Introduction In recent times, there has been an effort at gender equality in India across various legislations, such as, amending the Hindu Succession Act to give rights to daughters and sisters in their father’s Hindu Undivided Family (HUF), women’s representation on the board of directors of listed and large public companies, etc. However, surprisingly one of the most basic rights of women – share of a wife in her husband’s HUF has yet not undergone a change. This position has remained constant right from the times of Manusmriti, the father of the Hindu Law. Let us examine the position in this respect.
Concept of an HUF
Just to set the background and to jog our memory, an HUF is a joint family belonging to a male ancestor, e.g., a grandfather, father, etc., and consists of male coparceners and other members. Thus, the sons and grandsons of the person who started the HUF would automatically become coparceners by virtue of being born in that family. The wife of a coparcener is a member of the HUF. A unique feature of an HUF is that the share of a member is fluctuating and ambulatory which increases on the death of a member and reduces on the birth of a member. The share can be crystallised only on the partition of an HUF. A partition refers to the breaking up of the joint family and giving separate identifiable shares to all or some of the coparcerners/members of the HUF. Thus, the HUF as an entity ceases to exist and its constituents become the owners of the property which was earlier owned by the HUF. The crux of the issue is which female member of an HUF has a right to demand a partition of an HUF?
Share of a Daughter
After the Amendment on 9th September 2005 to the Hindu Succession Act, 1956, even daughters would have an equal right as sons and hence, now, even they would become coparceners in their father’s HUF. The Bombay High Court has held daughters have a right to claim partition in their father’s HUF and this applies even to daughters born before 9th September 2005 – Babu Dagadau Awari vs. Baby AIR 2015 (NOC) 446 (Bom). Thus, this has been a major relaxation in women’s rights. Grand-daughters would also become coparceners in the respective HUFs of their paternal and maternal grandfathers.
Share of a Wife
However, when it comes to the share of a wife in her husband’s HUF, the position is the opposite. Under the Hindu law, a wife does not have a right to demand a partition of her husband’s HUF. She cannot demand a partition. Her only right is to get a share in her husband’s HUF equal to her son’s share in the event of a partition of such HUF. The decision of the Bombay High Court in Anand Krishna Tate vs. Draupadibai Krishna Tate, 2010(4) All MR 834 is on this point.
The Karnataka High Court in Thabagouda Satteppa Umarani by LRs vs. Satteppa 2015(1) KCRR 1022, held that it was to be noted that the term coparcener of an HUF referred to a male issue i.e., a father or a son. The wives of coparceners did not get any interest by virtue of their marriage. A wife had no share, right title or interest in the Hindu Undivided Family in which her husband was a coparcener with his brothers, father or sons and after the amendment of section 6 of the Hindu Succession Act,1956, with his sisters and daughters also. The wife, may be a member of a joint Hindu Family, but by virtue of being a member in the joint Hindu Family she could not get any share, right, title or interest in the joint Hindu Family property which that family owned. A wife could not demand a partition unlike a daughter. She would get a share only if partition was demanded by her husband or sons and the property was actually partitioned. The claim by a wife during lifetime of the husband in the share and interest which he had as a coparcener in his HUF was wholly premature and completely misconceived. Thus, though the wife was entitled for an interest i.e., share, it was only along with her husband.
Share of a Widow
Is the position of a widow different from that of a wife whose husband is alive? Things start getting murkier now. Prior to the Hindu Succession Act, 1956, the position was different. Section 3 of the Hindu Women’s Right to Property Act, 1937 provided that when a Hindu male died intestate having behind his share in an HUF, then his widow had the same interest in the HUF as he himself had. Further, any such interest devolving on his Hindu widow was a limited interest known as a Hindu woman’s estate, and she had the same right of claiming partition as a male owner. Interestingly, this Act was repealed by the Hindu Succession Act, 1956. So an earlier law gave better protection to a widow as compared to the latter law! A Single Judge of the Bombay High Court in Anand Krishna Tate vs. Draupadibai Krishna Tate, 2010(4) All MR 834 has analysed the impact of this repeal and held that post-repeal, the 1937 Act affords no protection to widows. The Bombay High Court held that section 3, no doubt, gave a right to women to seek partition. However, this Act was repealed by Hindu Succession Act, 1956. Therefore, it was no longer possible to take advantage of section 3 of the Hindu Women’s Right to Property Act. If the provisions of Hindu Succession Act, 1956 are read, it would be clear that there is no provision similar to section 3 of the Hindu Women’s Right to Property Act. The legislature in its wisdom had not thought it fit to continue this right in a woman. However, another Single Judge of the Bombay High Court in the case of Smt. Kalawati Balasaheb Karne vs. Smt. Chandra Hanmant Karne, SA 405/2013, Order dated September 15, 2014, has considered this decision and held that in the wake of the revolution for emancipation of women and for recognising their rights as human beings equal to the males in respect of the properties in a Hindu family, depriving a widow simply because no other coparcerners demand partition would clearly be destructive of the movement. It must be noted that both the decisions are of Single Judges of the same High Court and hence, one cannot be said to have dominance over the other. However, both of these decisions have not considered a very old Full Bench judgment of the Bombay High Court in Sushilabai Ramchandra Kulkarni vs. Narayanrao Gopalrao Deshpande, AIR 1975 Bom 257 (FB). Although this decision dealt with the share which a widow would receive in a partition of her deceased husband’s HUF, it also held that a widow’s heir is entitled to have a partition of the HUF and separate possession thereof secured to her.
Several Courts have expressly held that a widow can claim a partition of her husband’s HUF. The Gujarat High Court in Vidyaben vs. JN Bhatt AIR 1974 Guj 23 states that she can claim a partition. It analysed section 6 of the Hindu Succession Act, 1956, which states that when a male Hindu dies leaving behind Class I female relatives (such as, wife, mother, daughter), then his interest in the HUF property shall devolve by testamentary (i.e., by Will) or intestate – succession (i.e., by law), as the case may be, under this Act and not by survivorship. It further provides that the interest of a Hindu male coparcener shall be deemed to be the share in the HUF 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. The Court held that section 6 itself by implication gives a right to the female heir mentioned therein to claim partition of the joint family property and the moment the deceased coparcener left behind him his heirs who included a female relative specified in Class I of the Schedule the law governing coparcenary property with regard to devolution of interest would no longer be applicable and the testamentary or intestate succession as provided by this Act would govern the case. It held that the moment the interest of the deceased in the joint family, property is severed, the joint family status would come to an end and it would be open to the widow to claim partition therein. it observed that it was difficult to envisage a position that even though the share of the deceased has to be ascertained on the footing that the wife would get the share if there was partition of the huf property just prior to the death of her husband, she would not get any share after his death and that her son would take the remaining property by survivorship. the gujarat high Court also cited with approval a very old decision of the Bombay high Court in Ranubai vs. Laxman Lalji Patil, AIR 1966 Bom 169 which was on somewhat similar lines. a similar view has been expressed by the gauhati high Court in CIT vs. Mulchand Sukmal Jain, 200 ITR 528 (Gau.) where it held that the rule of pristine Mitakshara law that when, in a family consisting of father, mother and son , partition takes place between the male members, the mother may be entitled to a share equal to that the son in lieu of her claim for maintenance, but she herself cannot demand partition, cannot apply to a state of affairs reached on the death of her husband. the widow as an heir of her husband would certainly be entitled to claim the share inherited by her and, for that purpose, compel a partition. even the Karnataka high Court in Thabagouda Satteppa Umarani by LRs vs. Satteppa 2015(1) KCRR 1022 has held that a widow can demand partition of the interest in an huf which her deceased husband would have been entitled to.
It is respectfully submitted that the decisions upholding right of a widow to demand partition appear more reasonable.
The supreme Court in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum, 129 ITR 440 (SC) dealt with what would be share of a widow in a partition of her deceased husband’s HUF? The Court held that a widow would not only be entitled to share in the portion coming to her husband but she will also have to be allotted her own share in the coparcenary property along with son upon death of husband, i.e., she would get her own share equal to her son and also a part in her husband’s share.
Position of Different Female Relatives
Based on the above discussion, it would be interesting to note that the law provides for a different treatment as to whether a female can ask for a partition in an huf depending upon her relationship. this is better explained by the following table:
