WOMEN AS KARTA

WOMEN AS KARTA

SUBJECT: FAMILY LAW

SUBMITTED BY: PRASHANT ERKETTA

ROLL NO. -119
SEMESTER - III

SUBMITTED TO: Dr. PARVESH KUMAR RAJPUT

(FACULTY OF FAMILY LAW)

SUBMITTED ON: OCTOBER 23, 2017

HNLU
NAYA RAIPUR, CHHATTISGARH

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CERTIFICATE OF DECLARATION

I Prashant Kerketta, hereby declare that whatever has been produced in this project is original
and completely my own research and hard work. This project is not at all a result of any
plagiarism or copying from different sources. Material of course has been taken from various
websites but its pure research and not plagiarism.

Thanking you!

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ACKNOWLEDGEMENTS

I would like to place on record a special thanks to Dr. PARVESH KUMAR RAJPUT faculty of
Criminal law, for his personal care, timely suggestions, critical evaluation and creative guidance
throughout this project research and with whose help the practical realization of this project has
been possible.

The other person I owe a great deal of gratitude is to the Vice Chancellor of this University, Dr.
Sukhpal Singh for providing extensive database resources in the Library and through internet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project report.

PRASHANT KERKETTA
Roll No. 119
Semester III

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TABLE OF CONTENTS

Contents

1. Introduction...................................................................,,,,,,,,,,,,,,,,,.......................4

2. Womens position after right to property act 1932…………………………..…...7

3. Women’s position in coparcenary........................................................................10

4. Women’s property right- hindu, muslim, christian..............................................14

5. Women as a karta.................................................................................................18

6. Judicial reforms...................................................................................................21

7. Conclusion...........................................................................................................24

8. Bibliography…………………………………………………………….……..25

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INTRODUCTION

The Law Commission of India in its 174th Report on “Property Rights of Women: Proposed
Reforms under the Hindu Law” in May 2000 mentioned in the introduction itself that

Much like those of women of any other country, property rights of Indian women have evolved
out a continuing struggle between the status quoist and the progressive forces. And pretty much
like the property rights of women elsewhere, property rights of Indian women too are unequal
and unfair: while they have come a long way ahead in the last century, Indian women still
continue to get less rights in property than the men, both in terms of quality and quantity. What
may be slightly different about the property rights of Indian women is that, alongwith many other
personal rights, in the matter of property rights too the Indian women are highly divided within
themselves. Home to diverse religions, till date, India has failed to bring in a uniform civil code.

Also, the tribal women of various religions and states continue to be governed for their property
rights by the customs and norms of their tribes. To complicate it further, under the Indian
Constitution, both the central and the state governments are competent to enact laws on matters
of succession and hence the states can, and some have, enacted their own variations of property
laws within each personal law. There is therefore no single body of property rights of Indian
women.

The property rights of the Indian woman get determined depending on which religion and
religious school she follows, if she is married or unmarried, which part of the country she comes
from, if she is a tribal or non-tribal and so on. Ironically, what unifies them is the fact that cutting
across all those divisions, the property rights of the Indian women are immune from
Constitutional protection; the various property rights could be, as they indeed are in several
ways, discriminatory and arbitrary, notwithstanding the Constitutional guarantee of equality and
fairness. For by and large, with a few exceptions, the Indian courts have refused to test the
personal laws on the touchstone of Constitution to strike down those that are clearly
unconstitutional and have left it to the wisdom of legislature to choose the time to frame the
uniform civil code as per the mandate of a Directive Principle in Article 44 of the Constitution.

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RESEARCH METHODOLGY

The research method adopted for the purposes of this project is one which is doctrinal and
analytical in nature. It is doctrinal to the extent that it calls out the legal principles as enunciated
in judgments. It is analytical in the sense that it seeks to go beyond pronouncements and see the
nature and varied role that lawyers and judges have played in enforcing epistolary jurisdiction.

Legal provisions (procedural and substantive laws), books, reports, journals and other reference
as guided by Faculty have been primarily helpful in giving this work a firm structure. Websites,
dictionaries and web articles have also been referred.

Footnotes have been provided wherever needed, either to acknowledge the source or to

point to a particular provision of law. Uniform Bluebook (19th ed.) citation format has

been followed for footnoting.

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WOMEN’S POSITION AFTER RIGHT TO PROPERTY ACT 1937

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.The Act of 1937 gave absolute rights to all Hindu women
over a certain portion of Stridhan.

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The part of Stridhan, acquired by the female independently or the part that was gifted to her by
her parents gave her an absolute right over the aforesaid portions. She became the absolute
owner of such Stridhan. However, the form of Stridhan, acquired by her from her in-laws, gave
her only a limited right over such variety.

On her death, the latter portion went to her reversioners (the lot which would have acquired the
property had the female not existed in the first place). As per the provisions of this Act, if a male
member of a Mitakshara Joint Hindu family died and was survived by his widow then the latter
could claim a share of the deceased coparcener subject to certain conditions. Under this Act, the
widow was also conferred the right to demand partition and claim the share that the deceased
coparcener was entitled to. This legislation was later repealed by the Act of 1956.

The Hindu Women’s Rights to Property Act, 1937, ameliorative in character, intended to give
better rights to women in respect of property but without interfering with the established Law
relating to joint family. Subsections (2) and (3) of Section 3 of the Act reveal that the legislature
intended that the Hindu widow should have in the joint family property the same interest to
qualify the nature of that interest i.e., it Would be a limited interest known to Hindu law as
"Woman’s Estate" or to use the correct expression ‘Hindu Widow's Estate."

The very use of the word woman’s estate prima facie established that she could alienate it for the
purposes permitted under the Hindu law i.e., “Legal necessity”, “Religious purposes” and
“benefit of estate”. Thus the woman’s estate under the Hindu Woman’s Rights to Property Act,
1937 has all the characteristic features of woman’s estate which were there under the old law.
The widow’s powers of alienation have been discussed in detail. Her powers under the 1937 Act
are the same because the nature of the property is the same. The act has only given a statutory,
recognition to her “woman’s estate”.

The Hindu law of intestate Succession has been codified in the form of The Hindu Succession
Act, 1956, which bases its rule of succession on the basic Mitakshara principle of propinquity,
i.e., preference of heirs on the basis of proximity of relationship. Prior to 1956, there used to be
two major schools of Hindu law viz. Mitakshara and Dayabhaga which laid down different
principles of succession. There was no uniformity in the rights of the Hindus following different

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schools to succeed to the property of a Hindu who died intestate i.e., without leaving a will
behind him.

Therefore, before 1956, the property of a Hindu woman was divided into two heads viz.

(a) Stridhan

(b) Woman's Estate. Stridhan literally means woman's property.

The Hindu law interpreted Stridhan as the properties received by a woman by way of gift from
relations. It included movable as well as immovable properties. The texts relating to Stridhana
except in the matter of succession are fairly adequate and clear. Manu defined Stridhana as that
what was given before the nuptial fire, what was given at the bridal procession, what was given
in token of love and what was received from a brother, a mother, or a father?

The property inherited by a woman from a male or female was not considered as Stridhana and it
was not her absolute property for the purpose of inheritance168. However Bombay school
considered the property inherited by a woman form a male other than widow, and mother etc. as
Stridhan. Under all schools of Hindu law, the property obtained by a woman in lien of
maintenance by adverse possession and property purchased with Stridhan was considered as
Stridhan.

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1. Women’s position in coparcenary

The property rights of the Hindu women are highly fragmented on the basis of several factors
apart from those like religion and the geographical region which have been already mentioned.
Property rights of Hindu women also vary depending on the status of the woman in the family
and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife
or widow or mother.

It also depends on the kind of property one is looking at: whether the property is hereditary/
ancestral or self-acquired, land or dwelling house or matrimonial property. Prior to the Hindu
Succession Act, 1956 ‘Shastric’ (Hindu Canonical) and customary laws that varied from region
to region governed the Hindus. Consequently in matters of succession also, there were different
schools, like Dayabhaga in Bengal in eastern India and the adjoining areas; Mayukha in Bombay,
Konkan and Gujarat in the western part and Marumakkattayam or Nambudri in Kerala in far
south and Mitakshara in other parts of India, with slight variations.

Mitakashara school of Hindu law recognises a difference between ancestral property and self-
acquired property. It also recognises an entity by the name of “coparcenary”. A coparcenary is a
legal institution consisting of three generations of male heirs in the family. Every male member,
on birth, within three generations, becomes a member of the coparcenary.

This means that no person’s share in ancestral property can be determined with certainty. It
diminishes on the birth of a male member and enlarges on the death of a male member. Any
coparcener has the right to demand partition of the joint family. Once a partition takes place, a
new coparcenary would come into existence, namely the partitioned member, and his next two
generations of males. For this reason coparcenary rights do not exist in self-acquired property,
which was not thrown into the common hotchpotch of the joint family.

Thus the concept of a birthright, at which a person acquires rights on his birth even if the
ancestor is still alive, is fundamental to an understanding of the coparcenary. In fact, the birth of
a male child diminishes the right of the ancestor instantly, as each coparcener has an equal share
in the undivided whole. As contrasted with this, inheritance, whether testamentary or intestate, is

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a right that accrues on the death of a person. Inheritance can only be in that property which a
man leaves on his death.1

Until then, a person has an unrestricted right to enjoy the property or alienate it. The Hindu
Succession Act enacted in 1956 was the first law to provide a comprehensive and uniform
system of inheritance among Hindus and to address gender inequalities in the area of inheritance
– it was therefore a process of codification as well as a reform at the same time.

Even the unborn child, son or daughter, has a right if s/he was in the womb at the time of death
of the intestate, if born subsequently. Under the old Hindu Law only the “streedhan” (properties
gifted to her at the time of marriage by both sides of the family and by relatives and friends) was
the widow’s absolute property and she was entitled to the other inherited properties only as a
life-estate with very limited powers of alienation, if at all. Even under the 1937 Act, the concept
of “limited estate” continued.

Section 14 of the Hindu Succession Act removed the disability of a female to acquire and hold
property as an absolute owner, and converted the right of a woman in any estate already held by
her on the date of the commencement of the Act as a limited owner, into an absolute owner. The
provision is retrospective in that it enlarged the limited estate into an absolute one even if the
property was inherited or held by the woman as a limited owner before the Act came into force.
The only exception, in the form of a proviso, is for the acquisitions under the terms of a gift, will
or other instrument or a decree, or order or award which prescribe a restricted estate.2

Women as a karta

In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very important position. There
is no office or institution in any other system of the world can be compared with it. He is a
person with limited power but he possess such vast power with in ambit of joint family which
nobody enjoys. As per Hindu Law, a ‘karta’ is defined as the senior-most family member,

1
Purva Chadha, “Hindu Family Property law in India and Gender Equality; Analysis of the Hindu Succession Act 1956”, Vol 2, SCJ J 16.
(2002).
2
The Kerala Joint Family System (Abolition) Act 1976, the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, the Hindu Succession
(The Tamilnadu Amendment) Act 1989, the Hindu Succession (Karnataka Amendment) Act 1994, the Hindu Succession (Maharashtra
Amendment) Act 1994.

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entitled to manage family affairs. This position has traditionally been held by men.The feelings
of piety and benevolence have an abiding place in human heart, they must find expression in
religious and charitable gifts. 3

Therefore, the Karta or manager of the joint Hindu family was given extended powers and he
could alienate not merely his own share but a portion of the joint family for family necessity or
for the benefit of family so as to bind the interest of all the coparceners, no matter whether minor
or adults. The foundation of this doctrine could be found· in the text of Vyasa which was quoted
and relied upon by Vijnaneswara and which runs as follows:

"Even a single individual may conclude a donation, mortgage, or sale of immovable property,
during a season of distress, for the sake of the family, and especially, for pious purposes."

If a Hindu dies, the coparcener property shall be allotted to the daughter as is allotted to sons. If a
female coparcener dies before partition, then children of such coparcener would be eligible for
allotment, assuming a partition had taken place immediately before her demise. A widow of a
pre-deceased son even though remarried is now eligible for share in property as legal heir of the
pre-deceased son of the family. Female as Karta Many courts had held that only a coparcener can
become Karta of HUF.

Since, a female was not considered as coparcener, she was not empowered to act as Karta prior
to amendment in Hindu Succession Act. However, w.e.f. 6thSeptember, 2005, after amendments
made by Hindu Succession (Amendment) Act, 2005 in respect of position of female member, the
daughter of coparcener shall by birth become a coparcener in her own right in the same manner
as the son.

The Hindu Succession Act came into force on 17thJune, 1956. Fundamental changes have been b
rought about in the Hindu Succession Act, 1956 by amending it recently in
2005. The basic change is that Section 6 has been substitutedby a new section. The section
stipulates that a daughter wouldbe a coparcener from her birth, and would have the same rightsan
d liabilits as a son.

3
Purva Chadha, “Hindu Family Property law in India and Gender Equality; Analysis of the Hindu Succession Act 1956”, Vol 2, SCJ J 16. (2002)

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To retain the Mitakshara joint family and at the same time to put a daughter on the same footing
as a son with respect to the right by birth, right of survivorship and to claim partition at any time,
will be to provide for a joint family unknown to law and unworkable in practice.” However there
was one striking feature of all these four state amendments – they held that only a daughter who
was unmarried at the time of the amendment would be entitled to be a coparcener. The amending
Acts of Andhra Pradesh, Tamil Nadu and Maharashtra add three sections namely 29A, 29B and
29C and Karnataka adds them as Sections 6A, 6B and 6C of the Act.

Thus, these amendments state that a daughter of a coparcener shall by birth become a coparcener
in her own right in the same manner as a son and have the same rights in the coparcenary
property as she would have had if she had been a son. Thus, a daughter will also be entitled to be
a karta of the joint family, and will by virtue of that position exercise the right to spend the
income for joint family properties for legal necessity of benefit of the

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2. Women’s property rights- Hindu, Muslim, Christian.

The seed for personal law was sown by the British with the Bengal Regulation of 1772 providing
that in disputes relating to family like inheritance, marriage, divorce, adoption etc, the courts
should apply the laws of Quran with respect to Muslims and for Hindus, the Shastric law. As far
as Christians were concerned, there was no specific law for them. Hence disputes were settled as
per English principles of Justice, Equity and Good conscience.

The British policy of non-interference with the personal laws of different communities took its
deep roots in the communities and the Government of India has been continuing the policy of
non-interference even though it has ratified the CEDAW convention. So the Constitutional
mandate of Uniform Civil Code under Article 44 of the Constitutionwent into oblivion. estate. It
was Gautama Dharmasastra who first called women’s property as Stridhana share. Mayne also
opined that the original bride price payable to the parents appears to have become transferred
into the dowry for the wife.4 Apart from this stridhana, a married woman could receive gifts from
strangers; she could also make her own contributions by doing other skilled labor. Yet she had
no absolute control over her property because her right to dispose of the property is restricted.

Women’s property rights in the Patriarchal Family

A Hindu father in patriarchal family enjoyed absolute power just as the Roman father in ancient
Rome. The scriptures undoubtedly contributed much to make the father, the head of the family a
despotic ruler. Manu said that three persons, a wife, a son and a slave are declared by law to have
in general no wealth exclusively their own; the wealth which they may earn is regularly acquired
for the man to whom they belong.

Similarly Narada held the view that a son could be independent only if his parents are dead;
during their lifetime he is dependent even though he is grown old18. So in a patriarchal family
women and children did not have property rights. The wife was put into the group of chattels and
slaves. They had an oppressed and subjugated life in the traditional patriarchal families.5

4
Shelly Saluja and Soumya Saxena, “Changes brought in the position of women after the 2005 (Amendment)” available at:
http://www.legalservicesindia.com (Accessed on 21.05.2010).
5
Purva Chadha, “Hindu Family Property law in India and Gender Equality; Analysis of the Hindu Succession Act 1956”, Vol 2, SCJ J 16. (2002)

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There were also fears among the orthodox Hindu men that if women were given property rights
families would breakup. In 1948 there was an All India Anti Hindu Code Convention. It was
argued that the introduction of women’s share would result into disintegration of Hindu family
system which had been working as a co-operative system for ages for preservation of family ties
and property. It was also pointed out that the inclusion of daughter in the line of inheritance is
due to European influence. The history of Hindu Law reform starts with the Hindu Law
committee (Rau Committee) set up in 1941.

It was followed by second Committee in 1944. The committee finally submitted its report to the
Federal Parliament in 1947. The recommendations of the committee were debated in the
provincial Parliament. There was strong opposition against the introduction of monogamy,
divorce, abolition of coparcenery and inheritance to daughters from the orthodox Hindu
community.

Women’s right to property has been substantially improved by the Hindu Succession Act 1956.
The concept of women being entitled to a limited estate when they acquire property by
inheritance is abolished and women are entitled to an absolute estate like men when they inherit
any property. Again the daughter of a predeceased son and the daughter of a predeceased
daughter are raised to a higher rank. They became Class – I heirs and get a share along with the
son, and other Class – I heirs. The daughters are included in the Class – I in order to remove the
discrimination on the basis of sex.

Similarly succession to a women’s property or stridhanam of whatever nature is made uniform

irrespective of the nature of stridhanam. In the same way the distinction between male and
female heirs in the case of succession has been taken away and now they are treated on equal
basis if they belong to the same degree of relationship. Women will no longer be disinherited on
the ground of unchastity.6

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.

6
Shelly Saluja and Soumya Saxena, “Changes brought in the position of women after the 2005 (Amendment)” available at:
http://www.legalservicesindia.com (Accessed on 21.05.2010).

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Muslim women’s property rights: Indian Muslims broadly belong to two schools of thought in
Islamic Law: the Sunnite and the Shiite. Broadly the Islamic scheme of inheritance discloses
three features, which are markedly different from the Hindu law of inheritance: (i) the Koran
gives specific shares to certain individuals (ii) the residue goes to the agnatic heirs and failing
them to uterine heirs and (iii) bequests are limited to one-third of the estate, i.e., maximum one-
third share in the property can be willed away by the owner.

The main principles of Islamic inheritance law which mark an advance vis-à-vis the pre-Islamic
law of inheritance, which have significant bearing on the property rights of women, are: (i) the
husband or wife was made an heir (ii) females and cognates were made competent to inherit (iii)
parents and ascendants were given the right to inherit even when there were male descendants
and (iv) as a general rule, a female was given one half the share of a male. The newly created
heirs were mostly females; but where a female is equal to the customary heir in proximity to the
deceased, the Islamic law gives her half the share of a male. For example, if a daughter co-exists
with the son, or a sister with a brother, the female gets one share and the male two shares. 7

The doctrine of survivorship followed in Hindu law is not known to Mohammedan law; the share
of each Muslim heir is definite and known before actual partition. Rights of inheritance arise
only on the death of a certain person. Hence the question of the devolution of inheritance rests
entirely upon the exact point of time when the person through whom the heir claims dies, the
order of deaths being the sole guide. The relinquishment of a contingent right of inheritance by a
Muslim heir is generally void in Mohammedan law, but if it is supported by good consideration
and forms part of a valid family settlement, it is perfectly valid. The rule of representation is not
recognized, for example, if A dies leaving a son B and a predeceased son’s son C, the rule is that
the nearer excludes the more remote and, there being no representation, C is entirely excluded by
B. There is however no difference between movable property and immovable property. 8

The following 12 heirs constitute Class I heirs (Koranic Heirs):

(a) Heirs by Affinity - Husband and Wife

7
T.K.Rajalakshmi, “Muslim Women more Vulnerable” Frontline, Vol.24, issue o2, Jan-Feb-27, 2007.
8
Ibid.

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(b) Blood Relations - Father, True Grandfather (howsoever high), Mother, True Grandmother
(howsoever high), Daughter, Son’s Daughter (howsoever low), Full sister, consanguine sister,
uterine brother, and uterine sister.

Rules of Exclusion: The husband and wife are primary heirs and cannot be excluded by anyone,
but they also don’t exclude anyone either. Law fixes the share of the spouses; if they exist they
reduce the residue which may be taken by the Agnatic or Uterine heirs, but they do not exclude
either wholly or partly any heir. The father does not affect the share of any Koranic heir except
the sisters (full, consanguine or uterine) all of whom he excludes. The mother excludes the
grandmother, and the nearer grandmother excludes the more remote.

The mother’s share is affected by the presence of children or two or more brothers or sisters. Her
share is also greatly affected by the existence of the husband or wife and the father. In the case of
a daughter she is the primary heir. She partially excludes lower son’s daughters, but one daughter
or son’s daughter does not entirely exclude a lower son’s daughter. As far as the sisters are
concerned, one full sister does not exclude the consanguine sister, two full sisters however
exclude the consanguine sister. The uterine brother or sister is not excluded by the full or
consanguine brother or sister.

Where the intestate has left a widow and any lineal descendants, one third of his property
devolves to his widow and the remaining two thirds go to his lineal descendants. If he has left no
lineal descendents but has left persons who are kindred to him, one half of his property devolves
to his widow and the remaining half goes to those who are of kindred to him. Another anomaly is
a peculiar feature that the widow of a pre-deceased son gets no share, but the children whether
born or in the womb at the time of the death would be entitled to equal shares. Where there are
no lineal descendants, after having deducted the widow’s share, the remaining property devolves
to the father of the intestate in the first instance. Only in case the father of the intestate is dead
but mother and brothers and sisters are alive, they all would share equally. 9

If the intestate’s father has died, but his mother is living and there are no surviving brothers,
sisters, nieces, or nephews, then, the entire property would belong to the mother. A celebrated

9
The Kerala Joint Family System (Abolition) Act 1976, the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, the Hindu Succession
(The Tamilnadu Amendment) Act 1989, the Hindu Succession (Karnataka Amendment) Act 1994, the Hindu Succession (Maharashtra
Amendment) Act 1994.

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litigation and judgment around the Christian women’s property rights is Mary Roy v. State of
Kerala & others 6 in which provisions of the Travancore Christian Succession Act, 1092 were
challenged as they severely restricted the property rights of women belonging to the Indian
Christian community in a part of south India formerly called Travancore.10 The said law laid
down that for succession to the immovable property of the intestate is concerned, a widow or
mother shall have only life interest terminable at death or on remarriage and that a daughter will
be entitled to one-fourth the value of the share of the son or Rs 5000 whichever is less and even
to this amount she will not be entitled on intestacy, if streedhan (woman’s property given to her
at the time of her marriage) was provided or promised to her by the intestate or in the lifetime of
the intestate, either by his wife or husband or after the death of such wife or husband, by his or
her heirs11.

These provisions were (1950) SCR 747 challenged as unconstitutional and void on account of
discrimination and being violative of right to equality under Article 14 of the Constitution.12

Parsi women’s right to property: Prima facie the property rights of the Parsis are quite gender
just. Basically, a Parsi widow and all her children, both sons and daughters, irrespective of their
marital status, get equal shares in the property of the intestate while each parent, both father and
mother, get half of the share of each child.13 However, on a closer look there are anomalies: for
example, a widow of a predeceased son who died issueless, gets no share at all.

3. Women as a 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

10
Supra 3.
11
Supra 6.
12
Supra 5.
13
Ibid.

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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.

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# 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.

# 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?

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# 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 incapable of running a
business.

# If women are made karta will they be entitled to any kind of maintenance ? these are the key
questions that is needed to be answered.

4. Judicial reforms

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.

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.

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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 Pandurang Dahake v. Pandurang Gorle14, 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 Narayan15, 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 Bombay High Court

In Rakhmabai v. Sitabai16 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.

14
AIR 1947 Nag 178
15
(1935) 37 BOMLR 692
16
AIR 1952 Bom 160

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The Patna High Court

In Sheogulam v. Kishun Chaudhar17i, 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.

17
AIR 1961 Pat 212

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5. Conclusion
It is clear from the foregoing that though the property rights of Indian women have grown
better with advance of time, they are far from totally equal and fair. There is much that
remains in Indian women’s property rights, that can be struck down as unconstitutional.
The response of the judiciary has been ambivalent. On one hand, the Supreme Court of
India has in a number of cases held that personal laws of parties are not susceptible to
fundamental rights under the Constitution and therefore they cannot be challenged on the
ground that they are in violation of fundamental rights especially those guaranteed under
Articles 14, 15 and 21 of the Constitution of India.

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BIBLIOGRAPHY

1. www.legalserviceindia.com
2. www.manupatra.com
3. www.muslimpersonallaw.co.za
4. http://shodhganga.inflibnet.ac.in
5. www.indiankanoon.com

 The Christians in Travancore were formerly Hindus hailing from Namboodiries

families having joint family property. This tradition is still being continued. Christians
have no separate property.
 T.K.Rajalakshmi, “Muslim Women more Vulnerable” Frontline, Vol.24, issue o2, Jan-
Feb-27, 2007.
 Shelly Saluja and Soumya Saxena, “Changes brought in the position of women after
the 2005 (Amendment)” available at: http://www.legalservicesindia.com (Accessed on
21.05.2010).
 The Kerala Joint Family System (Abolition) Act 1976, the Hindu Succession (Andhra
Pradesh Amendment) Act, 1986, the Hindu Succession (The Tamilnadu Amendment)
Act 1989, the Hindu Succession (Karnataka Amendment) Act 1994, the Hindu
Succession (Maharashtra Amendment) Act 1994.
 Purva Chadha, “Hindu Family Property law in India and Gender Equality; Analysis of
the Hindu Succession Act 1956”, Vol 2, SCJ J 16. (2002)

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