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Business News/ Opinion / A woman coparcener can also be the karta of an HUF
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A woman coparcener can also be the karta of an HUF

Till 2005, daughters were not coparceners of their father's family (unlike sons, who became coparceners on birth), but were only members of the family on birth, and ceased to be members of their father's family on their marriage

Shyamal Banerjee/MintPremium
Shyamal Banerjee/Mint

A Hindu Undivided Family (HUF) is a concept based on traditions and customs. This concept has, however, undergone changes by amendments in law. By an amendment in 2005 to the Hindu Succession Act, 1956, the entire concept of HUFs, as was then prevalent, underwent a fundamental change.

Till 2005, daughters were not coparceners of their father’s family (unlike sons, who became coparceners on birth), but were only members of the family on birth, and ceased to be members of their father’s family on their marriage. A coparcener is a member of an HUF who has the right to claim a partition of the family. Only male members were regarded as coparceners till 2005. The 2005 amendment gave equal rights to daughters as to sons, providing that daughters become coparceners of their father’s families on birth in the same manner as sons, and have the same rights as sons in the family properties.

Various issues arose on account of this amendment. Would it apply to daughters born before the date of amendment, or only those born after the amendment? Would the amendment apply to a daughter who had got married before the amendment, and therefore ceased to be a member of her father’s family? Would it apply to a daughter whose father had passed away before the amendment? Would the legal heirs of a daughter who has passed away before the amendment be entitled to the daughter’s share of the family assets? Can a daughter become a karta (manager, normally the eldest coparcener) of the family after the amendment? What if the eldest son had already become the karta before the amendment? The answers to some of these questions seem to be now becoming clear, due to decisions by courts.

In a recent decision, a daughter claimed a share in her father’s family, where her father had passed away in 1988, on the basis of the 2005 amendment. The Supreme Court held that she was not entitled to a share since her father had passed away prior to the amendment coming into effect. The Supreme Court clarified that it was not necessary that the daughter had to be born after the amendment, to claim the benefit of the amendment. It also held that the rights under the amendment applied to a living daughter of a living coparcener as on 9 September 2005. According to the court, the rights which had already crystallised by operation of law prior to 20 December 2004 did not get disturbed by the amendment. This was evident from the clause in the amendment providing that partitions that have taken place before 20 December 2004 would remain unaffected by the amendment.

Therefore, it is now clear that the date of birth of the daughter, or the date of her marriage (whether before or after the amendment) are immaterial. What is relevant is that both the daughter and the father had to be alive on the date of the amendment for the daughter to get the benefit, irrespective of whether she was married or not on that date. If the father had passed away earlier, she was not a daughter as envisaged by the amendment. Similarly, if the daughter had passed away prior to the amendment, she was not a daughter on the date of the amendment, and, therefore, her legal heirs would not get the benefit of the amendment.

The issue as to whether a daughter can become the karta of an HUF has recently been decided by the Delhi High Court. In this case, the granddaughter, whose father passed away in 1983, claimed to be the karta of her grandfather’s HUF after the death of her paternal uncle. Her cousin, who was the eldest grandson, but younger to her, was functioning as the karta, which she claimed was incorrect. The court held in her favour, on the ground that since she was now a coparcener, as the eldest coparcener, she was entitled to become the karta of the HUF.

The Delhi High Court was of the view that since women now had equal rights of inheritance in HUF property, these rights could not be curtailed when it came to management of the property. Earlier, a woman could not be a karta, since she was not a coparcener of the HUF. Now that this disqualification had been removed by the 2005 amendment, there was no reason to deny a woman the position of a karta. Just as the eldest male member could be the karta, even the eldest female member could be the karta—it was the eldest coparcener who was entitled to this right.

Interestingly, in this case, the father of the granddaughter was not alive in 2005. Therefore, going by the recent Supreme Court decision, the granddaughter would not be a coparcener even after the amendment. However, it was not disputed before the Delhi High Court that she was a coparcener by virtue of the 2005 amendment, and that is why the Delhi High Court took the view that it did. However, the principle that it laid down regarding the oldest coparcener being the karta, even if it is a woman, seems to be the right position.

As it is, most people find the Hindu succession law difficult to understand; the amendment had added to the confusion. One hopes that after these two decisions, most of the controversies relating to the 2005 amendment would now come to an end.

Gautam Nayak is a chartered accountant.

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Published: 10 Feb 2016, 06:57 PM IST
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