family law project topic sui generis position of karta PDF

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SUI GENERIS POSITION OF KARTA Subject code: 202 4rd semester 2020-2021

Submitted to:

Submitted by:

Ms. Kusum Lata Bawlia

Ravija Tripathi 37917703819 4-E

VIVEKANAND INSTITUTE OF PROFESSIONAL STUDIES VIPS Delhi 2021

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INDEX 1. ACKNOWLEDGMENT

2. OBJECTIVE

3. ABSTRACT

4. RESEARCH METHEDOLOGY

5. LIST OF CASE LAWS

6. INTRODUCTION 6.1 CHARECTERISTICS OF KARTA 6.2 WHO CAN BE A KARTA

7. POSITION OF KARTA

8. POWERS OF KARTA 8.1 OTHER POWERS 8.2 POWER OF ALIENATION

9. LIABILITIES OF KARTA

10. CONCLUSION 11. REFERENCES

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1. ACKNOWLEDGMENT

First and foremost, praises and thanks to the god, the almighty, for his showers of blessings throughout my research work to complete the research successfully.

I would like to express my deep and sincere gratitude to my research supervisor, Ms. Kusum lata Bawalia, and dean of Vivekananda School of law and legal studies, Mrs. Rashmi salpaker, for giving me the opportunity to do research and providing their valuable guidance throughout this research. Her dynamism, vision, sincerity and motivation have deeply inspired me. She has taught me the methodology to carry out the research and to present the research work as clearly as possible. It is a great privilege and honor to work and study under her guidance.

I am extremely thankful to my parents for providing constant inspiration and support to complete this research. I extend my gratitude to my friends and colleague for helping me completing this work.

2. OBJECTIVE

This study focuses on following objectives 1. To study the position of karta in a joint family. 2. Powers with karta of a Hindu joint family. 3. Liabilities of karta in a joint family.

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3. ABSTRACT

This study titled “sui generis position of karta.” Focuses on position of a karta in a Hindu joint family, To study the power and privileges given to the head of the family. Moreover the liabilities of a karta in a joint family with the help of examples and case laws.

4. RESEARCH METHEDOLOGY This study is based on doctrinal research dealing with existing case laws, related cases and authoritative materials. Data were collected by valid and reliable sources. There were certain restrictions due to ongoing pandemic of not being able to physically read various books and legal journals. Thus my research datas are taken widely from reliable online sources.

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5. LIST OF CASE LAWS

1. Narendrakumar J Modi v. CIT

2. Sushila Devi Rampura v. Income tax officer

3. Jugal Kishore Baldeo Sahai v. CIT

4. Dr. Gopal v.Trimbak

5. Sunil Kumar v. Ram Prasad

6. Dev Kishan v. Ram Kishan, Ram Kishan

7. Vaikuntha Pillai v. Avirendrappa Pillai

8. P.S Sairam v. P.S. Rama Rao

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6. INTRODUCTION The Joint Hindu family is a patriarchal body, and the head of the family is called Karta. Karta is the senior most male member of the family who acts as the representative of the family and acts on behalf of the family. There is a fiduciary relationship between the Karta and the other family members because every family needs a head member who can look after the welfare of minor members and females in a Joint Hindu Family. The position of Karta is unique in a joint Hindu family. Only a coparcener can become Karta. Such unique is his position that there is no office or any institution or any other system of the world, which can be compared with it. His position is sui generis i.e. of his own kind or peculiar to himself. If partition takes place he is entitled to take his share. He is a person with limited powers, but, within the ambit of his sphere, he possesses such vast powers as are possessed by none else. His position is recognized /conferred by law. No stranger can ever be qualified to be a karta, but an adopted son who is the eldest in the family can be qualified.

6.1 CHARECTERISTICS OF KARTA:1 

Karta’s position is unique (Sui generis). His position is independent and no one can be compared with him among the family members.



He had unlimited power but even if he acts on behalf of other members, he can’t be treated as a partner or agent.

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He controls all the affairs of the family and has wide powers.

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He is responsible to no one. The only exception to this rule is, in case of fraud, misappropriation or conversion, he is held responsible.

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He is not bound to invest, save or economies. He has the power to use the resources as he likes, unless he is not responsible for the above mentioned charges.

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He is not bound to divide the income generated from the joint property equally among the family members.

6.2 WHO CAN BE A KARTA? 1 https://blog.ipleaders.in/ (last visited on 4th june 2021)

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

Senior most Male Member

The senior most male member is entitled to become a Karta and it is his right. Karta is always from the members of the family; no outsiders or stranger can become a Karta. If the senior most male member of the family is alive then he will continue as Karta, if he dies then the second senior most member of the family will take the charge of Karta. Karta takes his position by consent or agreement of all the coparceners.

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Junior Male Member

If the coparceners agree, then a junior can also become a Karta of the family. By making the agreement with the coparceners, a junior male member can be a Karta of the family. In the case Narendrakumar J Modi v. CIT2 court held that younger son was given the power to manage by family because elder brother was an aged man of 70 years. And also the father of appellant died in 1957. So, under such circumstances, younger son appears to have acted as the Karta with the consent of all the other members.

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Female Member as Karta

According to Dharmastra, if there is an absence of the male member in a family then in that situation female can act as a Karta. If in case male members are present but they are minors, at that time also, females can act as a Karta. In the case Sushila Devi Rampura v. Income Tax officer3, It was held that where the male members are minors, their natural guardian is their mother. The mother can represent the HUF for the purpose of assessment and recovery of income tax.4 The 2005 amendment gave women equal rights in the inheritance of ancestral wealth, something reserved only for male heirs earlier. It indeed, is a significant step in bringing the Hindu Law of inheritance in accord with the constitutional principle of equality.

2 1976 S.C. 1953 3 AIR 1959 Ca 4 http://www.legalserviceindia.com/ (last visited on 4th june 2021)

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7. 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. 

Ordinarily a Karta is accountable to none. Unless charges of fraud, misrepresentation or conversion are leveled 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.

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Karta may discriminate i.e. he is not bound to treat all members impartially. He is not bound 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.

8. POWERS OF KARTA5 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.

8.1 OTHER POWERS 5 https://www.legalbites.in/ ( last visited on 4th june 2021)

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

Powers of Management

Karta’s power of management is absolute. No one can question the duties of the Karta like, he can manage or mismanage the property, family, business any way he likes. Karta cannot deny the maintenance and occupation of property to any member. Karta is not liable for the positive failures. 

Rights to Income or Remuneration and Expenditure

The income of the Joint Hindu family property in a whole must be given to the Karta. Then it is the responsibility of the Karta to allot the funds to the members for fulfillment of their needs. Karta controls the expenditure of the funds. The scope of his power is only to spend such funds on family purposes like management, maintenance, marriage, education etc. in the case Jugal Kishore Baldeo Sahai v. CIT6, court held the salary paid to the karta has to be an expenditure incurred in the interest of the family with bonafide intention, and exclusively for the purpose of the business of the Hindu undivided family, is allowable.

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Rights to Represent Joint Family

The Karta represents the family in legal, religious and social matters. The acts and decisions of the Karta are binding on the members. Karta can enter into any transaction on behalf of the family. In the case Dr. Gopal v.Trimbak7 , it was held that 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.

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Right to Compromise

Karta has the power to compromise the disputes relating to management or family property. He can compromise family debts, pending suits and other transactions. The compromises made by the Karta, can be challenged in court by heirs only on the ground of malafide intention.

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Power to refer a Dispute to Arbitration

Karta can refer the disputes relating to management, family property to the arbitration. If the award by the arbitration is valid then it will be binding on the members of the joint family.

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Power to Contract Debts

6 (1967) 63 ITR 238 7 AIR 1953 Nag 195

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The Karta exercises an implied authority to contract debts and pledge the credits and property of the family. Such acts are bound to be followed by the members of the family. Even, Karta when taking a loan for the family purpose or for family businesses then joint family is liable to pay such a loan.



Power to enter into Contracts

The Karta can enter into contracts and where contracts are enforceable against the family. The contracts are binding on the members of the joint family.

8.2 POWER OF ALIENATION No one among the family members can alienate joint family property. But Karta has the power to alienate the joint hindu family property . 1. Legal Necessity (Apatkale) 2. Benefit of estate (Kutumbarth) 3. Indispensable duties (Dharmamarthe) 1. LEGAL NECESSITY This term has not expressly defined in any judgment or in any law. It includes all the 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 a need. 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.8 In the case Sunil Kumar v. Ram Prasad9, court held that where karta sell or mortgage joint family property for legal necessity no coparcener could restrain him through a suit of injunction. If a coparcener considers the sale to be bad he could challenge its validity after the sale is affected. In the case Dev Kishan v. Ram Kishan10. Plaintiffs and defendants are members of a Joint Hindu Family. The karta, who has sold and mortgaged the property for illegal and immoral purposes as it was for the marriage of minor daughters The defendant’s contention was that he took the loan for legal necessity.

8 http://www.legalserviceindia.com/ (last visited on 5th june 2021) 9 1988 AIR 576 10 AIR 2002 Raj 370

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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.

2. BENEFIT OF ESTATE 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.

3. INDISPENSIBLE DUTIES These terms refer to the 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, marriage, grihapravesham etc. A Karta can alienate the portion of the property for the charitable purpose. In this case, the power of the Karta is limited i.e. he can alienate only a small portion of the family property, whether movable or immovable.

9. LIABILITIES OF KARTA11

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Liability to maintain

Karta is to maintain all the members of the Joint Family. All the members of the Joint Hindu Family have a right to maintenance and residence. If he does not maintain any member then he can be sued for maintenance and also can be asked for compensation.



Liability of render accounts

As far as the family remains joint, Karta is not supposed to keep accounts of the family, but when partition takes place at that time he will be liable to account for family property. If any of the heir 11 https://www.lawctopus.com/ (last visited on 7th june 2021)

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is not satisfied with his accounts, then he can constitute a suit against Karta to bring the truth and to know any misappropriation is done by Karta or not.



Liability of recovery debts due to the Family

He has the liability to realize the debts due to the family within reasonable time but should not allow them to bar by limitation. In the case Vaikuntha Pillai v. Avirendrappa Pillai12 court held that karta cant give up any debt although he got the full power to settle accounts with debtors and to make reasonable reduction either towards interest or towards principal in interest of the family.

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Liability to spend reasonably

The Karta also has the power to spend funds from the joint family account. But such power is limited to some restrictions such as the Karta cannot use the funds for unlawful purposes and also he should spend it wisely. If any of the coparceners is not satisfied with the spending made by the Karta he/she can file a suit against the Karta and discover the truth.



Liability not to eliminate coparcenary property

It is the liability of the Karta not to alienate the coparcenary property without any legal necessity or benefit to the state . 

Liability not to start new Business

The Karta of the family is under the obligation not to start a new business without the prior consent/permission of coparceners of the Joint Hindu Family. Once the coparceners expressly or impliedly have given their consent, the Karta can start a new business. In the case P.S Sairam v. P.S. Rama Rao13, court held that business carried on by karta is not joint family business and the property occupied out of such business is self acquired property.14

12 AIR 1927 Mad. 127 13 AIR 2004 SC 1619 14 Modern Hindu law by Dr. U.P.D. Kesari

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10. CONCLUSION

Karta in a Joint Hindu family holds an extraordinary position with reference to its understanding and complexity. The concept of Karta has its origin centuries back and it still works due to some functional elements. Every joint family should have a Karta to boost the cohesive aspect of such a family with reference to its dealings and ventures. Looking at the position of the Karta, it can be said that he has fewer liabilities and more powers. When it comes to determining the position of Karta, he holds a unique position. The decisions or statements given by the Karta are binding on the parties and they are bound to do it. Now, with the amendment of 2005, Section 6 of the Hindu Succession Act, 1956 gives equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Even now the Hindu Succession Act, 1956 does not accept a woman as karta in normal circumstances. She can be a karta only in 2 certain special circumstances: - in the absence of male members and in case there are minor male members in the family, which is prescribed by the ancient Hindu law, the dharmashatras. The law can only be a path breaker; it cannot ensure that justice is done. For that there must be a positive change in social mores. The law would always be a step behind. Women have to become aware that the law does not discriminate against them in property matters and that they cannot be shortchanged any more. In many cases, justice is denied simply because of lack of awareness. Here, hopefully, the right to Information Act would kick in and facilitate greater access for women to know about their rights. In fact, they should be empowered and enabled to demand their rights, wherever they are sought to be denied. The government should take steps to uplift the position of woman in other personal laws also. It must be understood that equality for women is not just a matter of equity for the so-called weaker sex, but a measure of the modernity of Indian society and the pragmatic nature of our civilization.15

15 http://www.legalservicesindia.com/ (last visited on 7th june 2021)

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11. REFERENCES

1.

https://www.legalbites.in/

2. http://www.legalservicesindia.com/

3. https://www.lawyersclubindia.com/

4. https://www.lawctopus.com/

5. https://blog.ipleaders.in/

6. http://www.legalserviceindia.com/

7. Modern Hindu law by Dr. U.P.D. Kesari

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