). Devolution of interest in coparcenary property.
(1) On and from the commencement of the Hindu Succession
(Amendment) Act, 2005, 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 the same manner as the son ;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(a) by birth become a coparcener in her own right the same manner as the son ;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled
by virtue of subsection (1) shall be held by her with the incidents of
coparcenary ownership and shall be regarded, notwithstanding anything contained
in this Act or any other law for the time being in force in, as property
capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005, his interest in the 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 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 of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as such child 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 so or a pre-deceased daughter, as the case may be.
(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 of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as such child 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 so or a pre-deceased daughter, as the case may be.
Explanation.-- For
the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted
to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005, no court shall recognize any right to proceed against a
son, grandson or great-grandson for the recovery of any debt due from his
father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to
discharge any such debt: Provided that in the case of any debt contracted
before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing
contained in this sub-section shall affect--
(a) the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.--For
the purposes of clause (a), the expression "son",
"grandson" or "great-grandson" shall be deemed to refer to
the son, grandson or great-grandson, as the case may be, who was born or
adopted prior to the commencement of the Hindu Succession (Amendment) Act,
2005.
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day of December 2004.
Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition affected by a decree of a court.
Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition affected by a decree of a court.
Section 6 seeks to make the daughter a coparcener by
birth in a joint Hindu family governed by the Mitakshara law, subject to the
same liabilities in respect of the said coparcenary property as that of a son.
Laws reflect the face of society and its evolution over
the time. To respond to the needs of a dynamic social system, laws have to be
changed and amended, at regular intervals. As far as the basic objective of the
Act is to remove gender discriminatory practices in the property laws of the
Hindus, whereby daughters have been given the status of coparceners in
the Mitakshara joint family system. However, the position of other Class I
female heirs should not suffer as a result of this move.
However, it does not interfere with the special rights of
those who are members of Hindu Mitakshara coparcenary except to provide rules
for devolution of the interest of a deceased male in certain cases. The Act lays
down a uniform and comprehensive system of inheritance and applies, inter alia,
to persons governed by the Mitakshara and Dayabhaga schools and also to
those governed previously by the Murumakkattayam, Aliyasantana and Nambudri
laws. It is proposed to remove the discrimination as contained in section 6 of
the Hindu Succession Act, 1956 by giving equal rights to daughters in the
Hindu Mitakshara coparcenary property as the sons have.
Changes Brought In The Position Of The Women
(Specifically Focusing On Section 6)
Out of many significant benefits brought in for women, one of the significant benefit has been to make women coparcenary (right by birth) in Mitakshara joint family property. Earlier the female heir only had a deceased man's notional portion. With this amendment, both male and female will get equal rights.
Out of many significant benefits brought in for women, one of the significant benefit has been to make women coparcenary (right by birth) in Mitakshara joint family property. Earlier the female heir only had a deceased man's notional portion. With this amendment, both male and female will get equal rights.
In a major blow to patriarchy, centuries-old customary
Hindu law in the shape of the exclusive male mitakshara coparcenary has been
breached throughout the country.
The preferential right by birth of sons in joint family
property, with the offering of "shradha" for the spiritual benefit
and solace of ancestors, has for centuries been considered sacred and
inviolate. It has also played a major role in the blatant preference for sons in
Indian society. This amendment, in one fell swoop, has made the daughter a
member of the coparcenary and is a significant advancement towards gender
equality.
The significant change of making all daughters (including
married ones) coparceners in joint family property - has been of a of great
importance for women, both economically and symbolically. Economically, it can
enhance women's security, by giving them birthrights in property that cannot be
willed away by men. In a male-biased society where wills often disinherit
women, this is a substantial gain. Also, as noted, women can become kartas of
the property. Symbolically, all this signals that daughters and sons are
equally important members of the parental family. It undermines the notion that
after marriage the daughter belongs only to her husband's family. If her
marriage breaks down, she can now return to her birth home by right, and not on
the sufferance of relatives. This will enhance her self-confidence and social
worth and give her greater bargaining power for herself and her children, in
both parental and marital families.
Now under the amendment, daughters will now get a share
equal to that of sons at the time of the notional partition, just before the
death of the father, and an equal share of the father's separate share. Equal
distribution of undivided interests in co-parcenery property. However, the
position of the mother vis-à-vis the coparcenary stays the same. She, not being
a member of the coparcenary, will not get a share at the time of the notional
partition. The mother will be entitled to an equal share with other Class I
heirs only from the separate share of the father computed at the time of the
notional partition. In effect, the actual share of the mother will go
down, as the separate share of the father will be less as the property will now
be equally divided between father, sons and daughters in the notional
partition.
Some Anomalies Still Persist
Some other anomalies also persist-
1. One stems from retaining the Mitaksara joint property system. Making daughters coparceners will decrease the shares of other Class I female heirs, such as the deceased's widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra, the widow's potential share will now equal the son's and daughter's. But where the wife takes no share on partition, as in Tamil Nadu or Andhra Pradesh, the widow's potential share will fall below the daughter's.
Some other anomalies also persist-
1. One stems from retaining the Mitaksara joint property system. Making daughters coparceners will decrease the shares of other Class I female heirs, such as the deceased's widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra, the widow's potential share will now equal the son's and daughter's. But where the wife takes no share on partition, as in Tamil Nadu or Andhra Pradesh, the widow's potential share will fall below the daughter's.
2. Co-parcenary remains a primary entitlement of males;
the law, no doubt provides for equal division of the male co-parcener's share
on his death between all heirs, male and female; still, the law puts the male
heirs on a higher footing by providing that they shall inherit an additional
independent share in co-parcenary property over and above what they inherit
equally with female heirs; the very concept of co-parcenary is that of an
exclusive male membership club and therefore should be abolished.
But such abolition needed to be dovetailed with partially
restricting the right to will (say to 1/3 of the property). Such restrictions
are common in several European countries. Otherwise women may inherit little,
as wills often disinherit them. However, since the 2005 Act does not touch
testamentary freedom, retaining the Mitaksara system and making daughters
coparceners, while not the ideal solution, at least provides women assured
shares in joint family property (if we include landholdings, the numbers
benefiting could be large). 3. If a Hindu female dies intestate, her property
devolves first to husband's heirs, then to husband's father's heirs and finally
only to mother's heirs; thus the intestate Hindu female property is kept within
the husband's lien.
Another reason for having an all India legislation is
that if the Joint Family has properties in two states, one which is governed by
the Amending Act and the other not so governed, it may result in two Kartas,
one a daughter and the other a son. Difficulties pertaining to territorial
application of Amending Act will also arise. Thus is the need for an all India
Act or Uniform Civil Code more immediate.
Conclusion
The Preamble to the Amending Acts indicates the objective as the removal of discrimination against daughters inherent in the mitakshara coparcenary and thereby eradication of the baneful system of dowry by positive measures thus ameliorating the condition of women in the human society.
The Preamble to the Amending Acts indicates the objective as the removal of discrimination against daughters inherent in the mitakshara coparcenary and thereby eradication of the baneful system of dowry by positive measures thus ameliorating the condition of women in the human society.
It is necessary to understand that if equality exists
only as a phenomenon outside the awareness and approval of the majority of the
people, it cannot be realized by a section of women socialized in traditions of
inequality. Thus there is need to social awareness and to educate people to
change their attitude towards the concept of gender equality. The need of the
hour is also to focus attention on changing the social attitudes in favour of
equality for all by enacting a uniform law.
The difficult question of implementing the 2005 Act
remains. Campaigns for legal literacy; efforts to enhance social awareness of
the advantages to the whole family if women own property; and legal and social
aid for women seeking to assert their rights, are only a few of the many steps
needed to fulfill the change incorporated in the Act.
The Karta of a Hindu joint Family in Hindu Law is the
senior most member of the family entitled to manage family affairs, in his
absence the next eldest male member after him is entitled to be the Karta. A
Karta is the caretaker of the whole family and looks after the welfare of all
the members of the family. His relationship with other members is a
relationship of trust and confidence.
At least one male member is necessary to constitute a
coparcenary. But the question arises that if no male member is left in the
family or if all male members are minors then who becomes the Karta ? or Can a
female member of a Hindu Joint Family become a Karta then in such circumstances
? this situation makes us rely on various judicial pronouncements which have
dealt with this question. The view of the judiciary is inconsistent.
Now when a major step towards ending gender
discrimination and to stop the gender-bias prevalent in families and to improve
adverse condition of women in society has been taken in the form of The Hindu
Succession Amendment Act,2005 . This amendment has conferred equal property
rights on daughters as well. Now the daughters by birth will acquire rights
over coparcenary property.
Earlier women were not included as coparcenary members,
and according to the Hindu sages only a coparcener can become a karta, and
therefore they could not be the Karta.
But now because of the changed position of daughters as
coparceners the situation is in favour of possibility of women becoming Karta.
There are diverse views of the Courts on this point.
In our project we have tried to explain the position of
women in relation to that of a Karta, we have also, by going through case-laws
and judicial pronouncements. Our Project is divided in parts. The First part
deals with historical background. The second part deals with can women be a
karta. The third part deals with arguments for and against of women as Karta.
The Last part is a synthesis of the arguments advanced ie the conclusion.
Background
Since ancient times the framing of all property laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being.
Since ancient times the framing of all property laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being.
Position prior to the Act of 1956
Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to a diversity in the law. Consequently, in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex. A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged.
Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to a diversity in the law. Consequently, in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex. A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged.
The Mitakshara law also recognises inheritance by
succession but only to the property separately owned by an individual, male or
female. Females are included as heirs to this kind of property by Mitakshara
law.
Before the Hindu Law of Inheritance (Amendment) Act 1929,
the Bengal, Benares and Mithila sub schools of Mitakshara recognised only five
female relations as being entitled to inherit namely - widow, daughter, mother
paternal grandmother, and paternal great-grandmother.
The Madras sub-school recognised the heritable capacity
of a larger number of females heirs that is of the son's daughter, daughter's
daughter and the sister, as heirs who are expressly named as heirs in Hindu Law
of Inheritance (Amendment) Act,1929. The son's daughter and the daughter's
daughter ranked as bandhus in Bombay and Madras. The Bombay school which is
most liberal to women, recognised a nunmber of other female heirs, including a
half sister, father's sister and women married into the family such as
stepmother, son's widow, brother's widow and also many other females classified
as bandhus.
During the British Regime
However, during the British regime, the country became politically and socially integrated, but the British Government did not venture to interfere with the personal laws of Hindus or of other communities. During this period, however, social reform movements raised the issue of amelioration of the woman's position in society. The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughter and sister (thereby creating a limited restriction on the rule of survivorship). Another landmark legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of ) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption.
However, during the British regime, the country became politically and socially integrated, but the British Government did not venture to interfere with the personal laws of Hindus or of other communities. During this period, however, social reform movements raised the issue of amelioration of the woman's position in society. The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughter and sister (thereby creating a limited restriction on the rule of survivorship). Another landmark legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of ) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption.
The Act of 1937 enabled the widow to succeed along with
the son and to take a share equal to 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 joint family. The widow was
entitled only to a limited estate in the property of the deceased with a right
to claim partition. A daughter had virtually no inheritance rights. Despite
these enactments having brought important changes in the law of succession by
conferring new rights of succession on certain females, these were still found
to be incoherent and defective in many respects and gave rise to a number of
anomalies and left untouched the basic features of discrimination against
women. These enactments now stand repealed.
The Indian Constitution
The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavour to ensure equality between man and woman Notwithstanding these constitutional mandates/directives given more than fifty years ago, a woman is still neglected in her own natal family as well as in the family she marries into because of blatant disregard and unjustified violation of these provisions by some of the personal land.
The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavour to ensure equality between man and woman Notwithstanding these constitutional mandates/directives given more than fifty years ago, a woman is still neglected in her own natal family as well as in the family she marries into because of blatant disregard and unjustified violation of these provisions by some of the personal land.
# Position after the enactment of Hindu Succession
Act,1955
The Hindu Succession Act,1955 reformed the Hindu personal law and gave woman greater property rights, allowing her full ownership rights instead of limited rights in property. The daughters were also granted property rights in their father's estate. In the matter of succession to the property of a Hindu male dying intestate, the Act lays down a set of general rules in sections 8 to 13. Sections 15 and 16 of the Act contain separate general rules affecting succession to the property of a female intestate. Social justice demands that a woman should be treated equally both in the economic and the social sphere.
The Hindu Succession Act,1955 reformed the Hindu personal law and gave woman greater property rights, allowing her full ownership rights instead of limited rights in property. The daughters were also granted property rights in their father's estate. In the matter of succession to the property of a Hindu male dying intestate, the Act lays down a set of general rules in sections 8 to 13. Sections 15 and 16 of the Act contain separate general rules affecting succession to the property of a female intestate. Social justice demands that a woman should be treated equally both in the economic and the social sphere.
Discrimination against women is so pervasive that it
sometimes surfaces on a bare perusal of the law made by the legislature itself.
This is particularly so in relation to laws governing the
inheritance/succession of property amongst the members of a Joint Hindu family.
It seems that this discrimination is so deep and systematic that it as placed
women at the receiving end.
Position after the amendment in the
Succession Act
The Law Commission was concerned with the discrimination inherent in the Mitakshara coparcenary under Section 6 of the Hindu Succession Act, as it only consists of male members. The Commission in this regard ascertained the opinion of a cross section of society in order to find out, whether the Mitakshara coparcenary should be retained as provided in section 6 of the Hindu Succession Act, 1956, or in an altered form, or it should be totally abolished. There were other questions involved also, like should women be karta in absence of male members ? The Commission's main aim was to end gender
The Law Commission was concerned with the discrimination inherent in the Mitakshara coparcenary under Section 6 of the Hindu Succession Act, as it only consists of male members. The Commission in this regard ascertained the opinion of a cross section of society in order to find out, whether the Mitakshara coparcenary should be retained as provided in section 6 of the Hindu Succession Act, 1956, or in an altered form, or it should be totally abolished. There were other questions involved also, like should women be karta in absence of male members ? The Commission's main aim was to end gender
discrimination which is apparent in section 6 of the
Hindu Succession Act,1956, by suggesting appropriate amendments to the Act.
Accordingly, the amendment was made by the legislature in December 2004 and it
conferred equal property share from the ancestral property on the daughter. By
birth a daughter would acquire property rights and would be like any other
coparcenary.
In the face of such multiplicity of succession laws
diverse in their nature, property laws continued to be complex and
discriminatory against women. The social reform movement during the
pre-independence period raised the issue of gender discrimination and a number
of ameliorative steps were initiated.
Can Women Be Karta ?
A questionnaire was issued by the Law Commission to elicit the views of the public regarding giving of rights to a daughter in the Mitakshara property of a Hindu undivided family. This questionnaire consisted of three parts having 21 questions. Sixty-Seven respondents have replied to the questionnaire.1 30 respondents were from the profession of law and the rest comprise sociologists, NGOs etc. About the case of Daughter becoming a Karta in the Joint Family, about half the respondents wanted the daughter to become a Karta in the Joint Family. The normal position of law does not give such a right to a women except under special circumstances. If such a right is sanctioned by law then what will be the pros and cons ? or why should we sanction such a right, for what reasons should a women be allowed to become the manager of a joint family? To answer all these questions we will have to look into arguments which favour the women becoming a Karta and the arguments which do not favour such a disposition.
A questionnaire was issued by the Law Commission to elicit the views of the public regarding giving of rights to a daughter in the Mitakshara property of a Hindu undivided family. This questionnaire consisted of three parts having 21 questions. Sixty-Seven respondents have replied to the questionnaire.1 30 respondents were from the profession of law and the rest comprise sociologists, NGOs etc. About the case of Daughter becoming a Karta in the Joint Family, about half the respondents wanted the daughter to become a Karta in the Joint Family. The normal position of law does not give such a right to a women except under special circumstances. If such a right is sanctioned by law then what will be the pros and cons ? or why should we sanction such a right, for what reasons should a women be allowed to become the manager of a joint family? To answer all these questions we will have to look into arguments which favour the women becoming a Karta and the arguments which do not favour such a disposition.
Arguments In Favour
Making her the Karta would make her position more respectable
Despite the Constitution guaranteeing equality to women, there are still many discriminatory aspects in the Hindu law in the sphere of property rights. In our society maltreatment of a woman in her husband's family, e.g. for failing to respond to a demand of dowry, often results in her death. But the tragedy is that there is discriminatory treatment given to her even by the members of her own natal family. Thus, if she is made the Karta of the family, then all the members of the family will respect her because of her position and women abuse will be controlled. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.
After The Hindu Succession Amendment Act, 2005 women are recognized as coparceners. In the Hindu system, ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners. Coparcenary as seen and discussed earlier in the present work is a narrower body of persons within a joint family and consists of father, son, son's son and son's son's son. A coparcenary can also be of a grandfather and a grandson, or of brothers,or an uncle and nephew and so on. Thus ancestral property continues to be governed by a wholly partrilineal regime, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. Since a woman could not be a coparcener, she was not entitled to a share in the ancestral property by birth. A son's share in the property in case the father dies intestate would be in addition to the share he has on birth. But after the amendment daughters have from birth coparcenary rights. So they can be kartas as they are now recognized as coparcenors.
Making her the Karta would make her position more respectable
Despite the Constitution guaranteeing equality to women, there are still many discriminatory aspects in the Hindu law in the sphere of property rights. In our society maltreatment of a woman in her husband's family, e.g. for failing to respond to a demand of dowry, often results in her death. But the tragedy is that there is discriminatory treatment given to her even by the members of her own natal family. Thus, if she is made the Karta of the family, then all the members of the family will respect her because of her position and women abuse will be controlled. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.
After The Hindu Succession Amendment Act, 2005 women are recognized as coparceners. In the Hindu system, ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners. Coparcenary as seen and discussed earlier in the present work is a narrower body of persons within a joint family and consists of father, son, son's son and son's son's son. A coparcenary can also be of a grandfather and a grandson, or of brothers,or an uncle and nephew and so on. Thus ancestral property continues to be governed by a wholly partrilineal regime, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. Since a woman could not be a coparcener, she was not entitled to a share in the ancestral property by birth. A son's share in the property in case the father dies intestate would be in addition to the share he has on birth. But after the amendment daughters have from birth coparcenary rights. So they can be kartas as they are now recognized as coparcenors.
Women are fully capable of managing a business, taking up
public life as well as manage large families as mothers. There is still a reluctance to making her a
Karta as the general male view is that she is incapable of managing the
properties or running the business and is generally susceptible to the
influence of her husband and his family, if married. This seems to be patently
unfair as women are proving themselves equal to any task and if women are
influenced by their husbands and their families, men are no less influenced by
their wives and their families.
This will end gender discrimination in Mitakshara
coparcenary by including daughters in the system. Since the girl will be
the equal inheritor of her ancestral property, the in-laws may not insist on
dowry.
It is being suggested that the family dwelling will
not be "alienated" without her express consent. Thus will make her
position stronger. She will now become a member equal to that as any other male
member.
Such an act will spread awareness and increase literacy
among women as they will be involved in family affairs and they will have a say
in business.
Arguments Against Women Becoming Karta
Daughters cannot be made karta as they live away from joint family after their marriage the daughter-in-laws do not also originally belong to their in-law’s family, and therefore their possibility of becoming a karta is also ruled out.
Daughters cannot be made karta as they live away from joint family after their marriage the daughter-in-laws do not also originally belong to their in-law’s family, and therefore their possibility of becoming a karta is also ruled out.
If women are made karta then this will lead to
involvement of women in business affairs this will lead to disturbed
domestic affairs.
The women of a house-hold are usually busy with
their domestic work, even if they are made karta they will act on the
advice of family members and in most cases where the woman is illiterate
then it will just lead to idle members of the joint family prospering at the
expense of the hard-working?
What will be the work of the male members if
female members of a joint family are made karta.
Women are incapable of managing properties or
agriculture, they are incapaable of running a business.
If women are made karta will they be entitled to any kind of maintenance ? this the key issue of the problems which is to be answered.
If women are made karta will they be entitled to any kind of maintenance ? this the key issue of the problems which is to be answered.
The Judicial View
The possibility of female being the Karta in presence of senior male member is being ruled out. But the question is whether in the absence of the manager, whether by prolonged journeys abroad or by dying without leaving another manager to succeed him in his function, a female could act as a manager. No doubt, it is true that he can act as guardian of Hindu Minors by the Hindu Minority and Guardianship act, 1956 but it abstains her from interfering with the exclusive powers of managers to deal with the interests of minors in the Joint Family Property. So, the solution lies in our religious text which is Dharmashastra. It says that 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 dependants and carrying the various burdens of the family. Here, the benefit of the family is the touchestone, not the identity of the alienor. The acts of a female member acting as a manager should be positive for the benefit of the Family. Such acts will be binding upon the manager when he returns or appears on the scene by simply coming of age as the case may be. It is further supported by Katyana, Smritichandrika, Bhavasvamin and Yagnavalyka Smriti. Some of the Sanskrit text says -
The possibility of female being the Karta in presence of senior male member is being ruled out. But the question is whether in the absence of the manager, whether by prolonged journeys abroad or by dying without leaving another manager to succeed him in his function, a female could act as a manager. No doubt, it is true that he can act as guardian of Hindu Minors by the Hindu Minority and Guardianship act, 1956 but it abstains her from interfering with the exclusive powers of managers to deal with the interests of minors in the Joint Family Property. So, the solution lies in our religious text which is Dharmashastra. It says that 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 dependants and carrying the various burdens of the family. Here, the benefit of the family is the touchestone, not the identity of the alienor. The acts of a female member acting as a manager should be positive for the benefit of the Family. Such acts will be binding upon the manager when he returns or appears on the scene by simply coming of age as the case may be. It is further supported by Katyana, Smritichandrika, Bhavasvamin and Yagnavalyka Smriti. Some of the Sanskrit text says -
"sishyantevasi-dasa-stri-vaiyavrittyakarais ca yat
Kutumbahetor ucchinam vodhavyam tat Kutumbina"
The manager (or householder, actual or eventual) is
liable to accept (or admit) all alienations made for the purposes of the Family
by a pupil, apprentice, slave, wife, agent or bailiff.
Narada says-
"Na ca bharya-kritam rinam kathancit patyur abhavet Apat kritad rite, pumsam kutumbartho hi vistarah"
"Na ca bharya-kritam rinam kathancit patyur abhavet Apat kritad rite, pumsam kutumbartho hi vistarah"
A debt contracted by his wife never binds the husband,
except that incurred in a time of distress: expenses for the benefit of the
family fall upon males.
Even at this objection is being raised, ‘Are not women
declared by the sastra to be incapable, or unfit for independence?” Wherever a
male member of the family is available, his signature should be taken rather
than that of any female’s acts. But the answer lies in the following statement.
The women in question is de facto svantantra: as soon as the husband returns or
her son reaches majority she becomes partantra again, but meanwhile the
responsibility rests with her, and powers should obviously be allowed to her
accordingly.
The Case Laws- In Support
The Nagpur position
In Hunoomanpersaud’s case3 which was one of the greatest cases in the history of Hindu Law dealt with the powers of a widow mother as manager of property of her minor son, and was in reality a case in the context of manager ship rather than guardianship properly so called. The test of the lady’s act was not who she was or in what capacity she purported to act, but whether the act was necessary or in the minor’s interest as understood by the law.
In Hunoomanpersaud’s case3 which was one of the greatest cases in the history of Hindu Law dealt with the powers of a widow mother as manager of property of her minor son, and was in reality a case in the context of manager ship rather than guardianship properly so called. The test of the lady’s act was not who she was or in what capacity she purported to act, but whether the act was necessary or in the minor’s interest as understood by the law.
In Pandurang Dahake v. Pandurang Gorle4, there the
widowed mother passed a promissory note for necessity as guardian of her two
minor sons. She was a defacto manager and was held to have managerial powers,
and the sons could not repudiate the debt.
In I.T Commr. v. Lakshmi Narayan5, the mother as
karta of the undivided family consisting of herself and her two minor sons
entered into a partnership renewing thereby the partnership which her late
husband had had with his brother. The court said that at Dayabhaga law woman
could be coparcener and so possibly even managers, and noted that a female
might be the manager of a religious endowment. The Act of 1937 has improved the
status of the Widow.
The Madras Position
In Seethabai v.. Narasimha6 there the widows claimed
that they were undivided members of the coparcenery by the operation of the act
of 21937. They objected to the appointment of a guardian for the property of
the minors. The court appointed one widow guardian of one of the minor and a
stranger was appointed the guardian of the other. None of the widows it was
held that could be a manager. To be a manager one must be a pukka coparcener, a
male with a birth right and not a mere statuary interest. In Radha Ammal
v. I.Tcommissioner,7 Madras a mother , guardian of minor sons , purported to
execute a deed of partnership admitting a stranger as a power in the ancestral
business. It was held that this was outside her powers and the deed could not
be registered under section 26(a) of the Income Tax Act 1922. A woman could not
be a manager. The argument that Hunoomanpersaud’s case8 allowed the act of
a de-facto manager to be binding even if she were a woman, was not decided,
much less examined. This was a weak case in Madras decision which was in any
case strictly formal and anti-Quarin in approach.
The Bombay High Court
In Rakhmabai v. Sitabai9 that a step mother as manager of a Joint Family consisting of her co-widow and minor step-son and a minor step daughter and had the power to resist the appointment of a guardian of the property of the step-son. She was the managing the estate and her authority should not, it was urged be undermined by such an appointment. The learned court said that the proper course was to appoint a guardian for the coparcenery Property. A widow could not be a manager of Joint Family Property. The case of Seethabai was agreed with.
In Rakhmabai v. Sitabai9 that a step mother as manager of a Joint Family consisting of her co-widow and minor step-son and a minor step daughter and had the power to resist the appointment of a guardian of the property of the step-son. She was the managing the estate and her authority should not, it was urged be undermined by such an appointment. The learned court said that the proper course was to appoint a guardian for the coparcenery Property. A widow could not be a manager of Joint Family Property. The case of Seethabai was agreed with.
The Orissa High Court-
In Maguni Padhano v. Lokananidhi Lingaraj10, it was held that a mother, whose husband is alive, cannot be a manager. She might indeed act as guardian of her son, if her husband was dead and perhaps as defacto guardian. But as manager she had no powers whatever. Laxmi Narayan’s case was not followed. The Principle that a woman could be a manager was decisively rejected.
In Maguni Padhano v. Lokananidhi Lingaraj10, it was held that a mother, whose husband is alive, cannot be a manager. She might indeed act as guardian of her son, if her husband was dead and perhaps as defacto guardian. But as manager she had no powers whatever. Laxmi Narayan’s case was not followed. The Principle that a woman could be a manager was decisively rejected.
The Patna High Court
In Sheogulam v. Kishun Chaudhari11, the court denied that a mother of a minor son, during the long absence of her husband , might act as karta and incur debts for family purposes. All such debts would not be binding upon the family. The case of Maguni was relied upon.
In Sheogulam v. Kishun Chaudhari11, the court denied that a mother of a minor son, during the long absence of her husband , might act as karta and incur debts for family purposes. All such debts would not be binding upon the family. The case of Maguni was relied upon.
On the surface it might seem that Madras has the best of
it. But a further examination makes us hesitate. The natural desire that
deserted mothers and widows should have ample powers to look after their minor
son’s interest, acting for necessity or the benefit of the Family, has expressed
itself, as things will, in an irregular way, seeing that it was frustrated in
expressing itself in some quartes in a regular way.
The Minor’s Manager Mare Nest
Some are also of the view that can a minor be a manager. It is hardly possible as the word manager means one who can make an alienation of property, one who can incur debts that will bind the family. The word is also capable of meaning the one who handles the affairs of the family. Internally, domestically, a minor may well be a manager. But he is not a manager vis-a vis the outside world.
Some are also of the view that can a minor be a manager. It is hardly possible as the word manager means one who can make an alienation of property, one who can incur debts that will bind the family. The word is also capable of meaning the one who handles the affairs of the family. Internally, domestically, a minor may well be a manager. But he is not a manager vis-a vis the outside world.
Conclusion:
Under the Shastric Law, a daughter on marriage ceases to
be a member of the parental family, but the Amending Acts have changed her
position, which is quite alien to Hindu patriarchal notions. Though her
position as defacto manager was recognized when mothers acted as guardians of
their minor sons after the death of their husbands, the dejure conferment of
the right eluded her.
The law commission also has rightly observed that
although the Hindu Succession Amendment Act, 2005 has conferred upon the
daughter of a coparcener status but there is still a reluctance to making her a
Karta. This seems to be patently unfair as women are proving themselves equal
to any task.
Since they can act as coparcenaries then they must also
be given the powers of Karta. The shastra is clear that in the absence of
senior member a junior member (if he has reached the age of legal competence)
may incur debts for the needs of the family, and in the absence of a male member
a female member may do so. The Sanskritic texts empower women to act as Karta
in instances like when the husband is away or missing or the son is yet to
attain majority.
Equality for women is not just a matter of equity for the
so-called weaker sex, but a measure of the modernity of Indian society and the
pragmatic nature of our civilization.
A Hindu joint family consists of the common ancestor and
all his lineal male descendants upto any generation together with the wife/
wives (or widows) and unmarried daughters of the common ancestor and of the
lineal male descendants. Whatever the skeptic may say about the future of the
Hindu joint family, it has been and is still the fundamental aspect of the life
of Hindus.
A co-parcenery is a narrow body of persons within a joint
family. It exclusively consists of male members. A Hindu coparcenery is a
corporate entity, though not incorporated. A coparcenery consists of four
successive generations including the last male holder of the property. The last
male holder of the property is the senior most member of the family.
In the entire Hindu joint family, the karta or
manager (the English word manager is wholly inadequate in understanding his
unique position) occupies a very important position. Karta is the eldest male
member of the family. He is the Hindu patriarch. Only a coparcener can become
Karta. Such unique is his position that there is no office or any institution
or any other system of the world, which can be compared with it. His position
is sui generis i.e. of his own kind or peculiar to himself.
Peculiarity lies in the fact that in terms of his share/interest, the Karta is
not superior and has no superior interests in the coparcenery. If partition
takes place he is entitled to take his share. He is a person with limited
powers, but, within the ambit of his sphere, he possesses such vast powers as
are possessed by none else. His position is recognized /conferred by law. No
stranger can ever be qualified to be a karta, but an adopted son who is the
eldest in the family can be qualified.
Article 236 of the Mulla Hindu Law defines
"Karta" as follows:
Manager - Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family: The Manager of a joint family is called Karta.
Manager - Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family: The Manager of a joint family is called Karta.
In a HUF, the responsibility of Karta is to manage the
HUF property. He is the custodian of the income and assets of the HUF. He is
liable to make good to other family members with their shares of all sums which
he has misappropriated or which he spent for purposes other than those in which
the joint family was interested. His role is crucial. He is entrusted not only
with the management of land/assets of the family but also is entrusted to do
the general welfare of the family.
His position is different from the manager of a company
or a partnership. The reason behind it is that though the coparcenery deals
with lands, assets/property but in an entirely different fashion. When a Karta
is bestowed with such a position it is something, which takes place under the
operation of law.
Who Can Be A Karta?
Senior Most Male Member: - It is a presumption of Hindu law, that ordinarily the senior most male member is the Karta of the joint family.
Senior Most Male Member: - It is a presumption of Hindu law, that ordinarily the senior most male member is the Karta of the joint family.
Jandhayala Sreeamma v. Krishnavenamma AIR 1957 A.P.434
In the case of Hindu Joint Family a suit to set aside on alienation filed by the younger of the two brothers within three years of his attaining majority would be barred by limitation if the elder brother, who was the manager and an adult has failed to sue within three years of his attaining majority.
In the case of Hindu Joint Family a suit to set aside on alienation filed by the younger of the two brothers within three years of his attaining majority would be barred by limitation if the elder brother, who was the manager and an adult has failed to sue within three years of his attaining majority.
The senior most male member is Karta by virtue of the
fact that he is senior most male member. He does not owe his position to
agreement or consent of other coparceners. So long as he is alive, may be aged,
infirm, or ailing, he will continue to be Karta. Even a leper may continue to
be the Karta1. However, in cases of insanity or any other disqualifications,
the next senior male member generally takes over the Kartaship. Once this is
done the former will cease to be a karta.
So long as the father is alive, he is the karta. After
his death it passes to the senior most male member, who may be the uncle, if
coparcenery consists of uncles and nephews, or who may be the eldest brother,
if coparcenery consists of brothers.
Junior Male Member
In the presence of a senior male member, a junior male member cannot be the Karta. But if all the coparceners agree, a junior male member can be a Karta. Coparceners may withdraw their consent at any time.
In the presence of a senior male member, a junior male member cannot be the Karta. But if all the coparceners agree, a junior male member can be a Karta. Coparceners may withdraw their consent at any time.
"So long as the members of a family remain undivided
the senior member is entitled to manage the family properties including even
charitable property and is presumed to be the manager until the contrary is
shown. But the senior most member may give up his right of management and a
junior member may be appointed as manager."
Narendrakumar J Modi v. CIT 1976 S.C. 1953
Facts: - Baplal Purushottamdas Modi was the head of the HUF. Joint
family possesses many immovable properties and carried business of various
types such as money lending, etc. He executed a general power of attorney in
favor of his 3rd son, Gulabchand on Oct 5, 1948. On Oct 22, 1954 Baplal
relinquished his share. On Oct 24, 1954 the existing members of the family
executed a memo of partition. However, the order accepting partition was not
passed, the contention of the appellant was that Gulabchand couldn’t be a karta
because he is a junior member and other members of the family did not accept
him as a karta.
Judgment: - It
was held that Gulabchand was given the power to manage by Baplal because
Gulabchand’s elder brother was an aged man of 70 years. And also the father of
appellant died in 1957. So, under such circumstances, Gulabchand appears to
have acted as the Karta with the consent of all the other members and hence the
appeal was dismissed.
# Female Members As Karta
The concept of a “manager” of a Joint Hindu Family has been in existence for more than two thousand years or more. Courts in India have given diverse views: -
The concept of a “manager” of a Joint Hindu Family has been in existence for more than two thousand years or more. Courts in India have given diverse views: -
C.P. Berai v. Laxmi Narayan AIR 1949 Nag 128
It was held that a widow could be a karta in the absence of adult male members in the family. It was said that the true test is not who transferred/incurred the liability, but whether the transaction was justified by necessity.
It was held that a widow could be a karta in the absence of adult male members in the family. It was said that the true test is not who transferred/incurred the liability, but whether the transaction was justified by necessity.
Sushila Devi Rampura v. Income tax Officer AIR 1959 Cal
It was held that where the male members are minors, their natural guardian is their mother. The mother can represent the HUF for the purpose of assessment and recovery of income tax.
It was held that where the male members are minors, their natural guardian is their mother. The mother can represent the HUF for the purpose of assessment and recovery of income tax.
Radha Ammal v. Commissioner of Income Tax AIR 1950 Mad
588
It was held that since a widow is not admittedly a coparcener, she has no legal qualification to become a manger of a JHF.
It was held that since a widow is not admittedly a coparcener, she has no legal qualification to become a manger of a JHF.
Commissioner of Income Tax v. Seth Govind Ram AIR 1966
S.C. 2
After reviving the authorities it was held that the mother or any other female could not be the Karta of the Joint Family. According to the Hindu sages, only a coparcener can be a karta and since females cannot be coparceners, they cannot be the Karta of a Joint Hindu Family.
After reviving the authorities it was held that the mother or any other female could not be the Karta of the Joint Family. According to the Hindu sages, only a coparcener can be a karta and since females cannot be coparceners, they cannot be the Karta of a Joint Hindu Family.
The above views seem to be rigid. Rigidity in law is a
fatal flaw. Since it is depended upon an ill directed question whether the
transferor was a coparcener.
Dharmashastra is one and only sure guide. According to
Dharmashastras, in absence of male members female members can act as karta, or
in case where male members if present are minors, she can act as karta. Debts
incurred even by female members under such circumstances will be binding upon
the family and must be paid out of the joint family funds whether at the time
of partition or earlier. Often the question is raised as to whether her acts
are for the benefit of the family. Dharmashastra answers it by saying that she
might act as manager by doing acts of positive benefit and not merely
conservative/negative acts.
"The position according to the Mitakshara theory as
developed by Vijnaneshwara seems to be this, that a wife gets rights of
ownership of her husband's separate and joint family property from the moment
of her marriage and a daughter from the moment of her birth. But Vijnaneshwara
does make a distinction between males and females and says that females are
asvatantra or unfree. If we are to translate his notion into the language of
the coparcenary, I think we can state that women are coparceners but 'unfree'
coparceners."
Prior to 1956, Hindus were governed by property laws,
which had no coherence and varied from region to region and in some cases
within the same region, from caste to caste.
The Mitakshara School of succession, which was
prevalent in most of North India, believed in the exclusive domain of male
heirs. Mitakshara is one of the two schools of Hindu Law but it prevails in a
large part of the country. Under this, a son, son’s son, great grandson and
great grandson have a right by birth to ancestral property or properties in the
hands of the father and their interest is equal to that of the father. The
group having this right is termed a coparcenary. The coparcenary is at present
confined to male members of the joint family.
In contrast, the Dayabhaga system did not
recognize inheritance rights by birth and both sons and daughters did not have
rights to the property during their father’s lifetime. At the other extreme was
the Marumakkattayam law, prevalent in Kerala, which traced the
lineage of succession through the female line.
According to Hindu Minority and Guardianship Act, 1956
woman can take only a conservative action. It is certain that guardian acting
under the act cannot undertake every class of proceeding that would be open to
a manager. Act does not purport to confer upon the guardian the power of
manager.
Former Prime Minister Jawaharlal Nehru championed the
cause of women’s right to inherit property and the Hindu Succession Act was
enacted and came into force on June 17, 1956.
Many changes were brought about that gave women greater
rights but they were still denied the important coparcenary rights.
Subsequently, a few States enacted their own laws for division of ancestral
property.
In what is known as the Kerala model, the concept of
coparcenary was abolished and according to the Kerala Joint Family System
(Abolition) Act, 1975, the heirs (male and female) do not acquire property by
birth but only hold it as tenants as if a partition has taken place. Andhra
Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra (1994) also
enacted laws, where daughters were granted ‘coparcener’ rights or a claim on
ancestral property by birth as the sons.
In 2000, the 174th report of the 15th Law Commission suggested amendments to correct the discrimination against women, and this report forms the basis of the present Act. Discrimination against women was the key issue before the Law Commission.
In 2000, the 174th report of the 15th Law Commission suggested amendments to correct the discrimination against women, and this report forms the basis of the present Act. Discrimination against women was the key issue before the Law Commission.
The amendment made in 2005 gives women equal rights in
the inheritance of ancestral wealth, something reserved only for male heirs
earlier. It indeed, is a significant step in bringing the Hindu Law of
inheritance in accord with the constitutional principle of equality. Now, as
per the amendment, Section 6 of the Hindu Succession Act, 1956 gives equal
rights to daughters in the Hindu Mitakshara coparcenary property as the sons
have. The amendment was made because there was an urgent need for certainty in
law.
Though the 2005 amendment gives equal rights to daughters
in the coparcenery. An important question is still unanswered whether women or
daughters can be allowed to become managers or karta of the joint family. The
objection to this issue of managing a joint family as visualized is that
daughters may live away from the joint family after their marriage but it is well
appreciated that women are fully capable of managing a business, taking up
public life as well as manage large families as mothers. Another doubt being
considered is that as managers of their fathers' joint family they could be
susceptible to the influence of their husbands or husbands' families.
Position Of Karta
The position of karta is sui generis. The relationship
between him and other members are not that of principal/agent/partners. He is
not like a manger of a commercial firm. Needless to say he is the head of the
family and acts on behalf of other members, but he is not like a partner, as
his powers are almost unlimited. Undoubtedly, he is the master of the grand
show of the joint family and manages all its affairs and its business. His
power of management is so wide and almost sovereign that any manager of
business firm pales into insignificance. The karta stands in a fiduciary
relationship with the other members but he is not a trustee.
# Ordinarily a Karta is accountable to none. Unless
charges of fraud, misrepresentation or conversion are leveled against him. He
is the master and none can question as to what he received and what he spent.
He is not bound for positive failures such as failure to invest, to prepare
accounts, to save money.
# Karta may discriminate i.e. he is not bound to
treat all members impartially. He is not bound to pay income in a fixed
proportion to other members. Even if he enters such an agreement /arrangement,
he can repudiate the same with impunity.
However large powers a karta might have, he cannot be a
despot. He has blood ties with other members of the family. After all he is a
person of limited powers. He has liabilities towards members. Any coparcener
can at any time ask for partition. He obtains no reward for his services and he
discharges many onerous responsibilities towards the family and its members.
His true legal position can be understood only when we know the ambit of his
powers and liabilities.
Karta’s Liabilities
Karta’s liabilities are numerous and multifarious. Maintenance: - In a joint Hindu family, the right of maintenance of all the coparceners out of the joint family funds is an inherent right and an essential quality of the coparcenery. As Mayne puts it: Those who would be entitled to share the bulk of property are entitled to have all their necessary expenses paid out of its income. Every coparcener, from the head of the family to the junior most members, is entitled to maintenance. A Karta is responsible to maintain all members of the family, coparceners and others. If he improperly excludes any member from maintenance or does not properly maintain them, he can be sued for maintenance as well as for arrears of maintenance.
Karta’s liabilities are numerous and multifarious. Maintenance: - In a joint Hindu family, the right of maintenance of all the coparceners out of the joint family funds is an inherent right and an essential quality of the coparcenery. As Mayne puts it: Those who would be entitled to share the bulk of property are entitled to have all their necessary expenses paid out of its income. Every coparcener, from the head of the family to the junior most members, is entitled to maintenance. A Karta is responsible to maintain all members of the family, coparceners and others. If he improperly excludes any member from maintenance or does not properly maintain them, he can be sued for maintenance as well as for arrears of maintenance.
Marriage: - He
is also responsible for the marriage of all unmarried members. This
responsibility is particularly emphasized in respect of daughters. Marriage of
a daughter is considered as a sacrosanct duty under Hindu law. Marriage
expenses are defrayed out of joint family funds.
Chandra Kishore v. Nanak Chand AIR 1975 Del 175
In this case it was held that Karta is responsible for managing the expenses of the marriage of the daughter from the joint family estate. And in case marriage expenses are met from outside they are to be reimbursed from the joint family funds.
In this case it was held that Karta is responsible for managing the expenses of the marriage of the daughter from the joint family estate. And in case marriage expenses are met from outside they are to be reimbursed from the joint family funds.
# Accounts at the time of Partition: - Partition
means bringing the joint status to an end. On partition, the family ceases to
be a joint family. Under the Mitakshara law, partition means two things:
-
(a) Severance of status /interest, and
(b) Actual division of property in accordance with the shares so specified, known as partition by metes and bounds.
(a) Severance of status /interest, and
(b) Actual division of property in accordance with the shares so specified, known as partition by metes and bounds.
The former is a matter of individual decision, the desire
to sever himself and enjoy the unspecified and undefined share separately from
others while the latter is a resultant consequent of his declaration of
intention to sever but which is essentially a bilateral action.
Taking of accounts means an enquiry into the joint family
assets. It means preparing an inventory of all the items of the joint family
property.
The Mitakshara Karta is not liable to accounts and no
coparcener can even at the time of partition, call upon the karta to account
his past dealings with the joint family property unless charges of fraud,
misappropriation/conversion are made against him.
Ghuia Devi v. Shyamlal Mandal AIR 1974 Pat 68
Facts: - Gokul Mandal was the common ancestor of the family, he had
2 sons: - Gobardhan and Ghoghan. After Gokul’s death Gobardhan was the karta of
the family. Shyamlal and Kisan are the sons of Gobardhan. Shyamlal, defendant
no.1 is the husband of the plaintiff. In 1951, partition took place between two
branches: Shyamlal and Ghoghan. After partition, Shyamlal began to act as karta
of the family consisting of the members of Gobardhan’s branch. Appellant is a pardanashin
lady. Shyamlal took advantage of her position and misappropriation of property
and its income and as a result of it a suit was filed. Plea of appellant was
that their client was entitled to a decree for accounts. Their plea was
rejected because they could adduce no evidence.
Judgment: - In
the suits for partition of a Joint Hindu Family property the manager/karta can
only be made liable for revaluation of account if there is a proof of
misappropriation /fraud and improper conversion of joint family assets and
property. It was said that in the absence of such a proof a coparcener seeking
partition is not entitled to require the manager to account for his past
dealings with the joint family property.
However, when a coparcener suing for partition is
entirely excluded from the enjoyment of property he can ask for accounts.
After the severance of status has taken place, the karta is bound to render accounts of all expenditure and income in the same manner as a trustee or agent is bound to render accounts. This means that from the date of severance of status, the karta is bound to account for all mesne profits.
After the severance of status has taken place, the karta is bound to render accounts of all expenditure and income in the same manner as a trustee or agent is bound to render accounts. This means that from the date of severance of status, the karta is bound to account for all mesne profits.
# Representation: - The karta represents the family.
He is its sole representative vis-a vis the government and all outsiders and in
that capacity he has to discharge many responsibilities and liabilities on
behalf of the family. He has to pay taxes and other dues on behalf of the
family and he can be sued for all his dealings on behalf of the family with the
outsiders.
Powers Of Karta
When we enumerate the powers of karta, the real importance of his legal position comes into clear relief. His powers are vast and limitations are few. The ambit of his powers can be considered under two heads: - (a) power of alienation of joint family property, (b) other powers. In the former case, his powers are limited since a karta can alienate in exceptional cases. In the latter case his powers are large, almost absolute.
When we enumerate the powers of karta, the real importance of his legal position comes into clear relief. His powers are vast and limitations are few. The ambit of his powers can be considered under two heads: - (a) power of alienation of joint family property, (b) other powers. In the former case, his powers are limited since a karta can alienate in exceptional cases. In the latter case his powers are large, almost absolute.
First we will discuss the other powers.
Other powers
Powers of management: - As the head of the family, karta’s powers of management are almost absolute. He may mange the property of the family, the family affairs, the business the way he likes, he may mismanage also, nobody can question his mismanagement. He is not liable for positive failures. He may discriminate between the members of the family. But he cannot deny maintenance /use/occupation of property to any coparcener. The ever-hanging sword of partition is a great check on his absolute powers. Probably, the more effective check is the affection and the natural concern that he has for the members of the family and the complete faith and confidence that members repose in him.
Powers of management: - As the head of the family, karta’s powers of management are almost absolute. He may mange the property of the family, the family affairs, the business the way he likes, he may mismanage also, nobody can question his mismanagement. He is not liable for positive failures. He may discriminate between the members of the family. But he cannot deny maintenance /use/occupation of property to any coparcener. The ever-hanging sword of partition is a great check on his absolute powers. Probably, the more effective check is the affection and the natural concern that he has for the members of the family and the complete faith and confidence that members repose in him.
Right to income: - It is the natural consequence of the
joint family system that the whole of the income of the joint family property,
whosoever may collect them, a coparcener, agent or a servant, must be handled
over to the karta .It is for the karta to allot funds to the members and look
after their needs and requirements.
The income given to the karta is an expenditure incurred in the interest of the family.
The income given to the karta is an expenditure incurred in the interest of the family.
Jugal Kishore Baldeo Sahai v. CIT (1967) 63 ITR 238
In the present case, both the members of the Hindu undivided family, who were the only persons competent to enter into an agreement on its behalf, considered it appropriate that the karta should be paid salary at the rate of Rs. 500/- per month for looking after its interest in the partnership in which it had a substantial interest because its karta was a partner therein as its representative, and entered into an agreement to pay salary to him for the services rendered to the family. The ratio of the above decision is, therefore, applicable to the present case. Accordingly, the salary paid to him has to be held to be an expenditure incurred in the interest of the family .The expenditure having been incurred under a valid agreement, bonafide, and in the interest of and wholly and exclusively for the purpose of the business of the Hindu undivided family, is allowable as a deductible expenditure under section 37(1) of the Indian Income Tax Act, 1922 in computing the income of the Hindu undivided family.
In the present case, both the members of the Hindu undivided family, who were the only persons competent to enter into an agreement on its behalf, considered it appropriate that the karta should be paid salary at the rate of Rs. 500/- per month for looking after its interest in the partnership in which it had a substantial interest because its karta was a partner therein as its representative, and entered into an agreement to pay salary to him for the services rendered to the family. The ratio of the above decision is, therefore, applicable to the present case. Accordingly, the salary paid to him has to be held to be an expenditure incurred in the interest of the family .The expenditure having been incurred under a valid agreement, bonafide, and in the interest of and wholly and exclusively for the purpose of the business of the Hindu undivided family, is allowable as a deductible expenditure under section 37(1) of the Indian Income Tax Act, 1922 in computing the income of the Hindu undivided family.
Right to representation: - The karta of a joint family
represents the family in all matters- legal, social, religious. He acts on
behalf of the family and such acts are binding on the family. The joint family
has no corporate existence; it acts in all matters through its karta. The karta
can enter into any transaction on behalf of the family and that would be
binding on the joint family.
Dr. Gopal v. Trimbak AIR 1953 Nag 195
Dr. Gopal v. Trimbak AIR 1953 Nag 195
In this case, it was held that a manager/karta can
contract debts for carrying on a family business/ thereby render the whole
family property including the shares of the other family members liable for the
debt. Merely because one of the members of the joint family also joins him, it
does not alter his position as a karta.
Power of Compromise: - The karta has power to compromise
all disputes relating to family property or their management. He can also
compromise family debts and other transactions. However, if his act of
compromise is not bonafide, it can be challenged in a partition. He can also
compromise a suit pending in the court and will be binding on all the members,
though a minor coparcener may take advantage of O.32, Rule 7 C.P.C., which lays
down that in case one of the parties to the suit is a minor the compromise must
be approved by the court.
Power to refer a dispute to arbitration: - The karta has
power to refer any dispute to arbitration and the award of the arbitrators will
be binding on the joint family if valid in other respects.
Karta’s power to contract debts. The karta of a
non-business joint family also has the power to contract debts for family
purposes. When a creditor seeks to make the entire joint family liable for such
debts, it is necessary for him to prove that the loan was taken for family
purposes, or in the ordinary course of business or that he made proper and bona
fide enquiries as to the existence of need. The expression family purpose has
almost the same meaning as legal necessity, benefit of estate, or performance
of indispensable and pious duties.9: - The karta has an implied authority to
contract debts and pledge the credit of the family for ordinary purpose of
family business. Such debts incurred in the ordinary course of business are
binding on the entire family
Loan on Promissory note: - When the karta of a joint
family takes a loan or executes a promissory note for family purposes or for
family business, the other members of the family may be sued on the note itself
even if they are not parties to the note. Their liability is limited to the
share in the joint family property, though the karta is personally liable on
the note.
Power to enter into contracts: - The karta has the power
to enter into contracts and such contracts are binding on the family. It is
also now settled that a contract, otherwise specifically enforceable, is also
specifically enforceable against the family.
Power of alienation
Although no individual coparcener, including the karta has any power to dispose of the joint family property without the consent of all others, the Dharma Shastra recognizes it. That in certain circumstances any member has the power to alienate the joint family property. The Mitakshara is explicit on the matter. According to Vijnaneshwara: -
Although no individual coparcener, including the karta has any power to dispose of the joint family property without the consent of all others, the Dharma Shastra recognizes it. That in certain circumstances any member has the power to alienate the joint family property. The Mitakshara is explicit on the matter. According to Vijnaneshwara: -
....even one person who is capable may conclude a gift,
hypothecation or sale of immovable property, if a calamity (apatkale) affecting
the whole family requires it, or the support of the family (kutumbarthe) render
it necessary, or indispensable duties (dharmamarthe), such as obsequies of the
father or the like, made it unavoidable.
The formulation of Vijnaneshwara has undergone modification
in two respects: -
The power cannot be exercised by any member except the karta.
The joint family property can only be alienated for three purposes: -
(a) Apatkale (Legal Necessity)
(b) Kutumbarthe (Benefit of Estate)
(c) Dharmamarthe (Religious obligations)
The power cannot be exercised by any member except the karta.
The joint family property can only be alienated for three purposes: -
(a) Apatkale (Legal Necessity)
(b) Kutumbarthe (Benefit of Estate)
(c) Dharmamarthe (Religious obligations)
(a) Legal Necessity: - It cannot be defined
precisely. The cases of legal necessity can be so numerous and varied that it
is impossible to reduce them into water –tight compartments. Loosely speaking
it includes all those things, which are deemed necessary for the members of the
family. What need to be shown is that the property was alienated for the
satisfaction of a need. The term is to be interpreted with due regard to the
modern life. Where the necessity is partial, i.e. where the money required to
meet the necessity is less than the amount raised by the alienation, then also
it is justified for legal necessity.
Dev Kishan v. Ram Kishan AIR 2002 Raj 370
Facts:- Ram Kishan , the plaintiff filed a suit against appellants, defendants. Plaintiffs and defendants are members of a Joint Hindu Family. Defendant no.2 is the karta, who is under the influence of defendant no.1 has sold and mortgaged the property for illegal and immoral purposes as it was for the marriage of minor daughters Vimla and Pushpa. The defendants contention was that he took the loan for legal necessity.
Facts:- Ram Kishan , the plaintiff filed a suit against appellants, defendants. Plaintiffs and defendants are members of a Joint Hindu Family. Defendant no.2 is the karta, who is under the influence of defendant no.1 has sold and mortgaged the property for illegal and immoral purposes as it was for the marriage of minor daughters Vimla and Pushpa. The defendants contention was that he took the loan for legal necessity.
Judgment: -
The debt was used for an unlawful purpose. Since it was in contravention of
Child Marriage Restraint Act, 1929, therefore it cannot be called as lawful
alienation.
(b) Benefit of Estate: - Broadly speaking, benefit
of estate means anything, which is done for the benefit of the joint family
property. There are two views as to it. One view is that only construction,
which is of defensive character, can be a benefit of estate. This view seems to
be no longer valid. The other view is that anything done which is of positive
benefit, will amount to benefit of estate. The test is that anything which a
prudent person can do in respect of his own property.
(c) Indispensable Duties: - This term implies
performance of those acts, which are religious, pious, or charitable.
Vijnaneshwara gave one instance of Dharmamarthe, viz.,
obsequies of the father and added “or the like”. It is clear that this
expression includes all other indispensable duties such as sradha, upananyana,
and performance of other necessary sanskars. For the discharge of indispensable
duties the karta may even alienate the entire property.
A karta can even alienate a portion of the family
property for charitable/pious purposes. However, in this case, the powers of
the karta are limited i.e. he can alienate a small portion of the joint family
property, whether movable/immovable.
Alienation Is Voidable
It may be taken as a well-settled law, that alienation made by karta without legal necessity / benefit of estate/ discharge of indispensable duties is not void but merely voidable at the instance of any coparcener.
It may be taken as a well-settled law, that alienation made by karta without legal necessity / benefit of estate/ discharge of indispensable duties is not void but merely voidable at the instance of any coparcener.
In CIT v Gangadhar Sikaria Family Trust (1983) 142 ITR
677, the Gauhati High Court was called upon to decide whether the Income-tax
Officer can challenge the validity of an alienation by the karta of a Hindu
undivided family. The High Court held that under the Hindu Law, the karta of a
Hindu undivided family has an unfettered right to alienate the joint family
property for legal necessity and for the benefit of the estate or the family.
It was further held that even if a transfer by the karta were not for legal
necessity or for the benefit of the estate, but if it is done with the consent
of the coparceners, it would be only voidable and not void ab-initio. It is
clear that alienation by the karta or manager of a joint family is voidable,
but not void. Hence, a third party cannot repudiate it, except in cases where
there is a suggestion that it was in fraud on creditors.
Separate Property
It is now settled that the karta can alienate the joint family property with the consent of the coparceners even if none of the above exceptional cases exist. Alienation without the consent of the coparcener, which is not for legal necessity, is void.
It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blender with the joint family estate, the business remains free and separate.
Law as enumerated under Article 222 of Mulla Hindu Law is well settled that a Hindu, even if be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth, and on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners.
It is now settled that the karta can alienate the joint family property with the consent of the coparceners even if none of the above exceptional cases exist. Alienation without the consent of the coparcener, which is not for legal necessity, is void.
It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blender with the joint family estate, the business remains free and separate.
Law as enumerated under Article 222 of Mulla Hindu Law is well settled that a Hindu, even if be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth, and on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners.
P.S. Sairam v. P.S. Ramarao Pisey AIR 2004 SC 1619
Facts: - P. Eswar Rao had 3 marriages. From his second marriage he had 2
sons: - P. Sadashiv Rao (defendant no.1 he is the karta of the family) and P.E.
Panduranga Rao. Sadashiv Rao had 2 wives. Godavari Bai was his first wife. She
had 2 sons one of them is the plaintiff, P.S. Ramarao Pissey. Plaintiffs case
is that defendant no.1 started a business from the income and property of joint
family in the name of M/s Pissey and sons. The contention of the defendants is
that the property was his self-acquisition, which he acquired by raising loans
from the market.
Judgment: - It
was held that it was defendant no.1’s separate property.
The karta’s powers and liabilities and the karta’s power of alienation of property under the Dayabhaga school are same as that of the Mitakshara karta. The main difference between the two schools is that in case of Dayabhaga the karta must render full accounts at all times, whenever required to do so by the coparcener, while in case of Mitakshara the karta is required to render accounts only at the time of partition or unless there are charges against him for fraud/misappropriation.
The karta’s powers and liabilities and the karta’s power of alienation of property under the Dayabhaga school are same as that of the Mitakshara karta. The main difference between the two schools is that in case of Dayabhaga the karta must render full accounts at all times, whenever required to do so by the coparcener, while in case of Mitakshara the karta is required to render accounts only at the time of partition or unless there are charges against him for fraud/misappropriation.
Conclusion
The reasoning, which was earlier given by the courts including the apex court of the country that woman, cannot become a karta because a karta has to necessarily be a coparcener. But now, with the amendment of 2005, Section 6 of the Hindu Succession Act, 1956 gives equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Even now the Hindu Succession Act, 1956 does not accept a woman as karta in normal circumstances. She can be a karta only in 2 certain special circumstances: - in the absence of male members, and in case there are minor male members in the family, which is prescribed by the ancient Hindu law, the dharmashatras.
The reasoning, which was earlier given by the courts including the apex court of the country that woman, cannot become a karta because a karta has to necessarily be a coparcener. But now, with the amendment of 2005, Section 6 of the Hindu Succession Act, 1956 gives equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Even now the Hindu Succession Act, 1956 does not accept a woman as karta in normal circumstances. She can be a karta only in 2 certain special circumstances: - in the absence of male members, and in case there are minor male members in the family, which is prescribed by the ancient Hindu law, the dharmashatras.
It should be understood that amendments are only the
first step. The law can only be a path breaker; it cannot ensure that justice
is done. For that there must be a positive change in social mores. The law
would always be a step behind. Women have to become aware that the law does not
discriminate against them in property matters and that they cannot be
shortchanged any more. In many cases, justice is denied simply because of lack
of awareness. Here, hopefully, the right to Information Act would kick in and
facilitate greater access for women to know about their rights. In fact, they
should be empowered and enabled to demand their rights, wherever they are
sought to be denied.
The government should take steps to uplift the position
of woman in other personal laws also. It must be understood that equality
for women is not just a matter of equity for the so-called weaker sex, but a
measure of the modernity of Indian society and the pragmatic nature of our
civilization.
Further analyzing the position of karta, it can be said
that he has less liabilities and more powers. Though at the same time it cannot
be said that he holds the position of a despot. When it comes to determination
of the position of karta it can be said that he holds a unique position. In
totality it can be said that all family members are duty bound to accept what
karta says until/unless it is detrimental to them.
