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Published : March 16, 2013 | Author : arnav.upes
Category : family law | Total Views : 32692 | Rating :

  
arnav.upes
Arnav Raj Chakravorty III year law student at UPES,College of Legal Studies,Dehradun
 

Karta

In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very important position. There is no office or institution in any other system of the world can be compared with it. He is a person with limited power but he possess such vast power with in ambit of joint family which nobody enjoys.

Who is a Karta:-
Karta means manager of joint family and joint family properties. He is the person who takes care of day to day expenses of the family looks after the family and protects the joint family properties.

Who can be a Karta:-
It is a presumption that ordinarily senior most male member is the Karta and Karta is always a member in the family no outsider or stranger can become a Karta.
The senior most male member so long as he is alive may be, aged, infirm or ailing continues as Karta. By his death Kartaship will pass on to next senior most male member.

In the presence of senior most male member a junior cannot act as Karta but if all coparcener agree, a junior also can become a Karta.

Karta owes his position by consent or agreement of all coparceners.

Female Member:-
Generally female member cannot become Karta but in exceptional circumstances female also can act as Karta.

Nagpur High Court held the view that mother even though not a coparcener, in the absence of adult male member can act as Karta.

In Commissioner of Income Tax Vs. Seth Govind Ram, the Supreme Court held mother or any female member could not be Karta of joint family and therefore cannot alienate joint family property.

Position of Karta:-
Karta is sui generis (of its own kind) the relationship between him and members is not like principal or agent or like partners in a partnership firm.

He is the head of the family and acts on behalf of other members.

He stands fiduciary relationship with other members but he is not a trustee, nobody can question what he spent unless charges of misappropriation.

When any coparcener charges of improper alienations made by Karta, burden of proof lies on him to prove such are malafide act of Karta.

Powers of Karta:-
With in joint family Karta has vast powers with limitations.
1) Power of management:- He is the head of the family, his management powers are absolute. He may manage the family affairs and family property and business the way he likes for the benefit of estate, no one can question his management.

2) Right to Income:- It is general rule that all members who works or do business out of joint family property must hand over income to Karta. It is for Karta to allot funds to the members and look after needs and requirements, so long as family remains joint, no member can ask for any specified share in the income.

3) Right to representation:- He represent the family, represents the family in all matters, legal, social and religious. He can enter into any transaction on behalf of the family, his acts are binding on the entire joint family.

4) Power to compromise:- He has power to compromise all disputes relating to family property or their management. He can compromise pending suits, family debts, and other transactions. However if his act is not bonafide can be challenged in a partition.

5) Power to refer a dispute to arbitration:- Karta has power to refer any dispute to arbitration and Arbitrator’s award is binding on all the members.

6) Power of acknowledgement and to contract debts:- Karta has power to acknowledge on behalf of the family any debt due to the family, also has power to pay debt or to make pack payment of debt.
He has power to contract debts for the family such debts incurred in the ordinary course of business are binding on entire joint family.

Even Karta when takes loan or execute promissory note for family purpose or for family business joint family is liable to pay such loan.

7) Power to enter into contract:- Karta has power to enter into contract and such contract is enforceable against the family.

8) Power of alienation:- Nobody in the family has power to alienate joint family property. However Karta has power of alienation under 3 circumstances.
a) Legal necessity
b) Benefit of estate.
c) Indispensable duties.

Kartas Liabilities:-
Karta has vast powers same time his position is fiduciary and has lot of responsibilities and liabilities.
1) Liable to maintain:- Karta is responsible to maintain all the members of joint family. If he improperly excludes any member from maintenance, he can be sued for maintenance and also arrears of maintenance.

2) Liability to render accounts:- As long as family remains joint, Karta is not supposed to keep accounts, but when partition takes place at that time he is liable to account for family property. If any of the coparcener is not satisfied with his account can institute a suit against Karta to discover the truth and to know any misappropriation is made by Karta.

3) Liability to recover debts due to the family:- Kartas should realize all debts due to the family with in reasonable time but should not allow them to bar by limitation.

4) Liability to spend reasonably:- As Karta of joint family has control over the income and expenditure of the family, he is custodian of surplus income. However he should spend family funds reasonably and for the purpose of the family.

5) Liability not to alienate coparcenary property:- Unless it is for benefit of family, estate or for necessity Karta cannot alienate joint family property without the consent of all the coparceners.

6) Liable not to start new business:- Unless adult coparceners of the family expressly or impliedly consents, Karta cannot impo

Right of female:-
As already mentioned no female has right to partition but certain females are entitled for shares if partition is effected.

1) Father’s wife, mother and grandmother is entitled to share as per Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of partition she is entitled to take the extent of her husband share.

2) Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of partition she is entitled to take the extent of her husband share. Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of partition she is entitled to take the extent of her husband share.

Under Hindu Succession Act, 1956 U/S 6 widow, daughter, mother, predeceased son’s daughter and his widow, predeceased son’s predeceased son’s widow, daughter’s daughter are entitled to their respective shares as per the rules laid down.

An aliened of coparcener’s undivided interest files a suit for partition is entitled to a share to the extent of that coparcener.

The general rule that every coparcener has a right to partition subject to two exceptions:
1. Unqualified coparcener has no right to partition
2. Sons cannot claim partition against their father if the latter is joint with his own father.

Persons who have right to partition

1) Father:- Father has not merely a right to partition between himself and his sons can also effect partition among his sons. Every father can make partition of his self acquired property also (means distribution of his property as per his wishes).
While doing this consent of sons is immaterial. Father can impose partition partial or total, even between minor sons and himself. But this act of him must be bonafide. Otherwise minor son after attaining majority can file for reopen of partition.

2) Sons, Son’s Son, Son’s Son’s Son:- Every S, SS, SSS are entitled to partition but under Bombay School when father is joint with his father or brothers consent of father is essential.
If joint family consist of father and sons then son can ask for partition.

3) Son born after partition:- Smritikaras has different opinions on this.
Vishnu and Yajnavalkya – Partition should be reopened and share has to allot to after born son.

Manu, Gautama, Narada – after born son could get share of his father alone.

Mitakshara school formulated a general procedure by applying both principles but in different situations.

i) Son conceived at the time of partition but born after partition (unborn son)
When person is in mother’s womb under Hindu Law for many purposes equivalent to born child. When mother is pregnant partition has to postponed until delivery. But if coparcener does not want to postpone then has to reserve a share to unborn son and go for partition otherwise child (son) can file a suit for reopen of partition after his birth.

ii) Son begotten and born after partition (after born son)
If any son born after partition and he was not even in mother’s womb then the following rules apply.
a) When father has taken his share in partition then he becomes coparcener only in father’s share.
b) When father has not taken his share then after born son has a right to get partition reopened and get the estate redistributed.

iii) If father renounces his share
When father renounces his share, son born after renouncement is not entitled to get any right in the joint family. He will be remained as coparcener in father family.

iv) Adopted Son
Position of adopted son also differs with situation.
a) When there is a subsequently born natural son.
b) When there is no subsequently born natural son.

When natural son born after adoption then adopted son interest differs from school.

Right of Adopted son
1) Bombay and Madras School – 1/5 of estate
2) Benaras School - ¼ of estate
3) Bengal School - 1/3 of estate

But presently by virtue of Hindu Adoption & Maintenance Act 1956, Adopted son is entitled to equal share with natural son.
v) Son of void & voidable marriage

Since son of void & voidable marriage is not coparcener, he cannot sue for partition.

vi) Illegitimate son
Any category of illegitimate son is not entitled for partition because he is not a coparcener.

vii) Minor and lunatic coparcener
No difference between major and minor son, lunatic or physically deformed son all are entitled for partition and if proper partition is not made by not giving equal shares to them. Coparcener can challenge and reopen to partition.

viii) Absent Coparcener
Any coparcener who is absent at the time of partition, a share to be allotted to him until he specifically renounces his interest. If share is not allotted he can also challenge and get the partition reopened.

Right of female:-
As already mentioned no female has right to partition but certain females are entitled for shares if partition is effected.

1) Father’s wife, mother and grandmother is entitled to share as per Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of partition she is entitled to take the extent of her husband share.

2) Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of partition she is entitled to take the extent of her husband share. Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of partition she is entitled to take the extent of her husband share.

Under Hindu Succession Act, 1956 U/S 6 widow, daughter, mother, predeceased son’s daughter and his widow, predeceased son’s predeceased son’s widow, daughter’s daughter are entitled to their respective shares as per the rules laid down.

An alienee of coparcener’s undivided interest files a suit for partition is entitled to a share to the extent of that coparcener.

The general rule that every coparcener has a right to partition subject to two exceptions:
1] unqualified coparcener has no right to partition
2] sons cannot claim partition against their father if the latter is joint with with his own father.

Authors contact info - articles The  author can be reached at: joy.joy14@legalserviceindia.com




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