FACULTY OF LAW

JAMIA MILLIA ISLAMIA

SESSION 2018-2019

SEMESTER FIFTH

‘HINDU JOINT FAMILY AND KARTA’

Submitted to Submitted From

Kahkashan Y. Danyal Suriya Adila

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 ACKNOWLEDGEMENT

I would like to heartily express my gratitude towards our teacher Ma’am Kahkashan Y.Danyal
who has encouraged us and inspired us throughout the course. I would like to thank her for
giving me this topic as it helped me in enhancing my knowledge. This assignment gave me an
opportunity to learn about various statues, the articles and various cases of the Family law. I
would also like to thank my seniors for guiding me throughout the assignment and the faculty
staff for giving me access to various portals and books. Without the help of the mentioned
above, this project would not have been possible.

Suriya Adila

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 CONTENTS

 HINDU JOINT FAMILY

 CONSTITUTION OF HINDU JOINT FAMILY
 PRESUMPTION OF UNION
 DIFFERENCE BETWEEN HINDU JOINT FAMILY AND
COPARCENARY
 KARTA
 WHO IS A KARTA?
 POWERS OF KARTA
 FAMILY AFFAIRS MNAGEMENT
 POWER TO REPRESENT
 POWER OVER INCOME
 POWER OF ALIENATION
 POWER TO CONTRACT DEBTS
 POWER TO GIFT PROPERTY
 CONCLUSION

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HINDU JOINT FAMILY

The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to
the ancient partriarchal system where the patriarch or the head of the family was the
unquestioned ruler, laying down norms for the members of his family to follow, obeyed by
everyone in his family and having an unparallel control over their lives and properties.
Therefore, under Hindu law the joint family system came first in historical order and the
individual recognition of a person distinct from the family thereafter. The ancient system
generally treated the property acquired by the member of the family as family property or the
joint property of the family with family members having one or the other right over it. With
gradual transformation of the society and recognition of the members of the family as
independent in their own right, concept of separate property and rules for its inheritance were
developed. This dual property system, though considerably diluted, has survived the lashes of
time, the judicial and legislative onslaught and the Hindu society still recognizes the joint
family and joint family property as unique entities having no similar concept alive elsewhere
in the world.

Constitution of Hindu Joint Family

The institution of a Hindu Joint Family is peculiar to the Hindu jurisprudence and has its origin
in ancient orthodox texts and writings of Smritikars etc. Though, it originated in the
propagation of the theory of despotism and autocracy in the father, yet by efflux of time, such
a concept considerably loped down so as to confer equal rights on his sons by birth. The
introduction of coparceners by birth into the family considerably whittled down the absolute
power of the father. Several other inroads into such unitary rights and privileges of the father,
where incursions had to be made with the growth of society and the appreciation of the value
of individual rights, resulted in the enlargement of the body constituting the joint Hindu family.
A joint Hindu family consists of all male members lineally descended from a common male
ancestor and includes their wives unmarried daughters and adopted children. A daughter on
marriage ceases to be a member of her father's family and becomes a member of husband's
family. The Smritis and Commentaries make a mention of the words kutumba or avibhakta
kutumba for joint or undivided family. A joint or undivided family is the normal condition of
Hindus which is ordinarily joint in food, worship and estate (Creature of Law). In Surjit Lal v.
Common. I.T.,1 the Supreme Court elaborates that outside the limits of coparcenary, there is a

1
1976 HLR (SC) 146.

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fringe of person males and females, who constitute an undivided family. There is no limit to
the number of persons who compose it, nor to their remoteness from their common ancestor
and to their relationship lineally or laterally with one-another. To be a member of the family
one may be added by birth, marriage or adoption. A female who comes in the family by
marriage becomes sapinda of her husband. The joint family is thus a larger body consisting of
a group of persons who are united by the knot of sapindaship arising by birth, marriage or
adoption.

Presumption of Union

The joint and undivided family is the normal feature of Hindu society. There is a presumption
in Hindu law that a family is living in a state of union, unless the contrary is proved. 2 The
presumption is stronger in case of nearer relationship but gets weaker in case of remoter
relationship.3 The general principal is that every Hindu family is presumed to be joint unless
the contrary is proved, but this presumption can be rebutted by direct evidence or by course of
conduct. But there is no presumption that a joint Hindu family possesses joint family property,
it is only an adjunct of the joint family. In M. Gowdappa v. Ramachandra4, the Supreme Court
has held that the burden of proving that any particular property is joint family property is
therefore, in the first instance upon the person who claims it as coparcenary property. But if
the possession of a nucleus of the joint family property is either admitted or proved, any
acquisition made by a member of the joint family is presumed to the joint family property.
Hindu joint family is not a corporation and it has no legal entity distinct and separate from its
members.5 It is also not a juristic person, and is represented by Karta or head of the family in
relation to the affairs of the family in relation to others.

Distinction between Joint Hindu Family and Hindu Coparcenary

A Hindu coparcenary is distinct from a Hindu undivided family. There are two schools of
Hindu law, the Mitakshara and Dayabhaga. A Hindu coparcenary is a special feature of
Mitakshara law and there is a clear distinction between a joint family and a Hindu coparcenary.
As observed by the Supreme Court in Surjit Lal v. V. CIT,6 a Hindu coparcenary is a much
narrower body than the joint family. The main points of distinction between these are that joint

2
Govind Das v. Kuldip Singh, AIR 1971 Del 151.
3
V.R. Virupakshaiah v. Sarvamma, AIR 2009 SC 1481.
4
AIR 1969 SC 1076.
5
Chotelal v. Jhandelal, AIR 1972 All 424.
6
AIR 1976 SC 109.

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Hindu family consists of all persons lineally descended from a common ancestor and includes
their wives and unmarried daughters. On the other side, all those members of the joint family
who get an interest by birth in the joint family property are the members of the coparcenary.
The Mitakshara School entitles a son to a right equal to his father in the joint family property
by birth. Under the Hindu law the word "son" has a technical meaning. Son includes the son,
the son's son and the son's son's son. Coparcenary commences with a common ancestor and
includes a holder of joint property and only those males in his line who are not removed from
him by more than three degrees. The daughter was not given a right by birth in the joint family
property. Both the concepts of "Mitakshara Coparcenary Property" and "Hindu joint family
property" are often mistaken for each other. There may be some degree of overlapping between
the two, but yet they are distinct from each other in some respect. The issue of their
differentiation has come into focus in Hardev Rai v. Shakuntala Devi and Others7. In this case,
the appellant and the respondent's father entered into an agreement for the sale of some
immovable property.

KARTA UNDER HINDU LAW

Hindu law holds various unique features with reference to family institutions and the joint
family system is a very important aspect in understanding the functionality of this mechanism.
The joint family has numerous members with each individual owning their different property
rights. Even though the individuality exists, the cohesive structure of the family comes into the
fore with reference to the decisions which are required to be taken by the family as a whole in
various legal and other matters. In such situations, it becomes exigent that there is one
individual who shall head such matters and hold decision making powers. Such an individual
is termed as the Karta.

In the Hindu Undivided Family, the Karta holds a very unique position. This sui generis nature
of the karta is with reference to the varied powers he holds while discharging his functions as
the decision maker in various respects of the family functionality. The karta is considered to
be a person with controlled capacities but within this fringe outline, he holds an immensely
important position of responsibility. The relationship that a karta holds with other members of
the family is not that of trustee or that of a partner or principal. His unique powers are “very
wide and almost sovereign” and thus, its comparison to any partnership or a principal-agent
relationship is naïve. The karta does stand in a fiduciary accord with the rest of the members

7
AIR 2008 SC 2489.

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of the family but the relationship cannot be termed as that of trusteeship. Even on the
accountability factor, he is not accountable to any member of the family until it is a matter of
misappropriation or fraud.8

WHO CAN BE A KARTA?

With reference to A. Kunjipokkarukutty v. A Ravunni9, it was noted that the in the absence of
the father in the family, it is the doyen i.e. the most senior member of the family who is
concluded to be the Karta. This conclusion is based upon seniority and the opinion of the other
members does not hold much significance. It must be noted that a person cannot become the
karta until and unless the previous karta is no longer alive notwithstanding few exceptions10.

When the karta relinquishes his right to manage the affairs of the family due to reasons of his
health or due to him being away, another member of the family can be allowed to look after
the joint family property with the consent of all other members of the family, not necessarily
being in a list of seniority of age.11

A landmark case in this regard is the case of Nopany Investments (Pvt) Ltd. v. Santokh
Singh wherein the karta of the family was staying in U.K and could not handle the property
due to the reason of distance and thus, with the consent of all his family members, appointed
his younger brother as the Karta even though there were other members who were older than
him. This was held to be valid by the court as it held that under such situations, the younger
member can be rightfully made the Karta.

A karta can only be a male member and females cannot be the karta of a joint family because
they are non-coparceners12 and are not allowed to represent the family in general situations. It
was held in Commissioner of Income Tax v. Lakshmi Narang13 that a female member can be
allowed to be the karta under some situations but this judgment is held to be incorrect due to
the non-coparcener aspect.

8
Paras Diwan, Family Law (2nd Edn. Orient Publishing Company, 2002)
9
AIR 1973 Ker 192
10
Sidappa v. Linappa, 42 Mys HCR 669
11
Mudit v. Ranglal, (1902) ILR 29 Cal 797; Narendra Kumar v. Commissioner of Income Tax, AIR 1976 SC 1953
12
Manglal v. Jayabhai, AIR 1994 Kant 276
13
(1948) ILR Nag 775.

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With regard to the issue if minors can be a karta, it was established again in Narendra Kumar
v. CIT14 that if the minor left as the only one to manage, if under the supervision of a guardian.
It must be noted that Guardians and Wards Act, 1890 (Section 21) does accede to the validity
of a minor being in a “managerial position” of a Hindu Undivided family15

POWERS OF THE KARTA

Family Affairs Management

Being the supreme head of the family, a karta holds the power to look after the family matters
and the property that belongs to the family. With reference to the case of Bhaskaran v.
Bhaskaran16, it has been held that even though a Karta’s ambit about property alienation is
limited, his powers in management of the family affairs is rather absolute. The karta does hold
the capacity to possess the property in totality and be the recipient of the income of HUF
irrespective of its source.

Also, he holds some special rights like that of the power of eviction in which if there is some
particular member who demands some specific portion of the family property without the karta
acceding to such a demand, he can be evicted form that portion.

His powers of management are deemed to be inherent and no interference is to be accepted

even when he shows attributes of favouritism and bias towards certain family members with
reference to maintenance etc. This is upon the discretion of the Karta and this cannot be
challenged.

Power to Represent

The Karta is understood to be the sole representative of the family structure when it concerns
any legal or even social matters. When a specific suit is filed by the family in any court, the
particular suit is filed in the name of the Karta and also when there is a suit against the family,
the specific name is that of the Karta in the court.

This means that the Karta is clearly a representative of the whole family and the family, in
itself, do not have a particular identity in corporate terms. So, when there is one particular

14
AIR 1976 SC 1953
15
Sarda Prasad v. Umeshwar Prasad (1963) Pat 274
16
(1908) ILR 31 Mad 318

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judgment passed against the karta, it in totality binds all the existing members of the family
even though they may not be individually responsible in the relevant act. The expectation from
the Karta is that in matters of litigation, he must show extreme levels of sincerity and effort. If
due to any such lack, the litigation matter is lost, the family cannot take up this as an excuse
for the decree to not be binding upon them.17

The karta does not have any greater interest in a manner of proprietorship when compared to
any other member of the family but owing to his position as the karta, he holds a capability to
dispose property.18 With reference to minor in the joint family, it must be understood that when
the manager makes a contract with an outside party and during that time, one of the members
of the family has not attained majority, the contract cannot be deemed to be binding on the
minor. This rule is from the Indian Contract Act, 1872 and is applicable here as well for the
minor for the contracts relating to buying of immoveable property as well as to contracts made
by the Karta for necessities.

Power Over Income

The managerial aspect of the karta mandates the karta, the aspect of controlling his income and
expenditure and if there exists any surplus in the family accounts, he has control over those
accounts too. If the karta has expenses which the other family members don’t agree to, then
these members have the option of demanding a partition and the karta has to appropriate their
share including the amount they considered to have been inappropriately spent. It was noted
in Tara chand v. Reeb Ram that while taking accounts during the division of property, no
coparcener must have a charge against him with the rationale that owing to his larger family
requirements, a greater share of the joint family amount was spent on his own family.

Power of Alienation

Neither the karta or any other co-parcener has the right to alienate the joint property of the
family but in exceptional situations wherein the alienation becomes binding upon all the
members 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 terms)

17
Krishnamurthi v. Chidambaram, (1946) ILR Mad 670
18
Rajayya v. Sangareddy, AIR 1956 Hyd 200

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

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 terms. 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. 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 joint
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 joint 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 terms,
the liability cannot be shifted to ancestral property sale. Nevertheless, if there is an acquisition
made by the Karta on behalf of the joint family even through the loss of a portion of an ancestral
property, it is binding upon the minor members of the family too and they cannot impeach this
contract for which the benefit has been enjoyed, upon attaining majority.

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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 members 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.

Thus, it can be safely concluded through the research that Karta can only have one specified
limitation which is that:

“A karta must act with prudence; prudence implies caution as well as foresight and excludes
hasty, reckless and arbitrary conduct and such alienation on part of the karta without the
family purpose or necessity clause, is void”

For this question of prudence, the consideration’s sufficiency is an important condition for such
judgment.

As analyzed though precedents, it cannot be stated that whenever a karta requires monetary
sums in order to pay the pre-emption requirements and for the prices of new property, it is
always without any requirement in legal contrivance and thus, outside the ambit of the father
in the family. Also, it cannot be stated that the karta is supposed to borrow amounts for such
fresh acquisition by pre-emption. These matters have to be dealt according to the special
existing circumstances each time.19 Also, during times when the money borrowed by the Karta
is for his individual purposes, he is not allowed to mortgage or use the family property in any
manner to fulfill his own liabilities.

Power to Contract Debts

The karta has the power to contract debts for the family in accordance with their needs and
these debts are binding upon all the members. The members cannot escape liability from these
debts even upon acts of partition from the joint estate20. However, it has been established that
the karta cannot be allowed to raise loans by giving in as security, the estate of a minor family
member so as to start some trade of ancestral nature.

19
Subramanium v. krishnaswami, AIR 1972 Mad 377: 85 Mad LW 211.
20
Bankey Lal v. Durga Prasad, ILR (1931) 53 All 868 (FB)

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Now, the paper shall deal with the liability ratio of the members for the contracted debt:

1. Liability of other members

During the situation wherein the karta contracted a debt on the family property, a member is
not liable in a personal manner but rather, only to the limit of its interest. But in some
circumstances wherein the contract is actually purporting to parties or when they can be treated
as parties due to their conduct or if they have agreed to the arrangement, their limited does not
remain limited. So the deeming of the members to be actual parties is essential to establishing
the liability ratio.21

2. Burden of Proof Requirement

Any debt that has been contracted by a karta on behalf of the family is not inherently assumed
to be one where the interest of the family is involved.

As stated in Mulla, Principles of Hindu Law:

“When the lender is familiar with all the circumstances of the family to which the money is lent
and he knows whether the borrowing arose or not, the only way in which the family could be
made liable in such a case would be by proof that the necessity did exist”.

The loan-provider is compulsorily required to look into the necessity of the loan for the joint
family as the purpose of the loan is not supposed to be inherently presumed. Caution during
the inquiry is enough to justify the loan but if it is a matter when the joint family has been
taking loans since a no. of years, the loan-provider does not have to prove the necessity for
every penny involved.

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

21
Vishan Singh v. Narnajan Sngh, 59 Punj LR 182

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The father or the Karta has the authority to gift ancestral joint 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”.

Immoveable 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. Mallapa22 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 members 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.

CONCLUSION

As already mentioned, the karta in a Hindu joint 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 joint family functions with reference to the
numerous duties and varied works the individual members 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 members who live together and hold joint 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 joint family to. There are no absolute powers as that of the

22
AIR 1964 SC 510

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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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