NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

FAMILY LAW- II
TRIMESTER- VI
PROJECT: Position of Females as Karta after Hindu Succession
(Amendment) Act, 2005

SUBMITTED TO: SUBMITTED BY:

Ms. NIMISHA JHA AKSHAY SARJAN

Asst. Professor 2017BALLB111

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 ACKNOWLEDGEMENT
The writing of a project has been one of the most significant academic challenges I have ever
faced. Any attempt at any level can't be satisfactorily completed without the support and
guidance of learned people. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge our depth to all those who have
helped us to put these ideas, well above the level of simplicity and into something concrete
effectively and moreover on time.

My first obligation, irredeemable by the verbal expression, is to our subject teacher Ms. Nimisha
Jha who gave me her valuable help in myriad way from the start to the very end. She was always
there to show me the right track whenever I needed her help. I thank her for her overall support
with the help of which I was able to perform this project work.

AKSHAY SARJAN

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 TABLE OF CONTENT
1. Introduction, meaning, objectives……………………………………….…(4,5)
2. Position of a daughter before the amendment of the Hindu Succession Act,
2005…………………………………………………………………….……(6)
3. Position of daughter after the amendment to the Hindu Succession Act, 2005
and judicial decision proving it…..……………………………….….(7 to 14)
4. Loopholes in Hindu Succession Act, 2005…………………………….....(15)
5. Conclusion and suggestions…………………………………………..(16 to 18)

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 Introduction, Meaning and its Objectives.
“Her father ensures her in childhood; her husband secures her in youth and her sons ensure her
in old age; a lady is never fit for autonomy”1.

This quote is sufficient to tell about the condition of women. People thinking is based on narrow
concept that is women is unable to protect herself, then how can say that women will be given
charge and liability of something to take care and protection of that.

Earlier times in Indian Society, Hindu women to inherit property have been restricted by
Mitakshara Law. They were discriminated to inherit property unlike male coparcener as a Karta.
Under Mitakshara law, the son gets a interest in the family property. No female is an individual
from coparcenaries. There is much more discrimination with women and women can’t fight for
their right to level up them. This is clear that if there will not generation of empowered women,
Generation of men is incomplete. Now a days, women rights at womb to tomb. They got this by
suffering so many situations and condition. Earlier women only seen as wife, mother and
daughter to manage and run households and nurturing and gave birth to children. Woman has
right to live good life so state should take an affirmative action to wipe out the injustice with
women.

After that so many legislation came but these legislation doesn’t satisfy the woman right to
inherit the property or doesn’t give absolute right to woman to act as a Karta like male Karta.
Law doesn’t satisfy the need of everyone at a time so it requires the evolution hence law is
dynamic in nature. With times when conflicts such as gender justice and female rights arise, the
question of rights in the property of both males and females has been measured and the great
importance has been given to females and the amendment in the parent legislation has been made
which is popularly known as Amendment Act of 2005 in Hindu Succession Act 1956 which
gives the authority to the daughter for being the coparcener in order to handle the rituals,
property, assets and other key matters of the Joint family property in Hindu Law. Again
this evolution has been restraint for the daughters and not for all females. For the instance
married women doesn’t comes under the ambit of this amendment because once the

1
Manu IX.3: Manusmriti: The Law of Manusmriti.

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women went to the place of her in-laws, it is assumed that she has renounced his father’s
home. She has only right to claim maintenance from Hindu Undivided Family. But this
view is totally revert by Hindu Succession Act, 2005 and said that woman will be part of the
family to claim equal right as son coparceners after getting marriage. This is totally wrong to see
that women, after marriage, will be a part of other family and lost their connection and rights to
be a member of former Hindu Joint Family.

The Constitution of India also talks about Gender equality in Preamble and Part III, IV, IVA of
constitution2 amongst people. The Constitution also gives power to state to make proper
measures so that women can’t be discriminated anymore and make policy and laws in favor of
women to uplift their position.

2
Part III contain fundamental rights, Part IV contain directive principle of state policy, Part IVA contain
fundamental duties

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 Position of a daughter before the amendment of the Hindu
Succession Act, 2005.
In the Mitakshara Law, female are not allowed to inherit property as a son has. In which, only
male coparcener are allowed to inherit property. After the death of coparcener, his wife cannot
ask for partition to hold share of his husband because after her husband death, the property
devolved over remaining coparcener. Females are only allowed to get maintenance. But in the
Dayabhaag Law, the position of women is little good in comparison to Mitakshara Law because
after the death of all male coparcener and widow also have no son, his widow can get his
property but she has right to limited estate as legal heir till she alive. After her death, the property
goes back to the Hindu Joint Family property. She can’t alienate property to anyone because of
limited estate. In that period, women have no right to be a coparcener by birth, adoption or
blood.

Legislature passed the Hindu women’s right to property act, 1937 which gives few more rights to
women in the Hind Joint Family property. This legislation facilitates the Concept of Limited
Ownership which is only for the widow. In which, she can ask for partition but not as coparcener
and can hold limited ownership over her husband property. But she cannot hold interest in
agricultural land. This creates a inequality with women which is a loophole of 1937 act. In some
states like Bihar this inequality are not there because they allowed women to hold limited
ownership over agricultural land in Hindu Joint Family property. she can used limited ownership
for maintenance purposes only. Widow undivided interest keeps on fluctuating. The limited
ownership concept limited to certain condition. If she die or remarry, the property go back to the
father. This legislation fail to give coparcenery right to women.

After that, legislature passed another act that is the Hindu Succession Act, 1956 which totally
overturn the Mitakshara coparcenery and removed doctrine of Survivorship. This act gives the
Concept of Notional Partition. In which if one coparcener dies, and then it will be presumed that
there will be a Notional Partition3. This notional partition takes place without asking for
partition. This share goes to his wife and children. Andhra Pradesh was the first state who amend

3
Notional Partition means given separate share out of total.

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1956 act and make female a equal coparcener to the Hindu Joint Family property. After that,
Maharashtra and Karnataka allowed women as coparcener of full time in 1994.

Above all legislation failed to give full right of coparcenery by birth, blood and adoption to the
women over Hindu Joint Family property. After 1956 act, women position is little good in
comparison of women under Mitakshara Law and Dayabhaag Law. In spite of these acts there
was an existence of gender inequality with women.

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 Position of daughter after the amendment to the Hindu
Succession Act, 2005 and judicial decisions proving it.
In 2000, 15th Law Commission of India present a 174th report in which the commission
suggested many amendments to remove the discrimination against women that was the main
issue to create inequality and further, it proved to be the success part of Hindu Succession
(Amendment) Act, 2005.

Hindu Succession (Amendment) Act, 2005 came on 9 September 2005 which totally change the
position of daughter and exclude the Mitakshara Law coparcenary in Hindu Undivided Family
property. By this amendment in section 6, daughters have devolution of interest in coparcenary
property. Under section 6(1), The daughter shall,-

a) By birth, she will be a coparcener like son.

b) Have the same rights in coparcenary property like son.
c) Have same liability in respect of coparcenary property like son.

This amendment, in section 6, provides equal rights to daughter as that of son so that gender
inequality was removed.

Section 6 of the Hindu Succession Act, 1956, which manages coparcener's right in the HUF
property, was amended in 2005 with effect from September 9, 2005. With this amendment,
daughters have been put at standard with sons, to the extent coparcenary rights in HUF property
are concerned. Therefore, the daughter gets every one of the rights appended with coparcenary4,
including the right to ask for parcel of the property and to turn into a Karta of the HUF.

In any case, just the daughters who are born in the family will get the coparcenary rights. Other
female individuals, who come into the family by excellence of marriage, are as yet treated as
individuals as it were. Along these lines, they are not qualified for ask for the segment but rather
are entitled for maintenance and offers as and when segment happens.

4
Coparcinary is not a juristic person, it is the creation of law, no stranger can become a part of coparcenary by an
agreement with Karta or with other coparceners.

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The 2005 amendment in Hindu Succession Act, 1956 that provides equal rights of coparcener to
daughters in the Hindu Joint Family property as compared to the sons, but there is problem arises
in my mind is that can women act as a Karta? Because, under section 6, daughter has a right to
be coparcener but it doesn’t tell about women position as Karta5.

The landmark judgement of Delhi High Court in Mrs. Sujata Sharma v Shri Manu Gupta has,
after the 2005 amendment to Hindu Succession Act, 1956, provided the next step to realizing
equality of women in the Hindu Joint Family. The court found that while females have equal
rights to Hindu Joint Family property (post HSA), women can manage the property as Karta like
male coparceners. The court, under section 6, also clear that there is no element of restriction to
be found that put restriction on female to act as Karta.

After the death of the father in Hindu Joint Family, if there is an eldest daughter amongst other
coparcener then she will be the Karta of Hindu Joint Family property. It is immaterial that
whether married or unmarried daughter. She also have right of coparcener under section 6 which
also give right to manage property as Karta in indirect way. For that, she must be an eldest one
amongst son because only eldest member in Hindu Undivided Family can claim on the position
of Karta.

A daughter can claim on the position of Karta like son coparcener when she born eldest and also
after get married, she can retain her right to coparcenery including right as a Karta.

A female is a de facto Karta in the in-law family where she marries and may be a de jure Karta in
her father property where she born.

In this judgement, the equal rights of daughters in Hindu Undivided Family have been fully
ascertained. Daughters will be given equal position as son in respect of the Hindu Undivided
Family property.

5
Karta is the last owner (Holder) of the property.

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Introduction of daughters as coparceners

After 2005 act, under section 6 daughters have following rights that are given below.

I) She is capable of acquiring an interest in coparcenary property.

II) She has also right to demand partition.
III) She is competent to start a joint family.
IV) She also can become a Karta.
V) She can blend her separate property in common stock.

Female position as a Karta on the basis of Inheritance and Succession

Although the following questions have not been answered by any court so far, the answers are
based on existing laws, judicial precedents and reasoning behind them.

1. On the intestate passing of a female Karta, will her widower get a share similarly as a widow
did on account of a male Karta? - No, he won't. This is on the grounds that not at all like the
widow, the widower of a female Karta isn't an individual from the HUF. In spite of the fact
that the inquiry on the matter of maintenance stays open. Customarily, maintenance is
conceded to a widow since she isn't a winning individual from the family. Assuming also, the
widower were not a procuring part, would he be able to guarantee for maintenance out of his
perished wife's HUF's property.
2. Will the children of a married female Karta inherit a share in the HUF property of which she
is a Karta? - On account of a partition, they won't. This is on the grounds that the children of
the Female Karta are born in a family other than the one she is a Karta in. Children of a
female Karta will be coparceners in the family of their birthplace, and hence will have just a
claim in the HUF property of their family of beginning. Be that as it may, whatever property
as a share in the partition the female Karta secures; it will devolve upon her children or the
children of her pre-deceased children, before it returns to her dad's heirs. [Section 15(2) of
HSA]. However, for the situation where the female Karta dies intestate, the HUF property
will devolve among the HUF individuals, which does exclude the children of female Karta.

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3. How will the self acquired property and HUF property of a deceased intestate Female Karta
devolve? - The self acquired property would devolve as per the Hindu Succession Act [S.15,
16], and the HUF property would devolve as indicated by the rules of Hindu Law and would
go to the individuals from the HUF, for example mother of female Karta, brothers and sisters
of female Karta, children of such brothers.

Marital Status of the Daughters

Before 2005, 4 states i.e. Andhra Pradesh, tamilnadu, Karnataka and Maharashtra has already
made a reform under which unmarried daughter becomes a coparcener. But the union act of
2005, says that all the daughters are the coparceners and it erase difference between married and
unmarried daughter. Sec 6(1) mentions 20TH December 2004 which says if the partition is done
prior to this date then daughters cannot claim coparcinery right in Hindu Joint Family property.

In the case of R. Kanta vs. Union of India6, the constitutional validity of section 6(1) of 2005
amendment act which took away the right of daughter to reopen partition affected before 20 th
December 2004 which was expressly bested in them by Karnataka Hindu Succession Act, 1994.

The Karnataka High Court held that this section is ultra virus of the provisions of the constitution
as it discriminates between the rights of the coparceners on the ground of sex.

Retention of the Concept of Notional Partition.

Under section 6(3)7, on death of female coparcener, there will be notional partition which will be
given to her child. Her children are not only able to inherit the property of husband but also able
to inherit property of wife.

6
AIR 2010 Kant 27
7
Section 6(3) of Hindu Succession Act, 2005

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Abolition of special rules relating to dwelling house

Section 23 [removed] this section says that married daughter cannot take residence in dwelling
house. Only unmarried daughters have right to take residence in dwelling house. The portion of
dwelling house depends on male coparcener but after coming of 2005 amendment act, section 23
was removed and unmarried as well as married daughter can reside in dwelling house and male
coparcenary dependence in respect of portion is ultra virus and daughter can also ask for
partition.

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Judicial Decisions
a) A Pandurang v. R Pandurang8
 This was the case of 1947. That time, women position was not better to hold property unlike
male coparceners. At that time, only the eldest male became the coparcener of the family, can
be a Karta.
 In this case, there was Hindu Joint Family in which all male members were died. But there is
a woman who is senior in the family and she had a minor son.
 This is the earliest case which talks about issue whether women can be Karta of Hindu Joint
Family or not. Court wanted to appoint administrator to manage property on behalf of son
until the son attain majority.
 But the mother contended before the court that why to appoint administrator as a third party
when she is qualified enough to look after the property and is familiarized with the property.
 In this case, the court accepted the contention of women and held that she has a right to act as
the manager of the property on behalf of minor son until he attain majority. Members of legal
community didn’t appreciate this judgement.

b) Rakhmabai kachu v. sitabai kachu9 (1951)

 In this case, the question was related to the appointment of the widow as the guardian of the
property. In this case, the appointment of stepson as the Karta of Hindu Joint Family property
is challenged by his step widow mother.
 In this case, the pleaded that she was the one who managing the estate and her authority
should not be undermined by such an appointment.
 The court, in this case, stated that there is need to appoint guardian for the proper course of
management of Hindu Joint Family property so that he/she can take care of property and
manage the affairs.

8
1947 Nagpur HC
9
AIR 1952 Bombay HC 160

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 The court held that The Hindu Joint Family property cannot be managed by widow and the
case of sitabai was affirmed which talks about women cannot be appointed as manager of the
Hindu Joint Family property.
c) Commissioner of Income Tax v. Seth Govindram Sugar Mills10 (1966) SC
 There was a Hindu Joint Family in which there was a father who is a Karta and he has four
sons and wife. After the death of father, wife (widow) contended in the court of law that she
is entitle to position of Karta.
 Woman argued that since her sons were not in friendly or amicable term amongst each other
and kept on dispute over property. So to easy and clear the things, she shall be appointed as a
Karta of disputed joint family property.
 The Supreme Court rejected the argument of widow and stated that only coparcener can be a
Karta which doesn’t include mother as a coparcener. She cannot be appointed as Karta. It is
not about the gender, the fact is clear that affinity only gives membership in the joint family
and not coparcenaries rights.

d) Mrs. Sujata Sharma v. Shri Manu Gupta & Ors. (Delhi High Court, 2015)
 This case came in the light of 2005 amendment in the Hindu Succession Act. There is a
Hindu Joint Family property, at GTB Nagar Delhi, which is registered in the name of Dr,
Gupta and Sons.
 Dr. Gupta is a Karta of family and he had 5 sons. He died in 1971. Krishna Mohan Gupta is
eldest amongst all brothers and having two daughters named as Sujata Sharma and Radhika
Seth. The eldest sibling was Sujata Sharma while eldest male coparcener is Manu Gupta.
 The matter goes to court where Manu claimed that he should be made Karta of Hindu Joint
Family property because he is the eldest male coparcener of the family and Sujata claimed
that she should be Karta of Hindu Joint Family property because section 6, after 2005
amendment, gives equal position to the women as sons from her father side property, whether
she got married or not, which also include managerial rights also.

10
1966 AIR 24, 1965 S.C.R. (3) 488 India

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 In this case, there is conflict with section 6 of Hindu Succession Act because section 6 in
itself is silent about female to be made as a Karta. Even parliament was not sure that it is the
reason, this was not specifically mentioned.
 In this case, Delhi High Court accepted Sujata Sharma argument and going through the
argument, held that daughter too can be a Karta of Hindu Joint Family property. She cannot
be interrupted to be made as Karta because of mere fact of marriage. This mere fact of
marriage cannot rescind a daughter’s blood relationship.

e) Danamma @ Suman Surpur & Anr. V. Amar & Ors.11

 In this case, there is a Hindu Joint Family including Father (Shri Gurulingappa Savadi) as a
Karta who has two sons (Arun Kumar and Vijay), a wife and two daughters.
 After the death of father, property divided between 5 members. Each got 1/5 share. Arun had
a wife, two daughters (appellants) and one son. Daughter were born and married before the
1956. Arun and his wife died pre 2001. After that, son claim the whole share to which only
he had right and contended that both daughters are not the coparceners as they were born
before the Hindu Succession Act, 1956.
 The Trial Court accepts his contention and allowed son to get whole property and refused to
hold appellants as coparceners. High Court also upheld the it and an appeal goes to SC in
2013 and decided in 2018.
 Issue is here that- 1) whether daughter could be denied their share on the ground that they
were born prior to the enactment of the 1956 act and therefore cannot be treated as
coparceners.
2) Is women are allowed to get equal share in the property like son and be a Karta?
3) What is the material date to decide their entitlement is it the date of death of intestate or
daughter’s date of birth.

Final Conclusion- 1) Right under the amendment are applicable to living daughters of living
coparceners on 9 September 2005 irrespective of when such daughters were born.

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AIR 2018 SC 721

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2) Disposition or alienation including partition which may have taken place before 20 December
2004 will remain unaffected.

3) In the present case, a suit for partition was filed in 2001 but during the pendency of the suit
sec 6 of the act was amended as the decree was passed by Trial Court in 2007. The rights of 1st D
and 2nd D were crystallized in 2005 and this event should have been kept in mind by Trial Court
as well as by High Court.

3) The property which was subject matter of partition suit belongs to the joint family and
therefore shares will devolve upon both daughters.

4) Right of daughter as coparcener is retrospective in nature.

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 Loopholes in Hindu Succession Act, 2005.
Some changes have been done in Hindu Succession Act, 1956 by Hindu Succession Amendment
Act, 2005 which proves to be very important to remove inequality amongst women but some
loopholes are there in Hindu Succession Amendment Act, 2005 which will cause some
inequality and injustice. There are following loopholes given below which must be clear as soon
as possible.

1. After Hindu Succession Amendment Act, 2005, if daughter died without having child then
property goes to Husband’s legal heirs, not to women legal heir.
2. There is another loophole that daughter get property from two sides. Firstly, from his father
property and secondly, from his in-laws property, after marriage. This is against the principle
of natural justice because by this way women are getting property from two sides, father and
in-laws property.
3. After 2005 amendment act, women are entitled to get property from non-agricultural land but
she is restricted to get share from agricultural land under sec 4(z) which resulted in injustice
with them.
4. In Mitakshra Coparcenery Property, there is another loophole that is unequal interests for
several categories of women.

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 Conclusion and suggestions.
The quote as mentioned at the beginning of the project work correctly represents today’s
scenario and the tone used in the paper bends with the persisting problem. This is because
females were not given equal position in society from the beginning the daughters were
considered a liability. From the Historical aspect, women have been treated with inequality and
this is the reason that many people fought to make their status equal to men. “In the circle of life,
it seems, man has put the autograph but no space for a woman even to put her signature. The
general public needs to experience a perceptual move from being the propagator of domineering
men-centric ideas of requesting additionally demanding gauges from female to be the cultivator
of correspondence where the female is not the slightest bit thought about frailer, lesser or
mediocre compared to man. Any standard dependent on separation or isolation of females
relating to natural qualities isn't just unwarranted, faulty and improbable yet can likewise never
pass summon of constitutionality”. Religious practices are some of the time seen as propagating
male-centric society along these lines invalidating the fundamental precepts of confidence,
gender equity, and rights. The attitude of society too revolves around patriarchal mindset and
thereby enhancing the derogatory status of female in society. “The Prohibition of little girls from
taking part in coparcenaries property proprietorship just by reason of their sex is unjust”. The
Commission felt that further change of the Mitakshara Law of Coparcenary is expected to give a
parallel dispersion of property both to people.

The law commission made a progressive stride by suggesting changes in the old progression
laws of Mitakshara and Dayabhaga and in this manner revising the current Hindu Succession
Act, 1956 to give rise to share to Hindu Women in their hereditary properties. This is by all
accounts evidently uncalled for as women are substantiating themselves equivalent to any task.
Since they can act as coparcenaries then they should likewise be given the power of Karta. The
Shastra is certain that without senior part a lesser part (in the event that he has achieved the time
of legitimate fitness) may bring about obligations for the necessities of the family, and without a
male part, a female part may do as such. The new amendment will be of no use if it is not
properly implemented. The old texts of the Hindu religion say that women can claim property,
and have the right to manage the property. Unexpectedly, Hindu ceremonies and practices of
venerating the Shakti were never respected, all things considered. Women are viewed as a

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pariah. The antiquated law and codes can never direct the cutting edge women’s situation for the
sake of the religion. After the 2005 amendment, this milestone judgment was a much anticipated
help for the female coparceners and a stage towards acknowledging balance between the sexual
orientations. Nonetheless, increasingly complex inquiries will emerge with respect to the
Inheritance and succession if there should be an occurrence of a female Karta. The responses to
such unpredictable inquiries must be estimated, best case scenario as there are no points of
reference, considering the judgment is later. Notwithstanding, much depends on the justification
behind it just as the conditions of each case. A female as a Karta has opened up a wide exhibit of
conceivable outcomes which should be tended to as quickly as time permits.

So in the end, I would like to suggest that equal status and rights must be given to women which
also includes right to be Karta for which a legislation has to end the old customary definition of
Karta. These changes must be done within the blanket of the constitution. So that status of
women can be brought equal to men.

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Suggestions
The Hindu Succession Amendment Act of 2005 tries to maintain Article 14, 15 and 21 of Indian
Constitution and also talk about equal rights of men and women. This 2005 amendment is silent
on women to be made as Karta and unclear about women position of Karta. Legislature should
more clear about legislation.

The Hindu Succession Amendment Act of 2005 gives the equal position to a daughter in respect
of rights, duties and liabilities like son. In this act, women can play different roles like daughter,
mother and daughter-in-law. This causes a problem that on one side, daughter can inherit share
from the property of her father and on other side, after getting married, also can inherit share
from the property of her in-laws. This position is still unsettled about getting benefit from both
sides by women.

Several amendments have done in Hindu Succession Act but women are not recognized as
natural inheritors of property yet. This is because of illiteracy, financial resources and
unawareness of their right. The lack of knowledge is still considered as the major factor when the
matter of inheritance arises.

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 Bibliography
1. Lexis Nexis Family Law Lectures: Family Law II (4th Edition), Dr. Poonam Pradhan Saxena.
2. Course Material on Family Law II (Compiled and Edited), by Mrs. Kavita Singh (Associate
Professor).
3. 174th Law Commission Report: Property Rights Of Women: by 15th Law Commission.
4. Article by Savita Singh and Amit Wadhwani on
: Women Can Now Be Karta In Hindu Undivided Family Governed By Mitakshara Law.
5. Property rights of a Hindu daughter under the Hindu Succession Act, 2005:

By balwant jain, https://housing.com/news/these-are-the-property-rights-of-a-

daughter-in-a-Hindu-family

6. Universal Handbook on Hindu Succession; by P.K. Das, 3rd edition.

7. The Hindu Succession Act, 1956 (Bare Act).

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