CAN A WOMEN BECOME KARTA OF HUF?
(A.Saravanakumar, Tax Advocate)
On the death of husband, widow and minor daughter’s continue the Hindu Undivided
Family. In that case who is the Karta of HUF?
The term “Hindu Undivided Family” has not been defined under the Income-tax Act, 1961.
The expression is however defined under the “Hindu Law” as a family, which consists of all
persons lineally descendant from a common ancestor and includes their wives and
unmarried daughters. However, coparcener is a narrow term and it means a person who
acquires by birth an interest in Joint Family properties such as sons, grandsons and great
grandsons (Before 2005 Act) of the holder of the Joint Family property. Female members do
not enjoy right to enforce partition though they are entitled for maintenance out of the
family property and the share in the properties on the partition if made.
The question arises whether a female member can become the Karta of HUF when a senior
male member has resigned or is incapacitated from acting as Karta and the surviving
member, the other members of the family are females or minors.
Proposition
A female member cannot be a coparcener of HUF and hence, cannot become Karta of HUF.
However, when HUF consists of mother and a minor son/daughter, mother can act as
natural guardian on behalf of minors in the absence of father.
View against the proposition
It is true that according to the old archaic views a woman was supposed to remain under
the perpetual tutelage of some male members of the family throughout her life and that she
did not deserve freedom. It cannot, however, be denied that the authority of the old Smritis
and their commentaries has been rudely shaken by the requirements of the modern age
and that the old principles of textual Hindu Law have been fundamentally modified or
altered in many respects by judicial decisions and various legislative Acts. Hindu society has
tremendously progressed in tune with the spirit of modern times and our concepts
regarding the status of woman have radically changed not only in the domain of law but also
in the body politic. It is, therefore, improper and unjustifiable to say that a woman is
inherently incompetent to be the manager of a joint family, because there are some
obsolete and antediluvian texts, which contain disparaging remarks about woman, in total
disregard of the needs of the modern society and the vast changes in Hindu Law.
The Nagpur High Court in the case of CIT Vs. Seth Laxmi Narayan Raghunathdas (1948) 16
ITR 313 (Nagpur), while considering an issue as to whether a widow can be Karta of her
husband’s HUF, held as under:“According to the Dayabhaga Law (is applicable to Bengal) , the foundation of a coparcenary
is first laid on the death of the father. The property of the deceased, separate as well as
ancestral is inherited by his male heirs as coparcenary property and is held by them as
coparceners. On the death of any one of the coparceners, his heirs succeed to his share in
the coparcenary property and they become members of the coparcenary. Such heirs, in
default of male issue, may be his widow or widows or his daughter or daughters. These too,
though females, get into the coparcenary, representing the share of their husband or father
as the case may be. A coparcenary under the Dayabhaga Law may thus consist of males as
well as females. It is, therefore, obvious that under the Dayabhaga Law a widow becomes a
coparcener and she can consequently become the karta of the coparcenary or the joint
family, although she or any other coparcener does not possess the right of survivorship,
particularly if she is the only member sui juris left in the family.
It is true that under the Mitakshara Law (is applicable to the entire country, Banaras School,
Mithila School, Bombay School and Dravida School), no female can be a coparcener with
male coparceners (before 2005 Act), presumably, because she does not possess the right to
take by survivorship, but we do not think that either this right or the status of a coparcener
is a dine qua non of competency to become the manager of a joint Hindu family of which
she is admitted as a member.”
Based on the above discussion, the Nagpur High Court held that a widow was competent to
become the Karta of the Hindu Undivided Family consisting of herself and her two minor
sons. It is notable that the High Court observed that there was no legal prohibition against
the mother being the de facto manager.
The High Court further observed that it is beyond question that the Hindu Women’s Rights
to Property Act 1937 have materially changed the status of a Hindu woman. If a coparcener
gets interest in the HUF property by birth, she gets interest by marriage. She has as much
right to enforce a partition of her share as a coparcener has and, except for the right of
survivorship, here position is practically analogous to that of the coparcener. No doubt the
interest that she gets is a widow’s estate, but in the matter of management of that estate
she has the same rights and is subject to the same disabilities as the managing coparceners
of a HUF.
View in favour of the proposition
The following passage from Mayne’s “Hindu Law and Usage” (9th Edition S.271) deals with
coparceners-
“The question in each case will be, who are the persons who have taken an interest in the
property by birth. The answer will be, that they are the persons who offer the funeral cakes
to the owner of the property, that is to say, the three generations next to the owner in
unbroken male descent.”
Thus, it has been a long-established custom that only males can offer funeral cakes to their
ancestors and accordingly, they were only entitled to be the coparceners and females were
never allowed to be the coparceners. Further, the females were not allowed to manage a
family, as the Hindu society over the years was dominated by males. As a custom, the family
is required to be fed and managed by the males. As a result of this the females were not
allowed to manage the family and they only had a right to maintenance.
The Supreme Court in the case of CIT Vs. Seth Govindram Sugar Mills (1965) 57 ITR 510 (SC)
has held that a widow cannot be Karta of the HUF, though she can be a manager of HUF for
the purposes of Income-tax assessment. This decision was delivered after considering the
decision of Nagpur HC in the case of Seth Laxmi Narayan Raghunathdas (supra).
A similar view was held by the Calcutta High Court in the following cases –
1. Sushila Devi Rampuria Vs. ITO (1960) 38 ITR 316 (Calcutta)
2. Smt.Champa Kumari Singhi Vs. Addl. Member, Board of Revenue (1962) 46 ITR 81
(Cal.)
The Supreme Court in the case of Seth Govindram Sugar Mills (Supra) had rejected the
proposition of female member being Karta of HUF only on a single ground that she did not
have the legal qualification of “coarcenership” for becoming Karta because as per the wellestablished principles of Hindu Law only a coparcener can become the Karta of HUF. Thus,
before amendment 2015 law it stands a female member cannot become Karta of HUF.
However, a proposed amendment to the Hindu Succession Act 2005 seeks to admit females
into the coparcenary. Let us examine the effect of this amendment on the status of females
in HUF. There can be three types of female members in HUF –
1. Daughter-in-law (including widows)
2. Unmarried daughter
3. Married daughter
1.DAUGHTER-IN-LAW (INCLUDING WIDOWS): The proposed amendment seeks to admit
only daughters in the coparcenary. Thus, the entry into HUF is still governed by birth.
Daughter-in-laws does not get a right to become coparcener. Thus, the status of daughter-
in-laws does not change at all and their rights will remain the same as they before the
amendment. The Supreme Court ruling in Seth Govindram Sugar Mills (Supra) will still hold
good wherein it was held that a widow can never be Karta of her deceased husband’s HUF.
2.UNMARRIED DAUGHTER: As far as daughter is concerned, post-amendment, she becomes
member of the HUF on birth, and for all practical purposes, is to be regarded as a
coparcener in her own right in the same manner as the son and shall have the same rights
under the coparcenery property as she would have had, if she had been a son; inclusive of
the right to claim by survivorship. She shall be subject to the same rights and disabilities in
respect thereof as a son. As per the tenets of Hindu Law, on death of Karta the HUF is not
disrupted and does not become non-existent. The eldest coparcener of the family steps into
the shoes of the deceased Karta. Thus, after the amendment, upon the death of the father,
the unmarried major daughter, if she is the eldest surviving coparcener, will become the
Karta of her father’s HUF even if her mother is alive, as her mother would never be treated
as a coparcener. This situation is anomalous as the eldest surviving member of HUF would
be the widow (mother) and she would be the best person who can look after the interests
of all the other surviving members of her husband’s HUF. This could not be the intention of
the law to give the right to a daughter to manage the affairs of her father’s family upon her
father’s death, even if her mother is still alive.
3.MARRIED DAUGHTER: As far as married daughter is concerned, after the amendment
becomes operative, she continues to be a coparcener of her father’s HUF though she ceases
to be a member. Further, she becomes member of her husband’s HUF, but she cannot be a
coparcener there. A very peculiar position will arise in as much as such daughter, upon her
marriage, will automatically become a member of her husband’s family while she will
continue to be coparcener in her father’s family. It appears that she being a coparcener of
her father’s family even after marriage, she can be Karta of father’s HUF.
Can Women Be Karta?
A questionnaire was issued by the Law Commission to elicit the views of the public
regarding giving of rights to a daughter in the Mitakshara property of a HUF. The
questionnaire consisted of three parts having 21 questions. 67 respondents have replied to
the questionnaire, 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 HUF, about half
the respondents wanted the daughter to become a Karta in the Joint Family. The Arguments
in favour:
a. Making her the Karta would make her position more respectable.
b. After The Hindu Succession Amendment Act, 2005 women(daughter’s only) are
recognized as coparceners.
c. Women are fully capable of managing a business, taking up public life as well as
manage large families as mothers.
THE JUDICIAL VIEW:
The possibility of female being the Karta in presence of senior male member is being ruled
out. But the question is where 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 she can act as guardian
of Hindu Minors by the Hindu Minority and Guardianship Act, 1956 but it abstains her
from interfering with the exclusive powers of managers to deal with the interests of minors
in the Joint Family Property.