FAMILY LAW 2
UNIT 1
JOINT HINDU FAMILY
A joint Hindu family consists of all male members lineally descended from a
Common male ancestor and includes their wives and unmarried daughters.
An HUF is a family of Hindus.
Even Buddhists, Jains and Sikhs are regarded as Hindus, and can, therefore,
set up HUFs.
The concept of an HUF has basically evolved from ancient Hindu law
It is a specific form of business organization found only in India.
HUF is a separate and distinct tax entity that i.e. the income of a HUF can be
assessed in the hands of HUF only and not in the hands of any of its
members.
Hindu Undivided Family do business under the control of the head of the
family is known as ‘karta. The members of the family is known as ‘co-
parceners’ of Hindu undivided estate.
KARTA
The FATHER and in his absence, the SENIOR MOST member of the family
is presumed to be the Karta of a Hindu joint family.
This presumption is very strong and is regulated by SENIORITY and not the
consent of the other family members.
CAN A JUNIOR MEMBER ACT AS KARTA?
JUNIOR MEMBER AS KARTA
Napony Investments (Pvt) Ltd. v. Santokh Singh
AIR 2008 SC 673
In the following circumstances a younger brother of the JHF can deal with
the family property as karta:-
If the senior member or the karta is not available.
Where the Karta relinquishes his right expressly or by necessary
implications.
In the absence of father
Father’s whereabouts are not known.
Harsher Sethi v. Ladukishore, AIR 2002 Ori 110
Where the senior member gives up his right to act as Karta and this power is
assumed by a junior member, this fact has to be proved by a Cogent evidence. In
the absence of evidence the court would not accept the contention that a person
though junior member of family has acted as Karta.
FEMALES AS KARTA
A FEMALE CAN BE A KARTA
After the amendment of 2005 since now a daughter is a Coparcener like a
son, after the death of father, the senior child of the family whether MALE
OR FEMALE would become Karta.
If a daughter happens to be the senior most member of the family, after the
amendment, she would replace her brother from Kartaship.
CIT V. SETH GOVIND RAM
Under Hindu Law Coparcenership is a necessary qualification to become the Karta
and that a widow is not a coparcener, she has no legal qualification to become the
Karta and that a widow of a coparcener cannot, therefore, be the Karta of the Joint
family property.
Present position
Shreya vidhyarthi v. Ashok Vidhyarti
Whether, a widow can act as Karta of a joint family and purchase properties
for the Joint family?
The court said “While there can be no doubt that a Hindu Widow is not a
coparcener in the HUF of her husband and, therefore, cannot act as Karta of the
HUF after the death of her husband the two expressions i.e. Karta and Manager
may be understood to be not synonymous and the expression “Manager” may be
understood as denoting a role distinct from that of the Karta from that of the Karta.
Hypothetically, we may take the case of HUF where the male adult coparcener has
died and there is no male
coparcener surviving or as in the facts of the present case, where the sole male
coparcener is a minor. In such a situation obviously the HUF does not come to an
end. The mother of the male coparcener can act as the legal guardian of the minor
and also look after his role as the Karta in her capacity as his (minor’s) legal
guardian.”
POWERS OF KARTA
POWER TO MANAGE FAMILY AFFAIRS:- The Karta is the head of
the family and has the power to manage the family affairs and property.
His Powers of Management are absolute.
He has the power to take possession of the total property.
Receive joint family income from whichever source it may come.
NO INDIVIDUAL COPARCENER CAN EITHER RETAIN THE
EXCLUSIVE POSSESSION
OF A SPECIFIC JOINT FAMILY PROPERTY OR JOINT FAMILY
INCOME, WITHOUT HIS PERMISSION.
If a coparcener’s depicts disorderly behavior in the family home, the Karta
can evict him from the home.
The coparcener cannot challenge his decision.
REMEDY:- TO ASK FOR PARTITION
The Karta can decide or allot specific portions of the house for family
member’s residence, which the latter have to obey.
No member of the family or even court can interfere can force Karta to take
a particular decision as that would mean interference in his Inherent powers
of management.
RIGHT OF REPRESENTATION:- The Karta has a right to represent the
family in all legal, social, religious and revenue matters, including
Litigation, with respect to matters connected with immovable properties or
otherwise.
Karta represents JHF in suits
A suit will be filed in a court by the family in his name and likewise, a suit
filed against the family will be defended by him.
A decree passed against the Karta binds all the members, including
minors irrespective of the fact that they were not direct parties to the
suit.
Krishnamurthi v. Chidambaram
The karta is expected to pursue the litigation with utmost sincerity, but if he
does not do so and because of this, the family loses a case or a decree is
passed against the family, such decree cannot be set aside on the ground that,
had the Karta been more vigilant, the family might have won the case.
POWER TO RECEIVE AND SPEND THE FAMILY INCOME ( From
whichever source) In the exercise of the Management of Joint Family
affairs.
Karta can spend the income for the maintenance of family members and for
one of the PERMITTED PURPOSES
Legal necessity
Benefit of estate
Performance of religious and indispensable rights.
POWER OF ALIENATION
The Karta’s Power of alienating the joint family property is limited or
qualified .
Can only be exercised with the consent of the coparceners
WHAT IF COPARCENER IS A MINOR OR INCAPABLE OF
GIVING CONSENT?
VVV Ramaraju v. Korada Malleswara Rao
Where the coparcener does not give consent or is incapable of giving
consent, being a minor, the Karta can alienate the property only for the Legal
necessity or for performance of religious or charitable purposes or where
transaction would amount to benefit of estate.
In the Case of an unauthorized alienation, the Coparceners have the right to
CHALLENGE it and Get the Decree SET ASIDE.
POWER TO SETTLE FAMILY DISPUTES
JAGANANATH v. MANNU LAL
In case of a dispute between the members of the family or between family
members and outsiders, the Karta can refer the dispute for arbitration.
He can also enter into a compromise on behalf of the family, but not where
such a compromise is for his personal advantage.
Where such reference to arbitration or compromise is for the benefit of the
family, all family members including minors, are bound by it.
POWER TO ACKNOWLEDGE AND CONTRACT DEBTS:-
The Karta has the authority to acknowledge debts due to the family and to
pay interest on it, though he cannot, however, revive a time bar debt.
GIFT TO DAUGHTER
As a moral obligation, a remnant of a right in the family property, the father
can make a gift of a small portion of immovable property or sister for pious
obligations. Guramma v Mallappa
Liability of Karta
LIABILITY TO ACCOUNT:- The Karta is not bound to keep accounts of how he
has spent the family funds, but where a coparcener demands partition, he
can require the Karta to give him accounts.
He can only be asked to render the accounts as they existed on the date of
the demand and cannot be forced to render past accounts; Unless there
are charges of Fraud or misappropriation or nature of property is such that
necessities proper accounting at all times.
In such cases, the Karta has to give accounts to a member demanding it at
the time of Partition.
POSITION OF KARTA SUI GENERIS [His own Kind, Unique, A Class by itself ]
Karta hold a Unique Position in a joint Hindu Family, which is difficult to
explain, as it has no parallel in any other Kind of relationship .
He is the Custodian of the Family interest and his actions are backed by the
presumption of the promotion of general family affairs.
He is the head of the Family, but the relationship is not that of:-
Principal and agent
Contractual
Not as that of Partners.
It is best comparable to the Trustee. ( Perrazu v. Subbarayadu. AIR 1922 PC
71)
