Tag: #hindusuccessionact

Introduction

A property transfer (whether movable or immovable), such as a gift, cash, real estate, or mortgage, is known as alienation. Hindu law places a stronger emphasis on alienations because, typically, neither the Karta nor any other coparceners have full authority to alienate the joint family property or his interest in the joint family property. The Hindu Succession Act of 1956¹ and the Transfer of Property Act of 1882² both regulate the alienation of coparcenary property under Hindu law. And according to them, though the Karta or the head of the family has the duty to look after the regular expenses of the family and also protect the joint family property, he doesn’t have absolute power over alienation. The power of alienation vested upon Karta is similar in both Dayabhaga and Mitakshara law. According to that, Karta can only alienate property under three exceptional circumstances. 

On the other hand, the court ruled in the case of Kandasami vs. Somakanda³ that the Karta can alienate the property in the Hindu Undivided Family. All family members must provide their approval in cases of this form of estrangement. The only need is that the coparcener must be the major in accordance with the law to which they are subject. After receiving the coparcener’s approval, the property may be alienated.

Grounds of Alienation

According to Vijnaneshwara, a prominent jurist of twelfth-century India, a property of the Hindu Joint Family can be alienated due to three circumstances-

1. Apatkale- It describes a circumstance in which the entire family, or a single member of it, encounters an emergency involving their property. The purpose of this transaction is to combat the threat or make an effort to prevent the catastrophe for which money is required. When it makes reference to the property, it means that the transfer is required for its preservation or protection and that it requires quick action. It should be held that this transaction or alienating is not a mere profitable charity but a way to safeguard properties owned by a joint family.
2. Kutumbarthe- “For the benefit of the Kutumb” is what this phrase signifies. Kutumb alludes to members of the family. As a result, this involves the alienation of a property for a family member or relative’s support. For instance, housing, food, clothing, and education. medical costs, etc.
3. Dharmarthe- It gives relaxation for the purpose of carrying out charitable, pious, and virtuous obligations. Typically for philanthropic and religious reasons.

But it should be held that this thesis of Vijnaneshwara has gone through modifications and severe changes have been performed in it by the Indian Judiciary. It would be mentioned below.

Father’s Power of Alienation

In some circumstances, only the father has the authority to alienate his child, hence a father has greater power than even Karta. Fathers are given unlimited alienation rights under Dayabhaga Law, meaning they are free to sell off any movable or immovable property they choose, whether it is personal property or family heirlooms. Under Dayabhaga School, sons do not automatically acquire a right to property; hence, a father may alienate the property without the sons’ permission. A landmark judgment regarding this situation was given in Ramkoomar vs. Kishenkunkar⁴, where the concerned Court ruled that while it was immoral, a father’s gift of his entire estate to his younger son during the elder’s lifetime was permissible but giving away all of the family’s landed property was not permitted.

While it has long been accepted practice, under Mitakshara Law, that the father had complete discretion over the disposition of his distinct movable property. However, there was contention regarding his several immovable properties. But in the case of Rao Balwant Singh v. Rani Kishor⁵, the Privy Council put an end to the dispute in 1898 by ruling that the father had full alienation authority over his distinct property, both movable and immovable. Later it was held that whether a joint family property or undivided property, the Father can alienate whole property in two cases-

1. Gifts of Love and Affection– The Father has absolute power on sending Gifts of Love and Affection (Jewels, Valuable metal ornaments, Clothing, Cash, part of movable property) to his own wife, daughter, son-in-law or any other close relatives.
   
   But it should be noted that Gifts of Love and Affection of immovable property cannot be made to the son. Such gifts can only be made to daughters, as in Guramma v. Malappa⁶, a gift of immovable property to a daughter made by her father after her marriage was held to be valid.
   
   But sending affectionate tokens through Gifts cannot be done via Will. Because an important concept was established in the case of Subbarami vs. Rammamma⁷ that such gifts cannot be made by a will because as soon as a coparcener passes away, he loses his stake in the joint property, which he cannot afterwards transfer.

2. Alienation for Discharge of His Personal Debts- In order to pay off his prior debts, which the sons are obligated to do religiously because they are not immoral or illegal, the father has the right to alienate the family’s property. If the two criteria below are met, a father may sell off the joint family property to pay off his debts:
   
   • The debt came before.
   • The loan should not be incurred for Avyavaharik, or for immoral or unethical reasons.
     
3. Although taken from an ancient Mitakshara text, the two criteria above were also established in the
   case of Brij Narain vs. Mangla Prasad⁸.

Karta’s Power of Alienation

It is a common belief that the karta has a great power inside a Hindu joint family. However, he is not the sole owner of the property when it comes to property concerns, thus he can only use the power of alienation in particular circumstances. The powers of the Karta under Mitakshara Law and the Dayabhaga Law are comparable. Only three situations— Legal Necessity (Apatkale), Partial Necessity, and Benefit of Estate —permit the alienation of the property by karta. Though with the approval of all adult coparceners present at the time of the alienation, the Karta may, however, alienate the joint family property regardless of any necessity for the law or advantage to the estate.

1. Legal Necessity- Legal need can refer to any action taken to meet a family’s basic necessities during an emergency such as a flood, war, starvation, etc. In contrast to the word purpose, there should be no other sources available to the Karta in order to exercise this option.
   
   Nevertheless, it has been acknowledged by contemporary law that necessity may go beyond that. In Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu⁹, it was decided that necessity should not be considered in the sense of what is absolutely necessary but rather what would be viewed as proper and reasonable in accordance with the ideals of the joined Hindu family like-
   
   • Monthly expenses of all members of the joint family and additional medical bills.
   • For payment of various Taxes.
   • For paying EMI of debt incurred as a joint Hindu Family.
   • Performance of necessary ceremonies, like- Mundan, Bibah, Sradhs, and Upanyana.
   • For marriage ceremony of male & female coparceners of family.

2. Partial Necessity- According to the Privy Council in the case of Krishandas vs. Nathuram¹⁰, a sale will only be valid where the purchaser acts in good faith, conducts due diligence, and is able to demonstrate that the sale itself is justified by legal necessity in cases where the necessity is only partially met, that is when the money needed to meet the necessity is less than the amount raised by alienation.
   
   For Example- If the Karta of a Joint Hindu Family has collected Rs. 50,000/- through alienation and gives proof that he is required of Rs 40,000/- in good faith that falls under necessity, then the alienation will be valid.

3. Benefit of Estate- The benefit from the estate is often known as “kutumbarthe”. It has been stated that alienation can be carried out to benefit any other family estate or to satisfy the needs of family property. Alienation under this cause is strictly defensive or protective in nature with the dilution of “apatkale”, alienations that an ordinarily prudent man would consider reasonable in the specific set of circumstances are also permitted. The alienations made by the karta for the benefit of the estate are legal and hence not void. This concept was not mentioned in any ancient textbook and was first introduced in the case of Palaniappa vs. Deivasikamony¹¹.

Coparcener’s Power of Alienation

A coparcener has the authority to give up his ownership interest in joint family assets. A coparcener may give his complete undivided interest to another coparcener or coparceners, with or without their approval, or they may renounce it in their mutual interest. Either way, the gift is lawful. Renunciation that includes a requirement to give him maintenance is legal. However, a gift or renunciation of one coparcener’s share in favor of another coparcener or coparceners is invalid. And a coparcener is not allowed to sell or mortgage his undivided interest without the consent of other coparceners of the Joint Family. Even they don’t have the right to gift a part of their undivided interest to their special ones to show a token of affection.

Sole Surviving Coparcener’s Power of Alienation

As long as the lone surviving coparcener does not have an heir, the joint family property becomes separate property when it is transferred into his possession. His only obligation is to provide for the family’s female members (the widows). In that case, he can alienate his interest from the total property. So long as the widow’s part is excluded, he may alienate the other property as his own. However, if another coparcener is present in the wombat at the moment of the estrangement, this is not applicable. However, if the son was born after the transaction, he could not contest the alienation. If a widow adopts a child after her husband’s death, that child will also have the right to challenge the alienation made by the sole surviving coparcener according to the landmark judgment of Bombay High Court in the case of Bhimji vs. Hanumant Rao¹².

Unauthorized Alienation of Property & Burden of Proof

Unauthorized alienation of property refers to the transfer of property without authorization, which makes the transfer invalid. Alienation of property can be developed through will, gifts, or a mortgage, as was previously discussed. Karta works for the welfare of the family since, as we all know, he is the manager of Hindu families. Alienation is described as “any disposal of a portion or the entirety of the joint family property by the father, karta, coparcener, or the sole surviving coparcener by any act or omission, voluntary or involuntary”.

According to the case of Hanoomaprasad vs. Babooee¹³ burden of proof is on the alienee. He has to prove in the court that the alienation made by him was in good faith and it was regulated through either Legal/Partial Necessity or Benefit of Estate. Any unauthorized alienation made by the sole coparcener, Karta or Father is voidable under Hindu Succession Act.

Coparcener’s Right to Challenge such Alienation

If the father, karta, coparcener, or the only remaining coparcener acts outside of their authority and alienates joint property, that alienation can be contested and overturned before it expires. In accordance with Article 126 of the Indian Limitation Act, 1908, a son has 12 years to contest his father’s alienation, and in accordance with Article 144, coparceners have 6 years to contest the alienation caused by karta. Any other coparcener with a stake in the property, from the time he learns of it until the lawsuit is prohibited by time limits, may contest and set aside the alienation if the father, Karta, coparcener, or single surviving coparcener overstepped their authority in making it.

Alienee’s Right & Remedies

The courts have applied various interpretations to Alienee’s right to divide. However, the existence of this privilege is firmly established. The purchaser cannot seek the exact property that was sold to him, according to the Bombay and Madras High Courts. He is limited to requesting the general division of his alienor’s interest. And from the date of purchase until the day that the partition is ruled upon, Alienee is not entitled to any portion of the earnings. The Supreme Court ruled that a person who purchases a coparcener’s share at auction in order to enforce a monetary judgment against him is not entitled to future profits as of the purchase date. In the event that the partition is unaffected, and the property is transferred to the buyer, who then takes possession, the other co-owners have the right to co-own the property with him or to sue him to regain ownership.

Conclusion

From the explanation above, it is clear that a family’s most important and indispensable component is its property. If Karta alienated that property without the other coparcener’s approval, it would frequently result in conflict and inconvenience for the family as a whole. The Karta, who represents the entire family and occupies the Supreme position in the Hindu Undivided Family, is the only manager of the family and serves as its exclusive representative.

Each coparcener is entitled to use the joint property to the fullest extent possible without hindering it or using it in a way that is harmful to the interests of other coparceners. The family business manager, however, should have some privileges in regard to sustaining the entire family business. For the family business to run well, it is vital to devolve some control to him.

---

Endnotes:

1. Hindu Succession Act, 1956, Sec. 6, Act no. 30 of 1956
2. Transfer of Property Act, 1882, Act no. 4 of 1882
3. Kandasami Asari vs Somaskanta Ela Nidhi Limited, (1910) 20 MLJ 371
4. (1812) 2 SD 42 (52)
5. (1928) 30 BOMLR 1331
6. 1964 AIR 510, 1964 SCR (4) 497
7. (1920)43 Mad 824
8. (1924) 26 BOMLR 500
9. (1911) ILR 34 Mad 422
10. 1927 P.C. 37
11. 1917 P.C. 68.
12. AIR 1950 Boom. 271
13. Supra Note 10

This article is authored by Dibyojit Mukherjee, a student of Institute of Law, Nirma University

This article is about the evolution of women’s rights before and after the Hindu Succession Act and how it has impacted gender equality.

INTRODUCTION

Gender inequality is one of the main aspects under the law which requires a major focus. There are still a variety of issues pertaining to gender inequality yet to be addressed. One of the major areas where it is still prevalent is property rights. It is true about the very fact that many legislations have been passed with an aim to improve the status of women in society by ensuring economic accessibility as well as their rights on property. Mere passing of the legislation is not enough, the focus on implementation matters and this is one of the major reasons why inequality still exists.

The blame shall not fall on the legislative or judiciary alone. Everyone involved in ensuring equality is collectively responsible in some way or another. Even women themselves are less motivated to uphold their rights because of familial expectations, public stigma, and associated demands. Ancient laws in the country including Hindu law were too harsh on women denying them basic economic rights. A woman was always considered as someone who is always dependent either on their father or their husband. women’s claim to property was reduced by the patriarchal structure laid down by the commentaries and smritis. Male members were given the right of inheritance of the property under the mitakshara school of law. Since divorce was uncommon, women could not easily be denied their right to a place to live and support themselves after marriage. The Hindu Woman’s Separate Residence and Maintenance Act, of 1946 also formalized a woman’s right to demand separate housing and maintenance in specific situations, such as abuse or adultery.

ANALYSIS

The Hindu women’s right to property bill was introduced in the year 1937. The primary aim of this bill was to achieve equality in the matter of property by evicting all sorts of discrimination between men and women. But due to heavy opposition from the public, the bill had to be modified. The English notion known as a widow’s estate was adopted where women were given only rights along with restrictions the concept of providing women absolute rights on the property was discarded. The bill focused on giving women the right the separate property after marriage. The concept of inheriting the family’s property was removed. This act gave more clarity to attaining property from the eyes of a widow and not a woman. Thus, more problems were created in place of solving equality. This gave rise to the setting up of a Hindu law committee in the year 1941 which proposed to give more clarity on this act. Later in 1944, a second Hindu law committee was formed which adopted both property rights in marriage as well as succession.

The Hindu Succession Act of 1956 revolutionized the whole matter of inequality in property rights by demolishing the patriarchal structure of men enjoying all the rights with women having little room to claim rights. Earlier only stridhana was awarded to women before marriage in place of property. But even it did not ensure financial independence as it was limited. But the Hindu succession act ensured economic viability as well as social independence. The act removed the restriction on absolute ownership and ensured.

As the years passed, many needs emerged which were not as such addressed by the succession act of 1956. Many areas of property law have still discrimination. Therefore, the government decided to amend the act of 1956 in the year 2005 with the aim to provide more economic stability to women of the society. The Hindu Succession Act of 2005 gave women the recognition of coparcener and gave them the power to inherit property like that of a son and now there is no difference in the rights of a son and daughter. Now women even have the power to become the karta of the family which earlier only male members could hold the status. The 2005 Act addresses unfairness in inherited property, residential properties, and widows’ rights. It also safeguards the interests of some new heirs by adding them to the Class I heirs list. In fact, it ensures social justice and equality for women in a more profound way. It basically repeals the antiquated Hindu legislation that denied women the ability to own property. The community of Hindu women supports this legislation. Now even a woman member of mitakshara will be born with a silver spoon. All of her rights will be equal to those of her male equivalent. She is nevertheless subject to the same legal obligations for coparcenary property as a male. The Amendment Act of 2005 permits her to request a division of the dwelling. A widow no longer faces the restriction that barred her from inheriting her late husband’s assets if she marries again.

Landmark judgments and judicial interpretations

One of the major landmark judgments regarding the succession act was the Prakash v. Phlulvati[1] case, In fact, it ensures social justice and equality for women in a more profound way. It basically repeals the antiquated Hindu legislation that denied women the ability to own property. The community of Hindu women supports this legislation. Now even a woman member of mitakshara will be born with a silver spoon. All of her rights will be equal to those of her male equivalent. She is nevertheless subject to the same legal obligations for coparcenary property as a male. The Amendment Act of 2005 permits her to request a division of the dwelling. A widow no longer faces the restriction that barred her from inheriting her late husband’s assets if she marries again. She will be eligible for her father’s tribe and self-involved property since birth because the amendment’s main purpose was to abolish the current discrepancies between sons and daughters about their coparcenary liberties. The High Court decided that the revised clauses should be applied. In spite of this, the Supreme Court rejected the High Court’s request, stating that the Act shall apply in the future and until it is expressly stated in the statute.

Since the amendment’s primary goal was to eliminate the current disparities between daughters and sons regarding their coparcenary rights, she will be entitled to her father’s tribe and self-involved property from birth. The altered sections should be used, the High Court said. However, the Supreme Court denied the High Court’s motion, holding that the Act will continue to be in effect up until and unless otherwise specified in the act.

In a recent decision known as Vineeta Sharma vs. Rakesh Sharma[2] stated on the eleventh of August 2020, the status of women’s coparcenary rights has been switched. In this case, it was decided that regardless of when they were born—before or after the amendment—the ladies would be eligible for coparcenary status and the same liberties as sons.

The requirement that dads should be alive on the day the law was passed (09.09.2015) is not necessary. The court gave the act a “retroactive” application. The court’s decision in the Prakash v. Phulvati[1] case was overturned, granting equality to women. The court offered an option between the two viewpoints, first providing women equal coparcenary freedoms since birth and disregarding the fact that the father was still living at the time the amendment was made. Clarification was provided for all the ambiguity and confusion surrounding women’s succession rights.

Conclusion

Over time, things have changed gradually. Women in the modern day now have the same inheritance rights as sons after a gradual process. The rules that prohibited gender inequality are no longer in effect. beginning with the Mitakshara rule, which prohibited women from co-owning property and so discriminated against them. The 1956 Hindu Succession Act also fell short of social law’s standards and wasn’t gender-neutral.

With the Hindu Succession Amendment Act of 2005, which gave women coparcener status, significant changes were brought about. Even though there were conflicting legal options and a chaotic demeanour, the “Vineeta Sharma Case” provided a definitive statement on the subject at hand. The Supreme Court made its final ruling, stating that it is the responsibility of the courts and other bodies to uphold the established principles.

Citations

1. Prakash v Phlulvati, A.I.R. 2011 Kar. 78.
2. Vineeta Sharma v Rakesh Sharma, (2020) AIR 3717 (SC).

This article is written by Vishal Menon, from Symbiosis Law School, Hyderabad.

Introduction

Transgender¹ or the third sex denotes those people who cannot align themselves to their given respective biological genders with their inherent biological features. They are usually born as male or female but their innate perseverance of gender turns out to be different from their bodily features. Their self-proclaimed gender identity doesn’t match with their sex leading to the discrepancy in their gender orientation. Transgender, transsexual, and hijra are synonymous with each other and are used to denote them.

Since the dawn of human civilization, the existence of transgender people has been acknowledged but they have been devoid of subsequent approval from mainstream society. Even in this 21st century, such people are viewed as taboo and are subjected to persecution and a state of constant denial. Shame and stigma still continue to characterize such subjects in both public and private spheres thus engendering grave misconceptions. They are systematically denied equal rights in spheres of education, employment, marriage, divorce, inheritance, property, adoption, etc. The rudimentary reason for their denial of equal rights is ambiguity in recognition of their gender status as most of the civil rights especially succession, inheritance, marriage, and property rights are gender-specific and the policymaking in India has been always conceived primarily in respect of only two genders i.e. male and female, thereby preventing them from exercising their civil rights in their desired gender.

National Legal Services Authority vs Union of India

The Supreme Court in its landmark judgment of National Legal Services Authority vs Union of India² declared the transgenders as the third gender and endowed them with the right of self-identification of gender as female/ male / third gender. This self-perceived gender identity forms a very crucial part of one’s right to life under Article 21 of the Indian Constitution. The two-judge bench affirmed their entitlement to the fundamental rights granted to them via the constitution of India. Any denial of their fundamental rights in the civil or criminal sphere owing to their third gender is discriminatory to them. The court held transgenders as socially and economically backward classes (OBC) who are entitled to reservation in educational institutions and public sector appointments.

Constitutional Rights

Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the law within the territory of India. The phrase “any person” includes transgender too. And article 15 prohibits discrimination against any citizen on grounds of sex. Non-recognition of the identities of transgender/hijras leads to the systematic denial of the rights of equality and equal protection of the law. Article 19 (1) (a) of the Indian Constitution describes that all citizens shall have the right to freedom of speech and expression. It guarantees one of the most basic and fundamental human rights. Expression and alignment of one’s gender is hence an obvious derivative of article 19 (1)(a). Denial of the right to express one’s sexual identity through speech and choice of romantic/sexual partner would lead to violation of Article 19

The Transfer of Property Act 1882 and Miscellaneous rights

The Transfer of Property Act 1882³ and its subsequent amendments regulate the transfer of property. The phrase ‘transfer of property’ denotes a demonstration by which a person transfers or passes the property to at least one person, or himself, and at least one different person. It basically implies the transfer of property from one person to another. The term person consists of an individual, or body of individual or company, or association. Section 5 of the Act provides that transfer of property must take place between two or more persons who are living or it must take place inter vivos. The word “person” above forth holistically includes male, female and third gender. The other property-related laws such as The Hindu Disposition Of Property Act, 1916, The Indian Easements Act, 1882, etc include the word “person” to connote and include transgender within its sphere and do not per se disqualify them from legal transactions.

Inheritance Laws

The inheritance and succession laws lay down rules pertaining to the devolution of property on the death of an individual. The property is devolved on the basis of the relationship between the deceased and the inheritor. The succession laws in India are governed by the respective personal laws of the religious communities that chiefly recognize inheritors into the watertight compartments of the male and female genders. In order to claim property rights, transgenders are required to recognize themselves as male or female.

The Hindu Succession Act 1956⁴ which governs the inheritance of properties is completely silent pertaining to the rights of transgender. It explains who is Hindu and whom all comprise the inheritance schedule (such as son, daughter, spouse, etc.) within the said definition. The Act establishes a comprehensive and uniform system of inheritance. Ownership over the property is granted only to males and females thereby excluding the third gender. Such trans people are devoid of property rights and subject to extreme prejudice and vulnerability. They have to align their genders to respective categories of either male or female in order to claim property rights. So they have to establish their gender identity as per the one assigned to them at their birth certificate. Moreover, trans people are not entitled to the status of legal heir of their parent’s separate property nor coparcener in the Joint Hindu Family with their gender identity.

Similar to the line of succession rules of The Hindu Succession Act, the personal law of Muslims i.e. Shariat too follows similar rules pertaining to transgender property rights. Indian Succession Act, 1925 governs property inheritance of Christians. Notably, Section 44 of the act has included transgender and elucidates upon their inheritance of the ancestral property.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019⁵ has made a decent effort to protect the rights of transgender and promote their welfare by prohibiting discrimination on grounds of education, employment, healthcare, movement, access to goods and services, choice of occupation, etc. The act has sought to remove discrepancies in unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property. Section 4(2) of the Act provides the right to self-perceived gender identity. Section 5 of the Act provides that a transgender person could be perceived as third gender (transgender) by making an application to the District Magistrate for issuing a certificate of identity as a transgender person. But the act does not delineate anything about property rights thereby perpetuating lacunae in the system.

Evolving Sphere

Recently States such as Uttar Pradesh⁶, Uttarakhand, etc have sought to enforce progressive laws on property inheritance of transgender people. It has successfully passed an amendment to include transgender people in the UP Revenue code wherein they will be included in the inheritance nomenclature. The transgender people will now be recognized as members of a landowner’s family and will hold an equal right to inherit agricultural property.

Conclusion

The SC judgment in the NALSA case coupled with THE TRANSGENDER PERSONS ACT, 2019 has sought to create a level playing field by endowing trans people with the right to self-identification and creation of the label of the third gender. Transgenders cannot be denied the right to property per se as they have the absolute right to inherit family property unless disqualified by law. The State must strive to ensure equality of rights and promote the holistic development of the trans community as a whole.

References:

1. FAQs, https://transequality.org/issues/resources/frequently-asked-questions-about-transgender-people
2. WP (Civil) No 400 of 2012
3. https://www.indiacode.nic.in/bitstream/123456789/2338/1/A1882-04.pdf
4. https://www.ijlmh.com/wp-content/uploads/2019/03/Inheritance-Rights-of-Transgender-A-Cry-of-Humanity.pdf
5. https://www.news18.com/news/buzz/why-transgender-people-still-have-to-go-through-hoops-to-get-married-or-inherit-property-in-india-2842545.html

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

Case Number

CS (OS) 2011/2006

Equivalent Citation

(2016) 226 DLT 647

Coram 

HON’BLE MR. JUSTICE NAJMI WAZIRI

Decided on

22 DECEMBER 2015

Relevant Act/ Section

SECTION 6 WITHIN THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

Background 

Before the enactment of the Hindu Succession (Amendment) Act, 2005 women were considered physically and mentally inferior to men. The Indian patriarchal society disregards the Hindu women’s right to property and she or he is formed to suffer inequality and oppression. Women could hold only two sorts of property- Stridhan and Women’s Estate. Over which the feminine had meager powers only. Since they had no absolute powers and rights over the property and couldn’t acquire property from their father, they might not become Karta or play any role within the family property.  

On 9 September 2005, the Hindu Succession (Amendment) Act, 2005 came into force incorporating the reforms suggested within the 174th Report of the Law Commission of India. This amendment deleted section 4(2) of the act and paved the way for equal rights for girls. According to the newly amended provision, a lady by birth becomes a coparcener within the same manner as a son. The daughter now has equivalent rights and liabilities as a son. She fully enjoys the rights of the property of her father also as her in-laws.

Brief Facts and Procedural History

In this case, DR Gupta and his sons held a bungalow in Delhi and a few movable properties and shares on a long-term lease. On 1^st October 1971, Mr. DR Gupta died leaving behind him the five sons alongside their respective families. Mr. Kishan Mohan Gupta, the eldest son, became the Karta of the Hindu Undivided Family. At a later time, all the five sons of DR Gupta also died, and therefore the son of the younger brother of Kishan Gupta declared himself as the Karta of the HUF because he was the oldest living member of the said HUF.

The plaintiff challenged him by stating that after her father and her uncles, she is the senior-most member of HUF by the plaintiff, eldest daughter of Mr. Kishan Gupta. 

Arguments

• Arguments made by the plaintiff

Plaintiff contended that her being a lady can’t be the only reason for disqualification from being its Karta. She further contended that under the new provision, a daughter of a coparcener during a HUF, can enjoy rights to those enjoyed by a son of a coparcener.

• Arguments made by the defendant

The defendant objected to such claims and contended that the amended section 6 of HSA only grants daughters equal rights to be considered coparceners as those enjoyed by a male member and not extends to management of HUF property. He further argued that since the plaintiff has been married, she can’t be considered as a requisite part of HUF. 

Issues before the Court

Whether the eldest daughter amongst the coparceners of Hindu Undivided family, be entitled as Karta?

9 Cited Judgements

• Tribhuvan Das Haribhai Tamboli v. Gujarat Revenue Tribunal  

In this case, the Court held that Karta must be a senior-most member in a HUF.

• Raghunath Raj Bareja and Another v. Punjab National Bank and others
• Ram Belas Singh v. Uttam Singh and others
• Swedish Match AB v. Securities and Exchange Board, India
• Prakash Nath Khanna v. C.I.T.
• S.Sai Reddy v. S.Narayana Reddy and Ors 
• Badshah v. Urmila badshah Godse and another

The decision of the Court

The Delhi High Court held that while women would have equal rights in a HUF property, this right could not be curtailed when it comes to the management of the same property. The court further held that hurdles that prevented a women member of a HUF from becoming its Karta were that she did not have the necessary qualifications of Copartnership. Now, Under Hindu Succession Amendment Act, 2005, this deprivation has been deleted and there is no reason left that Hindu women should be denied the position of Karta in HUF. If the eldest son is often Karta, so can a female member.

Comments

In Prakash v. Phoolwati, the court held that the 2005 amendment will have the prospective effect which means that when the predecessor will die on or after 9 September 2005, then only women can claim to become Karta. But in the given case, the Court held that women have the right to become Karta, even though her father died before the introduction of the 2005 amendment. With due respect, the above judgment is patchy as it does not explain the actual position and role of Karta of HUF. The court only focussed on the proprietary rights and management aspect of the Karta, and other aspects like the socio-religious position of the Karta in HUF are neglected.  But this judgment will create a positive impact on society because it settles an equal place for women.

SITUATION ON GROUND 

Although the proper of being the Karta has been conferred abreast of the daughter, being the senior member of the family, through legislation and judicial pronouncements, she didn’t come to the fore to require up this responsibility. The family, where there are brothers notwithstanding younger than her, consider their sons to be more competent and hand over the responsibility of the family, by holding the title of the Karta. Most of the time Daughters are not even considered a member of their existing family but as a member of her husband’s family. Inconclusive words, the position of classic India or things before the amendment, persists in India Society.

Conclusion 

When the legislature passes the amendment act of 2005, it is very evident that they want to include female members of HUF to inherit Mitakshara co-coparcenary property. Due to unclarity in the provisions of the Amendment act and lack of awareness of the recent amendments, the discrimination continued even nowadays. But this judgment has clarified the legislature’s actual intent by including the management of the HUF property. Hopefully, it would assist in eliminating the gender discrimination, oppression, and negation of the fundamental right of equality of women guaranteed under the Indian Constitution. And over time, strengthen the position of women in the hierarchy of society.   

The case analysis has been done by Megha Patel, a 2^nd year Law Student at the Mody University of Science and Technology, Laxmangarh, Rajasthan.

The case analysis has been done by Shubham Yadav, a 4th-year law student from Banasthali Vidyapith.

Latest Posts

• Job opportunity at EXO Edge, Sahibzada Ajit Singh Nagar, Punjab, India: Apply Now!!
• Internship opportunity at Vishwas Advisors, Kalyan, Maharashtra, India: Apply Now!!
• Internship opportunity at Kulfi Collective, Mumbai, Maharashtra, India: Apply Now!
• Job opportunity at The Neotia University, Diamond Harbour, West Bengal, India: Apply Now !!
• Job opportunity at Morgan Stanley, Mumbai, Maharashtra, India: Apply Now!!
• Job opportunity at VISA INTELLIGENCE CONSULTANCY LLP, New Delhi, Delhi, India: Apply Now!!  
• Job opportunity at Amazon Web Services (AWS), Gurugram, Haryana, India: Apply Now!!
• Job opportunity at Stelcore Management Services Private Limited, Mumbai, Maharashtra, India: Apply Now!!
• Job opportunity at Zscaler, Sahibzada Ajit Singh Nagar, Punjab, India: Apply Now!!
• Job opportunity at Irish Expert, Delhi, India: Apply Now!!
• Job opportunity at UnitedLex · Gurgaon, Haryana, India: Apply Now!
• Internship opportunity at Vineforce · Nabha, Punjab, India: Apply Now!!

---

• CLAT-Peeps! (10)
  • Current Affairs (2)
• competitions (132)
• Conferences and Seminars (201)
  • Webinar (1)
• Course and Workshops (107)
• Debates (46)
• Eassy Competitions (69)
• Fellowships & Scholarships (56)
• Guest Blogs (6)
• important (29)
• Internships and Jobs (2,317)
• interviews (8)
• moot court (180)
• Opportuintes (2,731)
  • Job Opportunity (1,191)
• opportunity (2,559)
  • Call for papers (475)
  • Quizes,fests and others (298)
  • Work Opportunity (836)
• Our Blog (1,049)
  • Administrative Law (17)
  • ADR (13)
  • Arms Act (2)
  • Case Analysis (205)
  • Company law (36)
  • Constitutional Law (143)
  • Consumer Protection Act (17)
  • Contract Law (62)
  • CPC (10)
  • Criminal Law (140)
  • Cyber Law (13)
  • Environmental Laws (30)
  • Evidence Act (20)
  • Family Law (12)
  • General (205)
  • International Humanitarian Law (8)
  • International law (23)
  • IPR (10)
  • Jurisprudence (13)
  • labor laws (7)
  • Maritime Laws (1)
  • Partnership Act (2)
  • personal law (33)
  • Taxation (10)
  • Tort (64)
  • Transfer of Property (2)
• Our Services (11)
  • career advice (2)
  • others (6)
• Top Stories (524)
• Uncategorized (720)

Archives

• November 2023 (26)
• October 2023 (1)
• September 2023 (5)
• August 2023 (2)
• July 2023 (25)
• June 2023 (23)
• May 2023 (40)
• April 2023 (136)
• March 2023 (124)
• February 2023 (138)
• January 2023 (61)
• December 2022 (39)
• November 2022 (103)
• October 2022 (178)
• September 2022 (342)
• August 2022 (240)
• July 2022 (273)
• June 2022 (196)
• May 2022 (27)
• April 2022 (99)
• March 2022 (190)
• February 2022 (196)
• January 2022 (193)
• December 2021 (152)
• November 2021 (203)
• October 2021 (189)
• September 2021 (177)
• August 2021 (192)
• July 2021 (393)
• June 2021 (293)
• May 2021 (179)
• April 2021 (61)
• March 2021 (46)
• February 2021 (56)
• January 2021 (63)
• December 2020 (86)
• November 2020 (94)
• October 2020 (146)
• September 2020 (220)
• August 2020 (173)
• July 2020 (165)
• June 2020 (119)
• May 2020 (136)
• April 2020 (7)
• February 2020 (37)
• January 2020 (3)
• November 2019 (1)