Karta (1) 4z4dc

Dr. Ram Manohar Lohiya National Law University, Lucknow 2018

Final Draft On Topic: KARTA IN MITAKSHARA HINDU T FAMILY In Subject: FAMILY LAW-II

Under the guidance of:

Submitted by:

DR. Shakuntla Sangam

Anushthan Tripathi

(Asst. Professor)

EnRoll No. 160101040 B.A LL.B(Hons.)

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ACKNOWLEDGMENT First of all, I would like to thank my teacher of the subject “tort”, Ms. Ankita yadav, for providing every bit of help and also showing the way in which to proceed and how to go about the project. I would also like to thank my parents, friends and others who helped me immensely at every step and gave every possible bit of help that I needed in preparing the project and making it look presentable in a good way. I would also like to thank the library staff of RMLNLU who provided me with books that I needed in making and preparing the project and other pieces of information and help that was required. At last I would like to sincerely thank God who gave me the much needed strength and power to go ahead with the project and make it in a presentable way.

Anushthan

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KARTA Brief Introduction: In hindu t family, the Karta or manager, occupies pivotal position. So unique is his position that there is no comparable office or institution in any other system of the world. His position is sui generis. Though he is a person with limited powers, yet within the ambit of his sphere, he possesses such vast powers. The term ‘Karta’ has been defined in the case of Suraj Bunsi Koer v. Sheo Persad.

Who can be the Karta? Senior most male member—Ordinarily, the senior most male member is the Karta of the t family.1 He does not owe his position to the agreement or consent of other coparceners. He is entitled to Kartaship because he is the senior most. So long as he is alive, may be aged, infirm, or ailing, he is entitled to Kartaship.2 So long as the father is alive, he is the Karta. After his death, it es to the senior most male member, who may be the uncle, if coparcenary consists of uncle and nephews , or who may be the eldest brother , if coparcenary consists of brothers. Junior male .—It is by understanding or agreement among coparceners that a junior male member can be a Karta.3 A junior male member of Hindu Undivided Family (HUF) was realising rent, he filed a suit for eviction, the tenant cannot question his locus standi or capacity to file a suit.4 Coparceners may withdraw their consent at any time. More than one Karta – There can be more than one Karta. Female as Karta –At one time, the Nagpur High Court held the view that mother, though not a coparcener, can be the Karta in the absence of adult male . The supreme court in Commr. Of Income Tax v. Seth Govind Ram,5 after reviewing the authorities, took the view that mother or any other female could not be Karta. This is in accordance with Hindu Law.

1

Shreeama v. Krishnavenanama, AIR 1957 AP 434; Ram v. Khira, AIR 1971 Pat 286; Man v. Gaini, ILR (1918) 40 All 77. 3 Narendra Kumar v. Commissioner Income Tax, AIR 1976 1953. 4 M/s Nopany Investments (P) Ltd. V. Santokh Singh , AIR 2008 SC 673 5 AIR 1966 SC 24 2

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Position of the Karta The position of Karta is sui generis. The relationship between him and other is not that of principal and agent or of partners. As the head of the family, he acts on behalf of other , but he is not a partner, as his powers are almost unlimited. He is the master of the grand show of the t family and manages all its affairs and its business. His powers of management are very wide and almost totalitarian. Though he stands in fiduciary relationship with other , he is not a trustee. Ordinarily, he is able to none. Unless charges of misappropriation, fraud or conversion are levelled against him, he is the master and no one can question him as to what he received and spent. So long as he manages the affairs of the family, he is not bound to save , economise or invest. In short, he is not liable for his positive failures, such as failure to invest, to prepare s or to save money. He is not bound to pay the income of t family in any fixed proportion to other . Even if he enters into an agreement and makes any such arrangement, he can repudiate it with impunity. He is not bound to treat all the impartially; he may discriminate one against other.

However despotic his powers may be, despot he can’t be. After all. He is a person of limited powers. He has liabilities towards the . Any coparcener can, at any time ask for partition. He obtains no reward for his services and he discharges many onerous responsibilities towards the family and its . His true legal position can be understood only when we know the ambit of his powers and liabilities.

KARTA’S LIABILITIESKarta’s liabilities are numerous and multifarious. He is responsible to maintain all the of the family. If he improperly excludes any member from maintenance or does not properly maintain them, he can be sued for the same as well as for arrears of maintenance. He is also responsible for the marriage of all unmarried . This responsibility has been particularly emphasized in respect of daughters. If partition suit is filed, he has to prepare s. He represents the family. He is its sole representative vis-a -vis all outsiders and in that capacity, he has to discharge many responsibilities and liabilities on behalf of his family. He has to pay taxes and other dues on behalf of the family and he can be sued for all his dealings on behalf of the family with outsiders.

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Powers of Karta Karta’s powers are vast and limitations are few. The ambit of his powers may be considered under the two heads : (a) Power of alienation of t family property, (b) Other powers. In the former case, his powers are limited. In the latter case, his powers are very large, almost absolute. Here we would discuss his other powers-

Powers of management—Karta’s powers of management are almost absolute. He may manage the family affairs and family property and business the way he likes; he may mismanage, no one can question his management. He has no obligation to save or economise, no obligation to invest funds or to invest them properly. He may discriminate between the of the family; to some he may give more to spend , to some less; some may be given higher education, while others may be given only primary education. To some he may allot a bigger portion of the house to live in, to some less. But he cannot deny maintenance or use and occupation of property to other . The ever hanging sword of partition is a great check on his absolute powers. The other, and probably more effective, check is the affection and the natural concern that he has for the of the family and the complete faith and confidence that repose in him.

Right to income-It is the natural consequence of t family system that all the income of the t family property should be brought to the common chest. All incomes of the t family property, whosoever, may collect them, a coparcener, agent or a servant must be handed over to the Karta, unless the Karta has specifically allotted income of a particular property to a member. No member of the t family is entitled to any definite share of the income of the t family property or business. It is for the Karta to allot funds to the and to look after their needs and requirements. So long as family remains t, no member can ask for any specified share in the income.

Right to representation-The Karta represents the family in all matters, legal, social and religious. He acts on behalf of the family and his acts are binding on the entire t family. The Karta can enter into any transaction on behalf of the family and it will be binding on the t family.6 Association of another in the transaction does not alter the position of the Karta or the binding character of the transaction. He represents the family

6

Radhakrishandas v. Kuluram, AIR 1967 SC 574

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in suits and other legal proceedings.7The t family shall be bound by a decree or order ed in legal proceeedings.

Power of compromise-The Karta has power to compromise all disputes relating to the family property or their management. He can also compromise a suit pending in a court and it will be binding on all the , though a minor coparcener may take advantage of O. 32, Rule 7, C which lays down that in case one of the parties to the suit is a minor, the compromise must be approved by the court. He can also compromise family debts, and other transactions. However, if his act of compromise is not bona fide, it can be challenged in a petition.8 The Karta has no right to give up a substantial portion of a debt due to the family merely out of charity or sympathy.

Power to refer a dispute to arbitration—The Karta has power to refer to any dispute to arbitration and the award of the arbitration will be binding on the t family. 9

Power of acknowledgement—The Karta has power to acknowledge on behalf of the family any debt due to the family. He has also the power to pay interest on a debt or to make part payment of the principal so that a fresh period of limitation may start.10 The Karta has no power to acknowledge a time barred debt.

Power to enter into contracts—The Karta has power to enter into contracts and such contracts are binding on the family. It is also now settled that a contract, otherwise specifically enforceable, is also specifically enforceable against the family.11

Loan on promissory note—When the Karta of the family takes a loan for family purposes or for family business and executes a promissory note for the same, the other of the family may be sued on the note itself even if they are not parties to the note; their liabilities are limited to their share in the t family property, though the Karta is personally liable on the note. This distinction between liability on the note and liability on the debt is very material. If liability is on the note, the consideration will be presumed, if liability is on the debt, it would be necessary to prove that the debt was taken for a purpose binding on the family.12 When a promissory note is in favour of the Karta and his sons, the Karta alone can sue on the note for the recovery of the debt.

7

Amrit v. Suresh, AIR 1970 SC 5; Nathathambi v. Vijaya , (1972) 2 MLJ 535 9 Jagannath v. Mannulal, (1894) 16 All 231 10 Section 21 , Limitation Act. 11 Bhagirath v. Bhagwan , AIR 1962 Pat 391 12 Kakuram v. Kurra Subba Rao, AIR 1949 FC 95 8

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Power of the Karta to Gift Property It is a commonly known fact that a karta may have a superior managerial authority but he cannot gift away family property unless there is a legal compulsion involved or for religious purposes etc. Movable Property as gifts

The father or the Karta has the authority to gift ancestral t family property to sons, daughters etc. as a matter of affection wherein the gift is in furtherance of “indispensible acts of duty, and family, relief from distress and so forth”. Such gifts do have limitation like a gift cannot entail the whole property to be given to one particular member as it cannot be then upheld as “gift of affection”. Immovable Property as gifts

The karta does posses the capacity to gift an individual, owing to few restrictions, for pious purposes. It was laid down in Guramma v. Mallapa that a father can gift his daughter a portion of an immoveable property if it conforms to the reasonability criteria, looking at the properties which are owned by the family. Though, it is not acceptable for a husband to gift any such property to his spouse under the clause of “Pious Purposes”. Gift to Strangers

The Karta only holds the right to gift properties to family under some conditions and strangers cannot be a recipient of such a gift under no circumstances. Such a gift, if made, shall be deemed to be void ab initio. Power of Alienation Neither the karta or any other co-parcener has the right to alienate the t property of the family but in exceptional situations wherein the alienation becomes binding upon all the of the family. The Dharmashastra recognizes this power of the karta to alienate the property but under some specific situations only. They have been stated below:    

Apatkale (Necessity in legal ) Kutumbarthe (Estate’s benefit) Dharmamarthe (Obligations of religious nature) Necessity in legal

The term legal necessity does not hold any precise definition due to the varied no. of cases that are seen and it being extremely difficult to explain it in exact . Still, under interpretation it can be stated that the legal necessity of a family is with regard to the necessities of a family and the alienation being in requirement of that need. 

Estate’s benefit

This is also a broad criterion for the alienation to take place. In it, the benefits which the estate gains through any such specified alienation by the Karta is to be considered as valid.

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Such beneficial contracts of property alienation are encouraged and the karta does hold the right to go forward under his prudent discretion. Broadly speaking, benefit of estate means anything, which is done for the benefit of the t family property. There are two views as to it. One view is that only construction, which is of defensive character, can be a benefit of estate. This view seems to be no longer valid. The other view is that anything done which is of positive benefit, will amount to benefit of estate. The test is that anything which a prudent person can do in respect of his own property. It was re-iterated through various case laws that if the property owned by the specific t family is sold by the karta due to a valid legal necessity and also that the price in return was also reasonable, just the fact that a portion of the price was not considered to have been not applied for the purpose of necessity, cannot render the whole mechanism invalid. Considering a limitation in the matter, through this paper, it has been analyzed that even though the Karta holds supreme managerial and alienation powers in the family but if he gets into a contract where it is apparent that the family cannot complete its obligations in monetary , the liability cannot be shifted to ancestral property sale. Nevertheless, if there is an acquisition made by the Karta on behalf of the t family even through the loss of a portion of an ancestral property, it is binding upon the minor of the family too and they cannot impeach this contract for which the benefit has been enjoyed, upon attaining majority. Also, it is a cardinal rule that the actions of the karta have to be justified with the clause of necessity or benefit to the family for these to be bound by the actions of the Karta. Such alienation cannot be considered to be for the purpose of a legal necessity “if the legal remedy to recover the debt has become time-barred.” He can alienate the property with his own discretion due to some necessity or through the normal process of having a totality in family assent towards such alienation.

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CONCLUSION As already mentioned, the karta in a Hindu t family holds quite an extra-ordinary position with reference to its understanding and complexity. This sui generis nature of the system holds an important position in understanding how a t family functions with reference to the numerous duties and varied works the individual of a family are involved, being clubbed together in a single household. The concept of Karta has an origin that dates centuries back and it still holds its ground due its various functional elements. One family that entails a no. of who live together and hold t property, necessarily require a Karta to boost the cohesive aspect of such a family with reference to its dealings and ventures. The idea of a karta has been diluted in present times to maintain reasonability in the decisions and judgments that a karta binds the t family to. There are no absolute powers as that of the previous “patriarch” as various legal remedies are available and thus, the managerial system of having a central head works in varied mannerisms.

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 BOOKS  Dr. Paras Diwan, Family Law, (9th Edn., Allahabad Law Agengy, 2009)  Dr. T.V. Subba Rao and Dr. Vijendra Kumar, Family Law in India, (9th Edn., S. Gogia and Company, 2007)

E-ARTICLES 

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Online Family Law II Notes at