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An estimated 10-minute read

Female as Karta of a Hindu Undivided Family

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The term ‘Hindu Undivided Family’ (“HUF”) or ‘Joint Hindu Family’ is not mentioned or defined in the acts: Hindu Minority and Guardianship Act (1956), Hindu Marriage Act (1955), Hindu Succession Act (HSA) (1956) and Hindu Adoptions and Maintenance Act (1956), however, the Income Tax Act, 1961 makes a HUF a taxable entity under Section 2(31).

Under Section 2(4) of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the expression ‘Joint Hindu Family’ is defined as an undivided Hindu family governed by the Mitakshara Law.

In Surjit Lal Chhabda v. Commissioner of Income Tax[1] the Supreme Court said that, (i) the expressions ‘Hindu Undivided Family’ (HUF) and ‘Joint Hindu Family’ (JHF) are synonymous terms; (ii) the terms being not independently defined in any act, is evidence enough of the underlying connotation that the terms must be understood as they are understood in Hindu Law; (iii) a joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father's family and becomes a member of her husband's family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of Sapindaship arising by birth, marriage or adoption; and (iv) HUF is a creature of law.

Thus, as per the above judgment, HUF is the undivided and unpartitioned group of direct descendants of a common ancestor including their wives (if any) and unmarried daughters (if any) and excluding married daughters.

Who is a Karta

Karta is that adult male coparcener of a HUF who has the responsibility and authority to manage the affairs and assets of the HUF. Traditionally, Karta has been the eldest surviving male member of the HUF. However, in case the only surviving members of a HUF are a woman and her minor son and daughter or daughters (if any), the son would have been the Karta acting through his natural guardian i.e. minor’s mother. Thus, the woman would be the de facto Karta of the HUF.

According to Article 236 of the Mulla Hindu Law, “Karta” can be defined as: “Manager - Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family: The Manager of a joint family is called Karta.”[2]

A Karta holds very distinctive position in the HUF. This unique nature of the karta is in reference to the diverse powers he holds whilst performing his tasks as the decision maker in a range of respects of the family. Karta is not accountable to any member of the family until it is a matter of misappropriation or fraud, in event of either, he is to give an answer.[3]

 Who can be a Karta?

Prior to 2016, following persons could be a Karta of the family:

1. Senior most male member:

The senior most male member will be a Karta by virtue of the fact that he is the senior most male member. He does not owe his position to agreement or consent of other coparceners. So long as he is alive, may be aged, infirm, or ailing, he will continue to be a Karta. However, in case of any disqualifications as mentioned in law, the next senior most male member takes over the Kartaship. Once this is done, the former karta will cease to be a karta.

2. Junior male member:

In the presence of a senior male member, a junior male member cannot be the Karta. However, with the consent of all the coparceners, a junior male member can be appointed as a Karta. Coparceners may withdraw their consent at any time in regard to this.


"So long as the members of a family remain undivided, the senior member is entitled to manage the family properties including even charitable property and is presumed to be the manager until the contrary is shown. But the senior most member may give up his right of management and a junior member may be appointed as manager."[4]

3. Female member as Karta:

The following passage from Mayne's "Hindu Law and Usage"[5] deals with coparceners, “The question in each case will be, who are the persons who have taken an interest in the property by birth. The answer will be, that they are the persons who offer the funeral cakes to the owner of the property, that is to say, the three generations next to the owner in unbroken male descent.”

It clearly states that the male members, who traditionally have offered the funeral cakes to their ancestors, would by birth have rights in the coparcenary property i.e. right of survivorship. Thus, according to the passage, female members of the family are barred from possessing the right of survivorship. Females though have the right to maintenance.

On the other hand, Courts in India have given diverse views regarding this:

  1. C.P. Berai v. Laxmi Narayan[6] - It was held that a widow could be a karta in the absence of adult male members in the family. It was said that the true test is not who transferred the liability of being the karta, but whether the transaction was justified by necessity.
  2. Sushila Devi Rampura v. Income tax Officer[7] - It was held that where the male members are minors, their expected guardian is their mother, who can represent the HUF for the purposes of assessment and recovery of income tax.
  3. CIT v Seth Laxmi Narayan Raghunathdas[8] - While considering an issue as to whether a widow can be Karta of her husband's HUF, the court held that a widow was capable of becoming the Karta of the Hindu Undivided Family, which consists of herself along with her two minor sons. It is notable that the High Court observed that there was no legal prevention/ embargo against the mother being the de facto manager of the HUF. The court reasoned that since in Dayabhaga Law a widow may be a coparcener then she may even be the Karta of the family particularly if she is the only member sui juris left in the family. For Mitakshara Law, where along with male coparcener a female may not be a coparcener because she does not possess the right of survivorship, the court observed that this right or the status of a coparcener is not a requisite for being the Karta of a joint Hindu family to which she has been admitted to.
  4. CIT v Seth Govindram Sugar Mills [9] - The Supreme Court  held that a widow cannot be Karta of the HUF, though she can be a manager/ karta of an HUF for the Income-tax assessment.

Change in Law

In 2000, the 174th report of the 15th Law Commission recommended many amendments to correct the discrimination against women, which was the key issue before the commission, and this was the foundation for the Hindu Succession (Amendment) Act, 2005.

Hindu Succession (Amendment) Act, 2005 turned the daughters of a family, who are governed by Mitakshara Law, coparceners in the HUF property and further gave them the right of survivorship via amended Section 6 (1) (a) and (b) of Hindu Succession Act, 1956. This amendment gave them equal rights as the sons.

Although the 2005 amendment provides equal rights to daughters in the coparcenary as compared to the sons, an important question was still left unanswered - Can women or daughters be allowed to become managers or karta of the Hindu Undivided Family?

The landmark Delhi High Court judgement in Mrs. Sujata Sharma v Shri Manu Gupta[10] has, after the 2005 amendment to Hindu Succession Act, 1956 (the “HSA”), brought the next step to realising equality of women in the Hindu Undivided Family. The court found that while females have equal rights to HUF property (post HSA), they also have the right to manage the same property as Karta. Also, the court found no restrictions regarding a female Karta in Section 6, HSA.

Thus, after demise of the father in a HUF, if the eldest is a daughter then she becomes the Karta of that same HUF, with the mother and siblings (if any) as members of the HUF.

Hence, married or unmarried daughters may not only claim coparcenary in HUF property but may also claim rights to manage the same HUF property as Karta, provided they are the eldest.

This means that just as a son can be a Karta, by virtue of being born the eldest, a daughter can also be a Karta given that she was born eldest. Also, even after being married a daughter retains her right to coparcenary and also the right to be Karta.

In fact, a woman may even be a de facto Karta in the family where she marries and a de jure Karta in her family of origin, provided that she is a widow and is the only major in the family she married into and is the eldest in her family of origin.

With this judgement the equal rights of daughters in their HUF have been fully realised. Daughters would have the same rights and liabilities as sons regarding the HUF property for all means and purposes.

Inheritance and Succession in case of a Female Karta

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

  1. On the intestate death of a female Karta, will her widower acquire a share just as a widow did in the case of a male Karta? - No, he will not. This is because unlike the widow, the widower of a female Karta is not a member of the HUF. Although the question on the matter of maintenance remains open. Traditionally, maintenance is granted to a widow because she is not an earning member of the family. If similarly, the widower were not an earning member, could he claim for maintenance out of his deceased 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? - In the case of a partition, they will not. This is because 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 origin, and thus will have only a birth right in the HUF property of their family of origin. But whatever property as a share in the partition the female Karta acquires, it will devolve upon her children or the children of her pre-deceased children, before it reverts back to her father’s heirs. [Section 15(2) of HSA]. But, in the case where the female Karta dies intestate, the HUF property shall devolve among the HUF members, which does not include the children of female Karta.
  3. How will the self acquired property and HUF property of a deceased intestate Female Karta devolve? - The self acquired property would devolve according to the Hindu Succession Act [S.15, 16], and the HUF property would devolve according to the rules of Hindu Law and would go to the members of the HUF, i.e. mother of female Karta, brothers and sisters of female Karta, children of such brothers.


Conclusion

After the 2005 amendment, this landmark judgment was a much awaited relief for the female coparceners and a step towards realising equality between the genders. However, more complex questions will arise regarding the inheritance and succession in case of a female Karta. The answers to such intricate questions can only be speculated at best as there are no precedents, considering the judgment is very recent. However, much is based on the rationale behind it as well as the circumstances of each case. A female as a Karta has opened up a wide array of possibilities which need to be addressed as soon as possible.

 

 

 


[1] 1976 AIR 109

[2] Sir Dinshah Fardunji Mulla's classic Principles of Hindu Law,

[3] Paras Diwan, Family Law (2nd Edn. Orient Publishing Company, 2002).

[4] Narendrakumar J Modi v. CIT 1976 S.C. 1953

[5] 9th Ed., s. 271

[6] AIR 1949 Nag 128

[7] AIR 1959 Cal

[8] [1948] 16 ITR 313 (Nag.)

[9] [1965] 57 ITR 510 (SC)

[10] CS (OS) No. 2011/2006

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Like +0 Object -0 Guest 10 Nov 17, 08:30
Very interesting and useful article.
deepak jain
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