PROJECT-FEMALE AS KARTA

CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA
PROJECT OF FAMILY LAW-II
Submitted to:- Ravi Ranjan Sir
Submitted by:-Aparna Arya,
B.A.LL.B.(hons.)
Roll no.-1115
semester-4

AKNOWLEDGEMENT
1

Writing a project is one of the most significant academic challenges, I

have ever faced. Though this project has been presented by me but
there are many people who remained in veil, who gave their all
support and helped me to complete this project.
First of all I am very grateful to my subject teacher Ravi Ranjan sir
without the kind support of whom and help the completion of the
project was a herculean task for me. He donated his valuable time
from his busy schedule to help me to complete this project and
suggested me from where and how to collect data.
I am very thankful to the librarian who provided me several books on
this topic which proved beneficial in completing this project.
I last but not the least, I am very much thankful to my parents and
family, who always stand aside me and helped me a lot in accessing
all sorts of resources.

I thank all of them!

CONTENTS
1.
2.
3.
4.
5.
6.

Introduction..........................................................................................4
Womens position in coparcenary........................................................8
Womens property right- hindu, muslim, christian.............................12
Women as a karta...............................................................................18
Judicial reforms...................................................................................20
Conclusion...........................................................................................23

BIBLIOGRAPHY

1. INTRODUCTION

The Law Commission of India in its 174th Report on Property Rights of Women: Proposed
Reforms under the Hindu Law in May 2000 mentioned in the introduction itself that
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 in pursuance of its terms of reference, which,
inter-alia, oblige and empower it to make recommendations for the removal of anomalies,
ambiguities and inequalities in the law, decided to undertake a study of certain provisions
regarding the property rights of Hindu women under the Hindu Succession Act, 1956.
Much like those of women of any other country, property rights of Indian women have
evolved out a continuing struggle between the status quoist and the progressive forces. And
pretty much like the property rights of women elsewhere, property rights of Indian women
too are unequal and unfair: while they have come a long way ahead in the last century, Indian
women still continue to get less rights in property than the men, both in terms of quality and
quantity. What may be slightly different about the property rights of Indian women is that,
alongwith many other personal rights, in the matter of property rights too the Indian women
are highly divided within themselves. Home to diverse religions, till date, India has failed to
bring in a uniform civil code.
Therefore every religious community continues to be governed by its respective personal
laws in several matters property rights are one of them. Infact even within the different
religious groups, there are sub-groups and local customs and norms with their respective
property rights. Thus Hindus, Sikhs, Buddhists and Jains are governed by one code of
property rights codified only as recently as the year 1956, while Christians are governed by
another code and the Muslims have not codified their property rights, neither the Shias nor
the Sunnis.
Also, the tribal women of various religions and states continue to be governed for their
property rights by the customs and norms of their tribes. To complicate it further, under the
Indian Constitution, both the central and the state governments are competent to enact laws
on matters of succession and hence the states can, and some have, enacted their own
variations of property laws within each personal law. There is therefore no single body of
property rights of Indian women.
The property rights of the Indian woman get determined depending on which religion and
religious school she follows, if she is married or unmarried, which part of the country she
comes from, if she is a tribal or non-tribal and so on. Ironically, what unifies them is the fact
that cutting across all those divisions, the property rights of the Indian women are immune
from Constitutional protection; the various property rights could be, as they indeed are in
several ways, discriminatory and arbitrary, notwithstanding the Constitutional guarantee of
equality and fairness. For by and large, with a few exceptions, the Indian courts have refused
to test the personal laws on the touchstone of Constitution to strike down those that are
clearly unconstitutional and have left it to the wisdom of legislature to choose the time to
4

frame the uniform civil code as per the mandate of a Directive Principle in Article 44 of the
Constitution.
WOMENS POSITION AFTER RIGHT TO PROPERTY ACT 1937
Hindus were governed by Shastric and Customary laws which varied from region to region
and sometimes it varied in the same region on a caste basis. As the country is vast and
communications and social interactions in the past were difficult, it led to a diversity in the
law. Consequently, in matters of succession also, there were different schools, like
Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and
Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight
variations.
The multiplicity of succession laws in India, diverse in their nature, owing to their varied
origin made the property laws even mere complex. A woman in a joint Hindu family,
consisting both of man and woman, had a right to sustenance, but the control and ownership
of property did not vest in her. No female is a member of the coparcenary in Mitakshara law.
Under the Mitakshara system, joint family property devolves by survivorship within the
coparcenary. This means that with every birth or death of a male in the family, the share of
every other surviving male either gets diminished or enlarged.
The Mitakshara law also recognises inheritance by succession but only to the property
separately owned by an individual, male or female. Females are included as heirs to this kind
of property by Mitakshara law.Before the Hindu Law of Inheritance (Amendment) Act 1929,
the Bengal, Benares and Mithila sub schools of Mitakshara recognised only five female
relations as being entitled to inherit namely - widow, daughter, mother paternal grandmother,
and paternal great-grandmother.
The Madras sub-school recognised the heritable capacity of a larger number of females heirs
that is of the son's daughter, daughter's daughter and the sister, as heirs who are expressly
named as heirs in Hindu Law of Inheritance (Amendment) Act,1929. The son's daughter and
the daughter's daughter ranked as bandhus in Bombay and Madras. The Bombay school
which is most liberal to women, recognised a nunmber of other female heirs, including a half
sister, father's sister and women married into the family such as stepmother, son's widow,
brother's widow and also many other females classified as bandhus.The Act of 1937 gave
absolute rights to all Hindu women over a certain portion of Stridhan.
The part of Stridhan, acquired by the female independently or the part that was gifted to her
by her parents gave her an absolute right over the aforesaid portions. She became the absolute
owner of such Stridhan. However, the form of Stridhan, acquired by her from her in-laws,
gave her only a limited right over such variety.
On her death, the latter portion went to her reversioners (the lot which would have acquired
the property had the female not existed in the first place). As per the provisions of this Act, if
a male member of a Mitakshara Joint Hindu family died and was survived by his widow then
the latter could claim a share of the deceased coparcener subject to certain conditions. Under
5

this Act, the widow was also conferred the right to demand partition and claim the share that
the deceased coparcener was entitled to. This legislation was later repealed by the Act of
1956.
The Hindu Womens Rights to Property Act, 1937, ameliorative in character, intended to give
better rights to women in respect of property but without interfering with the established Law
relating to joint family. Subsections (2) and (3) of Section 3 of the Act reveal that the
legislature intended that the Hindu widow should have in the joint family property the same
interest to qualify the nature of that interest i.e., it Would be a limited interest known to
Hindu law as "Womans Estate" or to use the correct expression Hindu Widow's Estate."
The very use of the word womans estate prima facie established that she could alienate it for
the purposes permitted under the Hindu law i.e., Legal necessity, Religious purposes and
benefit of estate. Thus the womans estate under the Hindu Womans Rights to Property
Act, 1937 has all the characteristic features of womans estate which were there under the old
law. The widows powers of alienation have been discussed in detail. Her powers under the
1937 Act are the same because the nature of the property is the same. The act has only given
a statutory, recognition to her womans estate.
Surrender means renunciation of the estate by the female owner. Shehas the power of
renouncing the estate in favour of nearest reversioners. This means that by a voluntary act,
she can accelerate the estate of the reversioner by conveying absolutely estate and thereby
destroying her own estate. This is an act of self-effacement on her part and operates as her
death will. In Natwar vs. Dadu, the Supreme Court held that it is the self-effacement by the
widow that forms the basis of surrender and not the ex-facia transfer by which the effacement
is brought about.
For a valid surrender, the first condition is that it must be of, the entire estate, though she may
retain a small portion for her maintenance , second condition is that it must be made in a
favour of the nearest reversioner or reversioners, in case there are more than one of the same
category. Surrender can be made in favour of female reversioner also. The third and the last
condition is that surrender must be bonafide, and not a device of dividing the estate with the
reversioners.
When a Hindu female surrender her estate the estate vests in the reversioners by the operation
of law, and no act of acceptance by the reversioners is necessary. No formalities are
necessary. A sale of estate for consideration, to the reversioners cannot be regarded as
surrender.
The Hindu law of intestate Succession has been codified in the form of The Hindu Succession
Act, 1956, which bases its rule of succession on the basic Mitakshara principle of
propinquity, i.e., preference of heirs on the basis of proximity of relationship. Prior to 1956,
there used to be two major schools of Hindu law viz. Mitakshara and Dayabhaga which laid
down different principles of succession. There was no uniformity in the rights of the Hindus
following different schools to succeed to the property of a Hindu who died intestate i.e.,
without leaving a will behind him.
6

Therefore, before 1956, the property of a Hindu woman was divided into two heads viz. (a)
Stridhan (b) Woman's Estate. Stridhan literally means woman's property. The Hindu law
interpreted Stridhan as the properties received by a woman by way of gift from relations. It
included movable as well as immovable properties. The texts relating to Stridhana except in
the matter of succession are fairly adequate and clear. Manu defined Stridhana as that what
was given before the nuptial fire, what was given at the bridal procession, what was given in
token of love and what was received from a brother, a mother, or a father?
The property inherited by a woman from a male or female was not considered as Stridhana
and it was not her absolute property for the purpose of inheritance168. However Bombay
school considered the property inherited by a woman form a male other than widow, and
mother etc. as Stridhan. Under all schools of Hindu law, the property obtained by a woman in
lien of maintenance by adverse possession and property purchased with Stridhan was
considered as Stridhan.

2. Womens position in coparcenary

The property rights of the Hindu women are highly fragmented on the basis of several factors
apart from those like religion and the geographical region which have been already
mentioned. Property rights of Hindu women also vary depending on the status of the woman
in the family and her marital status: whether the woman is a daughter, married or unmarried
or deserted, wife or widow or mother.
It also depends on the kind of property one is looking at: whether the property is hereditary/
ancestral or self-acquired, land or dwelling house or matrimonial property. Prior to the Hindu
Succession Act, 1956 Shastric (Hindu Canonical) and customary laws that varied from
region to region governed the Hindus. Consequently in matters of succession also, there were
different schools, like Dayabhaga in Bengal in eastern India and the adjoining areas;
Mayukha in Bombay, Konkan and Gujarat in the western part and Marumakkattayam or
Nambudri in Kerala in far south and Mitakshara in other parts of India, with slight variations.
Mitakashara school of Hindu law recognises a difference between ancestral property and selfacquired property. It also recognises an entity by the name of coparcenary. A coparcenary is
a legal institution consisting of three generations of male heirs in the family. Every male
member, on birth, within three generations, becomes a member of the coparcenary.
This means that no persons share in ancestral property can be determined with certainty. It
diminishes on the birth of a male member and enlarges on the death of a male member. Any
coparcener has the right to demand partition of the joint family. Once a partition takes place,
a new coparcenary would come into existence, namely the partitioned member, and his next
two generations of males. For this reason coparcenary rights do not exist in self-acquired
property, which was not thrown into the common hotchpotch of the joint family.
Thus the concept of a birthright, at which a person acquires rights on his birth even if the
ancestor is still alive, is fundamental to an understanding of the coparcenary. In fact, the birth
of a male child diminishes the right of the ancestor instantly, as each coparcener has an equal
share in the undivided whole. As contrasted with this, inheritance, whether testamentary or
intestate, is a right that accrues on the death of a person. Inheritance can only be in that
property which a man leaves on his death.1
Until then, a person has an unrestricted right to enjoy the property or alienate it. The Hindu
Succession Act enacted in 1956 was the first law to provide a comprehensive and uniform
system of inheritance among Hindus and to address gender inequalities in the area of
inheritance it was therefore a process of codification as well as a reform at the same time.
Prior to this; the Hindu Womens Rights to Property Act, 1937 was in operation and though
this enactment was itself radical as it conferred rights of succession to the Hindu widow for
1 Purva Chadha, Hindu Family Property law in India and Gender Equality;
Analysis of the Hindu Succession Act 1956, Vol 2, SCJ J 16. (2002).
8

the first time, it also gave rise to lacunae which were later filled by the Hindu Succession Act
(HSA). HSA was the first post-independence enactment of property rights among Hindus it
applies to both the Mitakshara and the Dayabhaga systems, as also to persons in certain parts
of South India previously governed by certain matriarchal systems of Hindu Law such as the
Marumakkatayam, Aliyasantana and Nambudri systems.
The main scheme of the Act is: The hitherto limited estate given to women was converted to
absolute one. Female heirs other than the widow were recognized while the widows position
was strengthened. The principle of simultaneous succession of heirs of a certain class was
introduced. In the case of the Mitakshara Coparcenary, the principle of survivorship continues
to apply but if there is a female in the line, the principle of testamentary succession is applied
so as to not exclude her. Remarriage, conversion and unchastity are no longer held as grounds
for disability to inherit.
Even the unborn child, son or daughter, has a right if s/he was in the womb at the time of
death of the intestate, if born subsequently. Under the old Hindu Law only the streedhan
(properties gifted to her at the time of marriage by both sides of the family and by relatives
and friends) was the widows absolute property and she was entitled to the other inherited
properties only as a life-estate with very limited powers of alienation, if at all. Even under the
1937 Act, the concept of limited estate continued.
Section 14 of the Hindu Succession Act removed the disability of a female to acquire and
hold property as an absolute owner, and converted the right of a woman in any estate already
held by her on the date of the commencement of the Act as a limited owner, into an absolute
owner. The provision is retrospective in that it enlarged the limited estate into an absolute one
even if the property was inherited or held by the woman as a limited owner before the Act
came into force. The only exception, in the form of a proviso, is for the acquisitions under the
terms of a gift, will or other instrument or a decree, or order or award which prescribe a
restricted estate.2

Women as a karta
In the entire Hindu Joint Family Karta or Manager occupies a very important position.
There is no office or institution in any other system of the world can be compared with it. He
is a person with limited power but he possess such vast power with in ambit of joint family
which nobody enjoys. As per Hindu Law, a karta is defined as the senior-most family
member, entitled to manage family affairs. This position has traditionally been held by

2 The Kerala Joint Family System (Abolition) Act 1976, the Hindu Succession
(Andhra Pradesh Amendment) Act, 1986, the Hindu Succession (The Tamilnadu
Amendment) Act 1989, the Hindu Succession (Karnataka Amendment) Act 1994,
the Hindu Succession (Maharashtra Amendment) Act 1994.
9

men.The feelings of piety and benevolence have an abiding place in human heart, they must
find expression in religious and charitable gifts. 3
Therefore, the Karta or manager of the joint Hindu family was given extended powers and he
could alienate not merely his own share but a portion of the joint family for family necessity
or for the benefit of family so as to bind the interest of all the coparceners, no matter whether
minor or adults. The foundation of this doctrine could be found in the text of Vyasa which
was quoted and relied upon by Vijnaneswara and which runs as follows:
"Even a single individual may conclude a donation, mortgage, or sale of immovable property,
during a season of distress, for the sake of the family, and especially, for pious purposes."
After amendment made by Hindu Succession (Amendment) Act, 2005, daughter can be
coparcener of HUF like the sons of HUF. After her marriage she becomes member of her
husbands HUF and continues to be a coparcener of her fathers family. Being a coparcener,
she can also seek partition of the dwelling house where the family resides and she can also
dispose of her share in coparcenery property at her own will.4
If a Hindu dies, the coparcener property shall be allotted to the daughter as is allotted to sons.
If a female coparcener dies before partition, then children of such coparcener would be
eligible for allotment, assuming a partition had taken place immediately before her demise. A
widow of a pre-deceased son even though remarried is now eligible for share in property as
legal heir of the pre-deceased son of the family. Female as Karta Many courts had held that
only a coparcener can become Karta of HUF.
Since, a female was not considered as coparcener, she was not empowered to act as Karta
prior to amendment in Hindu Succession Act. However, w.e.f. 6thSeptember, 2005, after
amendments made by Hindu Succession (Amendment) Act, 2005 in respect of position of
female member, the daughter of coparcener shall by birth become a coparcener in her own
right in the same manner as the son.
The Hindu Succession Act came into force on 17thJune, 1956. Fundamental changes have bee
n brought about in the Hindu Succession Act, 1956 by amending it recently in
2005. The basic change is that Section 6 has been substitutedby a new section. The section
stipulates that a daughter wouldbe a coparcener from her birth, and would have the same righ
tsand liabilits as a son.
The daughter would hold property towhich she is entitled as a coparcener with all the incident
s,rights
and
liabilities
of
coparcenary
property
and
would
be
construed as property being capable of being disposed off by herby either a will or any other t
3 Purva Chadha, Hindu Family Property law in India and Gender Equality;
Analysis of the Hindu Succession Act 1956, Vol 2, SCJ J 16. (2002)
4 Purva Chadha, Hindu Family Property law in India and Gender Equality;
Analysis of the Hindu Succession Act 1956, Vol 2, SCJ J 16. (2002).
10

estamentary disposition. Thesechanges have been sought to be made on the touchstone

of equality,
thus
seeking
to
remove
the
perceived
disability
to
which a daughter was subjected.
The
implications
of
this
fundamental
change
are
wide. Since a daughter now stands on an equal footing with ason of a coparcener, she is now
invested with all the rights, including
the
right
to seek
partition
of
the
coparcernaryproperty. Where under the old law, since a female could not actas Karta of the
joint family, as a result of the new provision,she could also become Karta of the joint Hindu f
amily. Sub section (2) stipulates that any property to whicha female Hindu becomes entitled,
under sub section (1), would be held by her with all the incidents of coparcenary ownership.
To retain the Mitakshara joint family and at the same time to put a daughter on the same
footing as a son with respect to the right by birth, right of survivorship and to claim partition
at any time, will be to provide for a joint family unknown to law and unworkable in practice.
However there was one striking feature of all these four state amendments they held that
only a daughter who was unmarried at the time of the amendment would be entitled to be a
coparcener. The amending Acts of Andhra Pradesh, Tamil Nadu and Maharashtra add three
sections namely 29A, 29B and 29C and Karnataka adds them as Sections 6A, 6B and 6C of
the Act.
Thus, these amendments state that a daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as a son and have the same rights in the
coparcenary property as she would have had if she had been a son. Thus, a daughter will also
be entitled to be a karta of the joint family, and will by virtue of that position exercise the
right to spend the income for joint family properties for legal necessity of benefit of the

11

3. Womens property rights- Hindu, Muslim, Christian.

The seed for personal law was sown by the British with the Bengal Regulation of 1772
providing that in disputes relating to family like inheritance, marriage, divorce, adoption etc,
the courts should apply the laws of Quran with respect to Muslims and for Hindus, the
Shastric law. As far as Christians were concerned, there was no specific law for them. Hence
disputes were settled as per English principles of Justice, Equity and Good conscience.
The British policy of non-interference with the personal laws of different communities took
its deep roots in the communities and the Government of India has been continuing the policy
of non-interference even though it has ratified the CEDAW convention. So the Constitutional
mandate of Uniform Civil Code under Article 44 of the Constitutionwent into oblivion.
estate. It was Gautama Dharmasastra who first called womens property as Stridhana share.
Mayne also opined that the original bride price payable to the parents appears to have become
transferred into the dowry for the wife.5 Apart from this stridhana, a married woman could
receive gifts from strangers; she could also make her own contributions by doing other skilled
labor. Yet she had no absolute control over her property because her right to dispose of the
property is restricted.
Womens property rights in the Patriarchal Family
A Hindu father in patriarchal family enjoyed absolute power just as the Roman father in
ancient Rome. The scriptures undoubtedly contributed much to make the father, the head of
the family a despotic ruler. Manu said that three persons, a wife, a son and a slave are
declared by law to have in general no wealth exclusively their own; the wealth which they
may earn is regularly acquired for the man to whom they belong.
Similarly Narada held the view that a son could be independent only if his parents are dead;
during their lifetime he is dependent even though he is grown old18. So in a patriarchal
family women and children did not have property rights. The wife was put into the group of
chattels and slaves. They had an oppressed and subjugated life in the traditional patriarchal
families.6
There were also fears among the orthodox Hindu men that if women were given property
rights families would breakup. In 1948 there was an All India Anti Hindu Code Convention.
It was argued that the introduction of womens share would result into disintegration of
Hindu family system which had been working as a co-operative system for ages for
preservation of family ties and property. It was also pointed out that the inclusion of daughter
5Shelly Saluja and Soumya Saxena, Changes brought in the position of women
after the 2005 (Amendment) available at: http://www.legalservicesindia.com
(Accessed on 21.05.2010).
6 Purva Chadha, Hindu Family Property law in India and Gender Equality;
Analysis of the Hindu Succession Act 1956, Vol 2, SCJ J 16. (2002)
12

in the line of inheritance is due to European influence. The history of Hindu Law reform
starts with the Hindu Law committee (Rau Committee) set up in 1941.
It was followed by second Committee in 1944. The committee finally submitted its report to
the Federal Parliament in 1947. The recommendations of the committee were debated in the
provincial Parliament. There was strong opposition against the introduction of monogamy,
divorce, abolition of coparcenery and inheritance to daughters from the orthodox Hindu
community.
The framers of the Indian Constitution took note of the adverse and discriminatory position of
women in society and took special care to ensure that the State took positive steps to give her
equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only
inhibit discrimination against women but in appropriate circumstances provide a free hand to
the State to provide protective discrimination in favour of women. These provisions are part
of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution
contains the Directive Principles which are no less fundamental in the governance of the State
and inter-alia also provide that the State shall endeavour to ensure equality between man and
woman Notwithstanding these constitutional mandates/directives given more than fifty years
ago, a woman is still neglected in her own natal family as well as in the family she marries
into because of blatant disregard and unjustified violation of these provisions by some of the
personal land.
Womens right to property has been substantially improved by the Hindu Succession Act
1956. The concept of women being entitled to a limited estate when they acquire property by
inheritance is abolished and women are entitled to an absolute estate like men when they
inherit any property. Again the daughter of a predeceased son and the daughter of a
predeceased daughter are raised to a higher rank. They became Class I heirs and get a share
along with the son, and other Class I heirs. The daughters are included in the Class I in
order to remove the discrimination on the basis of sex.
Similarly succession to a womens property or stridhanam of whatever nature is made
uniform irrespective of the nature of stridhanam. In the same way the distinction between
male and female heirs in the case of succession has been taken away and now they are treated
on equal basis if they belong to the same degree of relationship. Women will no longer be
disinherited on the ground of unchastity.7
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
7 Shelly Saluja and Soumya Saxena, Changes brought in the position of women
after the 2005 (Amendment) available at: http://www.legalservicesindia.com
(Accessed on 21.05.2010).
13

of male members ? The Commission's main aim was to end gender discrimination which is
apparent in section 6 of the Hindu Succession Act,1956, by suggesting appropriate
amendments to the Act. Accordingly, the amendment was made by the legislature in
December 2004 and it conferred equal property share from the ancestral property on the
daughter. By birth a daughter would acquire property rights and would be like any other
coparcenary.
In the face of such multiplicity of succession laws diverse in their nature, property laws
continued to be complex and discriminatory against women. The social reform movement
during the pre-independence period raised the issue of gender discrimination and a number of
ameliorative steps were initiated.
Muslim womens property rights: Indian Muslims broadly belong to two schools of thought
in Islamic Law: the Sunnite and the Shiite. Broadly the Islamic scheme of inheritance
discloses three features, which are markedly different from the Hindu law of inheritance: (i)
the Koran gives specific shares to certain individuals (ii) the residue goes to the agnatic heirs
and failing them to uterine heirs and (iii) bequests are limited to one-third of the estate, i.e.,
maximum one-third share in the property can be willed away by the owner.
The main principles of Islamic inheritance law which mark an advance vis--vis the preIslamic law of inheritance, which have significant bearing on the property rights of women,
are: (i) the husband or wife was made an heir (ii) females and cognates were made competent
to inherit (iii) parents and ascendants were given the right to inherit even when there were
male descendants and (iv) as a general rule, a female was given one half the share of a male.
The newly created heirs were mostly females; but where a female is equal to the customary
heir in proximity to the deceased, the Islamic law gives her half the share of a male. For
example, if a daughter co-exists with the son, or a sister with a brother, the female gets one
share and the male two shares. 8
The doctrine of survivorship followed in Hindu law is not known to Mohammedan law; the
share of each Muslim heir is definite and known before actual partition. Rights of inheritance
arise only on the death of a certain person. Hence the question of the devolution of
inheritance rests entirely upon the exact point of time when the person through whom the heir
claims dies, the order of deaths being the sole guide. The relinquishment of a contingent right
of inheritance by a Muslim heir is generally void in Mohammedan law, but if it is supported
by good consideration and forms part of a valid family settlement, it is perfectly valid. The
rule of representation is not recognized, for example, if A dies leaving a son B and a
predeceased sons son C, the rule is that the nearer excludes the more remote and, there being
no representation, C is entirely excluded by B. There is however no difference between
movable property and immovable property. 9
8 T.K.Rajalakshmi, Muslim Women more Vulnerable Frontline, Vol.24, issue o2,
Jan-Feb-27, 2007.
9Ibid.
14

The following 12 heirs constitute Class I heirs (Koranic Heirs): (a) Heirs by Affinity Husband and Wife (b) Blood Relations - Father, True Grandfather (howsoever high), Mother,
True Grandmother (howsoever high), Daughter, Sons Daughter (howsoever low), Full sister,
consanguine sister, uterine brother, and uterine sister. Rules of Exclusion: The husband and
wife are primary heirs and cannot be excluded by anyone, but they also dont exclude anyone
either. Law fixes the share of the spouses; if they exist they reduce the residue which may be
taken by the Agnatic or Uterine heirs, but they do not exclude either wholly or partly any heir.
The father does not affect the share of any Koranic heir except the sisters (full, consanguine
or uterine) all of whom he excludes. The mother excludes the grandmother, and the nearer
grandmother excludes the more remote.
The mothers share is affected by the presence of children or two or more brothers or sisters.
Her share is also greatly affected by the existence of the husband or wife and the father. In the
case of a daughter she is the primary heir. She partially excludes lower sons daughters, but
one daughter or sons daughter does not entirely exclude a lower sons daughter. As far as the
sisters are concerned, one full sister does not exclude the consanguine sister, two full sisters
however exclude the consanguine sister. The uterine brother or sister is not excluded by the
full or consanguine brother or sister.
Another rule that requires consideration is that, a person though excluded himself, may
exclude others. For example, in a case where the survivors are the mother, father, and two
sisters: the two sisters are excluded by the father; and yet they reduce the mothers share to
1/6 th . Class II heir (Agnatic heir): Their classification is done as follows; Males (Group I)the agnate in his own right, Group II (females)-the agnate in the right of another, Group III
the agnate with another. The first group comprises all male agnates; it includes the son, the
sons son, the father, the brother, the paternal uncle and his son and so forth. These in preIslamic law were the most important heirs; to a large extent they retain, in Hanafi law, their
primacy, influence and power.10
The second group contains four specified female agnates, when they co-exist with male
relatives of the same degree, namely, daughter (with son), and sons daughter howsoever low
with equal sons son howsoever low, full sister with full brother and consanguine sister with
consanguine brother. The third group comprises the case of the full sister and consanguine
sister. For example if there are two daughters and two sisters, here the daughter is preferred as
a descendant to the sister who is a collateral; thus the daughter would be placed in Class I and
she would be allotted the Koranic share and the residue would be given to the sister as a
member of Class II. Under this system the rule that is followed is first the descendants, then
the ascendants and finally the collaterals.
The agnatic heirs come into picture when there are no Koranic heirs or some residue is left
after having dealt with the Koranic heirs. Class III (Uterine heir): This class is constituted
10 The Kerala Joint Family System (Abolition) Act 1976, the Hindu Succession
(Andhra Pradesh Amendment) Act, 1986, the Hindu Succession (The Tamilnadu
Amendment) Act 1989, the Hindu Succession (Karnataka Amendment) Act 1994,
the Hindu Succession (Maharashtra Amendment) Act 1994.
15

mainly by the female agnates and cognates. Classification is group Idescendants, which are
daughters children and their descendants and children of sons daughters howsoever low and
their descendants, Group II-ascendants, which are false grandfathers howsoever high and
false grandmothers howsoever high, Group III- collaterals, which are descendants of parents
and descendents of grandparents true as well as false. Members of this class succeed only in
the absence of members of Class I and Class II. 11
However if he registers his existing marriage under the provisions of the Special Marriage
Act, 1954 he has all the powers of a testator under the Indian Succession Act, 1925. Property
rights of Christian, Parsi (Zoroastrians) women: The laws of succession for Christians and
Parsis are laid down in the Indian Succession Act, 1925 (ISA). Sections 31 to 49 deal with
Christian Succession and Sections 50 to 56 deal with Succession for Parsis. Christian
womens property rights: The Indian Christian widows right is not an exclusive right and
gets curtailed as the other heirs step in. Only if the intestate has left none who are of kindred
to him, the whole of his property would belong to his widow. 12
Where the intestate has left a widow and any lineal descendants, one third of his property
devolves to his widow and the remaining two thirds go to his lineal descendants. If he has left
no lineal descendents but has left persons who are kindred to him, one half of his property
devolves to his widow and the remaining half goes to those who are of kindred to him.
Another anomaly is a peculiar feature that the widow of a pre-deceased son gets no share, but
the children whether born or in the womb at the time of the death would be entitled to equal
shares. Where there are no lineal descendants, after having deducted the widows share, the
remaining property devolves to the father of the intestate in the first instance. Only in case the
father of the intestate is dead but mother and brothers and sisters are alive, they all would
share equally. 13
If the intestates father has died, but his mother is living and there are no surviving brothers,
sisters, nieces, or nephews, then, the entire property would belong to the mother. A celebrated
litigation and judgment around the Christian womens property rights is Mary Roy v. State of
Kerala & others 6 in which provisions of the Travancore Christian Succession Act, 1092 were
challenged as they severely restricted the property rights of women belonging to the Indian
11 T.K.Rajalakshmi, Muslim Women more Vulnerable Frontline, Vol.24, issue o2,
Jan-Feb-27, 2007.
12 The Christians in Travancore were formerly Hindus hailing from Namboodiries
families having joint family property. This tradition is still being continued.
Christians have no separate property.
13 The Kerala Joint Family System (Abolition) Act 1976, the Hindu Succession
(Andhra Pradesh Amendment) Act, 1986, the Hindu Succession (The Tamilnadu
Amendment) Act 1989, the Hindu Succession (Karnataka Amendment) Act 1994,
the Hindu Succession (Maharashtra Amendment) Act 1994.
16

Christian community in a part of south India formerly called Travancore. 14 The said law laid
down that for succession to the immovable property of the intestate is concerned, a widow or
mother shall have only life interest terminable at death or on remarriage and that a daughter
will be entitled to one-fourth the value of the share of the son or Rs 5000 whichever is less
and even to this amount she will not be entitled on intestacy, if streedhan (womans property
given to her at the time of her marriage) was provided or promised to her by the intestate or
in the lifetime of the intestate, either by his wife or husband or after the death of such wife or
husband, by his or her heirs15.
These provisions were 5 (1950) SCR 747 challenged as unconstitutional and void on account
of discrimination and being violative of right to equality under Article 14 of the
Constitution.16
The Writ Petition was allowed by the Supreme Court and the curtailment of the property
rights of Christian women in former Travancore was held to be invalid on the ground that the
said state Act stood repealed by the subsequent Indian Succession Act of 1925 which governs
all Indian Christians. However, the provisions were not struck down as unconstitutional since
the Court felt that it was unnecessary to go into the constitutionality issue of the provisions as
they are in any case inoperable due to the overrding effect of the ISA.17
Parsi womens right to property: Prima facie the property rights of the Parsis are quite gender
just. Basically, a Parsi widow and all her children, both sons and daughters, irrespective of
their marital status, get equal shares in the property of the intestate while each parent, both
father and mother, get half of the share of each child. 18 However, on a closer look there are
anomalies: for example, a widow of a predeceased son who died issueless, gets no share at
all.

14 Supra 3.
15 Supra 6.
16 Supra 5.
17 Shelly Saluja and Soumya Saxena, Changes brought in the position of women
after the 2005 (Amendment) available at: http://www.legalservicesindia.com
(Accessed on 21.05.2010).
18 Ibid.
17

4. Women as a karta
A questionnaire was issued by the Law Commission to elicit the views of the public
regarding giving of rights to a daughter in the Mitakshara property of a Hindu undivided
family. This questionnaire consisted of three parts having 21 questions. Sixty-Seven
respondents have replied to the questionnaire.1 30 respondents were from the profession of
law and the rest comprise sociologists, NGOs etc. About the case of Daughter becoming a
Karta in the Joint Family, about half the respondents wanted the daughter to become a Karta
in the Joint Family. The normal position of law does not give such a right to a women except
under special circumstances. If such a right is sanctioned by law then what will be the pros
and cons ? or why should we sanction such a right, for what reasons should a women be
allowed to become the manager of a joint family? To answer all these questions we will have
to look into arguments which favour the women becoming a Karta and the arguments which
do not favour such a disposition.
Arguments In Favour
# Making her the Karta would make her position more respectable
Despite the Constitution guaranteeing equality to women, there are still many discriminatory
aspects in the Hindu law in the sphere of property rights. In our society maltreatment of a
woman in her husband's family, e.g. for failing to respond to a demand of dowry, often results
in her death. But the tragedy is that there is discriminatory treatment given to her even by the
members of her own natal family. Thus, if she is made the Karta of the family, then all the
members of the family will respect her because of her position and women abuse will be
controlled. This will enhance her self-confidence and social worth and give her greater
bargaining power for herself and her children, in both parental and marital families.
# After The Hindu Succession Amendment Act, 2005 women are recognized as coparceners.
18

In the Hindu system, ancestral property has traditionally been held by a joint Hindu family
consisting of male coparceners. Coparcenary as seen and discussed earlier in the present work
is a narrower body of persons within a joint family and consists of father, son, son's son and
son's son's son. A coparcenary can also be of a grandfather and a grandson, or of brothers,or
an uncle and nephew and so on. Thus ancestral property continues to be governed by a
wholly partrilineal regime, wherein property descends only through the male line as only the
male members of a joint Hindu family have an interest by birth in the joint or coparcenary
property. Since a woman could not be a coparcener, she was not entitled to a share in the
ancestral property by birth. A son's share in the property in case the father dies intestate
would be in addition to the share he has on birth. But after the amendment daughters have
from birth coparcenary rights. So they can be kartas as they are now recognized as
coparcenors.
# Women are fully capable of managing a business, taking up public life as well as manage
large families as mothers.
There is still a reluctance to making her a Karta as the general male view is that she is
incapable of managing the properties or running the business and is generally susceptible to
the influence of her husband and his family, if married. This seems to be patently unfair as
women are proving themselves equal to any task and if women are influenced by their
husbands and their families, men are no less influenced by their wives and their families.
# This will end gender discrimination in Mitakshara coparcenary by including daughters in
the system. Since the girl will be the equal inheritor of her ancestral property, the in-laws may
not insist on dowry.
# It is being suggested that the family dwelling will not be "alienated" without her express
consent. Thus will make her position stronger. She will now become a member equal to that
as any other male member.
# Such an act will spread awareness and increase literacy among women as they will be
involved in family affairs and they will have a say in business.
Arguments Against Women Becoming Karta
# Daughters cannot be made karta as they live away from joint family after their marriage the
daughter-in-laws do not also originally belong to their in-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?
19

# 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 incapable of running a
business.
# If women are made karta will they be entitled to any kind of maintenance ? these are the
key questions that is needed to be answered.

5. Judicial reforms
The possibility of female being the Karta in presence of senior male member is being ruled
out. But the question is whether in the absence of the manager, whether by prolonged
journeys abroad or by dying without leaving another manager to succeed him in his
function, a female could act as a manager. No doubt, it is true that he can act as guardian
of Hindu Minors by the Hindu Minority and Guardianship act, 1956 but it abstains her
from interfering with the exclusive powers of managers to deal with the interests of minors
in the Joint Family Property.
So, the solution lies in our religious text which is Dharmashastra. It says that alienation
can be done by the wife of an absent, or the widow of a dead manager, of family property
belonging to numerous minors, unable to enter into contractual relationships in their own
persons, yet reasonable for maintaining dependants and carrying the various burdens of the
family. Here, the benefit of the family is the touchestone, not the identity of the alienor.
The acts of a female member acting as a manager should be positive for the benefit of the
Family. Such acts will be binding upon the manager when he returns or appears on the
scene by simply coming of age as the case may be.
It is further supported by Katyana, Smritichandrika, Bhavasvamin and Yagnavalyka
Smriti. Some of the Sanskrit text says "sishyantevasi-dasa-stri-vaiyavrittyakarais ca yat Kutumbahetor ucchinam vodhavyam tat
Kutumbina"
The manager (or householder, actual or eventual) is liable to accept (or admit) all
alienations made for the purposes of the Family by a pupil, apprentice, slave, wife, agent
or bailiff.
20

Narada says- "Na ca bharya-kritam rinam kathancit patyur abhavet Apat kritad rite,
pumsam kutumbartho hi vistarah"
A debt contracted by his wife never binds the husband, except that incurred in a time of
distress: expenses for the benefit of the family fall upon males.
Even at this objection is being raised, Are not women declared by the sastra to be
incapable, or unfit for independence? Wherever a male member of the family is available,
his signature should be taken rather than that of any 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 with her, and powers should obviously be allowed to her
accordingly.

The Case Laws- In Support

The Nagpur position
In Hunoomanpersauds case 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 Gorle, 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 Narayan, 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
21

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, Madras a mother , guardian of minor sons , purported to execute a deed
of partnership admitting a stranger as a power in the ancestral business. It was held that
this was outside her powers and the deed could not be registered under section 26(a) of the
Income Tax Act 1922. A woman could not be a manager. The argument that
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.

22

6. Conclusion
It is clear from the foregoing that though the property rights of Indian women have
grown better with advance of time, they are far from totally equal and fair. There is
much that remains in Indian womens property rights, that can be struck down as
unconstitutional. The response of the judiciary has been ambivalent. On one hand, the
Supreme Court of India has in a number of cases held that personal laws of parties are
not susceptible to fundamental rights under the Constitution and therefore they cannot
be challenged on the ground that they are in violation of fundamental rights especially
those guaranteed under Articles 14, 15 and 21 of the Constitution of India.
On the other hand, in a number of other cases the Supreme Court has tested personal
laws on the touchstone of fundamental rights and read down the laws or interpreted
them so as to make them consistent with fundamental rights. Though in these decisions
the personal laws under challenge may not have been struck down, but the fact that the
decisions were on merits go to show that though enactment of a uniform civil code
may require legislative intervention but the discriminatory aspects of personal laws can
definitely be challenged as being violative of the fundamental rights of women under
Articles 14 and 15 and can be struck down. Infact in one case the Supreme Court has
held that that personal laws, to the extent that they are in violation of the fundamental
rights, are void.
In some judgments the Supreme Court has expressly recommended to the State to
carry out its obligation under Article 44 of the Constitution and formulate a uniform
civil code . There is a definite swing is towards a uniform civil code and one can see
that the courts are going to play a significant role to usher it in. Another heartening
trend is that the Indian courts are increasingly relying on international standards,
derived from various international declarations and conventions. Specifically CEDAW
has been referred to and relied upon by the Supreme Court of India in some
judgments .
These line of judgments give a firm basis for the women of India to demand gender
justice and equal rights on par with international standards. Road ahead: Apart from
the ongoing struggle for a uniform civil code in accordance with the Constitutional
framework, today the India women are fighting for rights in marital property, denied
uniformly to them across all religious boundaries. There is also a significant movement
in some of the hill states, towards community ownership of land by women by creating
group titles and promoting group production and management of land and natural
resources by landless women for joint cultivation or related farm activity. Land rights
would be linked directly to residence and working on land under this approach being
lobbied for under the Beijing Platform for Action. However, the challenges are many:
social acceptance of womens rights in property leads them. In a country where women
continue to be property themselves the road ahead promises to be long and bumpy.
An analysis of the inheritance rights of the Christian, Hindu and Muslim women
brings forth the reality that only the Christian women alone are deprived of the right to
inherit a share of the ancestral property. This is the mere callousness of the Legislature.
23

The international Conventions on women always focus on womens inheritance rights.

However neither the community nor the Church would ever take any step to plug the
existing loopholes in the Indian Succession Act 1925 because they are up in arms
against women inheriting property. The Law Commission also has been enthusiastic in
the reforms of Hindu Succession Law.
No such enthusiasm is shown in reforming Christian Personal Law. In tune with the
Law Commissions recommendations, even the Government has made an effort to
make reformatory laws in Hindu Succession, though it is not implemented effectively.
To make matters worse Christian women are still being controlled by the Church
through its Canon laws which ensure womens subjugation and subordinate status.
Under the Shastric Law, a daughter on marriage ceases to be a member of the parental
family, but the Amending Acts have changed her position, which is quite alien to
Hindu patriarchal notions. Though her position as defacto manager was recognized
when mothers acted as guardians of their minor sons after the death of their husbands,
the dejure conferment of the right eluded her.
The law commission also has rightly observed that although the Hindu Succession
Amendment Act, 2005 has conferred upon the daughter of a coparcener status but
there is still a reluctance to making her a Karta. This seems to be patently unfair as
women are proving themselves equal to any task. Since they can act as coparcenaries
then they must also be given the powers of Karta.
The shastra is clear that in the absence of senior member a junior member (if he has
reached the age of legal competence) may incur debts for the needs of the family, and
in the absence of a male member a female member may do so. The Sanskritic texts
empower women to act as Karta in instances like when the husband is away or missing
or the son is yet to attain majority.Equality for women is not just a matter of equity for
the so-called weaker sex, but a measure of the modernity of Indian society and the
pragmatic nature of our civilization.

24

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T.K.Rajalakshmi, Muslim Women more Vulnerable Frontline, Vol.24, issue o2,
Jan-Feb-27, 2007.
Shelly Saluja and Soumya Saxena, Changes brought in the position of women
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Pradesh

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25