POWER AND POSITION OF KARTA UNDER HINDU LAW
- aarattrika chanda
- Oct 25, 2024
- 5 min read
BY MARIA MOHAMMADI, Student at ICFAI LAW SCHOOL HYDERABAD (IFHE)
Introduction-
Hindu law is derived from both ancient and modern sources. In ancient sources, it includes; sruti, smriti, digest and commentaries, customs, etc., whereas in modern sources it includes legislature, precedents, equity justice, and good conscience.
Hindu codified laws are based on the Mitakshara school which was prevalent in the whole of India except Bengal. The concept of coparcenary has been adopted from this school. Hindu joint family has a common ancestor and includes all male members up to any generation, The death of a common ancestor doesn’t mean the end of a Hindu joint family, it ends unless partition takes place.
This common ancestor in the Hindu undivided family shall be called “karta” which means the head of the family business, property, etc., and other heir members of the family shall be called coparcenors which means joint heir in the business or property. Before the 2005 amendment only the senior most male member was a “Karta”, but now after the amendment senior most females shall also be called “Karta”. Before 2005 coparceners were only male members of Hindu joint families but due to the amendment of 2005 daughters shall also be coparceners in HUF.
Karta is the senior most male or female member in the family, and shall always be a member of the family, as long as he is alive he continues to be a Karta and on his death, the next senior male member may succeed him and even the case of incapability and decision making of senior male or in case of insanity can be removed by the votes of all the members including karta.
In normal cases, in the presence of a senior most male member, a junior cannot act as a karta but if all coparcenors that is joint heirs including karta agree to make a junior member a karta then he can be a karta.
MAIN POINTS-
As per Mitakshara Hindu law, a property is classified into two types as follows-
1. Ancestral property
2. Self-acquired property or separate property.
This powers and rights of karta is applicable only in joint family property or joint family business and in ancestral property. [1]
· Power of karta in the alienation of property-
As per Vijaneshwar in Mitakshara law he specifies that joint family property can be transferred or alienation of property–
· Authorization for alienation-
Authorization of karta for alienation of Hindu undivided familie’s property or business can be made either expressly or judicial. In the case of express, all the coparcenors including karta shall consent to alienation. In the case of judicial authorization either the coparceners do not consent to the alienation as representative that is karta’s consent is enough to alienate.
Alienation can only be made in three cases that are:
1. Aapathkale- that means only in case of emergency or legal necessity.
Example- in case of suits filed in the name of the business or to pay fees to advocate etc.,
for an alienation to be valid under the legal necessity four things must be present that are;
· Existence of need or purpose in a situation of respect of family members or property that requires money.
· Such a requirement is for a lawful purpose and shouldn't be for an illegal purpose or against public policy.
· The family does not possess monetary or alternative resources from which the requirement can be arranged.
· The decision of karta to be that of an ordinary prudent person.
2. Kutumbarthe- which means for the benefit of the joint estate.
Example- In case wherein if it is sold the family will get profits or double rate of the business or property etc.,
· Alienation for a defensive or protective purpose is necessary for joint family business or property.
· It brings an advantage or improvement to the joint family business or property.
As per Karta’s decision if he finds it beneficial for the joint family business or property.
3. Dharmasthe - that means for the performance of religious duties.
Example- funeral rights, marriage, etc.,
· Funeral rites of family members.
· Ceremonies to be performed in man's life and rituals that are part of the life of a Hindu.
· There should be no alternative sources of money in any case.
· Performance of shraddha of ancestors.
· Marriage and its rituals and ceremonies.
4. Right to income- karta has the right to take income from joint business, as he is serving as a manager.
5. Right to management- all the day-to-day activities shall be managed by “Karta” It includes all the decisions that are required in respect of family, property, and business.[2]
6. Right to contract- Karta shall be entering with others in his own name. as he is the only representative of the Hindu undivided family business.
7. Right to repay debts- karta being the administrator shall repay all the debts of HUF either from joint business or property. If there is no source then from his pocket.
8. ADR or compromise- karta has the power to make compromises between members of the family, and any issue or dispute arises just like that of an Alternative Dispute Resolution mechanism.
9. Marriage- he must marry all the family members under his guidance and support.
10. Maintenance- he shall maintain all the books of account and maintain the basic needs of family members.
· Balmukund v. Kamlavati- In this case, the petitioner entered into a contract with the “Karta” regarding the purchase of a part of HUF property, without the consent of coparceners. Later on when the sale deed was supposed to be signed “Karta” refused to sign.The court held that it was not a valid contract. As it was not made for the benefit of the family nor was it necessary to enter into the alienation of property.
· Dev Kishan Vs. Ram Kishan AIR 2002
In this case, the defendant 2 being karta sold and mortgage joint Hindu property for the marriage of minor children. Claiming it to be legal necessity.
The court held that the mortgage was made for marrying minor child which was opposed to public policy under child marriage restraint act, 1929. So declared the transaction void.
Position of “Karta”-
Karta is the only head of the family and acts on behalf of family members. He or she is the administrator, manager, representative, and decision-maker of the whole Hindu undivided family business and property. Karta is “sui generis” (which means of its own kind), the relationship between karta and coparceners that is joint heirs is that of a partners in partnership firm not like a principal-agent.
Karta has a fiduciary position but he is not a bare trustee of a Hindu undivided family, his decisions cannot be questioned by anyone unless there is misappropriation in the business of a joint family. And if such misappropriation takes place burden of proof lies on coparceners to prove the same.Example- “A” is a Karta of HUF i.e., Hindu undivided family. “B” alleges that “A” is not paying taxes of business and property tax of HUF then B shall prove the same.
CONCLUSION-
Karta has the power to alienate property, but has to perform all the duties that include marriage or daughters and sons, clearance of debts, fulfilling basic needs of all family members without discrimination, performing funeral rights, making profit from HUF business and property, and many more responsibilities shall be performed as the guardian or caretaker of family and family business.Before the 2005 amendment karta (i.e., head) and coparceners(i.e., joint heir) were only male members but after the amendment of 2005, it included female members also. [3]
References-
· Hindu law by paras diwan.
· Mullas principles on Hindu Law.
[1] Power and position of karta, Mullas principles of Hindu law, Satyajeet A Desai.
[2] Power and position of karta, Modern Hindu law, Dr. Paras Diwan.
[3] Powers and Duties of Karta,08.05.2024, < https://www.drishtijudiciary.com/to-the-point/ttp-hindu-law/powers-and-duties-of-karta>,
Balmukand vs Kamla Wati & Ors on 27 January, 1964
AIR 1385, 1964 SCR (6) 321, AIR 1964 SUPREME COURT 1385, 1965 (1) SCJ 212
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