‘All the coparceners have unity of possession and community of interest in the joint family property.’
Under Hindu Law, male members up to four generations in a Mitakshara Family are part of the coparcenary, i.e. father, his son, his son’s son, his son’s son’s son will form coparcenary. No female could become a coparcener in a Hindu Joint Family. However, it is possible in the families governed by the Dayabhaga law that a female member could be a coparcener after the death of her husband, post partition.
There exists a doctrine of Inheritance by Survivorship under the Hindu Law, by which, upon the death of a coparcener, his share in the joint family property, would devolve upon the remaining coparceners.
The law in India
In the year 1956, the Parliament of India enacted the Hindu Succession Act, the object of which states that it was enacted to amend and codify the law relating to intestate succession among Hindus. Also this Act, by the virtue of Section 6 adopted this doctrine by mentioning that if after the commencement of the Act, a male Hindu having an interest in the joint family property dies without leaving behind any female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, then his interest in the Joint Family Property will be divided upon the surviving members of coparcenary but not otherwise.
But it was up till 2005 that daughters were not treated as coparceners in a Joint Hindu Family. In the year 2005, Hindu Succession (Amendment) Act was passed, and it made a substantial change in the law of inheritance among Hindus. This amendment included daughters of the family within the coparcenary.
The present scenario suggests that the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son, and shall have the same right as that of a son, in the coparcenary property of the Joint Family.
The object of the Amending Act of 2005 was to remove the disparities between men and women regarding inheritance rights and remove the discrimination against women, hence placing men and women on an equal footing.
As per the latest judgments pronounced by the various courts, daughter’s right to the ancestral property of her father does not arise if the father died before the amendment to the Hindu Succession Act, 2005. The provisions of this Act do not have a retrospective effect (Badrinarayan Shankar Bhandari v. Om Prakash Shankar Bhandari; AIR 2014, Bom 151). The father should be alive at the time of the commencement of this new amended Act, and only then the daughters are entitled to become a co-sharer with her male sibling.
Are females allowed to become managers or Karta of the Joint Hindu Family?
In the case of Mrs Sujata Sharma v. Shri Manu Gupta; CS (OS) No. 2011/2006, the Delhi High Court has said that after the 2005 amendment to Hindu Succession Act, 1956, the females while having equal rights to HUF property, also have the right to manage the same property as Karta.
The major achievement of the amending Act lies in including all daughters especially married daughters as coparceners in joint family property. The Act of 1956 distinguishes between separate property and joint family property. The Hindu Succession (Amendment) Act, 2005, however, does not touch separate property. It includes daughters as coparceners in the Mitakshara joint family property, with the same birthrights as sons to shares and to claim partition, and to become Karta (Manager), while also sharing the liabilities.
After the 2005 amendment, when the females became the coparceners, it was a step towards realising equality between the genders. However, many confusing questions will arise in the future regarding the inheritance and succession in case of a female Karta. The answers to such intricate questions can only be speculated at best as there are no judicial precedents in this regard.
A female as a Karta has opened up a wide array of possibilities which need to be addressed as soon as possible.
(This article was submitted by Shivam Agrawal, a 2nd year student of law at Hidayatullah National Law University, as a part of B&B Associates LLP’s winter internship program.)