DR.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY,

LUCKNOW

FAMILY LAW ASSIGNMENT

ON
FEMALE AS KARTA OF FAMILY: MAN THEY ARE GONE

UNDER THE GUIDANCE OF Mr. MUKESH SIR

SUBMITTED TO: SUBMITTED BY:

Mr. MUKESH SIR VIMAL SINGH

ASSISTANT PROFESSOR B.COM.LLB(HONS)

FACULTY OF LAW 5TH SEMESTER

D.S.M.N.R.U D.S.M.N.R.U
 ACKNOWLEDGEMENT
I would like to express profound gratitude to Prof. Mr. MUKESH SIR
for his invaluable support, encouragement, supervision and useful
suggestions throughout this research work. His moral support and
continuous guidance enabled me to complete my work successfully. His
intellectual thrust and blessings motivated me to work rigorously on this
study. In fact this study could not have seen the light of the day if his
contribution had not been available. It would be no exaggeration to say that
it is his unflinching faith and unquestioning support that has provided the
sustenance necessary to see it through to its present shape.
I express my deep sincere gratitude towards my parents for their blessing,
patience, and moral support in the successful completion of this assignment
I express my gratitude to my all teachers and friends who has supported and
encouraged me during my study at DSMNRU.

VIMAL SINGH
 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.

The concept of manager of a joint family has been in existence for two thousand years or
more. The constitution of our country provides for equality for all. But it is sad to know that
even after 60 years of our independence there is still difference between males and female.
Society considers males as more capable of running all tasks. In spite of the fact that women
are excellence in every field our Hindu scriptures gives more rights and privilege to a man.

Karta of a family is plays an important role in the family. The person in this position performs
all managerial roles. And it is no doubt that women are more capable than man in managing
the affair of the family. In a Hindu joint family, the Karta or manager occupies a pivotal
position. Such is his position that there is no comparable position in the world as that of a Karta.
The paper here gives arguments in favour of Female as Karta of family. The recent enactments
in state like Kerala throws light on the fact that the enactments would lead to women
empowerment. There have been conflicting views regarding the status of women as karta of
family. This concept is not new rather it came earlier also and there have been divergent views
over the question of females as Karta of family. There is a divergent view on this in Nagpur
High Court and in madras position.
The changes will have far-reaching social and legal implications for Hindu society. There is
also an emerging view that the Mitakshara joint family system should be abolished. The paper
here also focuses on the law commission report, and latest amendments made in various states.
Article 236 of the Mulla Hindu Law defines "Karta" as follows:
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.

In a HUF, the responsibility of Karta is to manage the HUF property. He is the custodian of
the income and assets of the HUF. He is liable to make good to other family members with
their shares of all sums which he has misappropriated or which he spent for purposes other
than those in which the joint family was interested. His role is crucial. He is entrusted not
only with the management of land/assets of the family but also is entrusted to do the general
welfare of the family.

His position is different from the manager of a company or a partnership. The reason behind
it is that though the coparcenery deals with lands, assets/property but in an entirely different
fashion. When a Karta is bestowed with such a position it is something, which takes place
under the operation of law.

Who Can Be A Karta?

Senior Most Male Member: - It is a presumption of Hindu law, that ordinarily the senior
most male member is the Karta of the joint family.

Jandhayala Sreeamma v. Krishnavenamma AIR 1957 A.P.434

In the case of Hindu Joint Family a suit to set aside on alienation filed by the younger of the
two brothers within three years of his attaining majority would be barred by limitation if the
elder brother, who was the manager and an adult has failed to sue within three years of his
attaining majority. The senior most male member is Karta by virtue of the fact that he is
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
Karta. Even a leper may continue to be the Karta1. However, in cases of insanity or any other
disqualifications, the next senior male member generally takes over the Kartaship. Once this
is done the former will cease to be a karta.

So long as the father is alive, he is the karta. After his death it passes to the senior most male
member, who may be the uncle, if coparcenery consists of uncles and nephews, or who may
be the eldest brother, if coparcenery consists of brothers.
 Position Of Karta

The position of karta is sui generis. The relationship between him and other members are not
that of principal/agent/partners. He is not like a manger of a commercial firm. Needless to say
he is the head of the family and acts on behalf of other members, but he is not like a partner,
as his powers are almost unlimited. Undoubtedly, he is the master of the grand show of the
joint family and manages all its affairs and its business. His power of management is so wide
and almost sovereign that any manager of business firm pales into insignificance. The karta
stands in a fiduciary relationship with the other members but he is not a trustee.

Ordinarily a Karta is accountable to none. Unless charges of fraud, misrepresentation or

conversion are leveled against him. He is the master and none can question as to what he
received and what he spent. He is not bound for positive failures such as failure to invest, to
prepare accounts, to save money.

Kartas Liabilities:-
Kartas liabilities are numerous and multifarious.
Maintenance: - In a joint Hindu family, the right of maintenance of all the coparceners out
of the joint family funds is an inherent right and an essential quality of the coparcenery. As
Mayne puts it: Those who would be entitled to share the bulk of property are entitled to
have all their necessary expenses paid out of its income. Every coparcener, from the head
of the family to the junior most members, is entitled to maintenance. A Karta is responsible to
maintain all members of the family, coparceners and others. If he improperly excludes any
member from maintenance or does not properly maintain them, he can be sued for
maintenance as well as for arrears of maintenance.

Marriage: - He is also responsible for the marriage of all unmarried members. This
responsibility is particularly emphasized in respect of daughters. Marriage of a daughter is
considered as a sacrosanct duty under Hindu law. Marriage expenses are defrayed out of joint
family funds.

Chandra Kishore v. Nanak Chand AIR 1975 Del 175

In this case it was held that Karta is responsible for managing the expenses of the marriage of
the daughter from the joint family estate. And in case marriage expenses are met from outside
they are to be reimbursed from the joint family funds.

Accounts at the time of Partition: - Partition means bringing the joint status to an end. On
partition, the family ceases to be a joint family. Under the Mitakshara law, partition means
two things: -
(a) Severance of status /interest, and
(b) Actual division of property in accordance with the shares so specified, known as partition
by metes and bounds.

The former is a matter of individual decision, the desire to sever himself and enjoy the
unspecified and undefined share separately from others while the latter is a resultant
consequent of his declaration of intention to sever but which is essentially a bilateral action.

Taking of accounts means an enquiry into the joint family assets. It means preparing an
inventory of all the items of the joint family property.
The Mitakshara Karta is not liable to accounts and no coparcener can even at the time of
partition, call upon the karta to account his past dealings with the joint family property unless
charges of fraud, misappropriation/conversion are made against him.

Ghuia Devi v. Shyamlal Mandal AIR 1974 Pat 68

Facts: - Gokul Mandal was the common ancestor of the family, he had 2 sons: - Gobardhan
and Ghoghan. After Gokuls death Gobardhan was the karta of the family. Shyamlal and
Kisan are the sons of Gobardhan. Shyamlal, defendant no.1 is the husband of the plaintiff. In
1951, partition took place between two branches: Shyamlal and Ghoghan. After partition,
Shyamlal began to act as karta of the family consisting of the members of Gobardhans
branch. Appellant is a pardanashin lady. Shyamlal took advantage of her position and
misappropriation of property and its income and as a result of it a suit was filed. Plea of
appellant was that their client was entitled to a decree for accounts. Their plea was rejected
because they could adduce no evidence.

Judgment: - In the suits for partition of a Joint Hindu Family property the manager/karta can
only be made liable for revaluation of account if there is a proof of misappropriation /fraud
and improper conversion of joint family assets and property. It was said that in the absence of
such a proof a coparcener seeking partition is not entitled to require the manager to account
for his past dealings with the joint family property.

However, when a coparcener suing for partition is entirely excluded from the enjoyment of
property he can ask for accounts.
After the severance of status has taken place, the karta is bound to render accounts of all
expenditure and income in the same manner as a trustee or agent is bound to render accounts.
This means that from the date of severance of status, the karta is bound to account for all
mesne profits.

Representation: - The karta represents the family. He is its sole representative vis-a vis the
government and all outsiders and in that capacity he has to discharge many responsibilities
and liabilities on behalf of the family. He has to pay taxes and other dues on behalf of the
family and he can be sued for all his dealings on behalf of the family with the outsiders.

Powers Of Karta
When we enumerate the powers of karta, the real importance of his legal position comes into
clear relief. His powers are vast and limitations are few. The ambit of his powers can be
considered under two heads: - (a) power of alienation of joint family property, (b) other
powers. In the former case, his powers are limited since a karta can alienate in exceptional
cases. In the latter case his powers are large, almost absolute.
 STATEMENT OF PROBLEMS

Can Female Member Of A Mitakshara Family System Become A Karta Of

Family?
Let us suppose there is a family consisting of two brothers, their wives and their children, all
the latter very young. Now the senior brother dies. The wife and children will not suffer,
because the young brother survives and he would represent the family (if he is fit to do so), and
act as manager. Now let us suppose that the young brother also dies, and the family consists
thereafter of two widows and their respective children. The lady may be natural guardian is not
doubted but they might wish to do for their children certain acts which their husbands wanted
to do. For which they have limited right as a guardian.

BACKGROUND
There might be thousands of families in which the eldest member or the father has died and the
mother is the defacto manager of the childrens affairs. It therefore becomes important that
female member of the family should be given the power to act as Karta of the family.

There is yet another problem that is that there might be a case where the husband or father has
left the family or has lost. There existed the problem of died coparcener and also of lost
coparcener in earlier times also the problem was prevalent. In ancient times long absence of
husband or his becoming a sanyasi would by themselves clothe other members of the family
with greater freedom of action.; but even then there in ancient times there was always a period
of grace during which the father -husband might return and resume the statue and
responsibilities, and during that period the question would arise as to who might deal with the
family property.1[2] Naturally, as we shall see, emergency provisions existed, though these are
not as well known today, as they ought to be.
There existed provisions relating to the position of wife in case either husband or father has left
the home or when the father or husband has died. Thus the sages and the dharamsastra have an
answer to the problem of mainten

THE DHARAMSASTRA SOLUTION

Sastras contain adequate provisions, whereby females can be managers. The sastra is clear that
in absence of the senior member of a junior member (if he has reached the age of legal
competence) may incur debts for the needs of the family and, in absence of a male member a
female member may do so. Debts incurred even by a female member in such circumstances
will be binding upon the family and must be paid out of the joint family funds, whether at
partition, or earlier. since debts would not be incurred without granting security of some kind,
and since the most favored type of security in ancient times was a mortgage of land, we can be
quite sure that in proper circumstances the mother of the family ,whether her husband was
alive (but absent) or dead ,could validly bind the minor's property ,whether it was his own use
or his interest in coparcenary, and likewise the interest of minor coparceners., whether they
were her sons or other ,in order to pay debts properly incurred by her. The test was whether her
act was for the benefit of the family, and there is no reason whatever, to doubt but that in this
indirect manner a female member might act as manager, doing acts of positive benefit to the
family and not merely conservative or protective or negative acts.2[3] The fact that a male
member of the family or even an agent might in nine cases out of ten actually negotiate or

1[2]
Maynes Hindu Law & Usage 728 (13th A. Kuppuswami Ed. 1991)
2[3]
The Bombay Law Journal Vol. LXVIII
handle the business has no bearing on our question, whether she had the capacity so to bind the
family: and the sastras plainly enough shows that she had it.

There are number of Sanskrit shlokes in which it has been clearly written that at time of distress
a female member can definitely incur debts and that such debts would be binding on all family
members. They are as follows:

Sishyantevasi-dasa-stri-vaiyavittyakarais ca yat
Kutumbahetor ucchinnam vodhavam tat kutumbina

This means, 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
The inference is that any alienation for maintenance or even for less necessary purposes
(provided they are the familys benefit) will be binding upon the manager (when he returns or
appears on the scene by simply coming of age, as the case may be) because in his absence the
implied authority rests with his fellow members of the family who, though not major
coparceners, are able totransact business in such emergencies.

Narad gives some more information regarding the position of females in the following sholak

Na ca bharya -kritam rinam kathancit patyar abhavet

Apat kritad rite, pumsam kutumbartho hi vistarah.
It may be translated as follows, 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. thus
an act in the familys interest will be binding if no male major member of the family is
available.
Thus it may be admitted that the Sanskrit texts speak of a women binding the family property
in what amounts to emergency or quasi -emergency conditions by acts, including debts and
alienations, which would otherwise be within competence of a male manager. There is no
distinction drawn between a wife and a bailiff, who would be unquestionably authorized to
manage and exercise powers of management. The supposition behind all theories is that the
women is defacto swatantra as soon as the husband returns or her son reaches majority she
becomes parantatra again, but meanwhile the responsibility rests with her ,and powers should
obviously be allowed to her accordingly.

The judges have given their own interpretations to the role of women as manager of family.
Regarding this there is conflict in views of the Nagpur High Court and the Madras position.
 THE NAGPUR POSITION ON THE SUBJECT

The Nagpur High Court perished, but without leaving a progeny. In a conflict between the
Bombay decision and a Nagpur decision the Bombay decision would bind the Nagpur bench
of the Bombay High Court .But the merits of the cases in conflict must be investigated in any
event, especially where as, in this instance, the Nagpur view has penetrated here and there and
commended itself to many courts.
The beginning of the Nagpur view has not been sufficiently understood in all quarters. It lies
in Kesheo v. Jagannath .there, as far as in 1925, the Full Bench held that any adult member
may be the manager of the joint family, by alienation of the joint family property, in whatever
character she purports toact. The ratio was simple. In this case it was laid done that a sale by a
Hindu widow, managing the estate of her minor son and stepson, of a part of the moveable
property belonging to the estate for necessary purpose is valid and binding on the stepson.
Hallifax, A, J, C said that any adult member of a joint family can be a manager of family.

Hanoomanpersauds case is one of the greatest cases in the history of the Hindu law. It
dealt with the powers of widow mother as manager of the 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 ladys act was not who she was or in what capacity she purported to act, but whether
the act was necessary or in the minors interest as understood by the law. In this case the mother
was held to be manager de facto and she could incur debts which were necessity and were held
binding on the minors.
The view was followed in Pandurang Dahake v. Pandurang Gorle.3[5] Here the
widowed mother passed a promissionary note for necessity as guardian of her two minor sons.
She was defacto manager and was held to have managerial powers, and the sons could not
repudiate the debts. Naturally the court is not willing to lend its aid to schemes for defrays
honest creditors of the family. In I.T Commr. V. Laxmi Narayan4[6] the question was
whether Mt. Kesar bai can enter into a partnership deal as Karta of family consisting of herself
and her minor sons. Pollock and Shevde JJ. Said, it is true that under the Mitakshara law no
female can be a coparcener with male coparcener, presumably because she do not possess the
right by survivorship, but we do not think that either this right or status of a coparcener is a
sine qua non of competency to become the manager of a joint Hindu family of which she is
admittedly a member. She was considered as Karta of family. Referring to Kehavbhai
v.Bhagirathi it was contended that if a female can act as a manager of a religious endowment
in which she has no personal interest, there is apparently no reason why she cannot act as the
manager of a joint family estate in which she has admittedly personal interest.

THE MADRAS POSITION

The madras view is simplicity itself. It does not put managerial powers in female. In Radha
Ammal v. I.T Commr , Madras5[7] case the court said, The right to be a manager depends
upon the fundamental fact that the person on whom the rights devolve was a coparcener of the
joint family. If a person is not a member of coparcener and outside it, he has no right to claim
a representative capacity on behalf of other coparcener with reference to the family. The right
is confined only to the male members and female members we not treated as coparcenaries. In

3[5]
[1947] AIR Nag 178
4[6]
[1949] AIR Nag 128
5[7]
[1950] AIR Mad 538
Seethabai V.Narsimha6[8] the court said that to be a manager one must be a pukka
coparcener, a male with a birth -right and not a mere statutory interest. The argument that
Hunoomanpersaud s case allowed the act of defacto manager to be binding even if she were a
women, was not noticed, much less examined. This was a weakness in the madras decision,
which was in any case strictly formal and anti- aquarium in its approach. Nevertheless it had
the merit of not disturbing what appeared to be the traditional position so long as conclusive
reasoning had not been produced against it.

In the Bombay High Court it was alleged in Rakhmabai V.Sitabai 7[9] that a stepmother as
manager of a joint family consisting of her co-widow and minor stepson and a minor
stepdaughter, had the power to resist the appointment of a guardian of the property of the
stepson. She was managing the estate and her authority should not, it was urged, be undermined
by such an appointment. But the learned judge Dixit, J, said that in such a case the proper
course was to appoint a guardian for the coparcener property. A widow could not be a manager
of joint family property. The case of Seethabai in Madras was noticed and agreed with. Thus,
at the time of writing, it appears that the Bombay High Court sides with Madras and against
Nagpur, Unfortunately, the Nagpur decisions were drawn to the learned Judges attention only
by way of the Madras decision above-mentioned, which takes a dim view of the earlier of them.
There is no trace in the judgment of Dixit, J., that Laxmi Narayans case, of two years earlier,
was cited or examined.

The Orissa High Court, which has experienced the greatest difficulties with this topic, was
faced in 1955 with the problem of a father who absent for many years. An absent father is
demonstrably not the same source of difficulties as a dead father, and to one who does not
know the dharamsaatra on the subject an opening for a distinction at once presents itself. From
the minors point of view it is all one whether the father is indefinitely absent or dead. In
Maguni Padhano v. Lokanidhi Lingraj Dora8[10] ,it was held that a mother, whose
husband is alive, couldnt be a manager , she might indeed act as guardian of her son, if her
husband was dead, and perhaps as de facto guardian of her son. But as manager she had no
powers whatever. Laxmi Narayans case was not followed. The principle that a woman could
be a manager was decisively rejected.
On this it can be definitely said that the Madras has best out of all.

With respect of position of women under mitakshara joint family system certain
recommendation and certain new amendments have been made. I would now introduce these
latest amendments with respect to 174th Law Commission Report.

Patrilineal Hindu law is divided into two schools, the Dayabhaga and Mitakshra. Dayabhaga
prevails in West Bengal, Assam, Tripura and in most parts of Orissa whereas Mitakshara is
followed in the rest of India. Mitakshara law is again divided into Benaras, Mithila, Mayukha
(Bombay) and Dravidia (Southern) sub-schools.

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 has placed women at the receiving

6[8]
[1945] AIR Mad 306
7[9]
[1952] AIR Bom 160
8[10]
[1956] AIR Ori 1
end. Recognizing this the Law Commission in pursuance of its terms of reference, which,
inter-alia, oblige and empower it to make recommendations for the removal of anomalies,
ambiguities and inequalities in the law, decided to undertake a study of certain provisions
regarding the property rights of Hindu women under the Hindu Succession Act, 1956.

The Hindu Succession Act, 1956 (HSA) is an uneasy compromise between the conservatives
who wanted to retain the Mitakshara coparcenary and its discrimination against daughters, and
the progressives who wanted to abolish the Mitakshara coparcenary altogether. In essence, the
Act retained the Mitakshara coparcenary. But since last two decades, five southern States took
steps to enact remedial legislations to correct the discrimination against daughters

Now I would discuss the various amendments in various states:

Five States in India have amended the law relating to coparcenary property. Four States, viz.,
Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka, have conferred upon daughters a
birthright in coparcenary property. Kerala has abolished the joint family system among Hindus
Kerala Legislature took the lead in 1976 when it passed the Kerala Joint Family System
(Abolition) Act, 1976 (hereafter the Kerala Act). This legislation broadly followed the
recommendations of the Hindu Law Committee - the Rau Committee1 - and abolished the right
of birth under the Mitakshara as well as the Marumakattayam law. On the other hand, the
Andhra Pradesh Legislature conferred the right by birth on daughters who are unmarried on
the date when the Act came into force. This approach, instead of abolishing the right by birth,
strengthens it, while broadly removing the gender discrimination inherent in Mitakshara
coparcenary. The States of Tamil Nadu (1989), Maharashtra (1994) and Karnataka (1994)
followed the Andhra model.

KERALA AMENDMENT- The Joint Hindu Family System (Abolition) Act, 1975, Kerala.

The State of Kerala has abolished the concept of coparcenary following the recommendation
of the Hindu Law Committee - B.N. Rau Committee (which was entrusted .with the task of
framing a Hindu Code Bill. what is known as the Kerala model, the concept of coparcenary
was abolished and according to the Kerala Joint Family System (Abolition) Act, 1975, the heirs
(male and female) do not acquire property by birth but only hold it as tenants as if a partition
has taken place. Kerala was the first state to launch an attack on the right by birth and the
discrimination inherent in it, by enacting The Kerala Joint Family System (Abolition) Act 1976.
Section 3 of the Act says no right to claim any interest in any property of an ancestor during
his or her lifetime which is founded on the mere fact that the claimant was born in the family
of the ancestor shall be recognized in any court. The legislation is an overkill, because it not
only abolished the right by birth vested in males under Mitakshara law, but also the right by
birth vested in females under the Marumakkattayam law. The Act follows the language of the
draft Hindu Code Bill closely.
ANDHRA PRADESH MODEL-The Hindu Succession (Andhra Pradesh Amendment) Act,
1986

The Andhra Pradesh legislation in 1985 adopted a different approach in an attempt to put an
end to discrimination inherent in the Mitakshara coparcenary. It confers right by birth on
daughters who are not married on the date when the Act came into force. Thus the language is
wide and in the states where the amending Acts are in force a daughter-coparcener can become
a Karta (Manager) of the joint family. An anomaly in this context should be pointed out. Five
states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka have
taken cognizance of the fact that a woman needs to be treated equally both in the economic
and the social spheres. As per the law of four of these states, (Kerala excluded), in a joint
Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become
a coparcener in her own right in the same manner as the son.

KARNATAKA MODEL-The Hindu Succession (Karnataka Amendment) Act, 1994.

In some respects the new amendments introduce far-reaching changes in the law of joint family.
Section 29-A Section 6-A of Karnataka Act says that a daughter of a coparcener "shall by birth
become a coparcener in her own right in the same manner as a son and have the same rights in
the coparcenary property as she would have had if she had been a son ... and shall be subject
to the same liabilities and disabilities in respect thereto as a son".
Turning to her rights as a son, she will be entitled to be a Karta of the joint family, and will by
virtue of that position exercise the right to spend the income for joint family purposes and
alienate the joint family properties for legal necessity or benefit of the estate. In popular
perception as well as under the Shastric law, a daughter on marriage ceases to be a member of
the parental family; but the Amending Acts change that position and a daughter will not only
continue to be a member of her parental family, but also can be the head of the family. The
language of these amendments is identical. The amendments of Tamil Nadu, Andhra Pradesh
and Karnataka are prospective. The Maharashtra Amendment though published in December
1994, operates retrospectively from 22-6-1994, when the Government of Maharashtra declared
its policy for women. The discussion is confined to the provisions in the Maharashtra Act, and
the comments would be applicable to the identical laws of the other three States.
 174th LAW COMMISSION REPORT

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 favor 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 endeavor 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 laws.

The 15th Law Commission, headed by Justice B P Jeevan Reddy, has suggested fundamental
changes in the Hindu Succession Act 1956 to ensure that women get an equal share in ancestral
property. One of the radical changes suggested as part of the Hindu Succession (Amendment)
Bill 2000 is equal rights for daughters in coparcenary property
The new Bill is a combination of the Andhra and Kerala models. The report says the
Commission was inclined to recommend total abolition of the Hindu joint family, saying this
is the ``only fair thing as women do not have any rights by birth.'' But for now the Commission
has only recommended that daughters be first made coparceners by birth. The changes will
have far-reaching social and legal implications for Hindu society While an equal share in their
ancestral movable and immovable property, including the family business, would result in their
economic empowerment, hopefully improving the lot of millions of victims of gender
discrimination, the development could also lead to increased family conflicts, especially where
established family businesses are concerned.

Under the new provision, the `Karta' or the eldest male member will no longer be empowered
to take all decisions concerning family business or property since the sons and daughters will
hold an equal share and anyone can ask for a partition.

Under the proposed amendment, if the eldest child happens to be a daughter, she will be entitled
to act as a `Karta' of her parental family and discharge the `pious obligations', including
marrying off the unmarried children, paying off the parents' debt etc, hitherto the prerogative
of only the eldest male member.
The Law Commission is trying to ascertain the body of opinion whether the Mitakshara joint
family should be retained or not.

Questionnaire and its responses:

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
The responses received relating to various issues of the questionnaire have been analyzed and
tabulated
Steps to be taken to remove gender discrimination:

However, the majority of the respondents suggested that, even if, the Mitakshara Coparcenary
is retained, though it would be better if it were done away with the gender bias in HSA should
be removed. Consequently, they wanted a daughter to be given the right by birth to become a
coparcener like the son.
Daughter becoming a Karta in the Joint Family in case Mitakshara Joint Family is retained.
About half the respondents wanted the daughter to become a Karta in the Joint Family if the
Mitakshara Joint Family is retained.

RECCOMENDATION BY THE LAW COMMISSION

As a first reaction the Law Commission was inclined to recommend the adoption of the Kerala
Model in toto as it had abolished the right by birth of males in the Mitakshara coparcenary
and brought an end to the Joint Hindu Family. This appeared to be fair to women as they did
not have any right by birth; but on further examination it became clear that if the joint Hindu
family is abolished as on date and there are only male coparceners, then only they would hold
as tenants in common and women would not get anything more than what they are already
entitled to by inheritance under section 6 of HSA. So the Commission is of the view that it
would be better to first make daughters coparceners like sons so that they would be entitled to and
get their shares on partition or on the death of the male coparcener and hold thereafter as
tenants in common. We recommend accordingly.
Consequently, as above indicated, we have recommended a combination of the Andhra and Kerala
Models. We are of the view that this synthesis is in keeping with justice, equity and family
harmony.

Under the Amending Acts the eldest daughter like a son will be entitled to be a Karta of the
Joint Family, and will by virtue of that position exercise the right to spend the income for joint
family purposes and alienate the joint family properties for legal necessity or benefit of the estate.
However, 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.
 CONCLUSION

We have been guaranteed right to equality under our constitution but looking on to the Hindu
succession act 1956 it cannot be said so. But with the fact that the states like Kerala, Andhra
Pradesh, Karnataka have thought about it in detail and led to drastic changes with this respect.
The effect of these legislations would be that women would now be more empowered with
respect to their rights. And from these amendments evil hazards like dowry would not be found
in the society. Earlier females were not considered to be Karta of family. But still Nagpur high
court maintained this distinction.

(1) The Kerala Act and the amendments to the Hindu Succession Act by Maharashtra,
Andhra Pradesh, Tamil Nadu and Karnataka, have all been hailed as progressive in their
own way. But these can create situations of conflict of laws, since laws in the States in
India relating to Mitakshara coparcenary property differ. Resolution of these situations
of conflict and formulation of rules by the courts would take some time. Hence there is
urgent need for: (1) Having one law relating to Mitakshara coparcenary throughout
India; or
(2) (2) Clear definition of applicability of the State laws/amendments; or
(3) (3) Immediate enactment of rules of conflict of laws for resolving conflicts.
Thus the proposed amendments will bring a very positive change in the society.
 BIBLOGRAPHY

# 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
# Law Commission of India report on Property Rights of Women: Proposed Reforms under
the Hindu Law, May 2000.
.# 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
# Sethi Lalit, Reforming Property Rights Of Women