Author: Shivalika BVDU, New Law College, Pune
Editor: Priyal Sepaha Symbiosis Law School, Pune
Introduction:
Family is the foremost association in our society. We are dependent on our families for financial and total support. The concept of Hindu Undivided Family HUF) or joint family is ancient. The head of the family can be called as the Karta or the manager of the family.[1] The Karta takes care of the family and the family’s ancestral property. In the case of Abdul Basith Shib v. Shanmughasundaram[2], it was said that the Karta occupies the most superior position as compared to other members of the family as far he is able to manage the affairs of the house and property in the interests of all the members. The powers and rights of Karta are conferred by law. When a joint family possess an ancestral property, they form a coparcenary. Coparceners are the members of joint family who acquire an ultimate interest over the property by birth. Coparceners in the joint family comprises of the four lineal descendants (sons) including their common ancestors. Only a coparcener can become the Karta of the family.
Expressed features of the coparceners:
Community of interests or unity of possession over the ancestral property
Share of income
Right of survivorship
Presence of Karta
Before the Hindu Succession (Amendment) Act, 2005:
Who can be a Karta?
Most parts of India follow Mitakshara School of succession where the sons enjoy the ultimate interest in the ancestral property by birth. In contrast, a few states, including parts of Bengal and Assam follow Dayabhaga School of succession wherein, the sons and daughters do not have any recognised rights of inheritance by birth during their father’s lifetime.
The eldest male member of the joint family mostly acts as a Karta.[3] A common rule was laid down in the case of Sunil Kumar and another v. Ram Prakash[4], that the father in the family acts as the Karta and in his absence, the eldest male member of the family would be entitled to manage the family. There is no concept of two Karta in the same joint family.[5]
Powers of the Karta:
Power to mortgage the ancestral property:
The Karta can mortgage the property for the benefit of the family.
Power to execute an agreement of sale:
This will be binding on all the coparceners.
Power to alienate the ancestral property :
The Karta has the power to sell the entire ancestral property which includes the share of other coparceners without the concurrence of other coparceners, but it should be done for
Legal necessity
Legal necessity can be defined as some inevitable circumstances when no resort is left to Karta, and selling the ancestral property is the necessity.
Benefit of the estate
He can sell the ancestral property for the benefit of the property.
Indispensable duties
Karta for performing acts of charitable or pious nature is allowed to alienate the ancestral property.
Characteristics of alienation of the property by Karta:
Karta, alienating a joint property acts on behalf of all the coparceners.
The alienation of the property by Karta is binding on all the coparceners.
No expressed consent of other coparceners is required during Karta alienating the ancestral property.
Alienation is voidable and not void.
Can a junior member be a Karta?
In the case of Tribhovandas Bhimji Zaveri v. Assistant Commissioner[6], it was held that in the presence of some special circumstances a junior member could also act as a Karta. These special circumstances are:
In the absence of the senior-most member or the absence of the father
Where the Karta renounces his right expressly or impliedly
In the absence of a manager in exceptional cases like distress or calamity
Can a female be a Karta?
Before, 2005 females were not recognised as coparceners, and hence they could not act as Karta of the joint family.
In the case of Commissioner of Income Tax v. Seth Govind Ram[7], the Supreme Court held that the mother or any female member of the joint family could not act as Karta and hence cannot alienate ancestral property.
But under certain cases, the representation of female as the Karta of the joint family was accepted. In a situation where there are no adult male members in the family, a widow can act as a Karta for the benefit of the Hindu joint family.[8]
Liabilities of Karta:
Maintenance:
The Karta is liable to maintain the entire family. This is the basic right enjoyed by all the coparceners. And if Karta acts contrary, then he can be sued by other coparceners for the arrears of maintenance.
Marriage:
The marriage of the unmarried daughters is considered to be unimpeachable, and it is the responsibility of Karta to get all the unmarried daughters married. Karta is accountable for managing the expenses of the unmarried daughters from the ancestral family estate.[9]
Representation:
He is the sole representative of the entire family. He is liable to pay taxes and dues on behalf of the family. Additionally, he can also be sued by an outsider or a third party for all his dealings on behalf of the family members.
After the Hindu Succession (Amendment) Act, 2005:
In the past, females were not considered as the independent entity, and therefore they had no right in the property. But after the arrival of Hindu succession act, 1965 the rights of the women in the property were acknowledged. Furthermore, by the Hindu Succession (Amendment) Act, 2005 this made Section 6 a gender-neutral section. Now daughters are also entitled to be coparceners and have equal right in the ancestral property. They are now subject to the same enjoyment and liabilities as these sons are. This amendment terminated the Section 23 of the Hindu Succession Act which disentitles the female heir to ask for the partition in the joint family property until the male member of the family choose to divide. It also abolished Section 24 of the Hindu Succession Act which prohibited widows from inheriting property if she had remarried. This amendment abolished the doctrine of survivorship.
Whether this amendment applies to daughters born prior to the amendment?
This question was raised in the case of Vaishali s. Ganorkar v. Satish Keshavrao Ganorkar[10] in which the court held that this amendment does not apply to the daughters born prior to this amendment. But on 16th October 2005, the court in the case of Prakash & Ors. v Phulavati & Ors. settled that the right is available to all the daughters living at the time of amendment.
Whether the right of partition was given to the daughters now?
In the case of Danamma @ Suman Surpur v. Amar[11], the court held that the provision now legally recognizes the daughters as coparceners and the right to partition has not been repudiated. Thus the right to partition can be availed by any coparcener now including daughters also.
Conclusion:
This amendment has paved the way for women to be more independent and financially secured. It is a significant step which resonates with the idea of EQUALITY enshrined in our Constitution. But still, there is much confusion regarding this amendment as to which daughter must be considered as coparcener and Karta, whether a daughter born prior to 2005 is entitled to the ancestral property or not and many more. These confusions need to be addressed by our legislators. This will help in providing an efficient and speedy justice delivery system.
[1] Suraj Bunsi Koer v. Sheo Persad, (1880)ILR5CAL148
[2] (1956) I M.L.J. 513
[3] C.P. Berai v. Laxmi Narayan (1949) Nag 12
[4]1988 AIR 576, 1988 SCR (2) 623
[5] Union of India v. Shree Ram, AIR 1975 SC 1531
[6]2001 247 ITR 727 Bom
[7]1966 AIR 24
[8]C.P. Berai v. Laxmi Narayan (1949) Nag 12
[9] Chandra Kishore v. Nanak Chand AIR 1975 Del 175
[10] 2012 (5) Bom CR 210
[11] AIR 2018 SC 721