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Can a female member become Karta of HUF?

By K. D. Shah, FCA

Issue

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 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, minor can act as Karta through his natural guardian i.e. mother in 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 v Seth Laxmi Narayan Raghunathdas [1948] 16 ITR 313 (Nag.), 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, 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, no female can be a coparcener with male coparceners, 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 sine 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 have materially changed the status of a Hindu woman. If a coparcener gets interest in the joint family 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, her position is practically analogous to that of the coparcerner. 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 joint Hindu Family.

View in favour of the proposition

The following passage from Mayne's "Hindu Law and Usage" (9th Ed., 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 v 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 High Court in the case of Seth Laxmi Narayan Raghunathdas (supra).

A similar view was held by the Calcutta High Court in the following cases -

(i)        Sushila Devi Rampuria v ITO [1960] 38 ITR 316 (Cal.)

(ii)       Smt. Champa Kumari Singhi v Addl. Member, Board of Revenue [1962] 46 ITR 81 (Cal.)

Summation

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 "coparcenership" for becoming Karta because as per the well-established principles of Hindu Law only a coparcener can become the Karta of HUF. Thus, as per the law it stands today a female member cannot become Karta of HUF.

However, a proposed amendment to the Hindu Succession Act 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  -

i)          Daughter-in-law (including widows)

ii)        Unmarried daughter

iii)       Married daughter

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.

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.

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 inasmuch 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 her father's HUF. However, this cannot be the intention of the law. In my view, since, married daughter is not a member of the father's family, she cannot become Karta of her father's HUF even though she can have all other coparcenery rights in her father's HUF.

Thus, it appears that even under the amended law, though a female can be a coparcener of HUF, she cannot be a Karta of HUF.