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TMI Blog2015 (12) TMI 1646X X X X Extracts X X X X X X X X Extracts X X X X ..... properties and shares such as (i) Shares of Motor and General Finance Ltd.; (ii) Deposits with Motor and General Finance Ltd.; (iii) Bank of Account in Bank of India, Asaf Ali Road; and (iv) Bank Account in Vijaya Bank, Ansari Road. 3. To determine the lis in this case, the following issues were framed vide order dated 15.09.2008: 1. Whether the suit has been valued properly and proper court fee has been paid thereon? (OPP) 2. Whether the suit for declaration, is maintainable in its present form? (OPP) 3. Whether there exists any coparcenary property or HUF at all?(OPP) 4. Whether the plaintiff is a member of D.R. Gupta and Sons HUF? And if so, to what effect? (OPP) 5. Whether the interest of the plaintiff separated upon the demise of her father Sh. K.M. Gupta in 1984? (OPD) 6. Assuming existence of a D.R. Gupta and Sons HUF, whether the plaintiff can be considered to be an integral part of the HUF, particularly after her marriage in 1977, and whether the plaintiff has ever participated in the affairs of the HUF as a coparcener, and its effect? (OPP) 7. Assuming existence of D.R. Gupta and Sons HUF, whether the plaintiff is a coparcener of and legally entitled to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation. -For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces such as distress or calamity effecting the whole family and for supporting the family or in the absence of the father whose whereabouts were not known or who was away in remote place due to compelling circumstances and that is return within the reasonable time was unlikely or not anticipated." Ms. Mala Goel further relies upon the case of Ram Belas Singh vs. Uttamraj Singh and Ors. AIR 2008 Patna 8, which held as under. This judgment deals with Section 6B of the Act: "9. The suit out of which this civil revision has arisen had been filed in the year 2006 much after coming into force of the Hindu Succession (Amendment) Act, 2005 (Act XXXIX of 2005) which substituted Section 6 of the Act and provided that in a joint Hindu family governed by Mitakshara law the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and will have the same rights in the coparcenary property as she would have if she had been a son and shall also be subject to the same liabilities in respect of the said coparcenary property as that of a son and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the letter dated 01.06.85, addressed to Mrs. Shanta K. Mohan, w/o Late Sh. Kishan Mohan, 18, Anand Lok, New Delhi regarding mutation in the name of successor of Late Sh. Kishan Mohan, Karta (JHUF) in respect of 4, University Road, Delhi and letter dated 5.8.2003 from his office addressed to Sh. R.N. Gupta (Karta) & others, 4, University Road, Delhi on the subject "Mutation of Bungalow No.4, University Road, Delhi in the name of Legal Heirs." In this letter, it was contended that Mr. R.N. Gupta was the sole surviving son of Mr. D.R. Gupta and that he was thus the Karta of the said JHUF. 8. It is not in dispute between the parties that the plaintiff is the eldest surviving member of the HUF. Accordingly, she seeks a decree in terms of the relief sought in the suit. 9. The learned counsel for the plaintiff relies upon the case of Raghunath Rai Bareja and Another vs. Punjab National Bank and Others (2207) 2 SCC 230 which held that, under the Dayabhaga School of Law, an unborn son cannot have a right in the property because the said son cannot perform Shradha whereas, under the Mitakshara School of Law, an unborn son in the womb of his mother gets a share in the ancestral property. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties effected partition of Hindu Undivided family D.R. Gupta & Sons (HUF) and that the parties being the member of the said Hindu Undivided family were entitled to and were owners of the movable and immovable properties of the said Hindu Undivided family mentioned in para 2.2 above to the extent as under: a) Shri Krishan Mohan Gupta (The eldest son of late Shri D.R. Gupta, who died on 17th Feb. 1983) and is survived byhis wife Smt. Shanta K Mohan and Mrs. Sujata Sharma & Mrs. Radhika Seth, daughter, heirs to the party of the "First part". 1/5th share b) Shri Mahendra Nath Gupta (as karta of the "Second party") 1/5th share c) Mr. Ravinder Nath Gupta (Party of the "Third part") 1/5th share d) Mr. Bhupinder Nath Gupta (Party of the "Fourth Part") 1/5th share e) Mr. Jitender Nath Gupta (Party of the "Fifth part") 1/5th share 3. The Parties acknowledges that the party of the second, third, fourth, part are presently residing in the Hindu Undivided family property No. 4, University Road, Delhi and that they shall continue to reside therein till any three parties herein jointly decide and convey their intention to the other parties herein that the said property No. 4 Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daughter of Kishan Mohan Gupta, who is one of the acknowledged coparceners of the said HUF and was thus a party. She had signed the settlement as a member of the family and her signatures would have to be read as one of the parties. Her signatures would testify that she has a share in the property otherwise her signature would not be necessary. 11. Ms. Goel, the learned counsel, further submits that the share of a Karta is restricted by restraints placed upon the Karta inasmuch as no rights can be created nor can the property be appropriated to the detriment and exclusion of any of the co-parceners. 12. In the circumstances, issue Nos.2, 3, 4 and 7 are answered in the affirmative in favour of the plaintiff. 12. On behalf of defendant Nos. 10 and 11, the learned counsel, Mr. B. K. Srivastava, submits in support of the plaintiffs claim, that the stipulation in Section 6(1) of the Hindu Succession Act,1946, which devolves interest in co-parcenary right, is clear and unambiguous and does not call for any interpretation; that any reference to Hindu Mitakshara Law would be deemed to include a daughter with equal rights in the coparcenary, no other view regarding succession is pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled to a share in the HUF property and is a co-parcenar as if she had been a son. The Supreme Court relied upon its own judgment in S.Sai Reddy v. S. Narayana Reddy and Ors. (1991) 3 SCC 647 which held that the Hindu Succession Act was a beneficial legislation and had been placed on the statute book with the objective of benefitting a woman"s vulnerable position in society. Hence, the statute was to be given a literal effect. It is, however, required to be noted that the Court was then considering Section 29(a) of the Act and not Section 6. 14. The learned counsel for the defendant further submits that it is necessary to take into consideration Section 29(a) of Hindu Succession (Andhra Pradesh Amendment) Act, 1986 which is para materia to Section 6 of the Hindu Succession Act,1956. Therefore, the principle laid down in S.Sai Reddy v. S. Narayana Reddy and Ors. (supra) which is referred to in Ganduri Koteshwar Ramma & Anr. v. Chakiri Yanadi & Anr. (supra) ought to be followed. Ergo, the right of the eldest male member of a co- parcenary extends to the female members also. In the present case insofar as the plaintiff is the eldest member of the co-parcenary, her being a fem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to paras 8 & 9 of the written statement regarding the powers and functions of a Karta which are of wide amplitude. Finally, he submits that the limitation apropos customs under Section 4 is not comprehensive. He submits that Section 6 defines the rights only with respect to the inheritance of property and not its management; therefore, the undefined rights will have to be gleaned from customs as well as from the interpretation of ancient texts regarding Hindu religion. He submits that insofar as the right of management has not been specifically conferred on a female Hindu, the customary practice would have to be examined. In support of his contention, the learned counsel relies upon the judgement of the Supreme Court in Badshah v. Urmila Badshah Godse & Anr. (2014) 1 SCC 188, more particularly paras 13, 14, 16, 20 & 22. He also contends that the legislations regarding succession between Hindus were enacted for the purpose of removing obstacles and enabling inheritance of property by people with mental disabilities or injuries. Hence, the following enactments were made:- 1. Hindu Inheritance Act, 1928 2. Hindu Law of Act, 1929 3. Hindu Amendment Right to Property Act, 1937 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a positive constitutional protection in favour of the women under Articles 14, 15 and 16 as well as in the Directive Principles for the State Policy. The effect of deletion of sub-Section 2 Section 4 of the unamended Act has been enunciated in a judgment of this court in Nirmala & Ors. v. Government of NCT of Delhi & Ors., ILR(2010)Supp.(1) Delhi413 para 13 of which reads as under: 13. The relevant sections of the HSA are reproduced hereunder: Old Section 6 before substitution by the Amendment Act: 6. Devolution of interest of coparcenary property.- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: PROVIDED that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre -deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this subsection, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcener in a joint Hindu family governed by the Mitakshara law now becomes a coparcener in her own right and thus enjoys rights equal to those hitherto enjoyed by a son of a coparcener. The implications of this fundamental change are wide. Since a daughter now stands on an equal footing with a son of a coparcener, she is now invested with all the rights, including the right to seek partition of the coparcenary property. Where under the old law, since a female could not act as karta of the joint family, as a result of the new provision, she could also become karta of the joint Hindu family" 22. The learned counsel for the plaintiff further relies upon the 174th Report of the Law Commission of India, which has argued that when women are equal in all respects of modern day life, there is no reason why they should be deprived of the right and privilege of managing HUF as their Karta. She argues that it is in this context, that Section 6 was so formulated that it covers all aspects of succession to a coparcener which are available to a male member to be equally available to a female member also. 23. Insofar as the plaintiff father had passed away prior to the aforesaid amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... majority but she would not be the manager of the joint family for she is not a coparcener. 19. The view expressed by the Madras high Court in accordance with well settled principles of Hindu law., while that expressed by the Nagpur High Court is in direct conflict with them. We are clearly of the opinion that the Madras view is correct." 27. What emerges from the above discussion, is that the impediment which prevented a female member of a HUF from becoming its Karta was that she did not possess the necessary qualification of co-parcenership. Section 6 of the Hindu Succession Act is a socially beneficial legislation; it gives equal rights of inheritance to Hindu males and females. Its objective is to recognise the rights of female Hindus as co-parceners and to enhance their right to equality apropos succession. Therefore, Courts would be extremely vigilant apropos any endeavour to curtail or fetter the statutory guarantee of enhancement of their rights. Now that this disqualification has been removed by the 2005 Amendment, there is no reason why Hindu women should be denied the position of a Karta. If a male member of an HUF, by virtue of his being the first born eldest, can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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