karta, alienation

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Karta

In Hindu law, the joint family has always been considered as a patriarchal organization in

which the senior most male ascendant is revered as the elder of the family or Karta or

manager.

A Karta is revered as an elder member of the family. In Hindu law, here are some of the

functions that are carried out by a Karta:

Takes decisions for the welfare of the family. Acts on behalf of the family regarding all important matters. Occupies a fiduciary position as the family members trust him to manage their

property related matters.

He has the power to incur debts or opt for a loan on behalf of the family.Karta:

Senior Most Male Member: - It is a presumption of Hindu law, that ordinarily the senior

most male member is the Karta of the joint family.

The senior most male member is Karta by virtue of the fact that he is senior most male

member. He does not owe his position to agreement or consent of other coparceners. So long

as he is alive, may be aged, infirm, or ailing, he will continue to be Karta. Even a leper maycontinue to be the Karta1. However, in cases of insanity or any other disqualifications, the

next senior male member generally takes over the Kartaship. Once this is done the former

will cease to be a Karta.

So long as the father is alive, he is the Karta. After his death it passes to the senior most male

member, who may be the uncle, if coparcenery consists of uncles and nephews, or who may

be the eldest brother, if coparcenery consists of brothers.

Other Male Member:

In the presence of a senior male member, a junior male member cannot be the Karta. But if

all the coparceners agree, a junior male member can be a Karta. Coparceners may withdraw

their consent at any time. "So long as the members of a family remain undivided the senior

member is entitled to manage the family properties including even charitable property and is

presumed to be the manager until the contrary is shown. But the senior most member may

give up his right of management and a junior member may be appointed as manager."

Female Members as Karta

Earlier women were not included as coparcenary members, and according to the Hindu sages

only a coparcener can become a Karta, and therefore they could not be the Karta.


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The framers of the Indian Constitution took note of the adverse and discriminatory position of

women in society and took special care to ensure that the State took positive steps to give her

equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India thus not only

inhibit discrimination against women but in appropriate circumstances provide a free hand to

the State to provide protective discrimination in favour of women. These provisions are part

of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitutioncontains the Directive Principles which are no less fundamental in the governance of the State

and inter-alia also provide that the State shall endeavour to ensure equality between man and

woman Notwithstanding these constitutional mandates/directives given more than fifty years

ago, a woman is still neglected in her own natal family as well as in the family she marries

into because of blatant disregard and unjustified violation of these provisions by some of the

personal law.

Commissioner of Income Tax v. Seth Govind Ram AIR 1966 S.C. 2

After reviving the authorities it was held that the mother or any other female could not be theKarta of the Joint Family. According to the Hindu sages, only a coparcener can be a Karta

and since females cannot be coparceners, they cannot be the Karta of a Joint Hindu Family.

The above views seem to be rigid.

But now because of the changed position of daughters as coparceners the situation is in

favour of possibility of women becoming Karta.

The concept of a manager of a Joint Hindu Family has been in existence for more than two

thousand years or more. Courts in India have given diverse views: -

The 2005 amendment gives equal rights to daughters in the coparcenery.

An important question is still unanswered whether women or daughters can be allowed to

become managers or Karta of the joint family. The objection to this issue of managing a joint

family as visualized is that daughters may live away from the joint family after their marriage

but it is well appreciated that women are fully capable of managing a business, taking up

public life as well as manage large families as mothers. Another doubt being considered is

that as managers of their fathers' joint family they could be susceptible to the influence of

their husbands or husbands' families.

Position of Karta:

The position of Karta is sui generis. The relationship between him and other members are

not that of principal/agent/partners. He is not like a manger of a commercial firm. Needless to

say he is the head of the family and acts on behalf of other members, but he is not like a

partner, as his powers are almost unlimited. Undoubtedly, he is the master of the grand show

of the joint family and manages all its affairs and its business. His power of management is so

wide and almost sovereign that any manager of business firm pales into insignificance. The

Karta stands in a fiduciary relationship with the other members but he is not a trustee.


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Ordinarily a Karta is accountable to none. Unless charges of fraud, misrepresentationor conversion are levelled against him. He is the master and none can question as to

what he received and what he spent. He is not bound for positive failures such as

failure to invest, to prepare accounts, to save money.

Karta may discriminate i.e. he is not bound to treat all members impartially. He is notbound to pay income in a fixed proportion to other members. Even if he enters such

an agreement /arrangement, he can repudiate the same with impunity.

However large powers a Karta might have, he cannot be a despot. He has blood ties with

other members of the family. After all he is a person of limited powers. He has liabilities

towards members. 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

members. His true legal position can be understood only when we know the ambit of his

powers and liabilities.

Karta - Powers and Liabilities

Powers of Karta

When we enumerate the powers of karta, the real importance of his legal position comes into

clear relief. His powers are vast and limitations are few. The ambit of his powers can be

considered under two heads: - (a) power of alienation of joint family property, (b) other

powers. In the former case, his powers are limited since a karta can alienate in exceptional

cases. In the latter case his powers are large, almost absolute.First we will discuss the other powers.

Other powers

Powers of management: - As the head of the family, kartas powers of management are almost absolute. He may mange the property of the family, the family affairs, the

business the way he likes, he may mismanage also, nobody can question his

mismanagement. He is not liable for positive failures. He may discriminate between

the members of the family. But he cannot deny maintenance /use/occupation ofproperty to any coparcener. The ever-hanging sword of partition is a great check on

his absolute powers. Probably, the more effective check is the affection and the

natural concern that he has for the members of the family and the complete faith and

confidence that members repose in him.

Right to income: - It is the natural consequence of the joint family system that thewhole of the income of the joint family property, whosoever may collect them, a

coparcener, agent or a servant, must be handled over to the Karta. It is for the Karta to

allot funds to the members and look after their needs and requirements.

The income given to the Karta is an expenditure incurred in the interest of the family.
http://www.lawyersclubindia.com/articles/Kartha-Powers-and-Liabilities-1212.asphttp://www.lawyersclubindia.com/articles/Kartha-Powers-and-Liabilities-1212.asp


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Jugal Kishore Baldeo Sahai v. CIT (1967) 63 ITR 238

In the present case, both the members of the Hindu undivided family, who were the only

persons competent to enter into an agreement on its behalf, considered it appropriate that the

Karta should be paid salary at the rate of Rs. 500/- per month for looking after its interest inthe partnership in which it had a substantial interest because its Karta was a partner therein as

its representative, and entered into an agreement to pay salary to him for the services

rendered to the family. The ratio of the above decision is, therefore, applicable to the present

case. Accordingly, the salary paid to him has to be held to be an expenditure incurred in the

interest of the family .The expenditure having been incurred under a valid agreement,

bonafide, and in the interest of and wholly and exclusively for the purpose of the business of

the Hindu undivided family, is allowable as a deductible expenditure under section 37(1) of

the Indian Income Tax Act, 1922 in computing the income of the Hindu undivided family.

Right to representation: - The Karta of a joint family represents the family in allmatters- legal, social, religious. He acts on behalf of the family and such acts arebinding on the family. The joint family has no corporate existence; it acts in all

matters through its Karta. The Karta can enter into any transaction on behalf of the

family and that would be binding on the joint family.

A Manager/Karta can contract debts for carrying on a family business/ thereby render

the whole family property including the shares of the other family members liable for

the debt. Merely because one of the members of the joint family also joins him, it

does not alter his position as a Karta.

Power of Compromise: - The Karta has power to compromise all disputes relating tofamily property or their management. He can also compromise family debts and other

transactions. However, if his act of compromise is not bonafide, it can be challenged

in a partition. He can also compromise a suit pending in the court and will be binding

on all the members, though a minor coparcener may take advantage of O.32, Rule 7

C.P.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.

Power to refer a dispute to arbitration: - The Karta has power to refer any disputeto arbitration and the award of the arbitrators will be binding on the joint family if

valid in other respects.

Kartas power to contract debts: - The Karta has an implied authority to contractdebts and pledge the credit of the family for ordinary purpose of family business.

Such debts incurred in the ordinary course of business are binding on the entire

family. The Karta of a non-business joint family also has the power to contract debts

for family purposes. When a creditor seeks to make the entire joint family liable for

such debts, it is necessary for him to prove that the loan was taken for family

purposes, or in the ordinary course of business or that he made proper and bona fide

enquiries as to the existence of need. The expression family purpose has almost the

same meaning as legal necessity, benefit of estate, or performance of indispensableand pious duties.


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Loan on Promissory note: - When the Karta of a joint family takes a loan orexecutes a promissory note for family purposes or for family business; the other

members of the family may be sued on the note itself even if they are not parties to

the note. Their liability is limited to the share in the joint family property, though the

Karta is personally liable on the note.

Power to enter into contracts: - The Karta has the power to enter into contracts andsuch contracts are binding on the family. It is also now settled that a contract,

otherwise specifically enforceable, is also specifically enforceable against the family.

Power of alienation

Although no individual coparcener, including the Karta has any power to dispose of the joint

family property without the consent of all others, the Dharma Shastra recognizes it. That incertain circumstances any member has the power to alienate the joint family property. The

Mitakshara is explicit on the matter. According to Vijnaneshwara: -

....even one person who is capable may conclude a gift, hypothecation or sale of immovable

property, if a calamity (apatkale) affecting the whole family requires it, or the support of the

family (kutumbarthe) render it necessary, or indispensable duties (dharmamarthe), such as

obsequies of the father or the like, made it unavoidable.

The formulation of Vijnaneshwara has undergone modification in two respects: -

The power cannot be exercised by any member except the Karta. The joint family property can only be alienated for three purposes:-a) Apatkale (Legal Necessity)b) Kutumbarthe (Benefit of Estate)c) Dharmamarthe (Religious obligations)

(a) Legal Necessity: - It cannot be defined precisely. The cases of legal necessity can be so

numerous and varied that it is impossible to reduce them into watertight compartments.

Loosely speaking it includes all those things, which are deemed necessary for the members of

the family. What need to be shown is that the property was alienated for the satisfaction of aneed. The term is to be interpreted with due regard to the modern life. Where the necessity is

partial, i.e. where the money required to meet the necessity is less than the amount raised by

the alienation, then also it is justified for legal necessity.

Dev Kishan v. Ram Kishan AIR 2002 Raj 370

Facts: - Ram Kishan , the plaintiff filed a suit against appellants, defendants. Plaintiffs and

defendants are members of a Joint Hindu Family. Defendant no.2 is the Karta, who is under

the influence of defendant no.1 has sold and mortgaged the property for illegal and immoral

purposes as it was for the marriage of minor daughters Vimla and Pushpa. The defendants

contention was that he took the loan for legal necessity.


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Judgment: - The debt was used for an unlawful purpose. Since it was in contravention of

Child Marriage Restraint Act, 1929, therefore it cannot be called as lawful alienation.

(b) Benefit of Estate: - 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 tobe 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.

(c) Indispensable Duties: - This term implies performance of those acts, which are religious,

pious, or charitable. Vijnaneshwara gave one instance of Dharmamarthe, viz., obsequies of

the father and added or the like. It is clear that this expression includes all other

indispensable duties such as sradha, upananyana, and performance of other necessary

sanskars. For the discharge of indispensable duties the karta may even alienate the entire

property.A Karta can even alienate a portion of the family property for charitable/pious purposes.

However, in this case, the powers of the Karta are limited i.e. he can alienate a small portion

of the joint family property, whether movable/immovable.

A sale or mortgage of family property by the Karta is valid on the ground of justifying family

necessity where it is:

a) For the payment of decree debts and other debts binding on the family.b) To pay off the claims of Govt on account of Land Revenue, cesses, taxes and other

dues.

c) For the payment of rents due to the landlord or the payment of decrees for arrears ofrent obtained by land lord against family.

d) For the maintenance of members of the family.e) For the purpose of defraying the expenses of the first marriage of the co-parcener and

of daughters born in the family.

f) For the expenses of the necessary family ceremonies including funeral and annualshradha.

g) For the expenses of necessary litigation in connection with the recovery or protectionof the joint estate or the establishment of adoption of his minor son.

h) For the expenses of defending the head of the family or any member against a seriouscriminal charge.

i) For the purpose of carrying on an ancestral trade or business.j) To raise money to avert a sale or destruction of the whole or any part of the familyproperty.

k) For the expenses of necessary repairs to the family residential house or familyproperties and for the protection of fields and lands belonging to the family from

floods etc.,

Alienation Is Voidable

It may be taken as a well-settled law, that alienation made by Karta without legal necessity /

benefit of estate/ discharge of indispensable duties is not void but merely voidable at the

instance of any coparcener.


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In CIT v Gangadhar Sikaria Family Trust (1983) 142 ITR 677, the Gauhati High Court was

called upon to decide whether the Income-tax Officer can challenge the validity of alienation

by the Karta of a Hindu undivided family. The High Court held that under the Hindu Law,

the Karta of a Hindu undivided family has an unfettered right to alienate the joint family

property for legal necessity and for the benefit of the estate or the family. It was further heldthat even if a transfer by the Karta were not for legal necessity or for the benefit of the estate,

but if it is done with the consent of the coparceners, it would be only voidable and not void

ab-initio. It is clear that alienation by the Karta or manager of a joint family is voidable, but

not void. Hence, a third party cannot repudiate it, except in cases where there is a suggestion

that it was in fraud on creditors.

It is now settled that the Karta can alienate the joint family property with the consent of the

coparceners even if none of the above exceptional cases exist. Alienation without the consent

of the coparcener, which is not for legal necessity, is void.

The Kartas powers and liabilities and the Kartas power of alienation of property under the

Dayabhaga School are same as that of the Mitakshara Karta. The main difference between the

two schools is that in case of Dayabhaga the Karta must render full accounts at all times,

whenever required to do so by the coparcener, while in case of Mitakshara the Karta is

required to render accounts only at the time of partition or unless there are charges against

him for fraud/misappropriation.

Kartas Liabilities

Kartas liabilities are numerous and multifarious:

Maintenance: - In a joint Hindu family, the right of maintenance of all thecoparceners out of the joint family funds is an inherent right and an essential quality

of the coparcenery. As Mayne puts it: Those who would be entitled to share the bulk

of property are entitled to have all their necessary expenses paid out of its income.

Every coparcener, from the head of the family to the junior most members, is entitled

to maintenance. A Karta is responsible to maintain all members of the family,

coparceners and others. If he improperly excludes any member from maintenance or

does not properly maintain them, he can be sued for maintenance as well as for arrears

of maintenance.

Marriage: - He is also responsible for the marriage of all unmarried members. Thisresponsibility is particularly emphasized in respect of daughters. Marriage of a

daughter is considered as a sacrosanct duty under Hindu law. Marriage expenses are

defrayed out of joint family funds.

The Mitakshara Karta is not liable to accounts and no coparcener can even at the time of

partition, call upon the Karta to account his past dealings with the joint family property unless

charges of fraud, misappropriation/conversion are made against him.


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However, when a coparcener suing for partition is entirely excluded from the enjoyment of

property he can ask for accounts.

After the severance of status has taken place, the Karta is bound to render accounts of all

expenditure and income in the same manner as a trustee or agent is bound to render accounts.

This means that from the date of severance of status, the Karta is bound to account for allmesne profits.

Representation: - The Karta represents the family. He is its sole representative vis-avis the government and all outsiders and in that capacity he has to discharge many

responsibilities and liabilities on behalf of the 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 the outsiders.

Remedies to aggrieved coparcener:

It is well settled that no injunction at the hands of a coparcener can be issued against the karta

of the Joint Hindu Family restraining him from alienating the coparcener property. Even

though a coparcener has an interest in the coparcener property by birth, but he is not entitled

to separate possession of the same unless a partition takes place. The Karta of a Joint Hindu

Family has a right to manage the Joint Hindu Family property. That right to manage the

property also includes the right to sell or mortgage ancestral property if the legal necessity so

arises. A coparcener has no right to get an injunction against the Karta. However, he has

always a remedy to challenge the alienation of the coparcenary property and set aside the

same on the ground that the same was not for any legal necessity or was not an act of good

management.

Coparcener has no right to maintain a suit for permanent injunction restraining the Manager

or Karta from alienating the coparcenary property and the coparcener has the right only to

challenge the alienation of coparcenary property and recover back the property after

alienation has come into being.

Sushil Kumar & Anr vs Ram Prakash & Ors, 1988 AIR 576

Ram Prakash being the Defendant in the original suit as Karta of joint Hindu family executed

an agreement to sell suit property for a consideration and he received earnest money. As the

Defendant refused to execute the sale deed, the defendant Jai Bhagwan instituted a suit in the

court of Sub-Judge for specific performance of the agreement to sell and in the alternative for

a decree for recovery of money. In the said suit the appellants are the sons of defendant Ram

Prakash who made an application for being impleaded. Application, however, was dismissed.

Thereafter three sons of Ram Prakash being the defendant as plaintiffs instituted Civil Suit in

the Court of Sub-Judge for the permanent injunction stating inter alia that the said property

was joint Hindu Family coparcenary property of the plaintiffs and defendant. That there was

no legal necessity for sale of the property nor it was an act of a good management to sell the


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same to the defendant Jai Bhagwan without the consent of the plaintiffs and without any legal

necessity.

It was prayed that a decree for permanent injunction be passed in favour of the plaintiffs and

against the defendant Ram Prakash restraining him from selling or alienating the property to

the defendant Jai Bhagwan or to any other person and also restraining Jai Bhagwan fromproceeding with the suit for specific performance pending in the civil court. Jai Bhagwan

since deceased filed a written statement stating inter alia that the Ram Prakash disclosed that

the suit property was owned by him and that he was in need of money for meeting the

expenses of the family including the education expenses of the children and also for the

marriage of his daughters. It has also been pleaded that the house in question fetched a very

low income from rent and as such the Ram Prakash, who has been residing in Delhi, did not

think it profitable to keep the house.

It has also been stated that the suit was not maintainable in law and the injunction as prayed

for could not be granted. The Trial Court after hearing the parties and considering theevidences on record held that the house property in question was the ancestral property of the

Joint Hindu Mitakshara Family and the Ram Prakash who is the father of the plaintiffs was

not competent to sell the same except for legal necessity or for the benefit of the estate since

the plaintiffs' application for impleading them as party in the suit for specific performance of

contract of sale, was dismissed the filing of the present suit was the only remedy available to

the plaintiffs. The plaintiffs being coparceners having interest in the property, suit in the

present form is maintainable. The Trial Court further held that:

It is well settled law that Karta of the joint Hindu family cannot alienate the coparcenary

property without legal necessity and coparcener has right to restrain the Karta from alienating

the coparcenary property, if the sale is without legal necessity and is not for the benefit of the

estate. This view of mine is supported by case titled Shiv Kumar vs. Mool Chand reported

in CLJ 1971 page 1027 thus, the proposed sale is without any legal necessity and is not for

the benefit of the estate, therefore the suit of the plaintiff is decreed with no orders as to

costs.

Against this judgment and decree defendants, the legal representatives of the deceased Jai

Bhagwan preferred an appeal. The lower appellate court following the decision in Jujhar

Singh vs. Giani Talok Singh, [1986] PLJ 346 held that a coparcener has no right to maintain a

suit for permanent injunction restraining the Manager or Karta from alienating the

coparcenary property and the coparcener has the right only to challenge the alienation ofcoparcenary property and recover back the property after alienation has come into being.

Court of appeal below further held:

Ram Prakash, father of the plaintiffs and Karta of the joint coparcenary property cannot be

restrained by way of injunction from alienating the coparcenary property to Jai Bhagwan. In

consequence, the appeal is accepted and the judgment and decree of the trial court under

attack are set aside.

Against this judgment and decree, the instant appeal on special leave has been preferred by

the appellants i.e. the sons of the Ram Prakash, the Karta of the Joint Hindu Family.


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In this appeal we are called upon to decide the only question whether a suit for permanent

injunction restraining the Karta of the joint Hindu family from alienating the house property

belonging to the joint Hindu family in pursuance of the agreement to sell executed already in

favour of the predecessor of the appellants, Jai Bhagwan, since deceased, is maintainable.

It is well settled that in a Joint Hindu Mitakshara Family, a son acquires by birth an interest

equal to that of the father in ancestral property. The father by reason of his paternal relation

and his position as the head of the family is its Manager and he is entitled to alienate joint

family property so as to bind the interests of both adult and minor coparceners in the

property, provided that the alienation is made for legal necessity or for the benefit of the

estate or for meeting an antecedent debt. The power of the Manager of a joint Hindu family to

alienate a joint Hindu family property is analogous to that of a Manager for an infant heir as

observed by the Judicial Committee in Hunooman persaud Panday vs. Mussumat Babooee

Munraj Koonweree, Moore's on Indian Appeal ( 1856, Vol. VI) 393:

The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage, is ,

by the Hindu Law, a limited and qualified power, which can only be exercised rightly by the

Manager in a case of need, or for the benefit of the estate. But where the charge is one that a

prudent owner would make in order to benefit the estate, a bona fide lender is not affected by

the precedent mismanagement of the estate. The actual pressure on the estate, the danger to

be averted, or the benefit to be conferred, in the particular instance, or the criteria to be

regarded. If that danger arises from any misconduct to which the lender has been a party, he

cannot take advantage of his own wrong to support a charge in his favour against the heir,

grounded on a necessity which his own wrong has helped to cause. A lender, however, in

such circumstances, is bound to inquire into the necessities of the loan, and to satisfy himself

as well as he can, with reference to the parties with whom he is dealing, that the Manager is

acting in the particular instance for the benefit of the estate. If he does inquire, and acts

honestly, the real existence of an alleged and reasonably credited necessity is not a condition

precedent to the validity of his charge, which renders him bound to see to the application of

the money.

At the outset it is to be noticed that in a suit for permanent injunction under section 38 of the

Specific Relief Act by a coparcener against the father or Manager of the Joint Hindu family

property, an injunction cannot be granted as the coparcener has got equally efficacious

remedy to get the sale set aside and recover possession of the property. Sub-Section (h) of

Section 38 of Specific Relief Act bars the grant of such an injunction in the suit. Secondly,the plaintiff respondents brought this suit for permanent injunction restraining their father

from selling or alienating the property to the Jai Bhagwan or any other person and also

restraining the Jai Bhagwan from proceeding with the suit for specific performance of the

agreement to sell pending in the civil court.

Thus the relief sought for is to restrain by permanent injunction the Karta of the Joint Hindu

Mitakshara Family from selling or alienating the house property in question. Ram Prakash as

Karta of the joint Hindu family has undoubtedly, the power to alienate the joint family

property for legal necessity or for the benefit of the estate as well as for meeting antecedent

debts. The grant of such a relief will have the effect of preventing the father permanently


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from selling or transferring the suit property belonging to the joint Hindu Undivided Family

even if there is a genuine legal necessity for such transfer.

If such a suit for injunction is held maintainable the effect will be that whenever the father as

Karta of the Joint Hindu coparcener property will propose to sell such property owing to a

bona fide legal necessity, any coparcener may come up with such a suit for permanentinjunction and the father will not be able to sell the property for legal necessity until and

unless that suit is decided.

It was made clear that in case of waste or ouster an injunction may be granted against the

Manager of the joint Hindu family at the instance of the coparcener. But nonetheless a

blanket injunction restraining permanently from alienating the property of the joint Hindu

family even in the case of legal necessity, cannot be granted.

It is suggested to go through the class notes also.

karta, alienation

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