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 Manisha Garg and Neha Nagar - Students 2nd yr NLIU, Bhopal

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Introduction
The Karta of a Hindu joint Family in Hindu Law is the senior most member of the family entitled to manage family affairs, in his absence the next eldest male member after him is entitled to be the Karta. A Karta is the caretaker of the whole family and looks after the welfare of all the members of the family. His relationship with other members is a relationship of trust and confidence.

At least one male member is necessary to constitute a coparcenary. But the question arises that if no male member is left in the family or if all male members are minors then who becomes the Karta ? or Can a female member of a Hindu Joint Family become a Karta then in such circumstances ? this situation makes us rely on various judicial pronouncements which have dealt with this question. The view of the judiciary is inconsistent.

Now when a major step towards ending gender discrimination and to stop the gender-bias prevalent in families and to improve adverse condition of women in society has been taken in the form of The Hindu Succession Amendment Act,2005 . This amendment has conferred equal property rights on daughters as well. Now the daughters by birth will acquire rights over coparcenary property.

Earlier women were not included as coparcenary members, and according to the Hindu sages only a coparcener can become a karta, and therefore they could not be the Karta.

But now because of the changed position of daughters as coparceners the situation is in favour of possibility of women becoming Karta. There are diverse views of the Courts on this point.

In our project we have tried to explain the position of women in relation to that of a Karta, we have also, by going through case-laws and judicial pronouncements. Our Project is divided in parts. The First part deals with historical background. The second part deals with can women be a karta. The third part deals with arguments for and against of women as Karta. The Last part is a synthesis of the arguments advanced ie the conclusion.

Background
Since ancient times the framing of all property laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being.

# Position prior to the Act of 1956
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.

# During the British Regime
However, during the British regime, the country became politically and socially integrated, but the British Government did not venture to interfere with the personal laws of Hindus or of other communities. During this period, however, social reform movements raised the issue of amelioration of the woman's position in society. The earliest legislation bringing females into the scheme of inheritance is the
Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughter and sister (thereby creating a limited restriction on the rule of survivorship). Another landmark legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of ) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption.

The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights. Despite these enactments having brought important changes in the law of succession by conferring new rights of succession on certain females, these were still found to be incoherent and defective in many respects and gave rise to a number of anomalies and left untouched the basic features of discrimination against women. These enactments now stand repealed.

# The Indian Constitution
The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavour to ensure equality between man and woman Notwithstanding these constitutional mandates/directives given more than fifty years ago, a woman is still neglected in her own natal family as well as in the family she marries into because of blatant disregard and unjustified violation of these provisions by some of the personal land.

# Position after the enactment of Hindu Succession Act,1955
The Hindu Succession Act,1955 reformed the Hindu personal law and gave woman greater property rights, allowing her full ownership rights instead of limited rights in property. The daughters were also granted property rights in their father's estate. In the matter of succession to the property of a Hindu male dying intestate, the Act lays down a set of general rules in sections 8 to 13. Sections 15 and 16 of the Act contain separate general rules affecting succession to the property of a female intestate. Social justice demands that a woman should be treated equally both in the economic and the social sphere.

Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it as placed women at the receiving end.

# Position after the amendment in the Succession Act
The Law Commission was concerned with the discrimination inherent in the Mitakshara coparcenary under Section 6 of the Hindu Succession Act, as it only consists of male members. The Commission in this regard ascertained the opinion of a cross section of society in order to find out, whether the Mitakshara coparcenary should be retained as provided in section 6 of the Hindu Succession Act, 1956, or in an altered form, or it should be totally abolished. There were other questions involved also, like should women be karta in absence of male members ? The Commission's main aim was to end gender

discrimination which is apparent in section 6 of the Hindu Succession Act,1956, by suggesting appropriate amendments to the Act. Accordingly, the amendment was made by the legislature in December 2004 and it conferred equal property share from the ancestral property on the daughter. By birth a daughter would acquire property rights and would be like any other coparcenary.

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.

Can Women Be 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 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.

# 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.2

# 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?

# 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 incapaable of running a business.

# If women are made karta will they be entitled to any kind of maintenance ? this the key issue of the problems which is to be answered.

The Judicial View
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. Some of the Sanskrit text says -

"sishyantevasi-dasa-stri-vaiyavrittyakarais ca yat Kutumbahetor ucchinam vodhavyam tat Kutumbina"

The manager (or householder, actual or eventual) is liable to accept (or admit) all alienations made for the purposes of the Family by a pupil, apprentice, slave, wife, agent or bailiff.

Narada says-
"Na ca bharya-kritam rinam kathancit patyur abhavet  Apat kritad rite, pumsam kutumbartho hi vistarah"

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.

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
Hunoomanpersaud’s case3 which was one of the greatest cases in the history of Hindu Law dealt with the powers of a widow mother as manager of property of her minor son, and was in reality a case in the context of manager ship rather than guardianship properly so called. The test of the lady’s act was not who she was or in what capacity she purported to act, but whether the act was necessary or in the minor’s interest as understood by the law.

In Pandurang Dahake v. Pandurang Gorle4, 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 Narayan5, 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 Madras Position
In
Seethabai v.. Narasimha6 there the widows claimed that they were undivided members of the coparcenery by the operation of the act of 21937. They objected to the appointment of a guardian for the property of the minors. The court appointed one widow guardian of one of the minor and a stranger was appointed the guardian of the other. None of the widows it was held that could be a manager. To be a manager one must be a pukka coparcener, a male with a birth right and not a mere statuary interest. In Radha Ammal v. I.Tcommissioner,7 Madras a mother , guardian of minor sons , purported to execute a deed of partnership admitting a stranger as a power in the ancestral business. It was held that this was outside her powers and the deed could not be registered under section 26(a) of the Income Tax Act 1922. A woman could not be a manager. The argument that Hunoomanpersaud’s case8 allowed the act of a de-facto manager to be binding even if she were a woman, was not decided, much less examined. This was a weak case in Madras decision which was in any case strictly formal and anti-Quarin in approach.

The Bombay High Court
In
Rakhmabai v. Sitabai9 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.

The Orissa High Court-
In
Maguni Padhano v. Lokananidhi Lingaraj10, it was held that a mother, whose husband is alive, cannot be a manager. She might indeed act as guardian of her son, if her husband was dead and perhaps as defacto guardian. But as manager she had no powers whatever. Laxmi Narayan’s case was not followed. The Principle that a woman could be a manager was decisively rejected.

The Patna High Court
In
Sheogulam v. Kishun Chaudhari11, 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.

The Minor’s Manager Mare Nest
Some are also of the view that can a minor be a manager. It is hardly possible as the word
manager means one who can make an alienation of property, one who can incur debts that will bind the family. The word is also capable of meaning the one who handles the affairs of the family. Internally, domestically, a minor may well be a manager. But he is not a manager vis-a vis the outside world.

Conclusion:
Under the Shastric Law, a daughter on marriage ceases to be a member of the parental family, but the Amending Acts have changed her position, which is quite alien to Hindu patriarchal notions. Though her position as defacto manager was recognized when mothers acted as guardians of their minor sons after the death of their husbands, the dejure conferment of the right eluded her.

The law commission also has rightly observed that although the Hindu Succession Amendment Act, 2005 has conferred upon the daughter of a coparcener status but there is still a reluctance to making her a Karta. This seems to be patently unfair as women are proving themselves equal to any task.

Since they can act as coparcenaries then they must also be given the powers of Karta. The shastra is clear that in the absence of senior member a junior member (if he has reached the age of legal competence) may incur debts for the needs of the family, and in the absence of a male member a female member may do so. The Sanskritic texts empower women to act as Karta in instances like when the husband is away or missing or the son is yet to attain majority.

Equality for women is not just a matter of equity for the so-called weaker sex, but a measure of the modernity of Indian society and the pragmatic nature of our civilization.

***********
Bibliography

# Basu, Monmayee, Hindu Women and Marriage Law: From Sacrament to Contract, 2001, Oxford University Press, pg. 121
# Derret, J Duncan,
May a Hindu Women be the Manager of a Joint Family at Mitakshara Law, 1995, Universal Book Traders, Bom. L.R.., J., Vol.- LXVIII, pg- 126
# Agarwal R.K, Hindu Law, 19th Edition, Central Law Agency, pg- 298
# Course Material Of VI Trimester
# Law Commission of India report on ‘Property Rights of Women: Proposed Reforms under the Hindu Law’, May 2000.
# B.Sivaramayya, "Coparcenary Rights to Daughters; Constitutional and interpretational Issues," (1997) 3 SCC (J), P.25.
# All India Reporters
# Rajya Sabha Parliamentary Bulletin Part II. (No 41884) dated the 27th December, 2004.
# Bhadbhade Nilima , State Amendments to Hindu Succession Act and Conflict of Laws : Need For Law Reform, (2001) 1 SCC (Jour) 40
# Thomas E.C, The road to gender equality.
# Sethi Lalit, Reforming Property Rights Of Women

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