PROJECT

PERSONAL LAW-II

RIGHTS OF A FEMALE TO BE A KARTA OF A JOINT HINDU FAMILY

COURSE TEACHER-
MR. OWAIS HASSAN KHAN
(ASSISTANT PROFESSOR OF LAW)
NATIONAL LAW UNIVERSITY ODISHA

SUBMITTED BY-
SHRADDHA SINGH (14/BBA/062)
SEMESTER- VII (4th YEAR)
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Table of Contents

Research Methodology ................................................................................................................... 3

Scope ........................................................................................................................................... 3

Sources ........................................................................................................................................ 3

Research Question ...................................................................................................................... 3

Hypothesis................................................................................................................................... 3

Chapterisation ............................................................................................................................. 3

I. Introduction ............................................................................................................................. 5

II. Hindu Succession Laws: Pre 2005-Amendment Position ................................................... 7

A. Mitakshara ........................................................................................................................ 7

B. Hindu Succession Act 1956 ............................................................................................. 7

C. Precedents......................................................................................................................... 8

III. Amendment to the Hindu Succession Act, 1956 ............................................................... 10

IV. Family Economics and Gender Justice .............................................................................. 12

V. Conclusion ......................................................................................................................... 14

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Research Methodology

SCOPE

Scope of the paper is limited to examination of Hindu laws with reference to the rights of female
members to become a karta in a Joint Hindu Family.

SOURCES

There are no primary sources involved here. The secondary sources relied upon are religious
texts, judgments of courts, commentaries, books and articles.

RESEARCH QUESTION

The primary question is whether female members have a right to become a karta in a Joint Hindu
Family and to what extent the legal system has been able to deliver in the sphere of gender
justice.

HYPOTHESIS

There is an inherent belief in the Hindu ancient texts that the right to become a karta remains
with the senior most coparcener, which has always been a male member since only sons,
grandsons and great-grandsons were considered coparceners for an entire era. However, by
legislative acts when daughters are equated with sons subsequently, there is no reason to find an
impediment on the senior most daughter to become the karta of a JHF.

CHAPTERISATION

After introducing the concepts of karta and coparcener in a Joint Hindu Family, the following
chapter discusses the law on point finding a basis in the religious texts of Manusmriti and
examines the nuances inherent in the codification of succession laws. The next chapter deals
with the quintessential socially beneficial amendment that made sons and daughters equal right-
holders with respect to ancestral property. In the next chapter the interpretation and application

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of this amendment is discussed to show the difficulties courts faced in having to change their
patriarchal mindsets and practices. The following chapter goes on to discuss the feminist
jurisprudence on Hindu women’s right to hold property and examines the principles of gender
justice contrasting with the legal system in place for Hindu women. In conclusion, an
international perspective is shown along with a potential solution to the still inherent tinge of
patriarchy.

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I. Introduction

A Joint Hindu Family (hereinafter “JHF”) is a large body consisting of group of persons who are
united by the tie of sapindaship arising by birth, marriage or adoption.1 A Hindu Coparcenary is
a narrower body than a JHF and includes only those who acquire, by birth, an interest in the
ancestral property.2 A Karta is such coparcener of a JHF who bears the responsibility and enjoys
authority to manage the affairs and assets of the JHF Property.

A Karta holds very unique position of trust in the HUF. This unique nature of the karta, due to its
distinctiveness, cannot be equated with that of an agent, master, manager or any other managerial
position. There are diverse powers that he has whilst performing his duties as the decision maker
in relation to the property of the family. Karta is not accountable to any member of the family
until it is a matter of misappropriation or fraud, in event of either; he is to give an answer.3

Traditionally, the eldest surviving male coparcener of the JHF has been the Karta. However, in
certain cases where the only surviving members of a JHF are a woman and her minor son, the
courts have declared the son to be the Karta while the mother would act on behalf of the son,
thus making the woman the de facto Karta of the JHF.

The Hindu Succession Act was amended in 2005 to make daughters coparceners in the JHF
property, having equal rights as sons.4 Controversies arose regarding the daughters’ right to be
Karta since even after the amendment courts refused the claims of eldest female siblings to
become the Karta, citing authorities from Vedas, nibandhas, etc.5

In a landmark judgment, the Delhi High Court held the eldest woman member of a Mitakshara
Hindu Undivided Family can become its Karta.6 This ruling is essential as it not only takes the
amendment to section 6 of the Hindu Succession Act, 1956 to a logical conclusion but also
marks a huge long overdue step toward gender justice in terms of right to hold and manage

1
Surjit Lal v C.I.T. 1976 AIR 109.
2
Idib.
3
Paras Diwan, Family Law (2nd Edn. Orient Publishing Company, 2002).
4
Hindu Succession (Amendment) Act, 2005.
5
Jagannath Chavan v Suman Gowde (2014) Bom HC 296.
6
Mrs. Sujata Sharma v Shri Manu Gupta & Ors [CS (OS) 2011/2006].

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property, albeit the judgment could have been more assertive and progressive in pronouncing the
rights of females after centuries of subjugated and restricted property interests.7

7
“Hindu women's legal right to inherit property has been restricted from the earliest times in Indian culture.”
Debarati Halder, Property Rights Of Hindu Women: A Feminist Review Of Succession Laws Of Ancient, Medieval,
And Modern India,.Journal of Law and Religion, Vol. 24, No. 2 (2008-2009), pp. 663-687.

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II. Hindu Succession Laws: Pre 2005-Amendment Position

A. MITAKSHARA

In the ancient text Manusmriti, Manu writes: "Her father protects her in childhood, her husband
protects her in youth and her sons protect her in old age; a woman is never fit for
independence."8 Hindu women have very restricted legal rights pertaining to inheritance from the
ancient times as the history reflects from the holy texts and practices. Women were not excluded
completely from inheriting property from ancestral and marital families, but had far less share
than their male counterparts.
Hindus were governed by shastric laws and customs which varied largely from region to region.
The traditional Hindu inheritance law is influenced by texts of dharmasthras, ancient
commentaries and legal treaties. Predominantly two schools of interpretation prevailed-
Mitakshara and Dayabhaga.
Dayabhaga is slightly more progressive and less complex than Mitakshara on matters of
inheritance. In Dayabhaga, right in property arises by the fact of death and any person who can
offer pindas on the funeral would be a sapinda and can inherit the property, including cognates
and female relatives, thus allowing them to inherit coparcenery property. In Mitakshara, female
members are not considered coparcener, which implies that a daughter in a JHF does not have a
right over share in property at her own prerogative.
Following from the above discussion, it is easy to guess that the right to become a karta would be
a far cry for women where even ownership rights are so severely restricted.

B. HINDU SUCCESSION ACT 1956

The Hindu inheritance laws continued to be governed only by the Mitakhshara and Dayabhaga
laws till in the Hindu Succession Act of 1956 was passed. The object of the Act is amendment
and codification of the law concerning intestate succession among Hindus. The Act seeks to
bring an end to discrimination between sons and daughters prevalent. This Act in itself is not an
exhaustive source of law governing inheritance and succession. It is a mere codification of
certain basis aspects of law. However since the Act derives authority from customs and practices

8
Manu IX.3: Manusmriti: The Laws of Manu, in Sacred Books of the East 56 (G. Buhler trans. 1886)

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embedded within Mitakshara School, the element of male domination is glaring in several
portions. The right of female heirs to claim partition of ancestral property shall not arise until the
male heirs chooses to divide their respective shares therein. It does not give the right to claim
partition, but gives a right of residence only if the daughter is unmarried, has been deserted or
has been separated from her husband.9 The 174th Law Commission found that social justice
demands that a woman should be treated equally both in the economic and the social sphere.
"The exclusion of daughters from participating in coparcenary property ownership merely by
reason of their sex is unjust."10

C. PRECEDENTS

The right to become a karta has traditionally been vested with male coparceners, preferably the
senior most one. When it comes to cases where the senior most female member has claimed to be
the karta, the courts have rejected such claims and limited themselves to literal interpretation of
the texts and the Hindu Succession Act, 1956 which only espouse claims of senior most male
coparceners as karta.

However, in a 1947 judgment, in Pandurang v Pandurang11, where the widow of a family, where
the only members of the JHF were herself and her two children, a six-year old son and an eleven-
year old daughter. The court, in furtherance of justice, equity and good conscience, decided that
instead of appointing an outsider as manager of the property it would be more appropriate to
make the widow the Karta, till the son reaches the age of majority. This was a little bit of
progress, albeit not an absolute one, for the widow could only hold it on behalf of the son by the
time he reaches the age of majority.

Placed in a similar fact situation, the Court in Radha Ammal v C.I.T12 rejected the widow’s
claim and preferred a literal interpretation to hold that senior-most female member cannot
become a karta.

9
Section 23 of the Hindu Succession Act, 1956.
10
Law Commission of India 174th Report, Property Rights of Women: Proposed Reforms under the Hindu Law,
D.O. No.6(3)(59)/99-LC(LS) .
11
Pandurang v Pandurang (1947) Nagpur HC 178.
12
Radha Ammal v C.I.T A.I.R. 1950 Mad 538.

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Again in C.I.T. v Govind Ram13 the Supreme Court pronounced that only in extremely
exceptional cases, like Pandurang case, but on principle only senior-most male members are
entitled to the right of being a karta of JHF property. In exceptional cases only a mother, widow
or wife become the karta.

It was settled in Tribhuvan Das Haribhai Tamboli v Gujarat Revenue Tribunal that the right to
become a karta of JHF property is vested with the senior most male coparcener.14

13
C.I.T. v Govind Ram 1966 A.I.R. 24.
14
Tribhuvan Das Haribhai Tamboli v Gujarat Revenue Tribunal 1991 A.I.R. 1538.

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III. Amendment to the Hindu Succession Act, 1956

The Hindu Succession (Amendment) Act, 2005 gave Hindu women right to become a coparcener
in the ancestral property like their male counterparts. This Act has the effect of conferring
absolute interest to the daughters, though to the same extent as that of a coparcener.15 Under
Section 6 of the Amended Act daughters get equal rights in the ancestral properties.

Even after the progressive amendment which clearly mentioned that rights of a daughter would
be same as sons, which would make them coparcenaries for all purposes. The ironic debate
remains whether females have a right to become a karta since the opinion is divided among the
high courts. The Honorable Bombay High Court, rejecting the claim of a senior most female
daughter to become a karta, reasoned that such implications are uncalled for since the statue does
not “categorically” provide for it and such interpretation would run contrary to the basic tenets of
Hindu Vedas and scriptures. It also opined that the Hindu Succession Act is not an exhaustive
code. One has to turn back to Vedas and ancient texts in order to resolve a number of issues.16
The proposition that it remains a patriarchal prerogative is not only regressive in nature but also
reflects how deeply the courts are embedded with patriarchy and are so conservative in their
approach.
The question before the court in Sujata Sharma v. Manu Gupta17 was whether an eldest living
coparcener daughter can be a karta of HUF.
The Delhi High Court pronounced this judgment in 2015. This is a case of a JHF where the
senior-most coparcener is a daughter among all 12 sons and daughters. When the last karta died,
the question arose as to who would become the karta. The Court examined the authorities
appropriate to cite. The Amendment was already in place which gave equal rights to sons and
daughters in ancestral property. Another authority was in the precedent on Tribhuvan Das
Haribhai Tamobli v Gujarat Revenue Tribunal which pronounced that the senior most male
coparcener would have the right to become the karta.18 The authority of Vedas, shastras and
ancient texts was also looked into since the Act is not exhaustive in itself.

15
State of Maharashtra v Narayan Rao Sham Rao Deshmukh (1987) 163 ITR 31 (SC).
16
Jagannath Chavan v Suman Gowde (2014) Bom HC 296.
17
Sujata Sharma v. Manu Gupta 2015 SCC Del 14424.
18
Tribhuvan Das Haribhai Tamobli v Gujarat Revenue Tribunal 1991 A.I.R. 1538.

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The bench was of the view that section 6 is a beneficial legislation which gives equal rights of
inheritance to Hindu males and females and recognizes all the rights of female Hindus as rights
given to male and that:
“The impediment which prevented a female member of a HUF from becoming its Karta
was that she did not possess the necessary qualification of coparcenership. It is a rather
odd proposition that while females have equal rights of inheritance in JHF property, this
right could nonetheless be curtailed when it comes to the management of the same.”
It was of the view that the precedents set by TDH Tamboli case should be read in the light of
the Amendment Act of 2005. Therefore, Sujata Sharma became the karta of the JHF.

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IV. Family Economics and Gender Justice

Subordination of women has been found in some or the other form varying in extent, even in
hunting societies. Women have always been considered the “second sex” since ancient times.
This subordination is believed to have begun as men started going out hunting and became food
obtainers whereas women were eventually confined as food processors, cooking meat and other
things brought by men. When women were also food obtainers, they are seen to have greater
power than in the former situation. In such societies there was no class division as such among
men and women. The extent of inequality varied according to the ecology and the consequential
sexual division of tasks. The idea was that of reciprocity rather than domination and exploitation.
It started as only a matter of survival, rather than man-made cultural impositions.

On the other hand, women had no hold upon weaponry, meaning no power and no control,
leading to their further subjugation.
The concept of property had already sown its seeds in the primitive stages of civilization. With
the rise of class society, Engels believes, monopoly over weapons and freedom from child care
allows men to enter specialized economic and political roles.
Women’s role in law making and political fronts minimized too. Moreover, women were/are
burdened with prolonged child care and household chores which Simone Beauvoir describes as
“boring, general and inessential” while men shaped laws, politics and economics.
Religions in general have differentiated roles for men and women. Religious Fundamentalists
laws require subordination of women to men and this principle is used as a general norm
justifying a variety of religious rules that restrict women's independence and autonomy.
Religious fundamentalists believe in and assert their interpretations as religious doctrine, and
raise claims of religious freedom for their actions based upon these doctrines.19
It is not denied that women have lesser rights but it is justified on grounds of inferiority of
women.20 Having regard to international condemnation of the inferiority justification, another
theory is that men and women are equal in the eyes of the deity but there are different rights and
duties under religious laws. Therefore, according to them, this discrimination is justified.

19
Courtney W. Howland, Challenge of Religious Fundamentalism to the Liberty and Equality Rights of Women: An
Analysis under the United Nations Charter, 35 Colum. J. Transnat'l L. 271, 378 (1997).
20
Ibid.

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In Hindu societies, practices like dowry and child marriage reinforce the belief that daughters are
nothing but chattels that parents want to get rid of as early as possible and pay a price in the form
of dowry for having the privilege of disposing with their liability to get them married off.
The rhetoric of traditional Hinduism offers no apologetics for its derogatory images of women
and its regard for women as inferior.21
Women in ancient times did not have any right to hold property at all. She was entitled to
streedhan which is the property acquired by her on her marriage as gift, jewelry and sometimes
even landed property. However, this right was not absolute as a result of Manu’s teachings that a
woman along with her property belongs to her husband!22 Moreover, an unmarried woman had
no vested right or any kind of entitlement to property.
The privy council limited women’s right to alienate streedhan and functionally provided for a
limited estate while the corpus would revert back to the last male heir from whom she received
the streedhan.23
The codification of laws with the object to alleviate the status of women in social and economic
sense in the form of Hindu Women’s Right to Property Act, 1937 and Hindu Succession Act,
1956 were still manifest with inherent gender inequalities.
Despite legal reforms in the past two decades, the status of women does not seem to alleviate as
such. Hindu Fundamentalists have persistently attacked such reforms which have the effect of
furthering socio-economic status of women. The courts are mostly patriarchal and have been
very lackadaisical in pronouncing progressive judgments in fear of facing backlash from the
religious fundamentalists. As a result of that, the Bombay High Court found no right of women
to be karta even while interpreting a socio-economically beneficial provision. The Delhi High
Court upheld women’s right to become karta. However, it could have been more vocal about
issues of gender justice in pronouncing the judgment which have set a precedent with a guiding
principle focusing on issues as such.

21
Government of India, Ministry of Education and Social Welfare, Towards Equality: Report Of Committee On The
Status of Women In India (1974).
22
Manu IX.3: Manusmriti: The Laws of Manu, in Sacred Books of the East 56 (G. Buhler trans. 1886)
23
Janki v Narayanswami 43 I.A. 207(1916).

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V. Conclusion

“The insidious influence of patriarchy on our legal structures only demonstrates its effects on the
condition of women and girls, and develops reforms to correct gender injustice, exploitation, or
restriction. It is also clear that many socio-religious crimes had their roots in ancient succession
laws. A Hindu woman was never recognized as full owner of any property received by her,
especially when it was landed property. Manu's attitude regarding the inferiority of women
extended even to circumstances in which a woman was the only child. For such cases, ancient
law makers suggested adopting a male baby to look after parental property, which should never
be left with the woman, regardless of how educated she might have been. This fight with women
for ownership over property gave birth to a number of socio-religious crimes that were given
legal color in the name of protecting family wealth. Hence, bigamy, remarriage for the male heir,
forced sexual intercourse with another man to have a male child, female infanticide, and wife
abandonment were made widely acceptable, if not legally, then in the name of religion, for
situations in which a woman could not produce a male heir.

In light of the international feminist movements, where the manifest patriarchic elements are
being sought to be eliminated, the Indian courts and legislature should keep up to strive for
gender justice and equality for the Indian masses. The idea of women being inferior mentally,
intellectually or physically, has been disregarded and dismissed by the international community.
The inherent belief that only a man can possess the expertise to make viable decision making in
management of property and distribution of rights amongst the members of a JHF is not only
prejudicial to their rights but categorically detrimental to women’s basic human dignity and
respect. To this date, the religious laws discriminate heavily on the basis of gender. The solution
provided by the author is that keeping in mind the ultimate constitutional and international
commitment of having gender-neutral legal system; the laws must be drafted in such a way that it
does not refer to persons based on their gender. A society should be progressive and not linger
upon the rudimentary ideas which are incompatible with civilized notions of justice. This would
not necessarily mean overturning the basic principles promulgated by the religious texts. It
should also be kept in mind that the drafting and codification more often than not is inherent with
cherry-picked texts, deliberate or otherwise, which are only ways to perpetuate male dominance

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and promote submission of women. If religious texts are examined in a neutral sense, Manu has
even written “yatr naryasto pojyantay, ramantay tatr devta” which means, no society could ever
flourish in which women are not honored and gods reside in a household where women hold a
place of honor.

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