DIRECT TAXES
| Women right under Hindu Law whether absolute Mon, 22 Nov 2010 |
| The Hindu Women's right under Hindu Law — whether absolute? QUESTION: Please refer to your answer relating to the nature of women's right under the Hindu law in The Hindu dated November 1. I thought there is a different approach to the situation. Basically, the Hindu joint family is a system of sustaining the family as the unit. Therefore, there were joint meals, joint worship and joint property. The females were not considered as coparceners as they would go away to another family on marriage. Individual property was not envisaged originally. But with the Gains of Learning Act, individual property was recognised. But the twin and intertwined concepts with reference to property was right by birth and transmission by survivorship. By making the daughters into coparceners, both these concepts are brought in with their status as coparcener. Otherwise, there is no difference between their status as members except to give a share which could have been done without giving them the status of coparcener. To understand the situation, let us take a joint family with a karta and two sons and two daughters. On the karta's death, his share alone goes out by a notional partial partition and the rest of the property remains as family property of the survivors with the eldest coparcener as the karta. There is no disruption of the family as such by a total partition unless the surviving coparceners wish to have such a partition. There will be three corollaries. (1) When the daughter is also a coparcener and if she happens to be eldest, will she not be the karta of the surviving family? (2) Since the character of the family is joint family property, will not her children have a right to a share by birth? And (3) If the deceased karta has bequeathed his share to the surviving HUF, can it not perpetuate the HUF without disruption? In this situation, how can we stipulate that the daughter's share alone will be transmitted by succession as against the sons of the sons who will be having a right by birth to a share in the family property of the smaller HUF of which the son is a karta when, for instance, the son gets the property on partition. The son of the son gets his right only because his father is a coparcener. Can the son of the daughter be treated differently even though she is also a coparcener? There will be an inherent discrimination. “The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs” — Lord Asquith. I agree that you cannot extend it beyond its legitimate field but then the entire field of this legislation was only transmission of property and so the right by birth and the joint family character of the property cannot be wished away. Moreover, tax law has to follow the Hindu Law and cannot stipulate a succession when there is actually a survivorship and ignore the joint family character of the property as such. If the son can have a separate taxable entity as a HUF and get tax advantage, why not the daughter too. Will it not be gender injustice to deny it to her? ANSWER: The above view from Justice T. N. C. Rangarajan, former Judge of the Madras and Andhra Pradesh High Courts deserves utmost consideration and therefore reproduced in its entirety. Treating a woman's share from the joint family property from her parental home as joint family property would mean recognition of the rights of her children (and husband?) in such property as against the inference of absolute right in her favour in the answer referred to. There is, therefore, no gender injustice against the women in the answer notwithstanding the loss of possible tax advantage of a separate assessment, if it were not taken as coparcenary property. Attention may also be drawn to Sec. 14 of Hindu Succession Act, which provides that a property possessed by a female Hindu “whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner”. In a similar context of the right of widow or daughter of a coparcener on his death, where the law provides for deemed partition, it was held by the Supreme Court in State of Maharashtra v Narayan Rao Sham Rao Deshmukh (1987) 163 ITR 31 (SC) that the deeming provision under Sec. 6 of the Hindu Succession Act is only for the ascertainment of share of the female heirs as on the date of death of a coparcener and that the joint family will continue till actual partition. It was in these circumstances, it was inferred that the Hindu Succession (Amendment) Act, 2005, has the effect of conferring absolute interest to the daughters, though to the same extent as that of a coparcener. |
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