I am infinitely grateful for your influence in my small life.

Happiest of Birthdays may god bless u with all,, tcThe United Nation's Report in 1980 presented that: "Women constitute half the world's population, perform nearly two-thirds of its hours, receive one-tenth of the world's income and less than one ?hundredth of the property." Since time immemorial the framing of all 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. Prior to the Hindu Succession Act, 1956 shastric and customary laws that varied from region to region governed Hindus and sometimes it varied in the same region on a caste basis resulting in 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. Earlier, woman in a joint Hindu family, consisting both of man an d woman, had a right to sustenance, but the control and ownership of property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son. 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 end. Recognizing this the Law Commission [1] 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, they decided to undertake a study of certain provisions regarding the property rights of Hindu women under the Hindu Succession Act, 1956. Background 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. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son. Unde r the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a greatgrandson constitute a class of coparcenars, based on birth in the family. 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. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. 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 subschools of Mitakshara recognised only five female relations as being entitled to inherit namely - widow, daughter, mother, paternal grandmother, and paternal great-grandmother [2]. 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 [3]. 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 number 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. The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognized. It lays down only one mode of succession and the same rules of inheritance apply whether the family is divided or undivided and whether the property is ancestral or selfacquired. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father's life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers. Since this ownership arises only on the extinction of the father's ownership none of them can compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent. Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him.

Since females could be coparceners, they could also act as kartas, and manage the property on behalf of the other members in the Dayabhaga School. 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 m ovements 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. [4] 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 on ly to a limited estate in the property of the deceased with a right to claim partition [5]. 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 framers of the Indian Constitution took note of the adverse and discrimnatory 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 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. Pandit Jawaharlal Nehru, the then Prime Minister of India expressed his unequivocal commitment to carry out reforms to remove the disparities and disabilities suffered by Hindu women. As a consequence, despite the resistance of the orthodox section of the Hindus, the Hindu Succession Act, 1956 was enacted and came into force on 17th June, 1956. It applies to all the Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and comprehensiye system of inheritance and applies to those governed both by the Mitakshara and the Dayabahaga Schools and also to those in South India governed by the the Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu Law. The Hindu Succession Act, 1956 : - Gender Position Before 2005 Amendment The very preamble of the Act signifies that an Act to amend and codify t law relating to intestate succession among Hindus. The Act aims to lay down an uniform law of succession whereas attempt has been made to ensure equality inheritance rights between sons and daughters. It applies to all Hindus including Budhists, Jains and Sikhs. It lays down an uniform and comprehensive system of inheritance and .applies to those governed by the Mitakshara and Dayabha schools as well as other [6] schools. The Hindu Succession Act reformed the Hindu personal law and gave women greater property rights, allowing her f 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 of prope rty 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 fem intestate. Under section 8 of the Act three Classes [7] of heirs recognized by Mitakshara Law and three Classes[8] of heirs recognised by Dayabhaga Law cease exist in case of devolution taking place after coming into force of the Act. The heirs are divided into instead, four Classes viz: (i) Heirs in Class I of the Schedule (ii) Heirs in Class II of the Schedule (iii) Agnates, and (iv) Cognates.

Of course mother, widow, son and daughter are primary heirs. In the absence of Class I heirs, the property devolves on Class II heirs and in their absence first on agnates and then on cognates. Still some sections of the Act came under criticism evoking controversy as being favourable to continue inequality on the basis of gender. One such provision has been the retention of mitakshara coparcenary with only males as coparceners [9]. As per the Law Commission Report, coparcenary constitutes a narrower body of persons within a joint family and consists of father, son, son's son and son's son's son. Thus ancestral property continues to be governed by a wholly patrilineal 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 coparcenary property, in contradiction with the absolute or separate property of an individual coparcener, devolve upon surviving coparceners in the family, according to the rule of devolution by survivorship. Since a woman could not be a coparcener, she was not entitled to a share in the ancestral property by birth.Section 6 of the Act, although it does not inte rfere with the special rights of I those who are members of a mitaksltara coparcenary, recognises, without abolishing joint family property, the right upon death of a coparcener, of certain members of his preferential heirs to claim an interest in the prop erty that would have been allotted to such coparcener if a parititon [10] of the joint family property had in fact taken place immediately before his death. Thus section 6 of the Act, while recognising the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left a surviving female relative specified in Class I of the Schedule I or a male relative specified in that Class who claims through such female relation, the interest of a deceased in mitakshara coparcenary property shall devolve by testamentary of intestate succession under the Act and not as survivorship [11]. Thus non-conclusion of women as coparceners in the joint family property under the mitakshara system as reflected in section 6 of the Act relating to devolution of interest in coparcenary property, has been under criticism for being violative of the equal rights of women guaranteed under the Constitution in relation to property rights. This means that females cannot inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Only when one of the coparceners dies, a female gets share of his interest as an heir to the deceased. Further as per the proviso to section 6 of the Act, the interest of the deceased male in the mitakshara coparcenary devolve by intestate succession firstly upon the heirs specified in Class I of Schedule I. Under this Schedule there are only four primary heirs, namely son, daughter, widow and mother. For the remaining eight, the principle of representation goes up to two degrees in the male line of descent. But in the female line of descent, it goes only upto one degree. Thus the son's son's son and the son's son's daughter get a share but a daughter's daughter's son and daughter's daughter's daughter do not get anything. Again as per section 23 of the Act married daughter is denied the right to residence in the parental home unless widowed, deserted or separated from her husband and female heir has been disentitled to ask for partition in respect of dwelling house wholly occupied by members of joint family until the male heirs choose to divide their respective shares therein. These provisions have been identified as major sources of disabilities thrust by law on woman. Another controversy is the establishment of the right to will the property. A man has full testamentary power over his property including his interest in the coparcenary. On the whole the Hindu Succession Act [12] gave a weapon to a man to deprive a woman of the rights she earlier had under certain schools of Hindu Law. The legal right of Hindus to bequeath property by way of will was conferred by the Indian Succession Act, 1925. The Hindu Succession (Amendment) Act, 2005 - A Prologue: This amending Act of 2005 is an attempt to remove the discrimination as contained in the amended section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu mitakshara coparcenary property as to sons have. Simultaneously section 23 of the Act as disentitles the female heir to ask for partition in respect of dwelling house wholly occupied by a Joint Family until male heirs choose to divide their respective shares therein, was omitted by this Amending Act. As a result the disabilities of female heirs were removed. ?This is a great step of the government so far the Hindu Code is concerned. This is the product of 174th Report of the Law Commission of India on "Property Right s of Women: Proposed Reform under the Hindu Law". First, the 2005 act, by deleting a major gender discriminatory clause - Section 4 (2) of the 1956 HSA - has made women's inheritance rights in agricultural land equal to men's. Section 4(2) excluded from the purview of the HSA significant interests in agricultural land, the inheritance of which was subject to the succession rules specified in state-level tenurial laws. Especially in the north -western states, these laws were highly gender unequal and gave primacy to male lineal descendants in the male line of descent.

Women came very low in the succession order and got only a limited estate. The new legislation brings male and female rights in agricultural land on par for all states, overriding any inconsisten t state laws. This can potentially benefit millions of women dependent on agriculture for survival. Second, the 2005 act makes all daughters, including married ones, coparceners in joint family property. The 1956 HSA distinguished between separate property and joint family property. The separate property of a (non-matrilineal) Hindu male dying intestate (without leaving a will) went equally to his class I heirs, viz, son, daughter, widow and mother (and specified heirs of predeceased children). On joint family property, those previously governed by `Mitakshara' (prevailing in most of India) differed from those governed by `Dayabhaga' (prevailing in Bengal and Assam). For the latter, joint family property devolved like separate property. But in Mitakshara joint family property, while the deceased man's "notional" share went intestate to all class I heirs (including females) in equal parts; sons, as coparceners, additionally had a direct birthright to an independent share. Sons could also demand partition of the joint family property; daughters could not. The 2005 act does not touch separate property. But it makes daughters coparceners in the Mitakshara joint family property, with the same birthrights as sons to shares and to seek partition. In addition, the act makes the heirs of predeceased sons and daughters more equal. Third, the 2005 act by deleting Section 23 of the 1956 HSA gives all daughters (including those married) the same rights as sons to reside in or seek partition of the parental dwelling house. Section 23 disallowed married daughters (unless separated, deserted or widowed) even residence rights in the parental home, and unmarried daughters had rights of residence but not partition. Fourth, the legislation removes a discriminatory section which barred certain widows from inheriting the deceased's property, if they had remarried. According to the amending Act of 2005, in a Joint Hindu Family governed by the mitakshara Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in the same manner as the son heir. She shall have the same rights in the coparcenary property as she would have had if she had been a son. She shall be subject to the same liabilities and disabilities in respect of the said coparcenary property a s that of a son and any reference to a Hindu mitakshara coparencer shall be deemed to include a reference to a daughter. But this provision shall not apply to a daughter married before the commencement of the Hindu Succession (Amendment) Act of 2005. This provision shall not affect or invalidate any disposition or alienation including partition or testamentary disposition of property which had taken place before 20th December, 2004.Further any property to which female Hindu becomes entitled by virtue of above provision shall be held by her with the incidents of coparcenary ownership and shall be regarded, as property capable of being disposed of by her by will and other testamentary disposition. The provision was also made that where a Hindu dies after the c ommencement of the Hindu Succession (Amendment) Act of 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara Law, shall devolve by testamentary or intestate succession under the Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place. Further the daughter is allotted the same share as is allotted to a son. The provision was also made that the share of the predeceased son or a predeceased daughter as they would have got, had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter. Further the share of the pre-deceased child of a predeceased son or of a pre deceased daughter as such child would have got, had he or she been alive at the time of the partition, shall be allotted to the child of such pre deceased child of the pre-deceased son or a pre-deceased daughter. The most important fact is that the interest of a Hindu mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property bad taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. This amend ing Act of 2005 has also clear provision that, after commencement of the Amending Act of 2005, no court shall recognise any right to proceed against a son, grandson or great grandson for the recovery of any debt due from his father, grandfather or great grandfather (on the ground of the pious obligation under the Hindu Law), of such son, grandson or great grandson to discharge any such debt. But if any debt contracted before the commencement this Amending Act of 2005 the right of any creditor, to proceed against son, grandson or great grandson, shall not affect or any alienation relating to any such debt or right shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been. enforceable as if Hindu Succession Amending Act of 2005 had not been enacted.

Further for the purpose of creditors right stated above the expression son, grandson or great grandson shall be deemed to refer to the son, grandson or great grandson who was born or adopted prior to the commencement (9th September, 2005) of the Amending Act of 2005. Such provisions shall not apply to a partition which has been done before 20th December, 2004. Sections 23 and 24 omitted. Likewise special provisions relating to rights in respect of dwelling house and the disentitlement rights of widow's remarrying, respectively omitted from the Act. The Amending Act also in the Schedule of the Hindu Succession Act, 1956 added new heirs viz, son of a pre-deceased daughter of a pre-deceased daughter of a pre-deceased daughter daughter of a predeceased daughter, son of a pre-deceased daughter, daughter of a pre-deceased son. Thus the amendment of Hindu Succession Act of 1956 in 2005 is a total commitment for the women empowerment and protection of women's right to property. This Amending Act in a partrilineal system, like mitakshara School of Hindu Law opened the door for the women, to have the birth right in the family property like the son. The women were vested the right of control and ownership of property beyond their right to sustenance. Amendments To The Hindu Succession Act And Gender Equality The recent legislative proposals amending the Hindu Succession Act are important steps towards gender equality and abolition of the patrilineal system of inheritance prevailing among Hindus. These proposals are based on the 174th Report of the Law Commission published in 2000 and seek to give Hindu women equal rights in the Mitakshara Joint Family Property. The proposed Bill also seeks to do away with Secti on 23 of the Hindu Succession Act which denies a woman the right to seek partition of an inherited ?dwelling? unit / house if other male heirs are residing in it and further restricts her right to reside in the inherited residence unless she is a widow or has been separated from or deserted by her husband. However, the proposed changes are not comprehensive enough and women will still be subjected to unequal property rights in agricultural land as Section 4(2) of the Hindu Succession Act allows for special State laws to address the issue of fragmentation of agricultural holdings, fixation of ceiling and devolution of tenancy rights in these holdings. Thus, State laws exist in Delhi, U.P, Madhya Pradesh, Punjab & Haryana, which deny women equal rights of succession in tenancy rights. Further, certain other Sections of the Hindu Succession Act discriminate against women through the discriminatory order of succession for male & female heirs. The proposed Amendments to the Mitakshara Joint Family Property laws making women equal coparceners are sought to be made applicable only to women who are not married at the time the law is passed and is thus patently unjust also. When the Hindu Succession Act was passed in 1956, the Mitakshara coparcenery system was retained and the then Government refused to abolish this system of Joint family in spite of contrary recommendations by the Select Committee and protest by AIWC. Under the Mitakshra System of Joint Family, which prevails in all parts of India apart from Bengal only males are members (coparceners) of the Joint Family and the right to inheritance was by way of survivorship and not by way of succession . The son acquired a right and interest in Joint Family Property on birth while a woman family member only had a righ t to maintenance. However the Hindu Succession Act gave a share to the first class female heirs (daughters and wives) in the share of the father / husband in the joint family property who died intestate (without making a will). However this share was not equal to the share, which a son inherited, since the son was deemed to be coparcener (member of the joint family) by birth. For e.g. in a joint family consisting of a father, a son and a daughter, both the father and the son, according to the Mitakshara coparcenary system , would be equal owners of the property. Thus when the father died, after the 1956 Act, his share would devolve equally on both the son and daughter. However the daughter in this particular case would only get 1/4th share of the property whereas the brother who was already a co owner would have his half share plus 1/4th share of the property. The Amendment cleared by the Union Cabinet proposes to make the daughter also a coparcener in the Joint Family Property. It is pertinent to point out that some states like Karnataka, Andhra Pradesh, Maharashtra and Tamilnadu have already passed laws making the daughter a member (coparcener) of the joint family while other states like Kerala have completely abolished the joint family system. This could be done as laws of succession fall in Entry 5 of the concurrent list of the VIII th Schedule to the Constitution. It is relevant to note that the Hindu Code Bill, as originally framed by the B.N.Rao committee and piloted by Dr B.R.Ambedkar, had recommended abolishing the Mitakshara coparcenery with its concept of survivorship and the son?s right by birth in a joint family system and substitute it with a principle of inheritance by succession. In fact, AIDWA had also during the Dowry Prohibition Act amendments in early 1980s, asked

for abolition of the Joint family System. In this sense the Amendment doesn't go far away. The other Amendment, which was cleared by the Cabinet, was to abolish Section - 23 of the Hindu Succession Act 1956. This provision denies a married daughter the right to residence in an inherited parental home unless she is widowed, deserted or separated from her husband. The section further denies the daughter, who has inherited a house along with a male member of a family from asking for her share of the property if any member of the family resides in the inherited house, until the male heirs also agreed. However, no such restriction has been placed by the Section 23 on a male heir. Apart from this the proposed amendment seeks to make the new law applicable only to those women who are not married at the date of the amendment. This provision is based on the Maharashtra Law and is said to be made on the presumption that women, who are married have already received their share of property etc. as dowry / gift during their marriage. This is patently unfair not only because many women may not have received dowry but also because the amount of dowry received can hardly be equated to equal rights in property. In reality this is a devise to restrict the number of women, who inherit and to maintain status quo as far as possible. Apart from the obvious discrimination in Section 6 and Section 23 discussed above, certain other sections of Hindu Succession Act also blatantly discriminate against women and require amendment. The most important section, which has been used to deny property rights to women in agricultural land, is Section 4 (2) of the Hindu Succession Act, which allows for State legislation to prevail over the Hindu Succession Act. This Section s tates that the Act shall not apply to laws ?providing for the prevention of fragmentation of agricultural holdings or for fixation of ceilings or for the devolution of tenancy rights in respect of such holdings?. Judgments under this Section have upheld laws under Section 4 (2) of the Hindu Succession Act and have mostly denied women equal rights in agricultural land. While some courts have held that the Hindu Succession Act will apply to agricultural holding, this can only be in the absence of State laws f or the purposes mentioned in Section 4 (2) or if the States laws under Section 4(2) themselves apply the Hindu Succession Act or personal laws to ?devolution of tenancy rights?. Courts have upheld the State Land Reform Acts, relating to devolution of tenan cy rights even though these do not allow women to inherit these tenancies. Some courts have further interpreted the term ?devolution? of tenancy rights broadly / comprehensively to include devolution of tenure holder's right and have thus also denied women ownership rights over agricultural land. Thus even laws meant for land reform and to enforce ceiling have resulted in denying to women equal rights over land and a chance to improve her disempowered status. Section 30 of the Hindu Succession Act allows any Hindu to dispose off his property including his share in the Joint Family Property by will. As has been pointed by women's organizations/ groups and activists this Section can and has been used to disinherit women. It has been recommended by many that a limitation should be placed on the right to will. Such a provision exists in Muslim law where a Muslim can only Will away up to a maximum of -1/3rd of his property. Section 15 of the Hindu Succession Act which specifies how the property of a female Hindu will devolve also contains certain discriminatory provisions. It states that in the absence of class I heirs( son, daughters & husband) the property of a female Hindu will go to her husband's heirs and only if these heirs are not then will the property devolve upon her mother and father. However, in the absence of the mother and father, the property will again devolve upon the heirs of the father and only if there are no heirs of father will the property devolve upon the heirs of the mother. The proviso to Section-6 of Hindu Succession Act contains another instance of gender bias. The proviso states that the property of the deceased in the Mitakshara Coparcenary shall devolve by intestate succession if the deceased had a female heir or a male heir who claims through such female relative. In order to appreciate the gender bias it is necessary to see the rules of devolution of interest under section 8 of the Hindu Succession Act. In this section there are only four primary heirs in the Schedule to class I, namel y, mother, widow, son and daughter. If, however, for example the son or daughter has already died, their children can inherit the property. The principle of representation goes up to two degree in the male line of descent; but in the female line of descent it goes only upto one degree. Accordingly, the deceased son's son's son and son's son's daughter get a share but a deceased daughter's daughter's son and daughter's daughter's daughter do not get anything. A further infirmity is that a widow of a pre -deceased son and grandson are class-I heirs, but the husbands of a deceased daughter or grand-daughter are not heirs. Critical Appraisal Of Amendments To The Hindu Succession Act The recent amendment to the Hindu Succession Act has made the daughter a member of the coparcenary. It also gives daughters an equal share in agricultural property. These are significant advancements towards gender

equality. The Hindu Succession (Amendment) Bill 2004, passed unanimously by the Lok Sabha, comes after a long gap: the Hindu Succession Act was passed in 1956. The present debate about removing discrimination against women to a large extent remains confined to the experts. The law, obtuse at the best of times, takes on an even more tedious character when it comes to inheritance laws. For almost half a century since the passing of the Hindu Succession Act, 1956, there has been the widespread belief that under Hindu personal law daughters are equal to sons. This belief was based on Section 10 of the Act dealing with the distribution of property of a Hindu who has died without making a will, referred to as ?intestate? in law. The provision unequivocally declares that property is to be distributed equally among Class I heirs, as specified in the schedule. The schedule clearly lays down daughters, mothers and widows as Class I heirs entitled to a share equal to that of sons. This, though seemingly a huge step in favour of gender justice, was in fact more a sleight of hand. The mischief lay in customary Hindu law and the concept of mitakshara coparcenary property. A Hindu joint family consists of a common ancestor and all his lineal male descendants, together with wives or widows and unmarried daughters. The existence of a common ancestor, necessary to bring a joint Hindu family into existence, continues even after the death of the ancestor. Upper links are removed and lower ones are added; the joint family can continue indefinitely. Except in the case of a doption, no outsiders are permitted and membership to the joint family is by birth or marriage to a male member. A Hindu joint family is a unit and is represented by the karta or head. The Hindu Succession Act retained the coparcenary. In fact, Section 6 specifically declares that, on death, the interest of a male Hindu in mitakshara coparcenary property shall devolve by survivorship to other members of the coparcenary and not by succession under the Act. However, it laid down that the separate share of the deceased, computed through the device of adeemed partition just before his death, would devolve according to the Succession Act. The Act did not clearly spell out the implications of exclusion from membership to the coparcenary in respect of inheritance of property. Thus, if a widowed Hindu male died leaving a son and a daughter, then, according to the explanation in Section 6 of the Act, there will be deemed to be a partition just before the death of the person. In this deemed or ?notional? partition, the father and son share equally and each gets half the property. The father's half will be shared equally by his son and daughter as Class I heirs. In effect, therefore, the daughter gets one fourth of the property, while the son gets his own half from the d eemed partition as a coparcener and an additional half from the share of his father. Together that would be three -fourths of the property. It is this inequity between son and daughter that has now been removed by the amendment. The preferential right by birth of sons in joint family property, with the offering of shradha for the spiritual benefit and solace of ancestors, have for centuries been considered sacred and inviolate. It has also played a major role in the blatant preference for sons in Indian society. This amendment, in one fell swoop, has made the daughter a member of the coparcenary and is a significant advancement towards gender equality. After the amendment, daughters will now get a share equal to that of sons at the time of the notional partit ion, just before the death of the father, and an equal share of the father's separate share. However, the position of the mother vis-a-vis the coparcenary stays the same. She, not being a member of the coparcenary, will not get a share at the time of the notional partition. The mother will be entitled to an equal share with other Class I heirs only from the separate share of the father computed at the time of the notional partition. In effect, the actual share of the mother will go down, as the separate share of the father will be less as the property will now be equally divided between father, sons and daughters in the notional partition. The original bill, introduced in 2004, exempted agricultural land from the purview of the amendment. A considerable section of society is totally against equal shares to daughters with respect to agricultural land. The inclusion of agricultural land in the amendment, giving equal shares to daughters and overriding state-level discriminatory tenurial laws, is a great cre dit to parliament. Effective lobbying by women's groups must also be given due credit. The equal sharing of the father's property applies in cases where he dies intestate -- that is, without making a will. Given the bias and preference for sons and notions of lineage, discrimination against daughters in inheritance through wills is bound to remain. In most cases, the terms of the will would favour the son. Perhaps

the share of property that can be willed by a person could be restricted, as a step towards gr eater gender equality. For example, Islamic jurisprudence lays down that a person can only will one-third of his property. Provisions to check the prevalent practice of ?persuading? daughters to give up their share in joint family property is another area that requires attention. This is an opportune time to keep up the momentum for further reforms to reduce gender inequities and move towards a more equal society. The amendment will only benefit those women who are born into families that have ancestral pro perty. There is no precise definition of ancestral property. Given the fact that families have long since been fragmented and the fact that the joint family system is on the decline, it is not at all clear whom this law will benefit. It cannot apply to self-acquired property. No person by birth will acquire any rights in self-acquired property. In today's context, most property is self-acquired and that property must follow principles of succession under the different succession laws. Moreover, its owner can dispose off such property during his lifetime by gift. It can be bequeath by will to anyone of his choice. The proposed amendment notwithstanding, a Hindu father can disinherit his wife or daughter by will, in his self -acquired property. The amendment therefore by itself cannot offer much to Hindu women. What is more, under the laws of certain states, it will actually disadvantage widows, as the share of the daughter will increase in comparison to the widow. The amendment is not at all well thought out and can play women against each other. There is no equity in that. Thus, though seemingly progressive, it does nothing more than make a political point, that the state is committed to abolishing discrimination against women, but only Hindu women. The position of women married into the joint family will actually become worse. The proposed amendment only makes the position of the female members of the joint family worse. With a daughter along with the sons acquiring a birthright, which she can presumably partition at any time, the rights of other members of the joint family get correspondingly diminished. While the reforms of the 1950s disadvantaged a divorced wife, the reforms of the present times will disadvantage married women as well. Until now, the only protection women had in the marital home was the status of being married, which carried with it the right to be maintained, not only by the husband, but by the joint family and its assets as a whole. Thus married women who lived in a joint Hindu family had th e protection of the family home. This protection will now stand eroded, to the extent that the total divisible amount gets reduced. Something similar will happen to Hindu widows. Daughters will acquire a birthright in Hindu joint family property, mothers s tand to lose a portion of the cake, as an inheritance. Since Hindu law does not grant any rights to wives in marital property, their only chance of getting anything was on an inheritance, as equal share with the sons and daughters, if the marriage was subsisting on the death of the husband. On divorce, of course, even that right to inheritance disappears. It is birthright in Hindu law that is the root of the problem. Birthright by definition is a conservative institution, belonging to the era of feudalism, coupled as it was with the rule of primogeniture and the inalienability of land. When property becomes disposable and self-acquired, different rules of succession have to apply. It is in the making of those rules that gender justice has to be located. What the proposed amendment does is to reinforce the birthright without working out its consequences for all women. Justice cannot be secured for one category of women at the expense of another. It is impossible to deal with succession laws in isolation. One has to simultaneously look at laws of matrimonial property, divorce and succession to ensure a gender just regime of laws. The present bill does nothing of the kind. The exercise should be abandoned in toto. Conclusion Empowerment of women, leading to an equal social status in society hinges, among other things, on their right to hold and inherit property. Several legal reforms have taken place since independence in India, including on equal share of daughters to property. Yet equal status remains illusive. Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn out process. The government, the legislature, the judiciary, the media and civil society has to perform their roles, each in their own areas of competence and in a concerted manner for the process to be speedy and effective. These amendments can empower women both economically and socially. and have far-reaching benefits for the family and society. Independent access to agricultural land can reduce a woman and her family's risk of poverty, improve her livelihood options, and enhance prospects of child survival, education and health. Women owning land or a house also face less risk of spousal violence. And land in women's names can increase productivity by improving credit and input access for numerous de facto female household heads.

Making all daughters coparceners like wise has far-reaching implications. It gives women birthrights in joint family property that cannot be willed away. Rights in coparcenary property and the dwelling house will also provide social protection to women facing spousal violence or marital breakdown, by giving them a potential shelter. Millions of women - as widows and daughters - and their families thus stand to gain by these amendments. End Notes 1. 174th Report of Law Commission of India under the Chairmanship of Justice B.P. Jeevan Reddy, vide D.O. No. 6(3)(59)/99-LC(LS), dated 5th May, 2000. 2. Mulla, Principles of Hindu Law (1998 17th ed. by SA Desai), p. 168. 3. Ibid. 4. Mayne's, Treatise on Hindu Law & Usage, (1996 14th Edn., edt. by Alladi Kuppuswami p. 1065. 5. M. Indira Devi, "Woman's Assertion of Legal Rights to Ownership of property" in Women & Law Contemporary Problems, (1994 edt. by L. Sarkar & B. Sivaramayya) p. 174; also section 3(3) of Hindu Women's Right to Property Act, 1937. 6. Murumakkattayam, Aliyasantans and Nambudri. 7. Gotraja, Sapindas, Samanodlakas and Bandhus 8. Sapindas, Sakulyas and Bandhus 9. 7th Report of Parliamentary Standing Committee dated 13th May, 2005. 10. Notional partition. 11. 7th Report of Parliamentary Standing Committee 12. Before amendment of Hindu Succession Act, 1956 in 2005
Intestate Succession: Devolution Of Property After The Death Of A Hindu Without A Will Succession implies the act of succeeding or following, as of events, objects, places in a series. In the eyes of law however, it holds a different and particular meaning. It implies the transmission or passing of rights from one to another. In every system of law provision has to be made for a readjustment of things or goods on the death of the human beings who owned and enjoyed them. Succession, in the sense of the partition or redistribution of the property of a former owner is, in modern systems of law, subject to many rules. Such rules may be based on the will of a deceased person. However, there are cases in which a will cannot be expressed and eventually, there needs to be some broadly accepted rules upon which the property shall devolve upon those succeeding him. There can be no doubt, however, that these rules primarily are the characteristics of the social conditions in which that individual lived. They represent the view of society at large as to what ought to be the normal course of succession in the readjustment of property after the death of a citizen. Succession Of A Hindu Male Dying Intestate Under The Hindu Succession Act: Sections 8 to 13 of the Hindu Succession Act, 1956 lay down the general rules as to the order of succession when a Hindu male dies intestate. Section 8 lays down certain rules of succession of property of a Hindu male who dies intestate after the commencement of the Act. These rules are to be read along with the Schedule as well as other Sections pertaining to the same (Sections 9 to 13). Section 8 lays down as follows: Section 8: General rules of succession in the case of males. - The property of a male Hindu dying intestate shall devolve according to the rules set out in this chapter: (a) firstly, upon the preferential heirs, being the relatives specified in Class I of the Schedule; (b) secondly, if there is no preferential heir of Class I, then upon the preferential heirs being the relatives specified in class II of the Schedule; (c) thirdly, if there is no preferential heir of any of the two classes, then upon his relatives being the agnates specified in Section 12; and (d) lastly, if there is no agnate, then upon his relatives being the cognates specified in Section 13. Thus, Section 8 groups the heirs of a male intestate into four groups and lays down that the property first devolves upon the heirs of Class I of the Schedule. They are the son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son and widow of a predeceased son of a predeceased son. All these heirs inherit simultaneously. If heirs of Class I are not available, the property goes to the enumerated heirs specified in Class II of the Schedule, wherein an heir in a higher entry is preferred over an heir in a lower entry.

In the absence of heirs of Class I and Class II, the property devolves on the agnates and cognates of the deceased in succession. Now, one person is said to be the agnate of the other if the two of them are related by blood or adoption wholly through the males. Similarly, one person is said to be the cognate of the other if the two of them are related by blood or adoption, but not totally through males, i.e. there has to be some intervention by a female ancestor somewhere. Now, the term property includes all those properties of the deceased intestate that is heritable under the Act. It includes his self-earned property as also his share in the Mitakshara coparcenary if he is survived by any of the female heirs or daughters son as mentioned in Class I of the Schedule. It also includes the property that he might have inherited from his grandfather or father after the Act came into force. (A) Heirs In Class I: i. The adopted children (sons or daughters) are also to be counted as heirs. ii. The children born out of void or voidable marriages are considered to be legitimate by virtue of Section 16, and hence they are entitled to succession. iii. The widow is also entitled to property along with the other heirs and in case there is more than one widow, they will inherit jointly one share of the deceaseds property, which is to be divided equally among them. iv. The widow is entitled to inherit from her deceased husbands property even if she remarries after his death. v. The widow of the predeceased son will inherit with the other heirs. However, her right along with rights of the children of the predeceased son will exist to the extent of the share of the predeceased son, had he been alive. However, if she remarries before the death of the intestate, then she is not entitled to the property. vi. The daughter inherits simultaneously along with the other heirs in her individua capacity. Moreover, even if l she is married, she is entitled to such property. vii. The mother also succeeds to her share along with other heirs by virtue of Section 14. It has been held in Jayalakshmi v. Ganesh Iyer that the unchastity of the mother is no bar as to her inheriting from her son. Even if she is divorced or remarried, she is entitled to inherit from her son. Here the term mother also includes an adoptive mother. Moreover, if there is an adoptive mother, the natural mother has no right to succeed to the property of the intestate. A mother is also entitled to inherit the property of her illegitimate son by virtue of Section 3(i)(j). (B) Heirs In Class II: i. All heirs in Class II take cumulatively and not simultaneously, i.e. they succeed in the order of Entries I to IX, as held in the case of Kumuraswami v. Nanjappa . An heir in the higher entry excludes all the heirs in the lower entries. ii. The father in Entry I includes an adoptive father. However, a father is not entitled to any property from the illegitimate son as opposed to the mother. However, he is entitled to share from children born out of void or voidable marriage under Section 16. Also, a step mother is not entitled to inherit from the step son. iii. All brothers and sisters inherit simultaneously. Here the term brother includes both a full and a half brother. However, a full brother is always preferred to a half brother (according to Section 18). Uterine brother is not entitled to the intestates property. However, when the intestate and his brother are illegitimate children of their mother, they are related to each other as brothers under this entry. (C) Agnates: A person is said to be the agnate of another if the two of them are related by blood or adoption entirely or wholly through males [Section 3(1)(a)]. What is to be noted is that agnates of the intestate do not include widows of lineal male descendants because the definition of agnates does not include relatives by marriage but only relatives by blood or adoption. Since these widows would be relatives by marriage hence they will not fall under the definition of agnates and hence, they will not be entitled to inherit in this capacity. Moreover, there is no limit to the degree of relationship by which an agnate is recognized. Hence, an agnate however remotely related to the intestate may succeed as an heir. Also, this relationship does not distinguish between male and female heirs. There is also no distinction between those related by full and half blood. However, uterine relationship is not recognized. (D) Cognates: A person is said to be the cognate of another if the two of them are related by blood or adoption, but not entirely through males [Section 3(1) (c)]. It does not matter if the intervention in the line of succession is by one or more females. As long as there is at least one female intervening, it is a cognate relationship. As in agnate relationship, cognate relationship is also not based on marriage and only on blood or adoption. Hence widow or widowers of those related by cognate relationship do not fall under this category and hence they are not entitled to succeed on this ground.

Section 9. Orders of succession among heirs in the Schedule. - Among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in Class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession. Section 9 explicitly points out the order of succession between the Class I and the Class II heirs and also among the Class II heirs interse. According to this Section, Class I heirs may be termed as preferential heirs of the intestate because the property first devolves upon them on the death of the intestate. All the Class I heirs succeed simultaneously and there is no question of any preference or any priority among them. However, when there is no Class I heir, the property devolves upon the Class II heirs enumerated in the Schedule in the nine Entries. However, there is one basic distinction between the Class I and the Class II heirs. While all the heirs in Class I inherit the property simultaneously, each of the entries in Class II constitute distinct and separate groups of heirs. Heirs in higher entries inherit in priority, but there I no such concept of priority among the heirs in Class I. For example, if a Hindu male dies intestate leaving behind his widow, two sons, son of a predeceased son, widow of another predeceased son, two daughters and son of a predeceased daughter, all of them will inherit simultaneously because all of them are heirs in the Class I of the Schedule. However, if another Hindu male dies intestate leaving behind his sister and his brothers son, the sister being an heir in Entry II of Class II will get preference over his brothers son who is an heir in Entry IV of Class II. Section 10. Distribution of property among heirs in Class I of the Schedule.- The property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following rules: Rule 1- The intestates widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2- The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. Rule 4- The distribution of the share referred to in Rule 3i. among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his predeceased sons gets the same portion; ii. among the heirs in the branch of pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions. Sections 8 and 9 explicitly declare the law that the preferential heirs enumerated in Class I take simultaneously and to the exclusion of all other heirs in Class II or otherwise. The Sections do not mention any priority among them, but it nowhere follows that every individual heir who succeeds as a heir in Class I is entitled to an equal share of the property along with other heirs of the Class. The computation of the share of each is done in accordance with Section 10 which may constitute the Statute of Distribution applicable to heirs in Class I. It should also be noted that the Act tries to put the males and the females on equal footing. So it allots the shares to the males and the females pari passu. The object of Section 10 is to deal with the amount of shares each person will be entitled to when there are more than one to inherit simultaneously. The widow, the son, the daughter and the mother will inherit to the property. However, this does not mean that each one of them will get 1/4th of the property. The four rules given in this Section are explanatory to the extent of understanding how much share each one will get. The rules are: 1) The widows, if there are more than one, shall take together only one share and [read with Section 19(b)] inherit that share equally as tenants-in-common and not joint tenants. 2) When there are more than one son, each son will get a share and similarly each daughter will get a share and mother will also get a share. Thus this is based on the Principle of Equalization. 3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall be entitled to take together a share of the property of their father or mother as the case maybe, and divide them equally among themselves. The family of the predeceased son would be entitled to one part that the predeceased son would have been entitled to, had he been alive. Same thing applies to a predeceased daughter. Thus these heirs succeed to the intestates property not as per capita but as per stripe.

4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a predeceased son of a propositus, she will take the share of the predeceased son equally with her sons and daughters. The four rules in Section 10 are to be read in consonance with Section 19 which gives the two basic rules in case there is more than one heir succeeding to the property of the intestate. The rules are: (a) save as otherwise expressly provided in the Act, per capita and not per strip. (b) as tenants-in-common and not as joint tenants. This is subject to any express provision to the contrary. Section 11. Distribution of property among heirs in Class II of the Schedule.- The property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally. This Section provides that when there are more than one heirs in one entry of Class II, they shall inherit equally. For example, Entry III contains four heirs: (a) the daughters sons son (b) the daughters sons daughter (c) the daughters daughters son (d) the daughters daughters daughter. Thus according to this Section, they all share equally. It should be noted that the legislation does not lay down any rule of discrimination between any male or female. If two heirs are enlisted in the same entry, then irrespective of their sex, they share equally. All the heirs in each one of the entries stand aequali jura and take per capita subject to the only exception that full blood is preferred over halfblood. In the case of Arunachalathammal v. Ramachandran , it was contended that the different heirs mentioned in one entry (in this case Entry I of Class II) are subdivisions of that particular entry and they do not inherit simultaneously but here again there is a question of preference i.e. the first subdivision inherits and then in its absence, the later. The question arose because there were, in his case, one brother and five sisters of the intestate and no other heir and the brother contended that in a brother being in subcategory (3) of entry I, was to be preferred over sister who was in subcategory (4) of entry I and thus he was entitled to the full property. However the same was negated and it was held that all heirs in an entry inherit simultaneously and there is no preference to an heir in a higher subcategory within an entry to an heir in a lower subcategory in the same entry. Thus we find that the equality is between every individual heir of the intestate and not between the sub-division in any particular entry. In fact, the court went on to say that there were no subdivisions in any entry in Class II. They were just roman numerals representing the heirs in the entry. Section 12. Order of succession among agnates and cognates.- The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder: Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred. Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degree of descent. Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take simultaneously. This Section deals with the order of succession among agnates and cognates. Agnates come within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). The question of succession of cognates come only when there are no cognates and the question of succession of agnates and cognates come only when there are no heirs in Class I and Class II. Rule 1 lays down that out of two agnates or two cognates as the case maybe, the one with the fewer or no degree of ascent shall be preferred. Rule 2 lays down that where the degree of ascent is the same or none, the one with fewer or no degree of descent shall be preferred. Rule 3 lays down that in case of a tie even after applying Rules 1 and 2, they shall take simultaneously. In accordance with the above three rules, the agnate and cognate relationship maybe categorized as follows: Agnates: (a) agnates who are descendants, for example, sons sons sons son and sons sons daughter. (b) agnates who are ascendants, for example, fathers fathers father and fathers fathers mother. (c) agnates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent, for example, fathers brothers son and fathers brothers daughter. Cognates: (a) cognates who are descendants, for example, sons daughters sons son and daughters sons sons son. (b) cognates who are ascendants, for example, fathers mothers father and mothers fathers father. (c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent, for example, fathers sisters son and mothers brothers son.

In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be preferred to a lower subcategory i.e. descendants shall be preferred over ascendants who in turn shall be preferred over collaterals. Section 13. Computation of degrees.1) For the purpose of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be. 2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate. 3) Every generation constitutes a degree either ascending or descending. Section 13 lays down the rules for computation of relationship between the intestate and his agnate and cognate heirs. This relationship is traced from the intestate to the heir in terms of degrees of relationship with the intestate as the starting point. There is no discrimination or preference between male and female heirs. The second rule states that the computation of the degrees of ascent and descent are to be made inclusive of the intestate. The relationship is to be traced from the propositus on terms of degrees with a propositus as terminus a quo, i.e. the first degree. However, the order of succession among agnates and cognates is not determined merely by the total number of degrees of ascent and descent. It is subject to and regulated by Section 12 of the Act. The following are examples of rules of computation of degrees: (a) The heir to be considered is the fathers mothers father of the intestate. Hence there is no degree of descent but there are four degrees of ascent represented by (i) the intestate, (ii) the intestates father, (iii) that fathers mother and (iv) that mothers father. (b) The heir to be considered is the sons daughters sons daughter of the intestate. Hence there is no degree of ascent but there are five degrees of descent represented by (i) the intestate, (ii) the intestates son, (iii) that sons daughter, (iv) that daughters son and (v) that sons daughter. (c) The heir to be considered is the mothers fathers sisters son (i.e. the mothers fathers fathers daughters son) of the intestate. He has four degrees of ascent represented in order by (i) the intestate, (ii) the intestates mother, (iii) that mothers father and (iv) that fathers father and two degrees of descent i.e. (i) the daught er of the common ancestor and (ii) her son (the heir). What is to be remembered is that when degrees, both of ascent and descent, are to be computed in case of collateral, the degrees of ascent computed from the intestate are inclusive of him, but in counting the degrees of descent from the ancestor, only generations of descent are computed, that is, the ancestor does not constitute a degree of descent. Succession Of A Hindu Female Dying Intestate Under The Hindu Succession Act The great ancient lawgivers Manu and Baudhyana had described the good woman as a profoundly nonautonomous self, ruled by father in childhood, by husband in youth, by son in old age. In the 19th century debates, on the contrary, she came to be re-envisaged as a person with a core of inviolate autonomy, possessing a cluster of entitlements and immunities, even when the family, the community or religion refused to accept them. The demand for the new laws stemmed from an understanding about Indian a necessary, autonomous core of female personhood that the state must underwrite. Under the Hindu law in operation prior to the coming into force of the Act, a womans ownership of property was hedged in by certain delimitations on her right of disposal and also on her testamentary power in respect of that property. Doctrinal diversity existed on that subject. Divergent authorities only added to the difficulties surrounding the meaning of a term to which it sought to give technical significance. Women were supposed to, it was held and believed, not have power of absolute alienation of property. The restrictions imposed by the Hindu law on the proprietary rights of women depended upon her status as a maiden, as a married woman and as a widow. They also depended upon the source and nature of property. Thought there were some fragmented legislation upon the subject (regard being made to the Hindu Womans Right to Property Act, 1937), the settled law was still short of granting a status to woman where she could acquire, retain and dispose off the property as similar to a Hindu male. The Hindu Succession Act, 1956 and particularly Section 14 brought substantial change, thus, upon the aspect of a right of a Hindu female over her property and thereby settled the conflict. Section 15. General rules of succession in the case of female Hindus.(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,(a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) Secondly, upon the heirs of the husband ;

(c) Thirdly, upon the mother and father; (d) Fourthly, upon the heirs of the father; and (e) Lastly, upon the heirs of the mother . (2) Notwithstanding anything contained in Sub-Section (1), (a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-Section (1) in the order specified therein, but upon the heirs of the father; and (b) Any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-Section (1) in the order specified therein, but upon the heirs of the husband. This Section propounds a definite and uniform scheme of succession in the property of a female Hindu who dies intestate after the commencement of the Act. The rules laid down under this Section are to be read with Section 16. This Section groups the heirs of a female intestate into five categories as laid in sub-Section (1). However sub-Section (2), similar to the scheme of Section 14, is in the nature of an exception to the general rule as laid in sub-Section (1). The two exceptions are, if a female dies without leaving any issue then, (i) in respect of property inherited by her from her father or mother, that property will devolve not according to the order laid down as in sub-Section (1) but upon the heirs of her father, and (ii) in respect of the property inherited by her from her husband or father-in-law, that property will not devolve according to the order laid down in sub-Section (1) but upon the heirs of her husband. It is important to note that the two exceptions herein referred are confined to only the property inherited from the father, mother, husband and father-in-law of the female and does not affect the property acquired by her by gift or other by other device. The Section has changed the entire concept of stridhana and the mode and manner of acquisition of property by the female, which earlier determined how the property would be inherited, has been changed and amended by the Section. Considering Section 17, it is important to note that Section 16 does not apply to persons governed by Marumakkattayam and Aliyasantana laws. As specified in the beginning of the sub-Section (1), in the devolution of heritable property of a female intestate, those in a higher entry are preferred to those in a lower entry. The order of succession, as by the effect of rules under Section 15 can be summarized as follows: (1) the general order of succession laid down in entries (a) to (e) in sub-Section (1) applies to all property of a female intestate however acquired except in case of property inherited by her from her father, mother, husband or father-in-law. (2) In case of a female intestate leaving a son or a daughter or a child of a predeceased son or of a predeceased daughter, that is leaving any issue, all her property, howsoever acquired, devolves on such issue regardless of the source of acquisition of the property and such issue takes the property simultaneously; and if the husband of the intestate is alive they take simultaneously with him in accordance with entry (a). In such a case, sub-Section (2) does not apply. (3) In case of a female intestate dying without issue but leaving her husband, the husband will take her property, except property inherited by her from her father or mother which will revert to the heirs of the father in existence at the time of her death. (4) In case of female intestate dying without issue property inherited by her from her husband or father-in-law (the husband being dead), will go the heirs of the husband and not in accordance with the general order of succession laid in sub-Section (1). (5) In case of a female intestate dying without issue property inherited by her from her father or mother will revert to the heirs of the father in existence at the time of her death and not in accordance with the general order of succession laid down in sub-Section (1). Section 16. Order of succession and manner of distribution among heirs of a female Hindu.- The order of succession among the heirs referred to in Section 15 shall be and the distribution of the intestates property among those heirs shall take place according , to the following rules, namely: Rule 1.- Among the heirs specified in sub-Section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously. Rule 2.- If any son or daughter of the intestate had predeceased the intestate leaving his or her own children

alive at the time of the intestates death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestates death. Rule 3.- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of subSection (1) and in sub-Section (2) to Section 15 shall be in the same order and according to the same rules as would have applied if the property would have been the fathers, the mothers or the husbands as the case maybe, and such person had died intestate in respect thereof immediately after the intestates death. Rule 1 explicitly declares that among the heirs enumerated in entries (a) to (e) of Section 15, those heirs referred to in prior entry are to be preferred to those in any subsequent entry and those included in the same entry are to succeed simultaneously. Rule 2 states that in case of the children of a predeceased son or daughter, they shall not take per capita with the son and daughter of the intestate but shall take per stripes i.e. the children and the predeceased son or daughter shall succeed to the property of the intestate as if the predeceased son or daughter was alive at the time of inheritance. Rule 3 is applicable only when succession is in terms of entry (b), (d) or (e) of Section 15(1). This rule 3 is to be invoked when under rule 1 the heirs of the husband or the father or the mother are to be ascertained for purpose of distribution of property.

Manisha Garg and Neha Nagar - Students 2nd yr NLIU, Bhopal 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 su ch 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 argume nts 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 re gion 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 m ere 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 di d 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 ot her 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 wido w, 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 no t 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 woma n 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 virtual ly 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) a nd (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 discrimi nation 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 viol ation 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 successi on 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 1 6 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 me mbers ? 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 discri minatory 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 r ights 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. T he 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, oft en 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. Th us, 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 a buse 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. C oparcenary as seen and discussed earlier in the present work is a narrower body of persons within a joint fami ly 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, s he 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 recogni zed 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 propertie s or running the business and is generally susceptible to the influence of her husband and his family, if married. This seems to be patently u nfair 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 positi on 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-laws 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 Fami ly 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 touchest one, not the identity of the alienor. The acts of a female member acting as a manager should be positive for the benefit of the Fam ily. 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 su pported 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 f or 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? Wh erever a male member of the family is available, his signature should be taken rather than that of any females 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 wi th her, and powers should obviously be allowed to her accordingly. The Case Laws- In Support The Nagpur position In Hunoomanpersauds 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 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 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 busine ss. 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 Hunoomanpersauds 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 CourtIn 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 Narayans 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 sons 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 Minors 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 Amendi ng 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 un fair 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 absenc e 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 aw ay or missing or the son is yet to attain majorit y. 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.

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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 Shelly Saluja and Soumya Saxena - NLIU Law Student Introduction The Constitution of India provides that every person is entitled for equality before law and equal protection of the laws and thereby prohibits discrimination on the basis of caste, creed and sex. The discrimination on the basis of sex is permissible only as protective measures to the female citizens as there is need to empower women who have suffered gender discrimination for centuries. Empowerment of women, leading to an equal social status with men hinges, among other things, on their right to hold and inherit property. Civilized societies across the globe ensure that women's inheritance rights are more secure than those of men because women take on the tremendous responsibility of producing and nurturing the next generation. In India, women's rights have suffered serious setbacks among all communities. Before 1956 Despite the Hindu Succession Act being passed in 1956, which gave women equal inheritance rights with men, the mitakshara cop arcenary system was retained and the government refused to abolish the system of joint family. According to this system, in t he case of a joint family, the daughter gets a smaller share than the son . While dividing the father's property between the mother, brother and sister, the share is equal. The Constitution of India enshrines the principle of gender equality in its Preamble and Parts III, IV and IVA pertaining to Fundamental Rights, Fundamental Duties and Directive Principles respectively. The Constitution not only grants equality to women, but also empowe rs the State to adopt measures of positive discrimination in favour of women. And now as India becomes increasingly aware of the need for equal rights for women, the government can't afford to overlook, property rights have a deep impact on the national economy. The need to dispense gender justice raises deep political debate and at times acrimony in legislative forums. This enthused the ?house? to move a bill to make amendments in the Hindu Succession Act, to secure the rights of women in the area of property. The aim is to end gender discrimination in Mitakshara coparcenary by including daughters in the system. Mitakshara is one of the two schools of Hindu Law but it prevails in a large part of the country. Under this, a son, son's son, great grandson and great great gra ndson have a right by birth to ancestral property or properties in the hands of the father and their interest is equal to that of the father. The group having this right is termed a coparcenary. The coparcenary is at present confined to male members of the joint family, it has been further elucidated in the project. The Hindu Succession (Amendment) Act, 2005 is a landmark. After 50 years, the Government finally addressed some persisting gender inequalities in the 1956 Hindu Succession Act (1956 HSA), which itself was path -breaking. The 2005 Act covers inequalities on several fronts: agricultural land; Mitakshara joint family property; parental dwelling house; and certain widow's. The amendment has come int o operation from 2005; our project makes an analysis of this amendment, in that specifically dealing with changes brought in the woman's property rights in Mitakshara joint family property, what effects it will have on the position of women, loopholes in the amendment, its advanta ges and disadvantages and few suggestions to make it more effectual. What Is Mitakshara Coparcenary? Coparcenary literally means Joint inheritance or heirship of property. Also called parcenary. Coparcenary is a narrower body of persons within a joint family, and consists of father, son, son's son, son's son's son. The disparity in th e property rights on the basis of gender is deep rooted and can be traced back to the ancient times. Traditional Hindu inheritance laws evolved from the ancient texts of Dharmashastras and the various commentaries and legal treatises on them. In particular, the Mitakshara and the Dayabhaga legal doctrines, dated around the twelfth century AD govern the inheritance practices among the Hindus. In most of northern and parts of western India Mitakshara law is prevalent.Under the Mitakshara law, on birth, the s on acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the M itakshara 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. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically t he share of each male is reduced to one fourth. The Mitakshara law also recognizes 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. Position Of Woman (In Regards To Property Rights) Prior To Enactment Of Hindu Succession Act, 1956Since time immemorial 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. Prior to the Act of 1956, Shastric and Customary laws, which varied from region to region, governed Hindus and sometimes it varied in the same reg ion on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to diver sity 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. But, however the social reform movement during the pre-independence period raised the issue of gender discrimination and a number of ameliorative steps were initiated. The principal reform that was called for, and one which became a pressing necessity in vie w of changed social and economic conditions, was that in succession there should be equitable distribution between male and female heirs and the Hindu women's limited estate should be enlarged into full ownership (however that actually never happened). The only property over which she had an absolute ownership was the Stridhan meaning women's property. Prior to Hindu Law of Inheritance Act, 1929Prior to this Act, the Mitakshara law also recognizes 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 Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations as being entitled to inherit namely - widow, daughter, mother paternal grandmother, and paternal great-grand mother . The Madras sub-school recognized the heritable capacity of a larger number of female's heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who are expressly named as heirs i n Hindu Law of Inheritance 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, recognized a number 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. Hindu Law of Inheritance Act, 1929This was the earliest piece of legislation, bringing woman into the scheme of inheritance. This Act, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughter and sister (thereby creating limited restriction on the rule o f survivorship). Hindu Women's Right to Property Act (XVIII of), 1937This was the landmark legislation conferring ownership rights on women. 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. Constitutional Provisions ensuring Gender EqualityThe framers of the Indian Constitution took note of the adverse condition of women in society and a number of provisions and safeguards were included in the Constitution to ward off gender inequality. In this context, Articles 14 , 15(3) and 16 of the Constitution can be mentioned. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV containing Directive Principles of State Policy, which are no less fundamental in the governance of the State to ensure equality between man and woman such as equal pay for equal work. The Directive Principles further endorses the principle of gender equality, which the State has to follow in matters of governance. Similarly, Part IVA of the Constitution enshrining the Fundamental Duties states that: # It shall be the duty of every citizen of India -

(e) ... to renounce practices derogatory to the dignity of women... Despite these provisions for ensuring equal status, unfortunately a woman is still not only neglected in her own natal family but also the family she marries into because of certain laws and attitudes. Position Of Woman After Enactment Of Hindu Succession Act, 1956After the advent of the Constitution, the first law made at the central level pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956 (hereinafter called the HSA). This Act dealing with intestate succession among Hindus came into fo rce on 17th June 1956. It brought about changes in the law of succession and gave rights, which were hitherto unknown, in relation to a woman's property. The section 6 of Hindu Succession Act, 1956 follows as: Devolution of interest in coparcenary property. - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relati ve specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship. Explanation 1. For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespectiv e of whether he was entitled to claim partition or not. Explanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to th erein. Section 6 deals with the devolution of the interest of a male Hindu in coparcenary property it says that if a male Hindu dies leaving behind his share in Mithakshara Co-parcenary property , such property will pass on to his sons, son's son's, son's son's son by survivorship, on surviving members. In case there are female relatives like daughter, widow, mother, daughter of predeceased son, daughter of predeceased daughter, widow of predeceased son, widow of predeceased son of a predeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by succession and not by survivorship . And while recognizing the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left him surviving a female relative specified in Class I of Schedule I, or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property sh all devolve by testamentary or intestate succession under this Act and not by survivorship. The rule of survivorship comes into operation only: Where the deceased does not leave him surviving a female relative specified in Class I, or a male relative specified in tha t Class who claims through such female relative; and When the deceased has not made a testamentary disposition of his undivided share in the coparcenary property. As pointed out above that the main provision of this section deals with the devolution of the interest of a co parcener dying intestate by the rule of survivorship and the proviso speaks of the interest of the deceased in the Mitakshara Coparcenary Property. Now, in order to ascertain what is the interest of the deceased coparcener, one necessarily needs to keep in mind the two Explanations under the proviso. These two Explanations give the necessary assistance for ascertaining the interest of the deceased coparcener in the Mitakshara Coparcenary Property. Explanation I provides for ascertaining the interest on the basis of a notional partition by applying a fiction as if the partition had taken place immediately before the death of the deceased coparcener. Explanation II lays down that a person who has separated himself fro m the coparcenary before the death of the deceased or any of the heirs of such divided coparcener is not entitled to claim on intestacy a share in the interest referred to in the section. Under the proviso if a female relative in class I of the schedule or a male relative in that class claiming thr ough such female relative survives the deceased, then only would the question of claiming his interest by succession arise. The Supreme Court in 1978 Gurupad v. Heerabai and reiterated later in 1994 in Shyama Devi v. Manju Shukla wherein it has been held that the proviso to section 6 gives the formula for fixing the share of the claimant and the share is to be determined in accordance with Explanation I by deeming that a partition had take n place a little before his death which gives the clue for arriving at the share of the deceased.Section 6 can further be understood by the following-Example: If ?C? dies leaving behind his two sons only, and no female heirs of class I then property of ?C? passes to his sons by survivorship since there are no female relati ves like daughter or any other member specified in the class I of first schedule. In case ?C? dies leaving behind two sons and three daughters, then propert y of ?C? will pass

on to his sons and daughters by succession in the following manner. Firstly property of "C" is divided between "C" and his two sons. The shares of "C" and his two sons are, C gets one-third and each son onethird. The sons are entitled to the equal share of the property along with the father. But the daughters are entitled to the share in the share of the deceased ?C? along with other sons. So the sons will get one-third of the property and a share, which is one-fifth in the share of deceased ?C?. Hence the daughter does not take equal share with the son. However, section 6 did not interfere with the special rights of those who are members of a Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, interalia, to persons governed by Mitakshara and Dayabhaga Schools as also to those in certain parts of southern India who were previously governed by the Murumakkattayam, Aliyasantana and Nambudri Systems. The Act applies to any person who is a Hindu as defined in section 2 of HSA . But now the question the question is whether, the Hindu Succession Act actually gave women an equal right to propert y or did it only profess to do so. Significantly, the provisions regarding succession in the Hindu Code Bill, as ori ginally framed by the B.N.Rau Committee and piloted by Dr.Ambedkar, was for abolishing Mitakshara coparcenary with its concept of survivorship and the son's right by birth in a joint family property and substituting it with the principle of inheritance by succession. These proposals met with a storm of conservative opposition. The extent of opposition within the Congress or the then government itself can be gauged from the fact that the then Law Minister Mr.Biswas, on the floor of the house, expressed hims elf against daughters inheriting property from their natal families. The retention of the Mitakshara coparcenary without including females in it meant that females couldn't inherit ancestral pro perty as males do. If a joint family gets divided, each male c oparcener takes his share and females get nothing. Only when one of the coparceners dies, a female gets a share of his share as an heir to the deceased. Thus the law by excluding the daughters from participating in coparcenary ownership (merely by reason of their sex) not only contributed to an inequity against females but has led to oppression and negation of their right to equality and appears to be a mockery of the fundamental rights guaranteed by the Constitution. Hence this very fact necessitated a further change in regards to the property rights of women, and which was done by the Hindu Succession (Amendment) Bill, 2004. The State Amendments The idea of making a woman a coparcener was suggested as early as 1945 in written statements submitted to the Hindu Law Committee by a number of individuals and groups; and again in 1956, when the Hindu Succession Bill was being finally debated prior to its en actment an amendment was moved to make a daughter and her children members of the Hindu coparcenary in the same way as a son or his children. But this progressive idea was finally rejected and the Mitakshara Joint family was retained. The concept of the Mitakshara coparcenary property retained under section 6 of the HSA has not been amended ever since its enactment. Though, it is a matter of some satisfaction that 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. Kerala, however, has gone one step further and abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere fact that he or she was born in the fa mily. In fact, it has abolished the Joint Hindu family system altogether including the Mitakshara, Marumakkattayam, Aliyasantana and Nambudri systems. Thus enacting that joint tenants be replaced by tenants in common.A list of the legislation passed by the five states is set out b elow and the legislation is annexed as Annexed "1" The Joint Hindu Family System (Abolition) Act, 1975, Kerala. The Hindu Succession (Andhra Pradesh Amendment) Act, 1986. The Hindu Succession (Tamil Nadu Amendment) Act, 1989. The Hindu Succession (Karnataka Amendment) Act, 1994. The Hindu Succession (Maharashtra Amendment) Act, 1994. The Hindu Succession (Amendment) Act, 2005 The Hindu Succession (Amendment) Act, 2005 was seeks to make two major amendments in the Hindu Succession Act, 1956. First, i t is proposed to remove the gender discrimination in section 6 of the original Act. Second, it proposes to omit section 23 of the original Act, which disentitles a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the m ale heirs choose to

divide their respective shares therein. However in the instant project we have focused specifically on the changes brought in Section 6 in regards to the position of woman and has made a clause-by-clause consideration of the section thus amended. Section 6 of the Hindu Succession Act, 1956 has been restated for convenienceDevolution of interest in coparcenary property. - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative spec ified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship. Explanation 1. For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the prope rty that would have been allotted to him if a partition of the property had taken place immediately before his death, irresp ective of whether he was entitled to claim partition or not. Explanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. The Hindu Succession (Amendment) Act, 20056 (l). Devolution of interest in coparcenary property. (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-(a) by birth become a coparcener in her own right the same manner as the son ; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a H indu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,(a) the daughter is allotted the same share as is allotted t o a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre -deceased child of the pre-deceased so or a pre-deceased daughter, as the case may be. Explanation.-- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-(a) the right of any creditor to proceed against the son, grandson or great -grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforce able under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act,

2005 had not been enacted. Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December 200 4. Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition affected by a decree of a court. Section 6 seeks to make the daughter a coparcener by birth in a joint Hindu family governed by the Mitakshara law, subject to the same liabilities in respect of the said coparcenary property as that of a son. Laws reflect the face of society and its evolution over the time. To respond to the needs of a dynamic social system, la ws have to be changed and amended, at regular intervals. As far as the basic objective of the Act is to remove gender discriminatory practices in t he property laws of the Hindus, whereby daughters have been given the status of coparceners in the Mitakshara joint family system. However, the position of other Class I female heirs should not suffer as a result of this move. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to pro vide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inher itance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Changes Brought In The Position Of The Women (Specifically Focusing On Section 6) Out of many significant benefits brought in for women, one of the significant benefit has been to make women coparcenary (rig ht by birth) in Mitakshara joint family property. Earlier the female heir only had a deceased man's notional portion. With this amendment, both male and female will get equal rights. In a major blow to patriarchy, centuries-old customary Hindu law in the shape of the exclusive male mitakshara coparcenary has been breached throughout the country. The preferential right by birth of sons in joint family property, with the offering of " shradha" for the spiritual benefit and solace of ancestors, has for centuries been considered sacred and inviolate. It has also played a major role in the blatant preference for sons in Indian society. This amendment, in one fell swoop, has made the daughter a member of the coparcenary and is a significant advancement towards gender equality. The significant change of making all daughters (including married ones) coparceners in joint family property - has been of a of great importance for women, both economically and symbolically. Economically, it can enhance women's security, by giving them birthrights in property that cannot be willed away by men. In a male-biased society where wills often disinherit women, this is a substantial gain. Also, as noted, women can become kartas of the property. Symbolically, all this signals that daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband's family. If her marriage breaks down, she can now return to her birth home by right, and not on the sufferance of relatives. 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. Now under the amendment, daughters will now get a share equal to that of sons at the time of the notio nal partition, just before the death of the father, and an equal share of the father's separate share. Equal distribution of undivided interests in co -parcenery property. However, the position of the mother vis--vis the coparcenary stays the same. She, not being a member of the coparcenary, will not get a share at the time of the notional partition. The mother will be entitled to an equal share with other Class I heirs only from the separate share o f the father computed at the time of the notional partition. In effect, the actual share of the mother will go down, as the separate share of the father will be less as the property will now be equally divided between father, sons and daughters in the notional partition. Some Anomalies Still Persist Some other anomalies also persist1. One stems from retaining the Mitaksara joint property system. Making daughters coparceners will decrease the shares of oth er Class I female

heirs, such as the deceased's widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra, the widow's potential share will now equal the son's and daughter's. But where the wife takes no share on partition, as in Tamil Nadu or And hra Pradesh, the widow's potential share will fall below the daughter's. 2. Co-parcenary remains a primary entitlement of males; the law, no doubt provides for equal division of the male co -parcener's share on his death between all heirs, male and female; still, the law puts the male heirs on a higher footing by providing that they shall inherit an additional independent share in co-parcenary property over and above what they inherit equally with female heirs; the very concept of co-parcenary is that of an exclusive male membership club and therefore should be abolished. But such abolition needed to be dovetailed with partially restricting the right to will (say to 1/3 of the property). Such re strictions are common in several European countries. Otherwise women may inherit little, as wills often disinherit them. However, since the 2005 Act does not touch testamentary freedom, retaining the Mitaksara system and making daughters coparceners, while not the ideal solution, at least provides women assured shares in joint family property (if we include landholdings, the numbers benefiting could be large). 3. If a Hindu female dies intest ate, her property devolves first to husband's heirs, then to husband's father's heirs and finally only to mother's heirs; thus the intestate Hindu female property is kept within the husband's lien. Another reason for having an all India legislation is that if the Joint Family has properties in two states, one which is gov erned by the Amending Act and the other not so governed, it may result in two Kartas, one a daughter and the other a son. Difficulties pertaining to territorial application of Amending Act will also arise. Thus is the need for an all India Act or Uniform Civil Code more imm ediate. Conclusion The Preamble to the Amending Acts indicates the objective as the removal of discrimination against daughters inherent in the mitakshara coparcenary and thereby eradication of the baneful system of dowry by positive measures thus ameliorating the condition of women in the human society. It is necessary to understand that if equality exists only as a phenomenon outside the awareness and approval of the majority of the people, it cannot be realized by a section of women socialized in traditions of inequality. Thus there is need to social awareness and to educate people to change their attitude towards the concept of gender equality. The need of the hour is also to focus attention on changing the social attitudes in favour of equality for all by enacting a uniform law. The difficult question of implementing the 2005 Act remains. Campaigns for legal literacy; efforts to enhance social awareness of the advantages to the whole family if women own property; and legal and social aid for women seeking to assert their rights, are only a few of the many steps needed to fulfill the change incorporated in the Act.

Position of karta and the effect of amendment of section 6 of HSA, 1956 in 2005
Roopa Gargava - Student Meaning A Hindu joint family consists of the common ancestor and all his lineal male descendants upto any generation together with th e wife/ wives (or widows) and unmarried daughters of the common ancestor and of the lineal male descendants. Whatever the skeptic may say about the future of the Hindu joint family, it has been and is still the fundamental aspect of the life of Hindus. A co-parcenery is a narrow body of persons within a joint family. It exclusively consists of male members. A Hindu coparcenery is a corporate entity, though not incorporated. A coparcenery consists of four successive generations including the last male holder of the property. The last male holder of the property is the senior most member of the family. In the entire Hindu joint family, the karta or manager (the English word manager is wholly inadequate in understanding his unique position) occupies a very important position. Karta is the eldest male member of the family. He is the Hindu patriarch. Only a coparcen er can become Karta. Such unique is his position that there is no office or any institution or any other system of the world, which can be compared with it. His position is sui generis i.e. of his own kind or peculiar to himself. Peculiarity lies in the fact that in terms of his share/interest, the Karta is not superior and has no superior interests in the coparcenery. If partition takes place he is entitled to take his share. He is a person with limited powers, but, within the ambit of his sphere, he possesses su ch vast powers as are possessed by none else. His position is recognized /conferred

by law. No stranger can ever be qualified to be a karta, but an adopted son who is the eldest in the family can be qualified. 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 fam ily: 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 o ther than those in which the joint famil y 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 ta kes 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 le per 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. Aft er 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. # Junior Male Member In the presence of a senior male member, a junior male member cannot be the Karta. But if all the coparceners agree, a junior male member can be a Karta. Coparceners may withdraw their consent at any time. "So long as the members of a family remain undivided the senior member is entitled to mana ge 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 m anagement and a junior member may be appointed as manager." Narendrakumar J Modi v. CIT 1976 S.C. 1953 Facts: - Baplal Purushottamdas Modi was the head of the HUF. Joint family possesses many immovable properties and carried business of various types such as money lending, etc. He executed a general power of attorney in favor of his 3rd son, Gulabchand on Oct 5, 1948. On Oct 22, 1954 Baplal relinquished his share. On Oct 24, 1954 the existing members of the family executed a memo of partition. Howe ver, the order accepting partition was not passed, the contention of the appellant was that Gulabchand couldnt be a karta because he is a junior member and other members of the family did not accept him as a karta. Judgment: - It was held that Gulabchand was given the power to manage by Baplal because Gulabchands elder brother was an aged man of 70 years. And also the father of appellant died in 1957. So, under such circumstances, Gulabchand appears to have acted as the Karta with the consent of all the other members and hence the appeal was dismissed. # Female Members As Karta The concept of a manager of a Joint Hindu Family has been in existence for more than two thousand years or more. Courts in India have given diverse views: C.P. Berai v. Laxmi Narayan AIR 1949 Nag 128 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/incurred the liability, but whether the transaction was justified by necessity. Sushila Devi Rampura v. Income tax Officer AIR 1959 Cal It was held that where the male members are minors, their natural guardian is their mother. The mother can represent the HUF for the purpose of assessment and recovery of income tax. Radha Ammal v. Commissioner of Income Tax AIR 1950 Mad 588 It was held that since a widow is not admittedly a c oparcener, she has no legal qualification to become a manger of a JHF. Commissioner of Income Tax v. Seth Govind Ram AIR 1966 S.C. 2 After reviving the authorities it was held that the mother or any other female could not be the Karta of the Joint Family. According to the Hindu sages, only a coparcener can be a karta and since females cannot be coparceners, they cannot be the Karta of a Joint Hindu Family. The above views seem to be rigid. Rigidity in law is a fatal flaw. Since it is depended upon an ill di rected question whether the transferor was a coparcener. Dharmashastra is one and only sure guide. According to Dharmashastras, in absence of male members female members can act as karta, or in case where male members if present are minors, she can act as karta. Debts incurred even by female members under such circumstances will be binding upon the family and must be paid out of the joint family funds whether at the time of partition or earlier. Often the question is raised as to whether her acts are for the benefit of the family. Dharmashastra answers it by saying that she might act as manager by doing acts of positive benefit and not merely conservative/negative acts. "The position according to the Mitakshara theory as developed by Vijnaneshwara seems to be this, that a wife gets rights of ownership of her husband's separate and joint family property from the moment of her marriage and a daughter from the moment of her birth. But Vijnaneshwara does make a distinction between males and females and says that females are asvatantra or unfree. If we are to translate his notion into the language of the coparcenary, I think we can state that women are coparceners but 'unfree' coparceners." Prior to 1956, Hindus were governed by property laws, which had no coherence and varied from region to region and in some cases within the same region, from caste to caste. The Mitakshara School of succession, which was prevalent in most of North India, believed in the exclusive domain of male heirs. Mitakshara is one of the two schools of Hindu Law but it prevails in a large part of the country. Under this, a son, sons son, great grandson and great grandson have a right by birth to ancestral property or properties in the hands of the father and their interest is equal to that of the father. The group having this right is termed a coparcenary. The coparcenary is at present confined to male members of the joint family. In contrast, the Dayabhaga system did not recognize inheritance rights by birth and both sons and daughters did not have rights to the property during their fathers lifetime. At the other extreme was the Marumakkattayam law, prevalent in Kerala, which traced the lineage of succession through the female line. According to Hindu Minority and Guardianship Act, 1956 woman can take only a conservative action. It is certain that guardian acting under the act cannot undertake every class of proceeding that would be open to a manager. Act does not purport to confer upon the guardian the power of manager. Former Prime Minister Jawaharlal Nehru championed the cause of womens right to inherit property and the Hindu Succession Act was enacted and came into force on June 17, 1956. Many changes were brought about that gave women greater rights but they were still denied the important coparcenary rights. Subsequently, a few States enacted their own laws for division of ancestral property. In what is known as the Kerala model, the concept of coparcenary was abolished and according to the Kerala Joint Family Syste m (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 pla ce. Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra (1994) also enacted laws, where daughters were granted coparcener rights or a claim on ancestral property by birth as the sons. In 2000, the 174th report of the 15th Law Commission suggested amendments to correct the discrimination against women, and this report forms the basis of the present Act. Discrimination against women was the key issue before the Law Commission.

The amendment made in 2005 gives women equal rights in the inheritance of ancestral wealth, something reserved only for male heirs earlier. It indeed, is a significant step in bringing the Hindu Law of inheritance in accord with the constitutional principle of equality. Now, as per the amendment, Section 6 of the Hindu Succession Act, 1956 gives equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. The amendment was made because there was an urgent need for certainty in law. Though the 2005 amendment gives equal rights to daughters in the coparcenery. An important question is still unanswered whether women or daughters can be allowed to become managers or karta of the joint family. The objection to this issue of managing a joint family as visualized is that daughters may live away from the joint family after their marriage but it is well appreciated that women are fully capab le of managing a business, taking up public life as well as manage large families as mothers. Another doubt being considered is that as managers of their fathe rs' joint family they could be susceptible to the influence of their husbands or husbands' families. 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 l ike 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 affa irs 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 inve st, to prepare accounts, to save money. # Karta may discriminate i.e. he is not bound to treat all members impartially. He is not bound to pay income in a fixed proportion to other members. Even if he enters such an agreement /arrangement, he can repudiate the same with impunity. However large powers a karta might have, he cannot be a despot. He has blood ties with other me mbers of the family. After all he is a person of limited powers. He has liabilities towards members. Any coparcener can at any time ask for partition. He obtains no reward fo r his services and he discharges many onerous responsibilities towards the family and its members. His true legal position can be understood only when we know the ambit of his powers and liabilities. 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 o f daughters. Marriage of a daughter is considered as a sacrosanct duty under Hindu law. Marriage expenses are defrayed out of joint fami ly funds. Chandra Kishore v. Nanak Chand AIR 1975 Del 175 In this case it was held that Karta is responsible for managing the expen ses 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 joi nt 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 plainti ff. 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 dec ree 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 prope rty. 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 in to 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 alie nate in exceptional cases. In the latter case his powers are large, almost absolute. First we will discuss the other powers. Other powers # Powers of management: - As the head of the family, kartas powers of management are almost absolute. He may mange the property of the family, the family affairs, the business the way he likes, he may mismanage also, nobody can question his mismanagement. He i s not liable for positive failures. He may discriminate between the members of the family. But he cannot deny m aintenance /use/occupation of property to any coparcener. The ever-hanging sword of partition is a great check on his absolute powers. Probably, the more effective check is the affection and the natural concern that he has for the members of the family and the complete faith and confidence that members repose in him. # Right to income: - It is the natural consequence of the joint family system that the whole of the income of the joint family property, whosoever may collect them, a coparcener, agent or a servant, must be handled over to the karta .It is for the karta to allot funds to the members and look after their needs and requirements. The income given to the karta is an expenditure incurred in the interest of the family. Jugal Kishore Baldeo Sahai v. CIT (1967) 63 ITR 238 In the present case, both the members of the Hindu undivided family, who were the only persons competent to enter into an agr eement on its behalf, considered it appropriate that the karta should be paid salary at the rate of Rs. 500/ - per month for looking after its interest in the partnership in which it had a substantial interest because its karta was a partner therein as its representative, and entered into an agreement to pay salary to him for the services rendered to the family. The ratio of the above decision is, therefore, applicable to the present case. Accordingly, the salary paid to him has to be held to be an expenditure incurred in the interest of the family .The expenditu re having been incurred under a valid agreement, bonafide, and in the interest of and wholly and exclusively for the purpose of the business of the Hindu undivided family, is allowable as a deductible expenditure under section 37(1) of the Indian Income Tax Act, 1922 in computing the income of the Hindu undivided family. # Right to representation: - The karta of a joint family represents the family in all matters - legal, social, religious. He acts on behalf of the family and such acts are binding on the family. The joint family has no corporate existence; it a cts in all matters through its karta. The karta can enter into any transaction on behalf of the family and that would be binding on the joint family. Dr. Gopal v. Trimbak AIR 1953 Nag 195 In this case, it was held that a manager/karta can contract debts f or carrying on a family business/ thereby render the whole family property

including the shares of the other family members liable for the debt. Merely because one of the members of the joint family a lso joins him, it does not alter his position as a karta. # Power of Compromise: - The karta has power to compromise all disputes relating to family property or their management. He can also compromise family debts and other transactions. However, if his act of compromise is not bonafide, it can be challenged i n a partition. He can also compromise a suit pending in the court and will be binding on all the members, though a minor coparcener may take advant age of O.32, Rule 7 C.P.C., which lays down that in case one of the parties to the suit is a minor the compro mise must be approved by the court. # Power to refer a dispute to arbitration: - The karta has power to refer any dispute to arbitration and the award of the arbitrators will be binding on the joint family if valid in other respects. # Kartas power to contract debts: - The karta has an implied authority to contract debts and pledge the credit of the family for ordinary purpose of family business. Such debts incurred in the ordinary course of business are binding on the entire family. The karta of a non-business joint family also has the power to contract debts for family purposes. When a creditor seeks to make the entire joint family liable for such debts, it is necessary for him to prove that the loan was taken for family purposes, or in the ordinary course of business or that he made proper and bona fide enquiries as to the existence of need. The expression family purpose has almost the same meaning as legal necessity, ben efit of estate, or performance of indispensable and pious duties. # Loan on Promissory note: - When the karta of a joint family takes a loan or executes a promissory note for family purposes or for family business, the other members of the family may be sued on the note itself even if they are not parties to the note. Their liab ility is limited to the share in the joint family property, though the karta is personally liable on the note. # Power to enter into contracts: - The karta has the power to enter into contracts and such contracts are binding on the family. It is also now settled that a contract, otherwise specifically enforceable, is also specifically enforceable against the family. Power of alienation Although no individual coparcener, including the karta has any power to dispose of the joint family property without the cons ent of all others, the Dharma Shastra recognizes it. That in certain circumstances any member has the power to alienate the joint family propert y. The Mitakshara is explicit on the matter. According to Vijnaneshwara: ....even one person who is capable may conclude a gift, hypothecation or sale of immovable property, if a calamity (apatkale) affecting the whole family requires it, or the support of the family (kutumbarthe) render it necessary, or indispensable duties (dharmamart he), such as obsequies of the father or the like, made it unavoidable. The formulation of Vijnaneshwara has undergone modification in two respects: # The power cannot be exercised by any member except the karta. # The joint family property can only be alienated for three purposes: (a) Apatkale (Legal Necessity) (b) Kutumbarthe (Benefit of Estate) (c) Dharmamarthe (Religious obligations) (a) Legal Necessity: - It cannot be defined precisely. The cases of legal necessity can be so numerous and varied that it is impossible to reduce them into water tight compartments. Loosely speaking it includes all those things, which are deemed necessary for the members of the family. What need to be shown is that the property was alienated for the satisfaction of a need. The term is to be interpre ted with due regard to the modern life. Where the necessity is partial, i.e. where the money required to meet the necessity is less than the amount rais ed by the alienation, then also it is justified for legal necessity. Dev Kishan v. Ram Kishan AIR 2002 Raj 370 Facts:- Ram Kishan , the plaintiff filed a suit against appellants, defendants. Plaintiffs and defendants are members of a Joint Hind u Family. Defendant no.2 is the karta, who is under the influence of defendant no.1 has sold and mortgaged the property for illegal and immoral purposes as it was for the marriage of minor daughters Vimla and Pushpa. The defendants contention was that he took the loan for legal necessity. Judgment: - The debt was used for an unlawful purpose. Since it was in contravention of Child Marriage Restraint Act, 1929, therefore it cannot be called as lawful alienation. (b) Benefit of Estate: - Broadly speaking, benefit of estate means anything, which is done for the benefit of the joint family property. There are two views as to it. One view is that only construction, which is of defensive character, can be a benefit of estate. This vie w seems to be no

longer valid. The other view is that anything done which is of positive benefit, will amount to benefit of estate. The test i s that anything which a prudent person can do in respect of his own property. (c) Indispensable Duties: - This term implies performance of those acts, which are religious, pious, or charitable. Vijnaneshwara gave one instance of Dharmamarthe, viz., obsequies of the father and added or the like. It is clear that this expression includes all other indispensable duties such as sradha, upananyana, and performance of other necessary sanskars. For the discharge of indispensable duties the karta may even alienate the entire property. A karta can even alienate a portion of the family property for charitable/pious purposes. Howeve r, in this case, the powers of the karta are limited i.e. he can alienate a small portion of the joint family property, whether movable/immovable. Alienation Is Voidable It may be taken as a well-settled law, that alienation made by karta without legal necessity / benefit of estate/ discharge of indispensable duties is not void but merely voidable at the instance of any coparcener. In CIT v Gangadhar Sikaria Family Trust (1983) 142 ITR 677, the Gauhati High Court was called upon to decide whether the Income-tax Officer can challenge the validity of an alienation by the karta of a Hindu undivided family. The High Court held that under the Hindu Law, the karta of a Hindu undivided family has an unfettered right to alienate the joint family property for legal n ecessity and for the benefit of the estate or the family. It was further held that even if a transfer by the karta were not for legal necessity or for the benefit of th e estate, but if it is done with the consent of the coparceners, it would be only voidable and not void ab-initio. It is clear that alienation by the karta or manager of a joint family is voidable, but not void. Hence, a third party cannot repudiate it, except in cases where there is a suggestion that it was in fraud on creditors. Separate Property It is now settled that the karta can alienate the joint family property with the consent of the coparceners even if none of t he above exceptional cases exist. Alienation without the consent of the coparcener, which is not for legal necessity, is voi d. It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the busines s were blender with the joint family estate, the business remains free and separate. Law as enumerated under Article 222 of Mulla Hindu Law is well settled that a Hindu, even if be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth, and on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners. P.S. Sairam v. P.S. Ramarao Pisey AIR 2004 SC 1619 Facts: - P. Eswar Rao had 3 marriages. From his second marriage he had 2 sons: - P. Sadashiv Rao (defendant no.1 he is the karta of the family) and P.E. Panduranga Rao. Sadashiv Rao had 2 wives. Godavari Bai was his first wife. She had 2 sons one of them is the plaintiff, P.S. Ramarao Pissey. Plaintiffs case is that defendant no.1 started a business from the income and property of joint family in the name of M/s Pissey and sons. The contention of the defendants is that the property was his self-acquisition, which he acquired by raising loans from the market. Judgment: - It was held that it was defendant no.1s separate property. The kartas powers and liabilities and the kartas power of alienation of property under the Dayabhaga school are same as that of the Mitakshara karta. The main difference between the two schools is that in case of Dayabhaga the karta must render full accounts at all times, whenever required to do so by the coparcener, while in case of Mitakshara the karta is required to render accounts only at the time of partition or unless there are charges against him for fraud/misappropriation. Conclusion The reasoning, which was earlier given by the courts including the apex court of the country that woman, cannot become a karta because a karta has to necessarily be a coparcener. But now, with the amendment of 2005, Section 6 of the Hindu Succession Act, 1956 gives equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Even now the Hindu Succession Act, 1956 does not accept a woman as karta in normal circumstances. She can be a karta only in 2 certain special circumstances: - in the absence of male members, and in case there are minor male members in the family, which is prescribed by the ancient Hindu law, the dharmashatras. It should be understood that amendments are only the first step. The law can only be a path breaker; it cannot ensure that justice is done. For that there must be a positive change in social mores. The law would always be a step behind. Women have to become aware that the law does not discriminate against them in property matters and that they cannot be shortchanged any more. In many cases, justice is denied simply

because of lack of awareness. Here, hopefully, the right to Information Act would kick in and facilitate greater access for w omen to know about their rights. In fact, they should be empowered and enabled to demand their rights, wherever they are sought to be denied. The government should take steps to uplift the position of woman in other personal laws also. It must be understood that 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. Further analyzing the position of karta, it can be said that he has less liabilities and more powers. Thou gh at the same time it cannot be said that he holds the position of a despot. When it comes to determination of the position of karta it can be said that he holds a uni que position. In totality it can be said that all family members are duty bound to accep t what karta says until/unless it is detrimental to them. *************** Bibliography Books: # Darret J., Duncan M. "Essays in Classical and Modern Hindu Law" Vol.2, Universal Book Traders Page no. 114. # Dr. Diwan Paras Modern Hindu Law 16th Edition, Allahabad Law Agency, Page no. 290-294.

family law-son's pious obligation

Priyanka Tiwari and Ritu Sharma Introduction Under the Hindu Law, a son is under a pious obligation to discharge his father's debts out of his ancestral property even if he had not been benefited by the debts, provided the debts are not avyavaharika. The sons get exonerated from their obligation to discharge the debt of their father from the family assets only if the debt was one tainted with immorality or illegality. The duty that is cast upon the son being religious and moral, the liability of the son for the debt must be examined with reference to its charac ter when the debt was first incurred. If at the origin there was nothing illegal or repugnant to good morals, the subsequent dish onesty of the father is in not discharging his obligation will not absolve the son from liability for the debt. In Hindu law there are two mutually destructive principles, one the principle of independent coparcenary rights in the sons w hich is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge t heir father's debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of suc h debts. According to the Hindu law givers his pious duty to pay off the ancestors' debts and to relieve him of the death torments consequent on non-payment was irrespective of their inheriting any property, but the courts rejected this liability arising i rrespective of inheriting any property and gave to this religious duty a legal character. What is son's pious obligation- history If a debt contracted by the father has not been repaid during his lifetime, by himself, it must be restored, after his death, by his sons. Should they separate, they shall repay it according to their respective shares. If they remain united, they shall pay it in common, or the manager shall pay it for the rest, no matter whether he may be the senior of the family or a younger mem ber, who, during the absence of the oldest, or on account of his incapacity, has undertaken the management of the family estate. Mukherjea J., delivering the judgment of the Supreme Court in Sidheshwar v. Bhubaneshwar Prasad , has once again discussed this question. According to the learned Judge, the doctrine of pious obligation. "has its origin in the conception of Smriti writers who regard non -payment of debt as a positive Sin, the evil consequences of which follow the undischarged debtor even in the after world. It is for the purpose of rescuing the father from his torments in the next world that an obligationis imposed upon the sons to pay their father's debts. " A series of decisions in the courts of modern India have changed the traditional interpretation of the liabilities of the son, grandson, and great grandson. The traditional distinction was that the son was liable to pay the principal and the interest, the grandson was lia ble to pay only the principal but no interest, and the great-grandson was liable only to the extent that the paternal estate came into his hands. The son, grandson, and the great-grandson are liable equally for ancestral debts, but not personally liable, and that their liability is co -extensive and confined to the extent that they have joint property in their possession.

It was not essential for the son to prove criminal liability against the father in respect of the debt in question in order t o claim exemption from payment of such debt. The learned Judge pointed out that the son can claim immunity only when the father's conduct is utterly repugnant to good morals or is grossly un-iust or is flagrantly dishonest. Avyavaharik debts In this section we will look as to what is meant by Avyavaharik debts. Colebrooke defined it as a liability incurred for a cause repugnant to good morals. If it is unrighteous or wholly improper they cannot be called vyavaharika or legal debts. It may be that the deb ts incurred by the father for defending himself against criminal action against others or defending himself in an action brought by others are legal in several circumstances. If a debt was incurred to defend the rights of the family and to safeguard its interests, it is certainly lega l in nature. If a debt is not tainted with illegality at its inception it may be binding on the son. The son may not be able to claim immunity from the debts in such cases. But, where the father's conduct which prompted the incurring of the debt, is utterly repugnant to good morals or is grossly u njust or flagrantly dishonest, then certainly the son can claim immunity from its liability. The learned author Mulla of Hindu Law (at pp, 350 an d 351 in l3th edition) places any debt which is avyavaharika which is rendered by Colebrooke as equivalent to a debt for a cause "repugnant to good morals'' in the list of Avyavaharika debts. It is further stated that the fundamental rule is that the sons are not liable for the deb ts incurred by father which are Avyavaharika. Colebrooke translates it as "debts for a cause repugnant to good morals." Aparaka explains it as not righteous or proper. In a decision of a Full Bench in Bombay High Court it was held that Avyavaharika debt means illegal, dishonest or immoral one . It is not essential for the son to prove criminal liability of the father in order to claim exemption. So, where a person in possession of property, to which he is not entitled, disposes of that property and deprives the rightful owner of that property, his conduct is dishonest and the son is not liable for the debts arising out of such conduct Lord Dunedin of the Privy Council defined the antecedent debts as antecedent in fact as well as in time i.e. not a part of transaction impeached. Thus two condition are necessary: 1. The debts must be prior in time and 2. The debts must be prior in fact. A son could claim immunity only where the debt in its origin was immoral by reason of the money having been obtained by the c ommission of an offence; but not where the father came by the money lawfully but subsequently misappropriated it. It is only in the former case that the debt answers the description of an Avyavaharika debt. If originally the taking was not immoral, i.e., if it did not have a corrupt beginning or founded upon fraud, it could not be characterised as an Avyavaharika debt and the son could not be exempted from satisfying that debt. The supervening event, namely, the misappropriation later on would not change the nature of the debt. The vices should be inherent in the debt itself. Immoral debts are those which are taken in furtherance of an immoral purpose such as for prostitution or for keeping of concubine. Thus the expenses of the marriage of concubine's granddaughter or to bribe to hindu women so that she may take one of his son in adoption or purpose of gambling will be for illegal purpose .the debts resulting from the highly tortuous act which at their inception are tainted w ith an evil purpose are avyavaharika. Father's power of alienation for antecedent debts The father himself can alienate the joint family property property for the discharge of his personal debt and son can challenge it only if the debts are tainted. This means that the father can do it indirectly also. The pious obligation of the son to pay off the father debt exits whether the father is alive or dead. It is open to father during his life time , to convey joint family property including the interest of the s on to pay off antecedent debts not incurred for family necessity or benefit provided the debts are not tainted with immorali ty. The father can not do so after filing of the suit for partition. Burden of proof that the debts is tainted is on sons The obligation on son to pay off their father's personal debts is religious obligation and if they want to wriggle out of it? they can do so only if the debts are tainted the son also have to show that creditor had the notice or knowledge that the debts was tainted. The Ape x Court in Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal, relying upon the judgments of the Privy Council referred to (supra), enunciated the principles thus : "the sons who challenge the alienations made by the father have to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so tainted." The learned judge points out that the doctrine, as formulated in the original texts, has indeed been modified in some respects by judicial decisions. That under the law as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets, and that it is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dea d. If the debts have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparceners property can always be made liable for such debts. The proposition laid down in Brij Narain's case is founded upon the pious obligation is that a Hindu son limited to his interest in the joint family property to pay the debt contracted by the father for his own benefit and not for any immoral or illegal purpose. By incurrin g the debt, the father enables the creditor to sell the property in execution of a decree against him for payment of the debt. The son is under a pious obligation to pay

all debts of the father, whether secured or unsecured. In Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni, the observations of the Supreme Court are as follows: Whether father is the Karta of a Joint Hindu family and the debts are contracted by the father in his capacity as manager and head of the family for family purposes, the sons as members of the joint family are bound t o pay the debts to the extent of their interest in the coparcenary property. Further, where the sons are joint with their father and the debts have been contracted by the father for his own pe rsonal benefit, the sons are liable to pay the debts provided they are not incurred for illegal or immoral purposes. When a mortgage has been created by the father A Full Bench of the High Court gave the following answer : "In the case of a Hindu joint family consisting of a father and sons when a mortgage has been created by the father of joint property, and a decree has been obtained on the basis of the mortgage, the only ground on which the sons can challenge the mortgage and the decree is that the debt was incurred for illegal or immoral purposes and that for thi s purpose it is immaterial whether the mortgaged property has actually been brought to sale in execution of the decree or not." It may be mentioned here that the distinction between a father manager and a brother manager cannot be lost sight. In the cas e of debts contracted by the father manager, the son is bound to discharge the same on account of the doctrine of pious obligation notwithstanding the fact that the debt was contracted for no legal necessity, nor for the benefit of the family. The doctrine of pious obligation has no application in the case of the brother manager. Therefore, the debt contracted by the brother manager binds the other members the joint family only when it was for legal necessity and for the benefit the family. The doctrine of pious obligation has no application when the debt contracted by the father was for any illegal or immoral purposes. In Hemraj v. Khem Chand , the Court referred to the Judicial Committee's view which held that the translation of the term 'avyavaharika' as given by Mr. Colebrooke makes the nearest approach to the true conception the term as used in the Smrithi text, and that the ter m does not admit of a more precise definition. The term commonly used in decisions and text books to describe those debts the father for which the son is not liable is 'illegal or immoral'. The expression was doubtless originally meant to render 'avyavaharika' but it has come to be used as a compendious temi to cover all the cases enumerated in the smiritis. It is, therefore, expedien t to use the term 'illegal or immoral' purposes then 'avyavaharika' which as discussed by me supra eludes any precise definition. No pious obligation is involved in the said debt inasmuch as it is not the personal debt neither the father nor the debts con tracted for the benefit of the family. As understood the legal position is so clear that so long as the purpose is not tainted with the element of il legality or immorality the sons are liable under thedoctrine of pious obligation. In Keshav Nandan Sahay Vs. The Bank of Bihar it was said that sons are liable under the theory of pious obligation for the preparation debts incurred by the father. The doctrine of pious obligation cannot appl y to the wife and she, therefore, cannot be liable to the creditors on the principles applicable to the sons. On a partition between a coparcener and his sons, a share is allotted to the wife in her own right and she cannot be treated as mere representative of the husband. The principle is based upon ancient Hindu texts which do not mention the wife in the category of the sons and there is no statutory enactment ex - tending that doctrine so as to include her. Ramasamayyan v. Virasami Ayyar ((1898) I.L.R. 21 Mad. 222). Even where the mortgage is not for legal necessity or for payment of antecedent debt, the creditor can, in execution of a mortgage decree for the realisation of a debt which the father is personally liable to repay, sell the estate without obtaining a personal decree against him. After the sale has taken place, the son is bound by the sale, unless he shows that the debt was non-existent or was tainted with immorality or illegality. Apentala Raghavaiah Vs. Boggawarapu Peda Ammayya In this case, the plaintiff's father Yellamanda did Tobacco business with the respondent and thereby became indebted to him and because of which the father sold the property to defendant for paying off the debts.The respondent contested the petition by filing his counter contending that the Tobacco business was done by the father the petitioner for the benefit the joint family and the debt contracted by him is not 'Avyavaharika debt' that the petitioner is liable to discharge such debt incurred by his father in connection with such business. In the decision of the Supreme Court reported in Manibhai v. Hemraj, also it is observed in para-38, after referring to various earlier decisions of the Supreme Court as well as some other High Courts, as follows: "Even if "any loan is taken by the father for his personal benefit which is found as vyavaharik debt and not avyavaharik, the sons are liable to discharge their father's debt under the doctrine of pious obligation and in this view the matter if any alienation the joint family property is subsequently made to discharge such antecedent debt or loan of the father, such alienation would be binding on the sons.'' Analysis The Hindu Undivided Family system is a unique feature of the Indian society and the concept of pious obligation acts as a thr ead which binds the family together and prevents it from disintegration. Pious obligation includes both spiritual as well as material aspects and makes the heir(s) responsible/liable for spiritual duties, like performing the last rites of the deceased, paying back debts accrued by the dec eased and also

fulfilling other responsibilities left incomplete in respect of the joint family. Once pious obligation is abrogated, the concep t of joint family also suffers a blow. Conclusion "The doctrine of pious obligation under which sons are held liable to discharge their father's debts is based solely on religious considerations; the doctrine inevitably postulates that the father's debts must be vyavaharik. If the debts are not vyavaharik or are avyavah arik the doctrine of pious obligation cannot be invoked." The principle relating to the liability of the sons for debts incurred by the father may be briefly recapitulated. # In respect of debts contracted by the father, even for his personal benefit, at a point of time when he is joint with his s ons, the sons are liable to pay such debts, unless the debts were incurred for immoral or illegal purposes. # This liability of the sons, which had its origin in an obligation of piety and religion, has since metamorphosed into one o f legal liability but this 'does not, however, extend to debts tainted with immorality. # The liability is not, however, personal in the sense that the creditor of the father cannot proceed either against the pers on or separate Property of the sons, but such liability is Restricted to the interest of t he sons in the family property. # It is settled that if the debt is contracted by the father after partition, the son cannot be made liable # If, however, the debt is a pre-partition debt, the share of the sons would be liable even after partition, if th e debts of the father are not immoral or illegal and the partition arrangement does not make any provision for the discharge of such debts. # In case a creditor institutes a suit for the recovery of a debt against the father before partition and obtains a decree, the sons would be liable to discharge the decree passed against the father even after the partition. # Even in respect of a pre-partition debt, if a suit is instituted against the father, after partition, but he dies and his separated sons are impleaded as legal representatives, the remedy of the decree-holder against the shares allotted to the sons on partition, would be in execution and not by way of an independent suit. # If, however, after partition, a suit is instituted against the father o n a pre-partition debt and a decree is obtained against him, such a decree cannot be executed against the sons and a separate suit has to be brought against the sons in order to enable creditor to realize the amounts out of their shares. Thus the liability of the interest of the sons in such cases to discharge the debts incurred by the father is undisputed, though the method and manner of its enforcement by the creditor would vary and the sons must be afforded every opportunity, be it in a suit or exec ution proceedings to question the binding nature of the debt' or liability. After amendment of 2005 After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt.