“FEMALE AS KARTA OF FAMILY: MEN

THEY ARE GONE…”

By Apoorva Yadav,
Final Year, National Law Institute University, Bhopal

INTRODUCTION
The concept of “manager” of a joint family has been in existence for two thousand years or
more1[1]. The constitution of our country provides for equality for all. But it is sad to know that
even after 60 years of our independence there is still difference between males and female.
Society considers males as more capable of running all tasks. In spite of the fact that women are
excellence in every field our Hindu scriptures gives more rights and privilege to a man.

Karta of a family is plays an important role in the family. The person in this position performs all
managerial roles. And it is no doubt that women are more capable than man in managing the
affair of the family. In a Hindu joint family, the Karta or manager occupies a pivotal position.
Such is his position that there is no comparable position in the world as that of a Karta.

The paper here gives arguments in favour of Female as Karta of family. The recent enactments in
state like Kerala throws light on the fact that the enactments would lead to women
empowerment. There have been conflicting views regarding the status of women as karta of
family. This concept is not new rather it came earlier also and there have been divergent views
over the question of females as Karta of family. There is a divergent view on this in Nagpur High
Court and in madras position.

The changes will have far-reaching social and legal implications for Hindu society. There is also
an emerging view that the Mitakshara joint family system should be abolished. The paper here
also focuses on the law commission report, and latest amendments made in various states.

STATEMENT OF PROBLEM:

Can Female Member Of A Mitakshara Family System Become A Karta

Of Family?
Let us suppose there is a family consisting of two brothers, their wives and their children, all the
latter very young. Now the senior brother dies. The wife and children will not suffer, because the
young brother survives and he would represent the family (if he is fit to do so), and act as
manager. Now let us suppose that the young brother also dies, and the family consists thereafter
of two widows and their respective children. The lady may be natural guardian is not doubted but
they might wish to do for their children certain acts which their husbands wanted to do. For
which they have limited right as a guardian.

BACKGROUND
There might be thousands of families in which the eldest member or the father has died and the

1[1] Paras Diwan, Family Law, Allahabad Law Agency, 6th edition
mother is the defacto manager of the children’s affairs. It therefore becomes important that
female member of the family should be given the power to act as Karta of the family.

There is yet another problem that is that there might be a case where the husband or father has
left the family or has lost. There existed the problem of died coparcener and also of lost
coparcener in earlier times also the problem was prevalent. In ancient times long absence of
husband or his becoming a sanyasi would by themselves clothe other members of the family
with greater freedom of action.; but even then there in ancient times there was always a period of
grace during which the father -husband might return and resume the statue and responsibilities,
and during that period the question would arise as to who might deal with the family property. 2[2]
Naturally, as we shall see, emergency provisions existed, though these are not as well known
today, as they ought to be.
There existed provisions relating to the position of wife in case either husband or father has left
the home or when the father or husband has died. Thus the sages and the dharamsastra have an
answer to the problem of maintenance.

THE DHARAMSASTRA SOLUTION

Sastras contain adequate provisions, whereby females can be managers. The sastra is clear that
in absence of the senior member of a junior member (if he has reached the age of legal
competence) may incur debts for the needs of the family and, in absence of a male member a
female member may do so. Debts incurred even by a female member in such circumstances will
be binding upon the family and must be paid out of the joint family funds, whether at partition,
or earlier. since debts would not be incurred without granting security of some kind, and since
the most favored type of security in ancient times was a mortgage of land, we can be quite sure
that in proper circumstances the mother of the family ,whether her husband was alive (but
absent) or dead ,could validly bind the minor's property ,whether it was his own use or his
interest in coparcenary, and likewise the interest of minor coparceners., whether they were her
sons or other ,in order to pay debts properly incurred by her. The test was whether her act was
for the benefit of the family, and there is no reason whatever, to doubt but that in this indirect
manner a female member might act as manager, doing acts of positive benefit to the family and
not merely conservative or protective or negative acts.3[3] The fact that a male member of the
family or even an agent might in nine cases out of ten actually negotiate or handle the business
has no bearing on our question, whether she had the capacity so to bind the family: and the
sastras plainly enough shows that she had it.

There are number of Sanskrit shlokes in which it has been clearly written that at time of distress a
female member can definitely incur debts and that such debts would be binding on all family
members. They are as follows:

Sishyantevasi-dasa-stri-vaiyavittyakarais ca yat
Kutumbahetor ucchinnam vodhavam tat kutumbina

This means, “The manager (or householder, actual or eventual) is liable to accept (or admit) all
alienations made for the purposes of the family by a pupil, apprentice, slave, wife, agent or

2[2] Mayne’s Hindu Law & Usage 728 (13th A. Kuppuswami Ed. 1991)

3[3] The Bombay Law Journal Vol. LXVIII

bailiff”
The inference is that any alienation for maintenance or even for less necessary purposes
(provided they are the family’s benefit) will be binding upon the manager (when he returns or
appears on the scene by simply coming of age, as the case may be) because in his absence the
implied authority rests with his fellow members of the family who, though not major
coparceners, are able to transact business in such emergencies.

Narad gives some more information regarding the position of females in the following sholak

Na ca bharya -kritam rinam kathancit patyar abhavet

Apat kritad rite, pumsam kutumbartho hi vistarah.
It may be translated as follows, “a debt contracted by his wife never binds the husband, except
that incurred in a time of distress: expenses for the benefit of the family fall upon males.” thus an
act in the family’s interest will be binding if no male major member of the family is available.
Thus it may be admitted that the Sanskrit texts speak of a women binding the family property in
what amounts to emergency or quasi -emergency conditions by acts, including debts and
alienations, which would otherwise be within competence of a male manager. There is no
distinction drawn between a wife and a bailiff, who would be unquestionably authorized to
manage and exercise powers of management. The supposition behind all theories is that the
women is defacto swatantra as soon as the husband returns or her son reaches majority she
becomes parantatra again, but meanwhile the responsibility rests with her ,and powers should
obviously be allowed to her accordingly.

The judges have given their own interpretations to the role of women as manager of family.
Regarding this there is conflict in views of the Nagpur High Court and the Madras position.

THE NAGPUR POSITION ON THE SUBJECT

The Nagpur High Court perished, but without leaving a progeny. In a conflict between the
Bombay decision and a Nagpur decision the Bombay decision would bind the Nagpur bench of
the Bombay High Court .But the merits of the cases in conflict must be investigated in any event,
especially where as, in this instance, the Nagpur view has penetrated here and there and
commended itself to many courts.
The beginning of the Nagpur view has not been sufficiently understood in all quarters. It lies in
Kesheo v. Jagannath 4[4].there, as far as in 1925, the Full Bench held that any adult member may
be the manager of the joint family, by alienation of the joint family property, in whatever
character she purports to act. The ratio was simple. In this case it was laid done that a sale by a
Hindu widow, managing the estate of her minor son and stepson, of a part of the moveable
property belonging to the estate for necessary purpose is valid and binding on the stepson.
Hallifax, A, J, C said that any adult member of a joint family can be a manager of family.
Hanoomanpersaud’s case is one of the greatest cases in the history of the Hindu law. It dealt
with the powers of widow mother as manager of the property of her minor son, and was in reality
a case in the context of manager ship rather than guardianship properly so called. The test of the
lady’s act was not who she was or in what capacity she purported to act, but whether the act was
necessary or in the minor’s interest as understood by the law. In this case the mother was held to
be manager de facto and she could incur debts which were necessity and were held binding on

4[4] [1926] AIR Nag 81

the minors.
The view was followed in Pandurang Dahake v. Pandurang Gorle.5[5] Here the widowed
mother passed a promissionary note for necessity as guardian of her two minor sons. She was
defacto manager and was held to have managerial powers, and the sons could not repudiate the
debts. Naturally the court is not willing to lend its aid to schemes for defrays honest creditors of
the family. In I.T Commr. V. Laxmi Narayan6[6] the question was whether Mt. Kesar bai can
enter into a partnership deal as Karta of family consisting of herself and her minor sons. Pollock
and Shevde JJ. Said, “it is true that under the Mitakshara law no female can be a coparcener with
male coparcener, presumably because she do not possess the right by survivorship, but we do not
think that either this right or status of a coparcener is a sine qua non of competency to become
the manager of a joint Hindu family of which she is admittedly a member. She was considered as
Karta of family. Referring to Kehavbhai v.Bhagirathi it was contended that if a female can act as
a manager of a religious endowment in which she has no personal interest, there is apparently no
reason why she cannot act as the manager of a joint family estate in which she has admittedly
personal interest.

THE MADRAS POSITION

The madras view is simplicity itself. It does not put managerial powers in female. In Radha
Ammal v. I.T Commr , Madras7[7] case the court said, “The right to be a manager depends upon
the fundamental fact that the person on whom the rights devolve was a coparcener of the joint
family. If a person is not a member of coparcener and outside it, he has no right to claim a
representative capacity on behalf of other coparcener with reference to the family. The right is
confined only to the male members and female members wee not treated as coparcenaries. In
Seethabai V.Narsimha8[8] the court said that to be a manager one must be a pukka coparcener, a
male with a birth -right and not a mere statutory interest. The argument that Hunoomanpersaud ‘s
case allowed the act of defacto manager to be binding even if she were a women, was not
noticed, much less examined. This was a weakness in the madras decision, which was in any
case strictly formal and anti- aquarium in its approach. Nevertheless it had the merit of not
disturbing what appeared to be the traditional position so long as conclusive reasoning had not
been produced against it.

In the Bombay High Court it was alleged in Rakhmabai V.Sitabai 9[9] that a stepmother as
manager of a joint family consisting of her co-widow and minor stepson and a minor
stepdaughter, had the power to resist the appointment of a guardian of the property of the
stepson. She was managing the estate and her authority should not, it was urged, be undermined
by such an appointment. But the learned judge Dixit, J, said that in such a case the proper course
was to appoint a guardian for the coparcener property. A widow could not be a manager of joint
family property. The case of Seethabai in Madras was noticed and agreed with. Thus, at the time
of writing, it appears that the Bombay High Court sides with Madras and against Nagpur,
Unfortunately, the Nagpur decisions were drawn to the learned Judge’s attention only by way of
5[5] [1947] AIR Nag 178

6[6] [1949] AIR Nag 128

7[7] [1950] AIR Mad 538

8[8] [1945] AIR Mad 306

9[9] [1952] AIR Bom 160

the Madras decision above-mentioned, which takes a dim view of the earlier of them. There is no
trace in the judgment of Dixit, J., that Laxmi Narayan’s case, of two years earlier, was cited or
examined.

The Orissa High Court, which has experienced the greatest difficulties with this topic, was faced
in 1955 with the problem of a father who absent for many years. An absent father is
demonstrably not the same source of difficulties as a dead father, and to one who does not know
the dharamsaatra on the subject an opening for a distinction at once presents itself. From the
minor’s point of view it is all one whether the father is indefinitely absent or dead. In Maguni
Padhano v. Lokanidhi Lingraj Dora10[10] ,it was held that a mother, whose husband is alive,
couldn’t be a manager , she might indeed act as guardian of her son, if her husband was dead,
and perhaps as de facto guardian of her son. But as manager she had no powers whatever. Laxmi
Narayan’s case was not followed. The principle that a woman could be a manager was decisively
rejected.
On this it can be definitely said that the Madras has best out of all.

With respect of position of women under mitakshara joint family system certain recommendation
and certain new amendments have been made. I would now introduce these latest amendments
with respect to 174th Law Commission Report.

Patrilineal Hindu law is divided into two schools, the Dayabhaga and Mitakshra. Dayabhaga
prevails in West Bengal, Assam, Tripura and in most parts of Orissa whereas Mitakshara is
followed in the rest of India. Mitakshara law is again divided into Benaras, Mithila, Mayukha
(Bombay) and Dravidia (Southern) sub-schools.

Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the
law made by the legislature itself. This is particularly so in relation to laws governing the
inheritance/succession of property amongst the members of a Joint Hindu family. It seems that
this discrimination is so deep and systematic that it has placed women at the receiving end.
Recognizing this the Law Commission in pursuance of its terms of reference, which, inter-alia,
oblige and empower it to make recommendations for the removal of anomalies, ambiguities
and inequalities in the law, decided to undertake a study of certain provisions regarding the
property rights of Hindu women under the Hindu Succession Act, 1956.

The Hindu Succession Act, 1956 (HSA) is an uneasy compromise between the conservatives
who wanted to retain the Mitakshara coparcenary and its discrimination against daughters, and
the progressives who wanted to abolish the Mitakshara coparcenary altogether. In essence, the
Act retained the Mitakshara coparcenary. But since last two decades, five southern States took
steps to enact remedial legislations to correct the discrimination against daughters

Now I would discuss the various amendments in various states:

Five States in India have amended the law relating to coparcenary property. Four States, viz.,
Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka, have conferred upon daughters a
birthright in coparcenary property. Kerala has abolished the joint family system among Hindus

10[10] [1956] AIR Ori 1

Kerala Legislature took the lead in 1976 when it passed the Kerala Joint Family System
(Abolition) Act, 1976 (hereafter the Kerala Act). This legislation broadly followed the
recommendations of the Hindu Law Committee - the Rau Committee1 - and abolished the right
of birth under the Mitakshara as well as the Marumakattayam law. On the other hand, the Andhra
Pradesh Legislature conferred the right by birth on daughters who are unmarried on the date
when the Act came into force. This approach, instead of abolishing the right by birth, strengthens
it, while broadly removing the gender discrimination inherent in Mitakshara coparcenary. The
States of Tamil Nadu (1989), Maharashtra (1994) and Karnataka (1994) followed the Andhra
model.

KERALA AMENDMENT- The Joint Hindu Family System (Abolition) Act, 1975, Kerala.

The State of Kerala has abolished the concept of coparcenary following the recommendation of
the Hindu Law Committee - B.N. Rau Committee (which was entrusted .with the task of
framing a Hindu Code Bill. what is known as the Kerala model, the concept of coparcenary was
abolished and according to the Kerala Joint Family System (Abolition) Act, 1975, the heirs (male
and female) do not acquire property by birth but only hold it as tenants as if a partition has taken
place. Kerala was the first state to launch an attack on the right by birth and the discrimination
inherent in it, by enacting The Kerala Joint Family System (Abolition) Act 1976. Section 3 of the
Act says no right to claim any interest in any property of an ancestor during his or her lifetime
which is founded on the mere fact that the claimant was born in the family of the ancestor shall
be recognized in any court. The legislation is an overkill, because it not only abolished the right
by birth vested in males under Mitakshara law, but also the right by birth vested in females under
the Marumakkattayam law. The Act follows the language of the draft Hindu Code Bill closely.

ANDHRA PRADESH MODEL-The Hindu Succession (Andhra Pradesh Amendment) Act,

1986

The Andhra Pradesh legislation in 1985 adopted a different approach in an attempt to put an end
to discrimination inherent in the Mitakshara coparcenary. It confers right by birth on daughters
who are not married on the date when the Act came into force. Thus the language is wide and in
the states where the amending Acts are in force a daughter-coparcener can become a Karta
(Manager) of the joint family. An anomaly in this context should be pointed out. Five states in
India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka have taken
cognizance of the fact that a woman needs to be treated equally both in the economic and the
social spheres. As per the law of four of these states, (Kerala excluded), in a joint Hindu
family governed by Mitakshara law, the daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as the son.

KARNATAKA MODEL-The Hindu Succession (Karnataka Amendment) Act, 1994.

In some respects the new amendments introduce far-reaching changes in the law of joint family.
Section 29-A Section 6-A of Karnataka Act says that a daughter of a coparcener "shall by birth
become a coparcener in her own right in the same manner as a son and have the same rights in
the coparcenary property as she would have had if she had been a son ... and shall be subject to
the same liabilities and disabilities in respect thereto as a son".
Turning to her rights as a son, she will be entitled to be a Karta of the joint family, and will by
virtue of that position exercise the right to spend the income for joint family purposes and
alienate the joint family properties for legal necessity or benefit of the estate. In popular
perception as well as under the Shastric law, a daughter on marriage ceases to be a member of
the parental family; but the Amending Acts change that position and a daughter will not only
continue to be a member of her parental family, but also can be the head of the family.
The language of these amendments is identical. The amendments of Tamil Nadu, Andhra
Pradesh and Karnataka are prospective. The Maharashtra Amendment though published in
December 1994, operates retrospectively from 22-6-1994, when the Government of Maharashtra
declared its policy for women. The discussion is confined to the provisions in the Maharashtra
Act, and the comments would be applicable to the identical laws of the other three States.

174th LAW COMMISSION REPORT

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 favor of women. These provisions are part of the
Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the
Directive Principles which are no less fundamental in the governance of the State and inter-alia
also provide that the State shall endeavor 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
laws.

The 15th Law Commission, headed by Justice B P Jeevan Reddy, has suggested fundamental
changes in the Hindu Succession Act 1956 to ensure that women get an equal share in ancestral
property. One of the radical changes suggested as part of the Hindu Succession (Amendment)
Bill 2000 is equal rights for daughters in coparcenary property
The new Bill is a combination of the Andhra and Kerala models. The report says the
Commission was inclined to recommend total abolition of the Hindu joint family, saying this is
the ``only fair thing as women do not have any rights by birth.'' But for now the Commission has
only recommended that daughters be first made coparceners by birth. The changes will have far-
reaching social and legal implications for Hindu society While an equal share in their ancestral
movable and immovable property, including the family business, would result in their economic
empowerment, hopefully improving the lot of millions of victims of gender discrimination, the
development could also lead to increased family conflicts, especially where established family
businesses are concerned.

Under the new provision, the `Karta' or the eldest male member will no longer be empowered to
take all decisions concerning family business or property since the sons and daughters will hold
an equal share and anyone can ask for a partition.

Under the proposed amendment, if the eldest child happens to be a daughter, she will be entitled
to act as a `Karta' of her parental family and discharge the `pious obligations', including marrying
off the unmarried children, paying off the parents' debt etc, hitherto the prerogative of only the
eldest male member.
The Law Commission is trying to ascertain the body of opinion whether the Mitakshara joint
family should be retained or not.

Questionnaire and its responses:

A questionnaire was issued by the Law Commission to elicit the views of the public regarding
giving of rights to a daughter in the Mitakshara property of a Hindu undivided family
The responses received relating to various issues of the questionnaire have been analyzed and
tabulated
Steps to be taken to remove gender discrimination:

However, the majority of the respondents suggested that, even if, the Mitakshara Coparcenary
is retained, though it would be better if it were done away with the gender bias in HSA should
be removed. Consequently, they wanted a daughter to be given the right by birth to become a
coparcener like the son.
Daughter becoming a Karta in the Joint Family in case Mitakshara Joint Family is retained.
About half the respondents wanted the daughter to become a Karta in the Joint Family if the
Mitakshara Joint Family is retained.

RECCOMENDATION BY THE LAW COMMISSION

As a first reaction the Law Commission was inclined to recommend the adoption of the Kerala
Model in toto as it had abolished the right by birth of males in the Mitakshara coparcenary and
brought an end to the Joint Hindu Family. This appeared to be fair to women as they did not
have any right by birth; but on further examination it became clear that if the joint Hindu family is
abolished as on date and there are only male coparceners, then only they would hold as tenants in
common and women would not get anything more than what they are already entitled to by
inheritance under section 6 of HSA. So the Commission is of the view that it would be better to
first make daughters coparceners like sons so that they would be entitled to and get their shares on
partition or on the death of the male coparcener and hold thereafter as tenants in common. We
recommend accordingly.
Consequently, as above indicated, we have recommended a combination of the Andhra and Kerala
Models. We are of the view that this synthesis is in keeping with justice, equity and family
harmony.

Under the Amending Acts the eldest daughter like a son will be entitled to be a Karta of the Joint
Family, and will by virtue of that position exercise the right to spend the income for joint family
purposes and alienate the joint family properties for legal necessity or benefit of the estate.
However, under the Shastric Law, a daughter on marriage ceases to be a member of the parental
family, but the Amending Acts have changed her position, which is quite alien to Hindu patriarchal
notions. Though her position as defacto manager was recognized when mothers acted as
guardians of their minor sons after the death of their husbands, the dejure conferment of the right
eluded her.

CONCLUSION
We have been guaranteed right to equality under our constitution but looking on to the Hindu
succession act 1956 it cannot be said so. But with the fact that the states like Kerala, Andhra
Pradesh, Karnataka have thought about it in detail and led to drastic changes with this respect.
The effect of these legislations would be that women would now be more empowered with
respect to their rights. And from these amendments evil hazards like dowry would not be found
in the society. Earlier females were not considered to be Karta of family. But still Nagpur high
court maintained this distinction.

The Kerala Act and the amendments to the Hindu Succession Act by Maharashtra, Andhra
Pradesh, Tamil Nadu and Karnataka, have all been hailed as progressive in their own way. But
these can create situations of conflict of laws, since laws in the States in India relating to
Mitakshara coparcenary property differ. Resolution of these situations of conflict and
formulation of rules by the courts would take some time. Hence there is urgent need for:

(1) (1) Having one law relating to Mitakshara coparcenary throughout India; or
(2) (2) Clear definition of applicability of the State laws/amendments; or
(3) (3) Immediate enactment of rules of conflict of laws for resolving conflicts.
Thus the proposed amendments will bring a very positive change in the society.
Introduction
The Karta of a Hindu joint Family in Hindu Law is the senior most member of the family
entitled to manage family affairs, in his absence the next eldest male member after him is
entitled to be the Karta. A Karta is the caretaker of the whole family and looks after the
welfare of all the members of the family. His relationship with other members is a
relationship of trust and confidence.
At least one male member is necessary to constitute a coparcenary. But the question arises
that if no male member is left in the family or if all male members are minors then who
becomes the Karta ? or Can a female member of a Hindu Joint Family become a Karta then
in such circumstances ? this situation makes us rely on various judicial pronouncements
which have dealt with this question. The view of the judiciary is inconsistent.
Now when a major step towards ending gender discrimination and to stop the gender-bias
prevalent in families and to improve adverse condition of women in society has been taken
in the form of The Hindu Succession Amendment Act,2005 . This amendment has conferred
equal property rights on daughters as well. Now the daughters by birth will acquire rights
over coparcenary property.
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.
But now because of the changed position of daughters as coparceners the situation is in
favour of possibility of women becoming Karta. There are diverse views of the Courts on this
point.
In our project we have tried to explain the position of women in relation to that of a Karta,
we have also, by going through case-laws and judicial pronouncements. Our Project is
divided in parts. The First part deals with historical background. The second part deals with
can women be a karta. The third part deals with arguments for and against of women as
Karta. The Last part is a synthesis of the arguments advanced ie the conclusion.
Background
Since ancient times the framing of all property laws have been exclusively for the benefit of
man, and woman has been treated as subservient, and dependent on male support. The
right to property is important for the freedom and development of a human being.
# Position prior to the Act of 1956
Hindus were governed by Shastric and Customary laws which varied from region to region
and sometimes it varied in the same region on a caste basis. As the country is vast and
communications and social interactions in the past were difficult, it led to a diversity in the
law. Consequently, in matters of succession also, there were different schools, like
Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and
Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight
variations. The multiplicity of succession laws in India, diverse in their nature, owing to their
varied origin made the property laws even mere complex. A woman in a joint Hindu family,
consisting both of man and woman, had a right to sustenance, but the control and
ownership of property did not vest in her. No female is a member of the coparcenary in
Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship
within the coparcenary. This means that with every birth or death of a male in the family,
the share of every other surviving male either gets diminished or enlarged.
The Mitakshara law also recognises inheritance by succession but only to the property
separately owned by an individual, male or female. Females are included as heirs to this
kind of property by Mitakshara law.
Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila
sub schools of Mitakshara recognised only five female relations as being entitled to inherit
namely - widow, daughter, mother paternal grandmother, and paternal great-grandmother.
The Madras sub-school recognised the heritable capacity of a larger number of females heirs
that is of the son's daughter, daughter's daughter and the sister, as heirs who are expressly
named as heirs in Hindu Law of Inheritance (Amendment) Act,1929. The son's daughter and
the daughter's daughter ranked as bandhus in Bombay and Madras. The Bombay school
which is most liberal to women, recognised a nunmber of other female heirs, including a half
sister, father's sister and women married into the family such as stepmother, son's widow,
brother's widow and also many other females classified as bandhus.
# During the British Regime
However, during the British regime, the country became politically and socially integrated,
but the British Government did not venture to interfere with the personal laws of Hindus or
of other communities. During this period, however, social reform movements raised the
issue of amelioration of the woman's position in society. The earliest legislation bringing
females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act,
conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughter
and sister (thereby creating a limited restriction on the rule of survivorship). Another
landmark legislation conferring ownership rights on woman was the Hindu Women's Right to
Property Act (XVIII of ) 1937. This Act brought about revolutionary changes in the Hindu Law
of all schools, and brought changes not only in the law of coparcenary but also in the law of
partition, alienation of property, inheritance and adoption.
The Act of 1937 enabled the widow to succeed along with the son and to take a share equal
to that of the son. But, the widow did not become a coparcener even though she possessed
a right akin to a coparcenary interest in the property and was a member of the joint family.
The widow was entitled only to a limited estate in the property of the deceased with a right
to claim partition. A daughter had virtually no inheritance rights. Despite these enactments
having brought important changes in the law of succession by conferring new rights of
succession on certain females, these were still found to be incoherent and defective in many
respects and gave rise to a number of anomalies and left untouched the basic features of
discrimination against women. These enactments now stand repealed.
# The Indian Constitution
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
Constitution contains 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 land.
# Position after the enactment of Hindu Succession Act,1955
The Hindu Succession Act,1955 reformed the Hindu personal law and gave woman greater
property rights, allowing her full ownership rights instead of limited rights in property. The
daughters were also granted property rights in their father's estate. In the matter of
succession to the property of a Hindu male dying intestate, the Act lays down a set of
general rules in sections 8 to 13. Sections 15 and 16 of the Act contain separate general
rules affecting succession to the property of a female intestate. Social justice demands that
a woman should be treated equally both in the economic and the social sphere.
Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal
of the law made by the legislature itself. This is particularly so in relation to laws governing
the inheritance/succession of property amongst the members of a Joint Hindu family. It
seems that this discrimination is so deep and systematic that it as placed women at the
receiving end.
# Position after the amendment in the Succession Act
The Law Commission was concerned with the discrimination inherent in the Mitakshara
coparcenary under Section 6 of the Hindu Succession Act, as it only consists of male
members. The Commission in this regard ascertained the opinion of a cross section of
society in order to find out, whether the Mitakshara coparcenary should be retained as
provided in section 6 of the Hindu Succession Act, 1956, or in an altered form, or it should
be totally abolished. There were other questions involved also, like should women be karta
in absence of male members ? The Commission's main aim was to end gender
discrimination which is apparent in section 6 of the Hindu Succession Act,1956, by
suggesting appropriate amendments to the Act. Accordingly, the amendment was made by
the legislature in December 2004 and it conferred equal property share from the ancestral
property on the daughter. By birth a daughter would acquire property rights and would be
like any other coparcenary.
In the face of such multiplicity of succession laws diverse in their nature, property laws
continued to be complex and discriminatory against women. The social reform movement
during the pre-independence period raised the issue of gender discrimination and a number
of ameliorative steps were initiated.
Can Women Be Karta ?
A questionnaire was issued by the Law Commission to elicit the views of the public regarding
giving of rights to a daughter in the Mitakshara property of a Hindu undivided family. This
questionnaire consisted of three parts having 21 questions. Sixty-Seven respondents have
replied to the questionnaire.1 30 respondents were from the profession of law and the rest
comprise sociologists, NGOs etc. About the case of Daughter becoming a Karta in the Joint
Family, about half the respondents wanted the daughter to become a Karta in the Joint
Family. The normal position of law does not give such a right to a women except under
special circumstances. If such a right is sanctioned by law then what will be the pros and
cons ? or why should we sanction such a right, for what reasons should a women be allowed
to become the manager of a joint family? To answer all these questions we will have to look
into arguments which favour the women becoming a Karta and the arguments which do not
favour such a disposition.
Arguments In Favour
# Making her the Karta would make her position more respectable
Despite the Constitution guaranteeing equality to women, there are still many discriminatory
aspects in the Hindu law in the sphere of property rights. In our society maltreatment of a
woman in her husband's family, e.g. for failing to respond to a demand of dowry, often
results in her death. But the tragedy is that there is discriminatory treatment given to her
even by the members of her own natal family. Thus, if she is made the Karta of the family,
then all the members of the family will respect her because of her position and women
abuse will be controlled. This will enhance her self-confidence and social worth and give her
greater bargaining power for herself and her children, in both parental and marital families.

# After The Hindu Succession Amendment Act, 2005 women are recognized as coparceners.
In the Hindu system, ancestral property has traditionally been held by a joint Hindu family
consisting of male coparceners. Coparcenary as seen and discussed earlier in the present
work is a narrower body of persons within a joint family and consists of father, son, son's son
and son's son's son. A coparcenary can also be of a grandfather and a grandson, or of
brothers,or an uncle and nephew and so on. Thus ancestral property continues to be
governed by a wholly partrilineal regime, wherein property descends only through the male
line as only the male members of a joint Hindu family have an interest by birth in the joint or
coparcenary property. Since a woman could not be a coparcener, she was not entitled to a
share in the ancestral property by birth. A son's share in the property in case the father dies
intestate would be in addition to the share he has on birth. But after the amendment
daughters have from birth coparcenary rights. So they can be kartas as they are now
recognized as coparcenors.
# Women are fully capable of managing a business, taking up public life as well as manage
large families as mothers.
There is still a reluctance to making her a Karta as the general male view is that she is
incapable of managing the properties or running the business and is generally susceptible to
the influence of her husband and his family, if married. This seems to be patently unfair as
women are proving themselves equal to any task and if women are influenced by their
husbands and their families, men are no less influenced by their wives and their families.
# This will end gender discrimination in Mitakshara coparcenary by including daughters in
the system. Since the girl will be the equal inheritor of her ancestral property, the in-laws
may not insist on dowry.2
# It is being suggested that the family dwelling will not be "alienated" without her express
consent. Thus will make her position stronger. She will now become a member equal to that
as any other male member.
# Such an act will spread awareness and increase literacy among women as they will be
involved in family affairs and they will have a say in business.
Arguments Against Women Becoming Karta
# Daughters cannot be made karta as they live away from joint family after their marriage
the daughter-in-laws do not also originally belong to their in-law’s family, and therefore their
possibility of becoming a karta is also ruled out.
# If women are made karta then this will lead to involvement of women in business affairs
this will lead to disturbed domestic affairs.
# The women of a house-hold are usually busy with their domestic work, even if they are
made karta they will act on the advice of family members and in most cases where the
woman is illiterate then it will just lead to idle members of the joint family prospering at the
expense of the hard-working?
# What will be the work of the male members if female members of a joint family are made
karta.
# Women are incapable of managing properties or agriculture, they are incapaable of
running a business.

# If women are made karta will they be entitled to any kind of maintenance ? this the key
issue of the problems which is to be answered.
The Judicial View
The possibility of female being the Karta in presence of senior male member is being ruled
out. But the question is whether in the absence of the manager, whether by prolonged
journeys abroad or by dying without leaving another manager to succeed him in his
function, a female could act as a manager. No doubt, it is true that he can act as guardian of
Hindu Minors by the Hindu Minority and Guardianship act, 1956 but it abstains her from
interfering with the exclusive powers of managers to deal with the interests of minors in the
Joint Family Property.
So, the solution lies in our religious text which is Dharmashastra. It says that alienation can
be done by the wife of an absent, or the widow of a dead manager, of family property
belonging to numerous minors, unable to enter into contractual relationships in their own
persons, yet reasonable for maintaining dependants and carrying the various burdens of the
family. Here, the benefit of the family is the touchestone, not the identity of the alienor. The
acts of a female member acting as a manager should be positive for the benefit of the
Family. Such acts will be binding upon the manager when he returns or appears on the
scene by simply coming of age as the case may be. It is further supported by Katyana,
Smritichandrika, Bhavasvamin and Yagnavalyka Smriti. Some of the Sanskrit text says -
"sishyantevasi-dasa-stri-vaiyavrittyakarais ca yat Kutumbahetor ucchinam vodhavyam tat
Kutumbina"
The manager (or householder, actual or eventual) is liable to accept (or admit) all alienations
made for the purposes of the Family by a pupil, apprentice, slave, wife, agent or bailiff.
Narada says-
"Na ca bharya-kritam rinam kathancit patyur abhavet Apat kritad rite, pumsam
kutumbartho hi vistarah"
A debt contracted by his wife never binds the husband, except that incurred in a time of
distress: expenses for the benefit of the family fall upon males.
Even at this objection is being raised, ‘Are not women declared by the sastra to be
incapable, or unfit for independence?” Wherever a male member of the family is available,
his signature should be taken rather than that of any female’s acts. But the answer lies in
the following statement. The women in question is de facto svantantra: as soon as the
husband returns or her son reaches majority she becomes partantra again, but meanwhile
the responsibility rests with her, and powers should obviously be allowed to her accordingly.
The Case Laws- In Support
The Nagpur position
In Hunoomanpersaud’s case3 which was one of the greatest cases in the history of Hindu
Law dealt with the powers of a widow mother as manager of property of her minor son, and
was in reality a case in the context of manager ship rather than guardianship properly so
called. The test of the lady’s act was not who she was or in what capacity she purported to
act, but whether the act was necessary or in the minor’s interest as understood by the law.
In Pandurang Dahake v. Pandurang Gorle4, there the widowed mother passed a promissory
note for necessity as guardian of her two minor sons. She was a defacto manager and was
held to have managerial powers, and the sons could not repudiate the debt.
In I.T Commr. v. Lakshmi Narayan5, the mother as karta of the undivided family consisting
of herself and her two minor sons entered into a partnership renewing thereby the
partnership which her late husband had had with his brother. The court said that at
Dayabhaga law woman could be coparcener and so possibly even managers, and noted that
a female might be the manager of a religious endowment. The Act of 1937 has improved the
status of the Widow.
The Madras Position
In Seethabai v.. Narasimha6 there the widows claimed that they were undivided members of
the coparcenery by the operation of the act of 21937. They objected to the appointment of a
guardian for the property of the minors. The court appointed one widow guardian of one of
the minor and a stranger was appointed the guardian of the other. None of the widows it
was held that could be a manager. To be a manager one must be a pukka coparcener, a
male with a birth right and not a mere statuary interest. In Radha Ammal v.
I.Tcommissioner,7 Madras a mother , guardian of minor sons , purported to execute a deed
of partnership admitting a stranger as a power in the ancestral business. It was held that
this was outside her powers and the deed could not be registered under section 26(a) of the
Income Tax Act 1922. A woman could not be a manager. The argument that
Hunoomanpersaud’s case8 allowed the act of a de-facto manager to be binding even if she
were a woman, was not decided, much less examined. This was a weak case in Madras
decision which was in any case strictly formal and anti-Quarin in approach.
The Bombay High Court
In Rakhmabai v. Sitabai9 that a step mother as manager of a Joint Family consisting of her
co-widow and minor step-son and a minor step daughter and had the power to resist the
appointment of a guardian of the property of the step-son. She was the managing the estate
and her authority should not, it was urged be undermined by such an appointment. The
learned court said that the proper course was to appoint a guardian for the coparcenery
Property. A widow could not be a manager of Joint Family Property. The case of Seethabai
was agreed with.
The Orissa High Court-
In Maguni Padhano v. Lokananidhi Lingaraj10, it was held that a mother, whose husband is
alive, cannot be a manager. She might indeed act as guardian of her son, if her husband
was dead and perhaps as defacto guardian. But as manager she had no powers whatever.
Laxmi Narayan’s case was not followed. The Principle that a woman could be a manager was
decisively rejected.
The Patna High Court
In Sheogulam v. Kishun Chaudhari11, the court denied that a mother of a minor son, during
the long absence of her husband , might act as karta and incur debts for family purposes. All
such debts would not be binding upon the family. The case of Maguni was relied upon.
On the surface it might seem that Madras has the best of it. But a further examination
makes us hesitate. The natural desire that deserted mothers and widows should have ample
powers to look after their minor son’s interest, acting for necessity or the benefit of the
Family, has expressed itself, as things will, in an irregular way, seeing that it was frustrated
in expressing itself in some quartes in a regular way.
The Minor’s Manager Mare Nest
Some are also of the view that can a minor be a manager. It is hardly possible as the word
manager means one who can make an alienation of property, one who can incur debts that
will bind the family. The word is also capable of meaning the one who handles the affairs of
the family. Internally, domestically, a minor may well be a manager. But he is not a manager
vis-a vis the outside world.
Conclusion:
Under the Shastric Law, a daughter on marriage ceases to be a member of the parental
family, but the Amending Acts have changed her position, which is quite alien to Hindu
patriarchal notions. Though her position as defacto manager was recognized when mothers
acted as guardians of their minor sons after the death of their husbands, the dejure
conferment of the right eluded her.
The law commission also has rightly observed that although the Hindu Succession
Amendment Act, 2005 has conferred upon the daughter of a coparcener status but there is
still a reluctance to making her a Karta. This seems to be patently unfair as women are
proving themselves equal to any task.
Since they can act as coparcenaries then they must also be given the powers of Karta. The
shastra is clear that in the absence of senior member a junior member (if he has reached
the age of legal competence) may incur debts for the needs of the family, and in the
absence of a male member a female member may do so. The Sanskritic texts empower
women to act as Karta in instances like when the husband is away or missing or the son is
yet to attain majority.
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.
***********
Bibliography
# Basu, Monmayee, Hindu Women and Marriage Law: From Sacrament to Contract, 2001,
Oxford University Press, pg. 121
# Derret, J Duncan, May a Hindu Women be the Manager of a Joint Family at Mitakshara
Law, 1995, Universal Book Traders, Bom. L.R.., J., Vol.- LXVIII, pg- 126
# Agarwal R.K, Hindu Law, 19th Edition, Central Law Agency, pg- 298
# Course Material Of VI Trimester
# Law Commission of India report on ‘Property Rights of Women: Proposed Reforms under
the Hindu Law’, May 2000.
# B.Sivaramayya, "Coparcenary Rights to Daughters; Constitutional and interpretational
Issues," (1997) 3 SCC (J), P.25.
# All India Reporters
# Rajya Sabha Parliamentary Bulletin Part II. (No 41884) dated the 27th December, 2004.
# Bhadbhade Nilima , State Amendments to Hindu Succession Act and Conflict of Laws :
Need For Law Reform, (2001) 1 SCC (Jour) 40
# Thomas E.C, The road to gender equality.
# Sethi Lalit, Reforming Property Rights Of Women
 1989] 176 ITR 190 (PUNJ. & HAR.)
HIGH COURT OF PUNJAB AND HARYANA
Shri Sham Lal Sajdesh
v.
Commissioner of Income-tax
S.P. GOYAL AND A.L. BAHRI, JJ.
IT REFERENCE NO. 81 OF 1978
JULY 29, 1988

Bhagirath Dass and Ramesh Kumar for the assessee.

L.K. Sood for the Commissioner.

JUDGMENT
S.P. Goyal, J.—The assessee is a Hindu undivided family consisting of Sham Lal Sajdeh, the
karta, his wife and two minor daughters. It derives share income from four firms, namely,
Himalaya Woollen Mills, Rana Textile Weaving Mills, Shri Bharat Woollen Mills and Dhanoo
Mal Mohan Lal, all situated at Amritsar. Apart from the share income from the business
concerns, the family also has income from house property. The assessee claimed deduction of
Rs. 20,000 which was paid to the karta by way of annual salary in pursuance of an agreement
between the karta and the other members of the family. The deduction was disallowed by the
assessing authority. His order was reversed by the Appellate Assistant Commissioner but
restored by the Tribunal holding that the female members of the family have no right in the
property or income of the Hindu undivided family and that the agreement entered into was void,
being without consideration and, as such, the assessee was not entitled to the deduction of the
said amount alleged to have been paid by way of salary to the karta. However, on the application
of the assessee, the Tribunal referred the following three questions for the opinion of this court:
"(1) Whether, on the facts and in the circumstances of the case, the Tribunal is right in
law in holding that the income assessed in the hands of the joint Hindu family from the
four firms, belongs to Shri Sham Lal Sajdeh and that the female members, wife and
daughters, have no right in the said income from the firms?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law
in holding that the agreement dated June 5, 1973, is without consideration and, therefore,
is invalid? and
(3) Whether, on the facts and in the circumstances, salary paid to Sham Lal Sajdeh, karta
of the Hindu undivided family, for devoting his time, attention, skill and energy for the
management and conduct of the business of the various firms in which the assessee-
Hindu undivided family is a partner is an allowable deduction in the assessment of the
Hindu undivided family, notwithstanding the fact that there is no valid agreement to
claim the salary between the karta and the Hindu undivided family?"
Learned counsel for the assessee did not dispute that the female members of the family have no
right of ownership in the business or the property and their right is confined to maintenance out
of its income. If that is so, the female members would have no right to enter into any agreement
with the karta for the disposal of the family income. It is again well-established and was also not
disputed by learned counsel for the petitioner that when the Hindu undivided family has only one
male member, he has the absolute right of management and disposal of the property and its
income. The agreement entered into by the female members with the karta was, therefore, not
only without jurisdiction but also without any authority. Questions Nos. (1) and (2), therefore,
have to be answered in the affirmative, i.e., in favour of the Revenue and against the assessee.
In spite of the answers to questions Nos. (1) and (2) in the affirmative, learned counsel for the
assessee, relying on the Supreme Court judgment in Jugal Kishore Baldeo Sahai v. CIT [1967]
63 ITR 238 and a judgment of the Madras High Court in CIT v. Annamalai (S.A.P.) [1970] 75
ITR 109, contended that the amount paid to the karta for his services in the management of the
family business and its affairs would be an allowable deduction as legitimate business expense.
In Jugal Kishore's case [1967] 63 ITR 238 (SC), the family consisted of two major male
members apart from several minor male and female members. The karta offered to pay to the
junior member, Gobardhandas, a remuneration of Rs. 1,000 per month for managing all the
businesses of the family. The payment not being excessive, the agreement was upheld and the
salary paid allowed as business expense. The remuneration was not paid to the karta by the
family and, instead, it was the karta who paid it to a junior member of the family, who was under
no legal obligation to render his services in running the family affairs or its business. The karta
under the Hindu Law is duty bound to manage the affairs of the family and run its business. It is
not that the karta has only obligations in his capacity as such. He enjoys certain rights as well. It
is, therefore, highly doubtful if he can charge for the performance of the duties enjoined upon
him by law. In the present case, even such a situation also does not exist because when the
family consists of only one male member, the other family members having no right in the joint
Hindu family property or the business, would not be competent to enter into an agreement with
the karta regarding the disposal of the property or its income. The reliance on the Supreme Court
decision is, therefore, wholly misplaced.
In Annamalai's case [1970] 75 ITR 109 (Mad), the learned judges constituting the Bench
wrongly observed that the Jugal Kishore's case [1967] 63 ITR 238 (SC), related to the payment
of remuneration to a karta. As noticed above, in fact, in Jugal Kishore's case [1967] 63 ITR 238
(SC), it was the karta who agreed to pay remuneration to a junior member of the family. It was
because of this misconception that the Bench, following Jugal Kishore's case [1967] 63 ITR 238
(SC), held that remuneration paid to the karta of a Hindu undivided family, even in the absence
of any agreement, would be an allowable deduction.
No other case has been brought to our notice holding that a karta would be entitled to any
remuneration for his services rendered to the Hindu undivided family in running the family
business or its affairs particularly when there is no other male member in the family. Question
No. (3) is answered in the negative, i.e., in favour of the Revenue and against the assessee. No
costs.
Can a female also be a karta of HUF. My father was the karta of our HUF. Now he is no
more. Can my mother become the karta?
Anagha Deshpande
Yes, a female can become a karta, but only when the male members are minors or are not in a
position to manage the affairs and give a declaration to that effect and seek the permission of the
Department to allow the female to manage. Champa Kumari Singhi v Revenue (1962) 46ITR81
(Cal).
Moreover, when an existing HUF is reduced to only female members, it can still continue as an
HUF with one of the females as a karta. This is in view of the existence of the potential
coparcenary as any widow may, in future, induct a coparcener into the family by adoption. CIT v
RM AR AR Veerappa Chettiar (’70) 76ITR467 (SC).
(1) Under PPF rules, no account can be opened in the name of HUF. However, u/s 80C of the
IT Act 1961, an HUF can have a PPF account in the name of any member. Suppose Mr A,
the karta, invests Rs 50,000 each out of HUF funds in the PPF accounts of two members of
the family — Mr X and Mr Y (both being major sons of Mr A), can the HUF claim deduction
of Rs 1,00,000 u/s 80C in its own case?
If for the purpose of PPF regulations the accounts of Mr X and Mr Y are treated as their
individual accounts, can they each further invest Rs 20,000 each and claim deduction u/s. 80C
in their individual cases?
Whether the aforesaid investments would be in violation of PPF rules which w.e.f. 13.05.05
bar HUF to have any account in its name?
(2) Mr A is assessed to tax in his individual capacity. He has deposited Rs 70,000 in his PPF
account. He also desires to deposit Rs 30,000 in the PPF account of his major son Mr B and
wants to claim deduction of Rs 1,00,000 u/s 80C of the Act in his own (Mr A) case. Of course,
in the aforesaid situation Mrs A or Mr B would not claim deduction u/s 80C in her/his case in
respect of the said deposit of Rs 30,000. Can Mr A do so and claim deduction u/s 80C up to Rs
1,00,000?
Nimkar
Meaning
A Hindu joint family consists of the common ancestor and all his lineal male descendants
upto any generation together with the wife/ wives (or widows) and unmarried daughters of
the common ancestor and of the lineal male descendants. Whatever the skeptic may say
about the future of the Hindu joint family, it has been and is still the fundamental aspect of
the life of Hindus.
A co-parcenery is a narrow body of persons within a joint family. It exclusively consists of
male members. A Hindu coparcenery is a corporate entity, though not incorporated. A
coparcenery consists of four successive generations including the last male holder of the
property. The last male holder of the property is the senior most member of the family.
In the entire Hindu joint family, the karta or manager (the English word manager is wholly
inadequate in understanding his unique position) occupies a very important position. Karta is
the eldest male member of the family. He is the Hindu patriarch. 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. Peculiarity lies in the fact that in terms of his
share/interest, the Karta is not superior and has no superior interests in the coparcenery. 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.
Article 236 of the Mulla Hindu Law defines "Karta" as follows:
Manager - Property belonging to a joint family is ordinarily managed by the father or other
senior member for the time being of the family: The Manager of a joint family is called Karta.
In a HUF, the responsibility of Karta is to manage the HUF property. He is the custodian of
the income and assets of the HUF. He is liable to make good to other family members with
their shares of all sums which he has misappropriated or which he spent for purposes other
than those in which the joint family was interested. His role is crucial. He is entrusted not
only with the management of land/assets of the family but also is entrusted to do the
general welfare of the family.
His position is different from the manager of a company or a partnership. The reason behind
it is that though the coparcenery deals with lands, assets/property but in an entirely
different fashion. When a Karta is bestowed with such a position it is something, which takes
place under the operation of law.
Who Can Be A 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.
Jandhayala Sreeamma v. Krishnavenamma AIR 1957 A.P.434
In the case of Hindu Joint Family a suit to set aside on alienation filed by the younger of the
two brothers within three years of his attaining majority would be barred by limitation if the
elder brother, who was the manager and an adult has failed to sue within three years of his
attaining majority.
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
may continue 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.
# Junior 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."
Narendrakumar J Modi v. CIT 1976 S.C. 1953
Facts: - Baplal Purushottamdas Modi was the head of the HUF. Joint family possesses many
immovable properties and carried business of various types such as money lending, etc. He
executed a general power of attorney in favor of his 3rd son, Gulabchand on Oct 5, 1948. On
Oct 22, 1954 Baplal relinquished his share. On Oct 24, 1954 the existing members of the
family executed a memo of partition. However, the order accepting partition was not
passed, the contention of the appellant was that Gulabchand couldn’t be a karta because he
is a junior member and other members of the family did not accept him as a karta.
Judgment: - It was held that Gulabchand was given the power to manage by Baplal because
Gulabchand’s elder brother was an aged man of 70 years. And also the father of appellant
died in 1957. So, under such circumstances, Gulabchand appears to have acted as the Karta
with the consent of all the other members and hence the appeal was dismissed.
# Female Members As 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: -
C.P. Berai v. Laxmi Narayan AIR 1949 Nag 128
It was held that a widow could be a karta in the absence of adult male members in the
family. It was said that the true test is not who transferred/incurred the liability, but whether
the transaction was justified by necessity.
Sushila Devi Rampura v. Income tax Officer AIR 1959 Cal
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.
Radha Ammal v. Commissioner of Income Tax AIR 1950 Mad 588
It was held that since a widow is not admittedly a coparcener, she has no legal qualification
to become a manger of a JHF.
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
the Karta 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. Rigidity in law is a fatal flaw. Since it is depended upon an
ill directed question whether the transferor was a coparcener.
Dharmashastra is one and only sure guide. According to Dharmashastras, in absence of
male members female members can act as karta, or in case where male members if present
are minors, she can act as karta. Debts incurred even by female members under such
circumstances will be binding upon the family and must be paid out of the joint family funds
whether at the time of partition or earlier. Often the question is raised as to whether her acts
are for the benefit of the family. Dharmashastra answers it by saying that she might act as
manager by doing acts of positive benefit and not merely conservative/negative acts.
"The position according to the Mitakshara theory as developed by Vijnaneshwara seems to
be this, that a wife gets rights of ownership of her husband's separate and joint family
property from the moment of her marriage and a daughter from the moment of her birth.
But Vijnaneshwara does make a distinction between males and females and says that
females are asvatantra or unfree. If we are to translate his notion into the language of the
coparcenary, I think we can state that women are coparceners but 'unfree' coparceners."
Prior to 1956, Hindus were governed by property laws, which had no coherence and varied
from region to region and in some cases within the same region, from caste to caste.
The Mitakshara School of succession, which was prevalent in most of North India, believed in
the exclusive domain of male heirs. Mitakshara is one of the two schools of Hindu Law but it
prevails in a large part of the country. Under this, a son, son’s son, great grandson and great
grandson have a right by birth to ancestral property or properties in the hands of the father
and their interest is equal to that of the father. The group having this right is termed a
coparcenary. The coparcenary is at present confined to male members of the joint family.
In contrast, the Dayabhaga system did not recognize inheritance rights by birth and both
sons and daughters did not have rights to the property during their father’s lifetime. At the
other extreme was the Marumakkattayam law, prevalent in Kerala, which traced the lineage
of succession through the female line.
According to Hindu Minority and Guardianship Act, 1956 woman can take only a
conservative action. It is certain that guardian acting under the act cannot undertake every
class of proceeding that would be open to a manager. Act does not purport to confer upon
the guardian the power of manager.
Former Prime Minister Jawaharlal Nehru championed the cause of women’s right to inherit
property and the Hindu Succession Act was enacted and came into force on June 17, 1956.
Many changes were brought about that gave women greater rights but they were still
denied the important coparcenary rights. Subsequently, a few States enacted their own laws
for division of ancestral property.
In what is known as the Kerala model, the concept of coparcenary was abolished and
according to the Kerala Joint Family System (Abolition) Act, 1975, the heirs (male and
female) do not acquire property by birth but only hold it as tenants as if a partition has
taken place. Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra
(1994) also enacted laws, where daughters were granted ‘coparcener’ rights or a claim on
ancestral property by birth as the sons.
In 2000, the 174th report of the 15th Law Commission suggested amendments to correct
the discrimination against women, and this report forms the basis of the present Act.
Discrimination against women was the key issue before the Law Commission.
The amendment made in 2005 gives 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.
Now, as per the amendment, Section 6 of the Hindu Succession Act, 1956 gives equal rights
to daughters in the Hindu Mitakshara coparcenary property as the sons have. The
amendment was made because there was an urgent need for certainty in law.
Though 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.
# 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.
# 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.
Karta’s Liabilities
Karta’s liabilities are numerous and multifarious.
# Maintenance: - In a joint Hindu family, the right of maintenance of all the coparceners
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. This
responsibility 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.
Chandra Kishore v. Nanak Chand AIR 1975 Del 175
In this case it was held that Karta is responsible for managing the expenses of the marriage
of the daughter from the joint family estate. And in case marriage expenses are met from
outside they are to be reimbursed from the joint family funds.
# Accounts at the time of Partition: - Partition means bringing the joint status to an end. On
partition, the family ceases to be a joint family. Under the Mitakshara law, partition means
two things: -
(a) Severance of status /interest, and
(b) Actual division of property in accordance with the shares so specified, known as partition
by metes and bounds.
The former is a matter of individual decision, the desire to sever himself and enjoy the
unspecified and undefined share separately from others while the latter is a resultant
consequent of his declaration of intention to sever but which is essentially a bilateral action.
Taking of accounts means an enquiry into the joint family assets. It means preparing an
inventory of all the items of the joint family property.
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.
Ghuia Devi v. Shyamlal Mandal AIR 1974 Pat 68
Facts: - Gokul Mandal was the common ancestor of the family, he had 2 sons: - Gobardhan
and Ghoghan. After Gokul’s death Gobardhan was the karta of the family. Shyamlal and
Kisan are the sons of Gobardhan. Shyamlal, defendant no.1 is the husband of the plaintiff. In
1951, partition took place between two branches: Shyamlal and Ghoghan. After partition,
Shyamlal began to act as karta of the family consisting of the members of Gobardhan’s
branch. Appellant is a pardanashin lady. Shyamlal took advantage of her position and
misappropriation of property and its income and as a result of it a suit was filed. Plea of
appellant was that their client was entitled to a decree for accounts. Their plea was rejected
because they could adduce no evidence.
Judgment: - In the suits for partition of a Joint Hindu Family property the manager/karta can
only be made liable for revaluation of account if there is a proof of misappropriation /fraud
and improper conversion of joint family assets and property. It was said that in the absence
of such a proof a coparcener seeking partition is not entitled to require the manager to
account for his past dealings with the joint family property.
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 all mesne profits.
# Representation: - The karta represents the family. He is its sole representative vis-a vis
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.
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, karta’s 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 of property 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 the whole
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.
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 in the 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 all matters-
legal, social, religious. He acts on behalf of the family and such acts are binding 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.
Dr. Gopal v. Trimbak AIR 1953 Nag 195
In this case, 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. 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 to family
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 dispute to
arbitration and the award of the arbitrators will be binding on the joint family if valid in other
respects.
# Karta’s power to contract debts: - The karta has an implied authority to contract debts and
pledge the credit of the family for ordinary purpose of family business. Such debts incurred
in the ordinary course . The karta of a non-business jointof business are binding on the
entire family 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 indispensable and pious duties.
# Loan on Promissory note: - When the karta of a joint family takes a loan or executes 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 and such
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 in
certain 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 water –tight 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 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.
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.
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 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.
(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.
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.
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 an
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 held that 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.
Separate Property
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.
It is well established that there is no presumption under Hindu Law that a business standing
in the name of any member of the joint family is a joint family business even if that member
is the manager of the joint family. Unless it could be shown that the business in the hands of
the coparcener grew up with the assistance of the joint family property or joint family funds
or that the earnings of the business were blender with the joint family estate, the business
remains free and separate.
Law as enumerated under Article 222 of Mulla Hindu Law is well settled that a Hindu, even if
be joint, may possess separate property. Such property belongs exclusively to him. No other
member of the coparcenary, not even his male issue, acquires any interest in it by birth, and
on his death intestate, it passes by succession to his heirs, and not by survivorship to the
surviving coparceners.
P.S. Sairam v. P.S. Ramarao Pisey AIR 2004 SC 1619
Facts: - P. Eswar Rao had 3 marriages. From his second marriage he had 2 sons: - P.
Sadashiv Rao (defendant no.1 he is the karta of the family) and P.E. Panduranga Rao.
Sadashiv Rao had 2 wives. Godavari Bai was his first wife. She had 2 sons one of them is the
plaintiff, P.S. Ramarao Pissey. Plaintiffs case is that defendant no.1 started a business from
the income and property of joint family in the name of M/s Pissey and sons. The contention
of the defendants is that the property was his self-acquisition, which he acquired by raising
loans from the market.
Judgment: - It was held that it was defendant no.1’s separate property.
The karta’s powers and liabilities and the karta’s 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.
Conclusion
The reasoning, which was earlier given by the courts including the apex court of the country
that woman, cannot become a karta because a karta has to necessarily be a coparcener. But
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.
It should be understood that amendments are only the first step. 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.
Further analyzing the position of karta, it can be said that he has less liabilities and more
powers. Though at the same time it cannot be said that he holds the position of a despot.
When it comes to determination of the position of karta it can be said that he holds a unique
position. In totality it can be said that all family members are duty bound to accept what
karta says until/unless it is detrimental to them.
***************
Bibliography
Books:
# Darret J., Duncan M. "Essays in Classical and Modern Hindu Law" Vol.2, Universal Book
Traders Page no. 114.
# Dr. Diwan Paras Modern Hindu Law 16th Edition, Allahabad Law Agency, Page no. 290-
294.

Url’s:
# www.hindu.com/2006/02/06/stories.htm
# www.indiainfoline.com/lega/feat/nomin.html
# www.ebc-india.com/lawyer/articles.htm
# www.prayer.de/dharmashastra.htm
# www.jkhighcourt.nic.in