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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 ..... preventing the eldest female co-parcener of an HUF, from being its Karta. The plaintiff s father s right in the HUF did not dissipate but was inherited by her. Nor did her marriage alter the right to inherit the co-parcenary to which she succeeded after her father s demise in terms of Section 6. The said provision only emphasises the statutory rights of females. Accordingly, issues 5, 6 and 8 too are found in favour of the plaintiff. In these circumstances, the suit is decreed in favour of the plaintiff in terms of the prayer clause, and she is declared the Karta of D.R. Gupta Sons (HUF) . - Najmi Waziri, J. For the Plaintiff : Ms. Mala Goel, Adv. For the Defendant : Mr. Aslam Ahmed, Mr. B.S. Jamwal Mr. Puneet Singh Bindra, Advocates, Mr. B.K. Srivastava, Mr. Dinesh Kumar Mr. Roopak Gaur, Advocates ORDER Najmi Waziri, J. 1. The issue which is to be decided in this case is whether the plaintiff, being the first born amongst the co-parceners of the HUF property, would by virtue of her birth, be entitled to be its Karta. Her claim is opposed by defendants Nos. 1 to 4 while the defendants Nos. 5 to 9 have given their no objection to it and their NOC has been filed along with the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ener by birth in her own right and has the same rights in the co-parcenary property that are given to a son. She relies upon Section 6 of the Hindu Succession Act, 1956 which reads as under: 6. Devolution of interest in coparcenary property. - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) 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 coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation. -For the purposes of clause (a), the expression son , grandson or great-grandson shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. -For the purposes of this section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court. 6. She also relies upon the dicta of the Supreme Court in Tribhovan Das Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. AIR 1991 SC 1538 which held that the senior most member in a HUF would become the Karta. The relevant portion of the above judgment is reproduced hereinunder: The managership of the Joint Family Property goes to a person by birth and is regulated by seniority and the Karta or the Manager occupies a position superior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel also refers to Ex. PW3/C which is an extract from a note sheet. No. 36, Clause 2 whereof reads as under: (i) After perusing the record available in the file it reveals that Bungalow No.4, University Road Kingsway Camp, Delhi admeasuring an area of 25750 Sq. yards or 5.32 acres was held on Lease in Form B Cantt Court 1899 in Perpetuity dated 25.07.1906 duly registered as number 2239 Book No. 1 Vol. No. 615 on pages 8 to 54 dated 31.08.1906 on payment of an annual rent of ₹ 12/- in favour of Sh. D.R. Gupta, who died on 01.10.71. (ii) The subject property has also been declared in the name of HUF and mutated in favour of the Legal Heirs of Late Sh. D.R. Gupta namely (1) Sh. Kishan Mohan (2) Shri Mohinder Nath Gupta (3) Shri Jatinder Nath Gujpta (4) Shri Ravinder Nath Gupta and (5) Sh. Bhupinder Nath Gupta. (iii) The above named individuals have also been declared as joint owners of the Lease hold rights of the subject property. Shri Kishan Mohan Gupta died on 17- 2-1984 and names of his Legal Heirs have beensubstituted in the names of his Legal Heirs have been substituted in the record of this office. In his deposition on 18.07.2013, PW-3, one Mr. N.V. Satyanaraya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at on the following terms: 2.1 The parties acknowledge and confirmed that the parties hereto are the members of the Hindu Undivided family D.R. Gupta and Sons (HUF) and each having share in the movable and immovable properties presently owned by the Hindu Undivided Family as under: (a) Shri Krishan Mohan Gupta (The eldest son of late Shri D.R. Gupta who died on 17th Feb., 1984) and is survived by his 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 (party of the Second part ) - 1/5th share (c) Mr. Ravinder Nath Gupta (party of the Third part) - 1/5th share (d) Shri Bhupinder Nath Gupta (party of the Fourth) - 1/5th Share (e) Mr. Jitender Nath Gupta (party of the Fifth part ) - 1/5th share 2.2 The parties acknowledge and confirm that the Hindu Undivided family owns and possesses the following movable and immovable properties. (a) Bunglow No.4, Universtiy Road, Delhi. (b) Share of Motor and General Finance Ltd. (4308 shares) (c) Bank account of Hindu Undivided family D.R. Gupta Sons (HUF) with Bank of India, Asaf Ali Road, New Delhi. (d) Bank account with Vijiya B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the market price of the said property. In case the purchase is made by any one or two of the parties of the second, third fourth part then the parties/party out of the 2nd, 3rd and 4th parties who are not the purchaser and are being asked to vacate the premises occupied by them would be paid their share of the relocation expenses as described in earlier in clause 4 of the agreement. It was further under the said oral family settlement that till such time that the permission of (sic.) competent authority to subdivide or to construct the said property is received the two families who are not in occupation of the said property would not demand demarcation or setting aside of their share in the property. However, once the permission to construct and subdivide is received then it would be their right to demand demarcation and possession of their share in the said property. In case on demarcation if anyh one(sic) or two or all out of the 2nd, 3rd and 4th parties move out of their present constructed portion that they are occupying, then the affected party/parties would be paid relocation expenses as described earlier in Clause 4 of the agreement. In such event, the parties 2, 3 4 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Financial Corporation vs. Rajiv Anand 2004 (11) SCC 625. Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the Court should not seek to amend the law in the grab of interpretation. 13. The learned counsel further relies upon Ganduri Koteshwar Ramma Anr. v. Chakiri Yanadi Anr., (2011) 9 SCC 788 which, in the context of Section 6 of the Hindu Succession Act, held that rights in the co- parcenary property among male and female members of a joint Hindu family are equal on and from 9.9.2005. He submits that the legislature has now conferred a substantive right in favour of the daughters; that by Section 6, the daughter of the co-parcenar shall have same rights and liabilities in the co-parcenary property as she would if she had been a son; thus, on and from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the family is entitled to manage the family properties, and the father, and in his absence, the next senior- most male member of the family, as its manager provided he is not incapacitated from acting as such by illness or other sufficient cause. The father's right to be the manager of the family is a survival of the patria potestas and he is in all cases, naturally, and in the case of minor sons necessarily the manager of the joint family property. In the absence of the father, or if he resigns, the management of the family property devolves upon the eldest male member of the family provided he is not wanting in the necessary capacity to manage it. 16. He submits that the S. Sai Reddy judgment only recognizes the right of the eldest male member to be the Karta; that the amendment in 2005 only recognized the rights of a female member to equal those of male members but it did not extend to granting them any right in the management of HUF property; that the Hindu Succession Act,1956 only deals with succession to the intestate properties of a Hindu and does not purport to address the issue of the management of the estate. 17. The learned counsel for the defendant Nos.1 to 4 furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindi Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1976. 3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession act, 1956 by giving equal rights to daughters in the Hindu Mitakashara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section. 21. He also submits that there is a positive constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de a reference to a daughter of a coparcener: Provided that nothing contained in this Sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family 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 ali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of succession in the case of males. - The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter- (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of two classes, then upon the agnates of the deceased; and (d) lastly , if there is no agnate, then upon the cognates of the deceased. 9. Order of succession among heirs in the Schedule. -Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession. Ms. Mala Goel, the learned counsel for plaintiff refers to the same locus classicus by Mulla on principles of Hindu laws which states as under: By virtue of the new provision, a daughter of a coparcener in a joint Hindu family governed by the Mitakshara law now becomes a coparcener in her own right a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income-tax, wherein Satyanarayana Rao J. observed : The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family... Further, the right is confined to the male members of the family as the female members were not treated as coparceners though they may be members of the joint family. 17. Viswanatha Sastri J. said : The managership of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the coparceners of the joint family. Coparcenership is a necessary qualification for managership of a joint Hindu family. 18. Thereafter, the learned judge proceeded to state : It will be revolutionary of all accepted principles of Hindu law to suppose that the senior most female member of a joint Hindu family, even though she has adult sons who are entitled as coparceners to the absolute ownership of the property, could be the manager of the family... She would be guardian of her minor sons till the eldest of them attains 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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