Case Summary
| Citation | Mrs. Sujata Sharma v. Shri Manu Gupta226 (2016) DLT 647 |
| Keywords | female karta, coparcener, sec 6 HSA |
| Facts | In this case, DR Gupta and his sons held a bungalow in Delhi and a few movable properties and shares on a long-term lease. On 1st October 1971, Mr. DR Gupta died leaving behind him the five sons alongside their respective families. Mr. Kishan Mohan Gupta, the eldest son, became the Karta of the Hindu Undivided Family. At a later time, all the five sons of DR Gupta also died, and therefore the son of the younger brother of Kishan Gupta declared himself as the Karta of the HUF because he was the oldest living member of the said HUF. The plaintiff challenged him by stating that after her father and her uncles, she is the senior-most member of HUF by the plaintiff, eldest daughter of Mr. Kishan Gupta. |
| Issues | Whether the eldest daughter amongst the coparceners of Hindu Undivided family, be entitled as Karta? |
| Contentions | Arguments made by the plaintiff- Plaintiff contended that her being a lady can’t be the only reason for disqualification from being its Karta. She further contended that under the new provision, a daughter of a coparcener during a HUF, can enjoy rights to those enjoyed by a son of a coparcener. Arguments made by the defendant- The defendant objected to such claims and contended that the amended section 6 of HSA only grants daughters equal rights to be considered coparceners as those enjoyed by a male member and not extends to management of HUF property. He further argued that since the plaintiff has been married, she can’t be considered as a requisite part of HUF. |
| Law Points | In the present case, the plaintiff’s entitlement arose upon the demise of the eldest Karta, a fact corroborated by correspondences with the Land and Building Department.Undeniably, she held the status of the eldest co-parcener, making her eligible for the position of Karta within the Hindu Undivided Family (HUF), as mandated by law.The contention that female co-parceners could inherit equally but be barred from managing the HUF property is unsubstantiated by Section 6 of the Hindu Succession Act, 1956 a legislation designed to ensure gender-neutral inheritance rights.The removal of the qualification barrier for female co-parceners to become Kartas signifies a progressive stride towards gender equality.Thus, courts must vigilantly safeguard the statutory provisions that enhance female inheritance rights.Considering the Amendment in Hindu Succession Act, 1956, the court said that Amendment of 2005 to the Hindu Succession Act, 1956 which conferred coparcenary rights to the women, equivalent to that of men, is a quintessence of another reform in law relating to women empowerment and applies in this case as well even when the father dies before 2005. |
| Judgement | The SC held that the plaintiff’s entitlement to her father’s share in the HUF persisted post-marriage, as per Section 6 of Hindu Succession Act, 1956, render her a rightful Karta. |
| Ratio Decidendi & Case Authority |
Full Case Details
MR. JUSTICE NAJMI WAZIRI NAJMI WAZIRI, J.
1. The issue which is to be decided in this case is whether the plaintiff, being the first born
amongst the co-parceners of the HUF property, would by virtue of her birth, be entitled to
be its Karta. Her claim is opposed by defendants Nos. 1 to 4 while the defendants Nos. 5
to 9 have given their „no objection‟ to it and their „NOC‟ has been filed along with the
plaint. Therefore, defendant Nos. 5 to 9 are virtually plaintiffs. Defendants No. 10 and 11
state that their position is to be determined as per law. Ms. Mala Goel, the learned
counsel for the plaintiff, submits that the parties to the suit are the co-parceners of the
D.R.Gupta& Sons, HUF.
2. The suit property comprises residential property at 4, University Road, Delhi-110007 and
some movable properties and shares such as (i) Shares of Motor and General Finance
Ltd.; (ii) Deposits with Motor and General Finance Ltd.; (iii) Bank of Account in Bank of
India, Asaf Ali Road; and (iv) Bank Account in Vijaya Bank, Ansari Road.
3. To determine the lisin this case, the following issues were framed vide order dated
15.09.2008:
1. Whether the suit has been valued properly and proper court fee has been paid
thereon? (OPP)
2. Whether the suit for declaration, is maintainable in its present form? (OPP)
3. Whether there exists any coparcenary property or HUF at all?(OPP)
4. Whether the plaintiff is a member of D.R. Gupta and Sons HUF? And if so, to
what effect? (OPP)
5. Whether the interest of the plaintiff separated upon the demise of her father Sh.
K.M. Gupta in 1984? (OPD)
6. Assuming existence of a D.R. Gupta and Sons HUF, whether the plaintiff can be
considered to be an integral part of the HUF, particularly after her marriage in
1977, and whether the plaintiff has ever participated in the affairs of the HUF as
a coparcener, and its effect? (OPP)
7. Assuming existence of D.R. Gupta and Sons HUF, whether the plaintiff is a
coparcener of and legally entitled to be the Karta?(OPP)
8. What is the effect of the amendment in the Hindu Succession Act, in 2005 and has
it made any changes in the concept of Joint Family or its properties in the law of
coparcenary? (OPP)
9. Relief.
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4. Issue 1
This issue was decided in favour of defendant Nos. 1 to 4 by this Court, which was
subsequently set aside in Appeal No.293/2010 on 17.01.2013, therefore, this issue stands
settled in favour of the plaintiff.
5. Issues No. 2, 3, 4 and 7.
Ms. Mala Goel, the learned counsel for the plaintiff submits that pursuant to the Hindu
Succession (Amendment) Act, 2005 (hereinafter referred to as the „amended Act‟) which
amended the Hindu Succession Act, 1956, all rights which were available to a Hindu
male are now also available to a Hindu female. She submits that a daughter is now
recognised as a co-parcener by birth in her own right and has the same rights in the coparcenary property that are given to a son. She relies upon Section 6 of the Hindu
Succession Act, 1956 which reads as under…
6. She also relies upon the dicta of the Supreme Court in Tribhovan Das
HaribhaiTamboli v. Gujarat Revenue Tribunal and Ors. AIR 1991 SC 1538 which held
that the senior most member in a HUF would become the Karta. The relevant portion of
the above judgment is reproduced hereinunder:
“The managership of the Joint Family Property goes to a person by birth and is
regulated by seniority and the Karta or the Manager occupies a position superior to
that of the other members. A junior member cannot, therefore, deal with the joint
family property as Manager so long as the Karta is available except where the Karta
relinquishes his right expressly or by necessary implication or in the absence of the
Manager in exceptional and extra-ordinary circumstances such as distress or
calamity effecting the whole family and for supporting the family or in the absence of
the father whose whereabouts were not known or who was away in remote place due
to compelling circumstances and that is return within the reasonable time was
unlikely or not anticipated.”
Ms. Mala Goel further relies upon the case of Ram Belas Singh vs. Uttamraj Singh and
Ors. AIR 2008 Patna 8, which held as under. This judgment deals with Section 6B of the Act:
“9. The suit out of which this civil revision has arisen had been filed in the year
2006 much after coming into force of the Hindu Succession (Amendment) Act, 2005
(Act XXXIX of 2005) which substituted Section 6 of the Act and provided that 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 and
will have the same rights in the coparcenary property as she would have if she had
been a son and shall also be subject to the same liabilities in respect of the said
coparcenary property as that of a son and any reference to a Hindu Mitakshara
coparcener shall be deemed to include a reference to a daughter of a coparcener. In
the said circumstances, the law is made very clear that the term “Hindu
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Mitaksharacoparcener” used in the original Hindu Law shall now include daughter
of a coparcener also giving her the same rights and liabilities by birth as those of
the son.”
7. The learned counsel for the plaintiff further submits that there is clear admission by the
defendant No. 1 of the existence of the aforesaid HUF insofar as the said defendant, Manu Gupta,
had written the letter dated 3.10.2006 (Ex.P-3) to the Military authorities/Mukul Gupta/defendant
No.6 as Karta of the said HUF. This letter was written ascertaining his right as the Karta of the
HUF by virtue of being the eldest living male member of the HUF; indeed, the said letter refers to
the aforesaid HUF four times over. Similarly, identical letters have been written on 08.09.2006
(Ex. P-4) to defendant No. 9, viz. Shri Bharat Gupta.
The learned counsel also refers to Ex. PW3/C which is an extract from a note sheet. No. 36,
Clause 2 whereof reads as under:
“(i) After perusing the record available in the file it reveals that Bungalow No.4,
University Road Kingsway Camp, Delhi admeasuring an area of 25750 Sq. yards or
5.32 acres was held on Lease in Form „B‟ Cantt Court 1899 in Perpetuity dated
25.07.1906 duly registered as number 2239 Book No. 1 Vol. No. 615 on pages 8 to 54
dated 31.08.1906 on payment of an annual rent of Rs.12/- in favour of Sh. D.R. Gupta,
who died on 01.10.71.
(ii) The subject property has also been declared in the name of HUF and mutated in
favour of the Legal Heirs of Late Sh. D.R. Gupta namely (1) Sh. Kishan Mohan (2)
Shri Mohinder Nath Gupta (3) Shri Jatinder Nath Gujpta (4) Shri Ravinder Nath
Gupta and (5) Sh. Bhupinder Nath Gupta.
(iii) The above named individuals have also been declared as joint owners of the
Lease hold rights of the subject property. Shri Kishan Mohan Gupta died on 17-2-
1984 and names of his Legal Heirs have been substituted in the names of his Legal
Heirs have been substituted in the record of this office.
In his deposition on 18.07.2013, PW-3, one Mr. N.V. Satyanarayan, Defence Estate
Officer, Delhi Circle, has admitted that the mutation of Bungalow No. 4, University Road, Delhi
had been done in the name of Shri R.N. Gupta (Karta); that it is borne out from the summoned
record, i.e., a copy of the letter dated 01.06.85, addressed to Mrs. Shanta K. Mohan, w/o Late Sh.
Kishan Mohan, 18, Anand Lok, New Delhi regarding mutation in the name of successor of Late
Sh. Kishan Mohan, Karta (JHUF) in respect of 4, University Road, Delhi and letter dated
5.8.2003 from his office addressed to Sh. R.N. Gupta (Karta) & others, 4, University Road, Delhi
on the subject “Mutation of Bungalow No.4, University Road, Delhi in the name of Legal Heirs.”
In this letter, it was contended that Mr. R.N. Gupta was the sole surviving son of Mr. D.R. Gupta
and that he was thus the Karta of the said JHUF.
8. It is not in dispute between the parties that the plaintiff is the eldest surviving member of
the HUF. Accordingly, she seeks a decree in terms of the relief sought in the suit.
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9. The learned counsel for the plaintiff relies upon the case of Raghunath Rai Bareja and
Another vs. Punjab National Bank and Others (2207) 2 SCC 230 which held that, under the
Dayabhaga School of Law, an unborn son cannot have a right in the property because the said son
cannot perform Shradha whereas, under the Mitakshara School of Law, an unborn son in the
womb of his mother gets a share in the ancestral property. The rights of an unborn son in the
mother‟s womb under the Dayabhaga School of Law are premised on the ability of the child to
offer a rice ball or to conduct such necessary rituals for the benefit of the departed souls of his
ancestors. Under the Mitakshara School of Law, emphasis is on the right of inheritance of the
child and therefore, it rests upon consanguinity rather on upon the inheritance efficacy. It is
contended that Section 6 of the Hindu Succession Act extends this element of consanguinity to
female coparceners of a HUF under the Mitakshara School of Law to all aspects of inheritance,
which would include the right to manage a ritual or property as its Karta, being the eldest of the
co-parceners. She submits that by virtue of the family settlement dated 01.04.1999 (Ex. PW1/5),
the rights of the parties, then existing, were settled. It was agreed that:
“2. The parties hereto confirm and declare that the oral family settlement dated
18.01.1999 was arrived at on the following terms:
2.1 The parties acknowledge and confirmed that the parties hereto are the members of the
Hindu Undivided family D.R. Gupta and Sons (HUF) and each having share in the movable and
immovable properties presently owned by the Hindu Undivided Family as under:
(a)Shri Krishan Mohan Gupta (The eldest son of late Shri D.R. Gupta who died on 17th
Feb., 1984) and is survived by his wife Smt. Shanta K. Mohan And Mrs. Sujata Sharma & Mrs.
Radhika Seth, daughter, heirs to the party of the “First part” – 1/5th share.
(b) Shri Mahendra Nath Gupta as Karta (party of the “Second part ) – 1/5th share
(c) Mr. Ravinder Nath Gupta (party of the Third part) – 1/5th share
(d) Shri Bhupinder Nath Gupta (party of the “Fourth) – 1/5th Share
(e) Mr. Jitender Nath Gupta (party of the “Fifth part”) – 1/5th share
2.2 The parties acknowledge and confirm that the Hindu Undivided family owns and
possesses the following movable and immovable properties.
(a) Bunglow No.4, Universtiy Road, Delhi.
(b) Share of Motor and General Finance Ltd. (4308 shares)
(c) Bank account of Hindu Undivided family D.R. Gupta & Sons (HUF) with Bank of
India, Asaf Ali Road, New Delhi.
(d) Bank account with Vijiya Bank, Ansari Raod, New Delhi.
(e) Deposit with the Motor & General Finance Ltd. of Rs.6,400/- plus accumulated interest
thereon.
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2.3 The parties effected partition of Hindu Undivided family D.R. Gupta & Sons (HUF)
and that the parties being the member of the said Hindu Undivided family were entitled to and
were owners of the movable and immovable properties of the said Hindu Undivided family
mentioned in para 2.2 above to the extent as under:
a) Shri Krishan Mohan Gupta (The eldest son of late Shri D.R. Gupta, who died on 17th
Feb. 1983) and is survived by his wife Smt. Shanta K Mohan and Mrs. Sujata Sharma & Mrs.
Radhika Seth, daughter, heirs to the party of the “First part”. 1/5th share
b) Shri Mahendra Nath Gupta (as karta of the “Second party”) 1/5th share
c) Mr. Ravinder Nath Gupta (Party of the “Third part”) 1/5th share
d) Mr. Bhupinder Nath Gupta (Party of the “Fourth Part”) 1/5th share e) Mr. Jitender
Nath Gupta (Party of the “Fifth part”) 1/5th share
3. The Parties acknowledges that the party of the second, third, fourth, part are presently
residing in the Hindu Undivided family property No. 4, University Road, Delhi and that they shall
continue to reside therein till any three parties herein jointly decide and convey their intention to
the other parties herein that the said property No. 4 University Road, Delhi be put to
sale/development then the said property shall be put up for sale/development immediately by all
the parties. Party of the second, third and fourth part within six months thereof and thereafter
will vacate the said property.
4. Sale or development of the said property would be taken up only if the total
consideration is equal to or in excess of Rs. 20 Crores. It was further agreed that out of the total
consideration received, first one crore would be away at 1/3rd each to the 3 parties two, three
and four who are residing on the premises towards relocation expenses and the balance
consideration then would be divided in five equal parts.
It was further agreed that under the said family oral family settlement, in the event the
parties of the second, third and fourth part are desirous of purchasing the said property, either
singly or jointly then the market value of the said property shall be determined and the parties
desirous of purchasing would be pay all the other parties who are selling their share the value of
their share as determined by the market price of the said property. In case the purchase is made
by any one or two of the parties of the second, third & fourth part then the parties/party out of the
2nd, 3rd and 4th parties who are not the purchaser and are being asked to vacate the premises
occupied by them would be paid their share of the relocation expenses as described in earlier in
clause 4 of the agreement.
It was further under the said oral family settlement that till such time that the permission of (sic.)
competent authority to subdivide or to construct the said property is received the two families
who are not in occupation of the said property would not demand demarcation or setting aside of
their share in the property. However, once the permission to construct and subdivide is received
then it would be their right to demand demarcation and possession of their share in the said
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property. In case on demarcation if anyh one(sic) or two or all out of the 2nd, 3rd and 4th parties
move out of their present constructed portion that they are occupying, then the affected
party/parties would be paid relocation expenses as described earlier in Clause 4 of the
agreement. In such event, the parties 2, 3 & 4 will be aloowed a minimum, period of six months to
vacate the respective premises.”
10. The plaintiff is the daughter of Kishan Mohan Gupta, who is one of the acknowledged
coparceners of the said HUF and was thus a party. She had signed the settlement as a member of
the family and her signatures would have to be read as one of the parties. Her signatures would
testify that she has a share in the property otherwise her signature would not be necessary.
11. Ms. Goel, the learned counsel, further submits that the share of a Karta is restricted by
restraints placed upon the Karta inasmuch as no rights can be created nor can the property be
appropriated to the detriment and exclusion of any of the co-parceners.
12. In the circumstances, issue Nos.2, 3, 4 and 7 are answered in the affirmative in favour of the
plaintiff.
12. On behalf of defendant Nos. 10 and 11, the learned counsel, Mr. B. K. Srivastava, submits in
support of the plaintiffs claim, that the stipulation in Section 6(1) of the Hindu Succession
Act,1946, which devolves interest in co-parcenary right, is clear and unambiguous and does not
call for any interpretation; that any reference to Hindu Mitakshara Law would be deemed to
include a daughter with equal rights in the coparcenary, no other view regarding succession is
permissible in view of the overriding effect as per Section 4. For literal rule of interpretation, he
relies upon the dicta of the Supreme Court in Raghunath Rai Bareja and Another vs. Punjab
National Bank and Others (2007) 2 SCC 230.
“40. It may be mentioned in this connection that the first and foremost principle of
interpretation of a statute in every system of interpretation is the literal rule of
interpretation. The other rules of interpretation e.g. the mischief rule, purposive
interpretation etc. can only be resorted to when the plain words of a statute are
ambiguous or lead to no intelligible results or if read literally would nullify the very
object of the statute. Where the words of a statute are absolutely clear and
unambiguous, recourse cannot be had to the principles of interpretation other than
the literal rule, vide Swedish Match AB vs. Securities and Exchange Board, India,
AIR2004 SC 4219. As held in Prakash Nath Khanna vs. C.I.T. 2004 (9) SCC 686, the
language employed in a statute is the determinative factor of the legislative intent. The
legislature is presumed to have made no mistake. The presumption is that it intended
to say what it has said. Assuming there is a defect or an omission in the words used by
the legislature, the Court cannot correct or make up the deficiency, especially when a
literal reading thereof produces an intelligible result, vide Delhi Financial
Corporation vs. Rajiv Anand 2004 (11) SCC 625. Where the legislative intent is clear
from the language, the Court should give effect to it, vide Government of Andhra
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Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the
Court should not seek to amend the law in the grab of interpretation.”
13. The learned counsel further relies upon GanduriKoteshwarRamma&Anr. v.
ChakiriYanadi&Anr., (2011) 9 SCC 788 which, in the context of Section 6 of the Hindu
Succession Act, held that rights in the co-parcenary property among male and female members of
a joint Hindu family are equal on and from 9.9.2005. He submits that the legislature has now
conferred a substantive right in favour of the daughters; that by Section 6, the daughter of the coparcenar shall have same rights and liabilities in the co-parcenary property as she would if she
had been a son; thus, on and from 9.9.2005, the daughter is entitled to a share in the HUF
property and is a co-parcenar as if she had been a son. The Supreme Court relied upon its own
judgment in S.Sai Reddy v. S. Narayana Reddy and Ors. (1991) 3 SCC 647 which held that the
Hindu Succession Act was a beneficial legislation and had been placed on the statute book with
the objective of benefitting a woman‟s vulnerable position in society. Hence, the statute was to be
given a literal effect. It is, however, required to be noted that the Court was then considering
Section 29(a) of the Act and not Section 6.
14. The learned counsel for the defendant further submits that it is necessary to take into
consideration Section 29(a) of Hindu Succession (Andhra Pradesh Amendment) Act, 1986 which
is para materiato Section 6 of the Hindu Succession Act,1956. Therefore, the principle laid down
in S.Sai Reddy v. S. Narayana Reddy and Ors. (supra) which is referred to in
GanduriKoteshwarRamma&Anr. v. ChakiriYanadi&Anr. (supra) ought to be followed. Ergo,
the right of the eldest male member of a co-parcenary extends to the female members also. In the
present case insofar as the plaintiff is the eldest member of the co-parcenary, her being a female
cannot be seen a disqualification from being its Karta since this disqualification has been
removed by the amendment brought about under Section 6 in the year 2005. It is further
submitted that this Court in Sukhbir Singh vs Gaindo Devi, RFA(OS)30/1974 (CM Application
2730/2014) has held that Section 4 of the Hindu Succession Act,1956 overrides all customs, texts,
etc. to the extent that they provide anything contrary to what is contained in the Act.
15. However, the learned counsel for defendant Nos. 1 to 4 submits that section 4 has to be read
in the context in which it was enacted, i.e. only those customary rights have been overridden for
which there is a specific provision made in the Act; that Section 6 does not specifically refer to
the expression Karta of an HUF and that this right has to be gleamed from the text in Hindu law.
He also relied upon para 13 of the judgment in Tribhovan Das HaribhaiTamboli v. Gujarat
Revenue Tribunal and Ors. (supra) which reads as under:
“13. In Raghavachariar’s Hindu Law Principles and Precedents, Eighth Ed., 1987 in Section 275
at p. 239 stated thus:
So long as the joint family remains undivided, the senior member of the family is entitled to
manage the family properties, and the father, and in his absence, the next senior-most male
member of the family, as its manager provided he is not incapacitated from acting as such by
44
illness or other sufficient cause. The father’s right to be the manager of the family is a survival of
the patria potestas and he is in all cases, naturally, and in the case of minor sons necessarily the
manager of the joint family property. In the absence of the father, or if he resigns, the
management of the family property devolves upon the eldest male member of the family provided
he is not wanting in the necessary capacity to manage it.”
16. He submits that the S. Sai Reddy judgment only recognizes the right of the eldest male
member to be the Karta; that the amendment in 2005 only recognized the rights of a female
member to equal those of male members but it did not extend to granting them any right in the
management of HUF property; that the Hindu Succession Act,1956 only deals with succession to
the intestate properties of a Hindu and does not purport to address the issue of the management of
the estate.
17. The learned counsel for the defendant Nos.1 to 4 further refers to paras 8 & 9 of the written
statement regarding the powers and functions of a Karta which are of wide amplitude. Finally, he
submits that the limitation apropos customs under Section 4 is not comprehensive. He submits
that Section 6 defines the rights only with respect to the inheritance of property and not its
management; therefore, the undefined rights will have to be gleaned from customs as well as
from the interpretation of ancient texts regarding Hindu religion. He submits that insofar as the
right of management has not been specifically conferred on a female Hindu, the customary
practice would have to be examined. In support of his contention, the learned counsel relies upon
the judgement of the Supreme Court in Badshah v. Urmila Badshah Godse &Anr. (2014) 1 SCC
188, more particularly paras 13, 14, 16, 20 & 22. He also contends that the legislations regarding
succession between Hindus were enacted for the purpose of removing obstacles and enabling
inheritance of property by people with mental disabilities or injuries. Hence, the following
enactments were made:-
1. Hindu Inheritance Act, 1928
2. Hindu Law of Act, 1929
3. Hindu Amendment Right to Property Act, 1937
19. The learned counsel submits that even the Hindu Succession Act of 1956 has sought to
remove the obstacles in the succession of intestate properties between the Hindus. He submits
that in accordance with the Objective of the Act, Section 24 was regarding inheritance of a
remarried widow (which has since been repealed), while Section 14 empowers a female Hindu to
have an absolute right in property possessed by her before or after the commencement of the said
Act; therefore, that the Act never intended to extend the right of a female coparcenor to the
management of a HUF which, according to ancient Hindu text, vests in the eldest male member
of the coparcenary.
20. The learned counsel for defendant Nos. 10 and 11 promptly rebuts this contention by referring
to the objects and reasons of the Hindu Succession Act, 2005 which reads inter alia:-
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“2. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property
and recognises the rule of devolution by survivorship among the members of the coparcener. The
retention of the Mitakshara coparcenary property without including the females in it means that
the females cannot inherit in ancestral property as their male counterparts do. The law by
excluding the daughter from participating in the coparcenary ownership not only contributes to
her discrimination on the ground of gender but also has led to oppression and negation of her
fundamental right of equality guaranteed by the Constitution having regard to the need to render
social justice to women, the States of Andhra Pradesh Tamil Nadu, Karnataka and Maharashtra
have made necessary changes in the law giving equal right to daughters in Hindi Mitakshara
coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System
(Abolition) Act, 1976.
3. 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 Mitakashara coparcenary property as
the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a
dwelling house wholly occupied by a joint family until the male heirs choose to divide their
respective shares therein. It is also proposed to omit the said section so as to remove the
disability on female heirs contained in that section.”
21. He also submits that there is a positive constitutional protection in favour of the women under
Articles 14, 15 and 16 as well as in the Directive Principles for the State Policy.
The effect of deletion of sub-Section 2 Section 4 of the unamended Act has been enunciated in a
judgment of this court in Nirmala &Ors. v. Government of NCT of Delhi &Ors.,
ILR(2010)Supp.(1) Delhi413 para 13.
Ms. Mala Goel, the learned counsel for plaintiff refers to thelocus classicus by Mulla on
principles of Hindu laws which states as under:
“By virtue of the new provision, a daughter of a coparcener in a joint Hindu family
governed by the Mitakshara law now becomes a coparcener in her own right and thus
enjoys rights equal to those hitherto enjoyed by a son of a coparcener. The
implications of this fundamental change are wide. Since a daughter now stands on an
equal footing with a son of a coparcener, she is now invested with all the rights,
including the right to seek partition of the coparcenary property. Where under the old
law, since a female could not act as karta of the joint family, as a result of the new
provision, she could also become karta of the joint Hindu family”
22. The learned counsel for the plaintiff further relies upon the 174th Report of the Law
Commission of India, which has argued that when women are equal in all respects of modern day
life, there is no reason why they should be deprived of the right and privilege of managing HUF
as their Karta. She argues that it is in this context, that Section 6 was so formulated that it covers
all aspects of succession to a coparcener which are available to a male member to be equally
available to a female member also.
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23. Insofar as the plaintiff father had passed away prior to the aforesaid amendment and there
being no testamentary succession in her favour she would not have any rights into the coparcenary. Upon the query put to counsel he submits that if the survivor of Mr. Krishan Mohan
Gupta had been male then he would have rights in the co-parcenary.
24. In the present case, the right of the plaintiff accrued to her upon the demise of the eldest
Karta. Indeed, there is a correspondence in this regard between her and the Land and Building
Department. In any case, it is not denied that she is the eldest of the co-parceners. By law, the
eldest co-parcener is to be karta of the HUF.
25. It is rather an odd proposition that while females would have equal rights of inheritance in an
HUF property, this right could nonetheless be curtailed when it comes to the management of the
same. The clear language of Section 6 of the Hindu Succession Act does not stipulate any such
restriction. Therefore, the submissions on behalf of defendant Nos. 1 to 4 which are to the
contrary are untenable.
26. In the case of Commissioner of Income Tax, Madhya Pradesh, Nagpur and Bhandara vs.
Seth Govindram Sugar Mills, AIR 1966 SC24 the Supreme Court had held that:
“The decision of the Orissa High Court in Budhi Jena v. Dhobai Naik followed the decision of
the Madras High Court in V.M.N. Radha Ammal v. Commissioner of Income-tax, wherein
Satyanarayana Rao J. observed :
“The right to become a manager depends upon the fundamental fact that the person on whom the
right devolved was a coparcener of the joint family… Further, the right is confined to the male
members of the family as the female members were not treated as coparceners though they may
be members of the joint family.”
17. ViswanathaSastri J. said :
“The managership of a joint Hindu family is a creature of law and in certain circumstances,
could be created by an agreement among the coparceners of the joint family. Coparcenership is a
necessary qualification for managership of a joint Hindu family.”
18. Thereafter, the learned judge proceeded to state :
It will be revolutionary of all accepted principles of Hindu law to suppose that the senior most
female member of a joint Hindu family, even though she has adult sons who are entitled as
coparceners to the absolute ownership of the property, could be the manager of the family… She
would be guardian of her minor sons till the eldest of them attains majority but she would not be
the manager of the joint family for she is not a coparcener.
19. The view expressed by the Madras high Court in accordance with well settled principles of
Hindu law., while that expressed by the Nagpur High Court is in direct conflict with them. We are
clearly of the opinion that the Madras view is correct.”
27. What emerges from the above discussion, is that the impediment which prevented a female
member of a HUF from becoming its Karta was that she did not possess the necessary
qualification of co-parcenership. Section 6 of the Hindu Succession Act is a socially beneficial
legislation; it gives equal rights of inheritance to Hindu males and females. Its objective is to
recognise the rights of female Hindus as co-parceners and to enhance their right to equality
47
apropos succession. Therefore, Courts would be extremely vigilant apropos any endeavour to
curtail or fetter the statutory guarantee of enhancement of their rights. Now that this
disqualification has been removed by the 2005 Amendment, there is no reason why Hindu
women should be denied the position of a Karta. If a male member of an HUF, by virtue of his
being the first born eldest, can be a Karta, so can a female member. The Court finds no restriction
in the law preventing the eldest female co-parcener of an HUF, from being its Karta. The
plaintiff‟sfather‟s right in the HUF did not dissipate but was inherited by her. Nor did her
marriage alter the right to inherit the co-parcenary to which she succeeded after her father‟s
demise in terms of Section 6. The said provision onlyemphasises the statutory rights of females.
Accordingly, issues 5, 6 and 8 too are found in favour of the plaintiff.
29. In these circumstances, the suit is decreed in favour of the plaintiff in terms of the prayer
clause, and she is declared the Karta of „D.R. Gupta & Sons (HUF)‟.
30. Decree sheet be drawn up accordingly.
31. The suit is disposed off in the above terms.
