KARTA

Joint family is a unique institution under Hindu Law. It is an institution whose members own property in its
name, which has several persons as its members, having distinct rights over the property, and rights and
obligations towards each other. As a unit, it deals with outsiders and even statutory authorities, and therefore, it
becomes imperative that as a unit, it must be headed by a person from within the family who is not only capable
of representing it in law and virtually all matters, but is also competent to bind all family members with his bona
fide actions or decisions taken with respect to the family, and its property. He should also be a person who can
generally be trusted to act in the best interests of the family. Ancient family units were headed by the seniormost
male member in the family, the ‘Patriarch,’ who had more or less an absolute control over the property and even
over the lives of the family members. He was the unquestioned ruler of the family, he represented the family in
all matters and his decisions were final as he was obeyed by all members. The conferment of near absolute
control went hand in hand with the promotion of family welfare as his implied responsibility. Presently, the
basic framework has remained the same, but the powers of the head of the family have been considerably
diluted. Absolute powers have been replaced by superior powers co-existing with superior responsibilities. The
term ‘Patriarch’ has been replaced with ‘Karta’, also described as ‘Manager’ (an inapt translation into English
language) of the Hindu joint family.

The father and in his absence, the seniormost male member is presumed to be the Karta of a Hindu joint family.
The presumption is very strong as this position is regulated by seniority 3 and does not depend upon merely the
consent of the other family members. A temporary absence of the father is not sufficient for the son to become a
Karta, if there is nothing to show that the father is in a remote country or his whereabouts are not known or his
return within a reasonable time is out of question. Therefore, so long as the Karta is alive no one else on his own
can be a Karta, and if the Karta so desires, he continues to occupy the representative capacity even though he
may be inadept to look after the family affairs by reasons of age or health. If he does not want to continue as the
Karta, he can expressly relinquish this position and with the concurrence of the family members, another
coparcener, not necessarily the next in seniority, may be appointed as the Karta. But, for this, the agreement of
all the members is necessary and in the case of a conflict, the seniormost will be presumed to be and would
continue as the Karta. The mere fact that a younger brother joins the elder brother in some transactions of the
family, would not adversely affect the position of the elder brother as the Karta. Even a minor can act as the
Karta and represent the family through the guardian. Two persons may look after the management of the
property, but the joint family can be represented only by one Karta. Therefore, there is no scope for two ‘Kartas’
or two representatives. There can be one and only one Karta. On the death of the Karta, the next male in
seniority will become the Karta and if there are some legal proceedings pending in the court involving the joint
family, his name will be substituted as the representative of the family, in place of the deceased Karta.

It is a settled principle of Hindu law that the position of Karta in the joint family goes to a person by birth and is
regulated by seniority and the Karta/manager occupies a position superior to that of the other members. A junior
member cannot therefore deal with the joint family property as a manager so long as the Karta is available
except where the Karta relinquishes his right expressly or by necessary implication or in his absence in
exceptional and extraordinary circumstances such as distress or calamity affecting the whole family and for
supporting the family or where his whereabouts were not known or he was away in a remote place due to
compelling circumstances and his return within a reasonable time period was unlikely or not anticipated.

Females as Karta
The position of the Karta is regulated by birth and is guided by seniority. For being a Karta and to be entitled to
manage the family affairs, including the property, it is essential that the Karta is capable of acquiring an interest
in the family property. The Karta, therefore, must have not merely an interest of residence and maintenance, but
of ownership in this property. A daughter is born in the family, but ceases to be a member of the family on her
marriage. In contrast, other female members become members of the joint family on their marriage to lineal
male descendants, but are not born in this family. Therefore, a position that is regulated by birth cannot be
conferred on these females. Secondly, to be a Karta, it is essential that not only should he be a male, but he
should also be a coparcener, as a non-coparcener male cannot become a Karta.
Since a female is not a coparcener, she cannot be a Karta, nor is she empowered to represent the family
generally. However, Nagpur High Court has held18 that under certain special situations, even a female can act as
a Karta and her decision would be binding on the family members. This decision does not appear to be correct,
as she is neither a coparcener, nor is she entitled to a share in the coparcenary property. On behalf of a minor
coparcener, she can act as a guardian, but that would not make her the Karta. A mother, therefore, cannot be a
Karta. A wife cannot act as the Karta in absence of her husband, nor can she act as the Karta in a joint family
comprising her husband and her son. Similarly, a Hindu widow cannot be a Karta, even if rights are conferred on
her, in the deceased husband’s coparcenary property.

POSITION

The position of a Karta is sui generis. It comes to him by being born in the family and is regulated by seniority.
It is terminable by resignation and relinquishment but is not indefeasible. It is a unique position and the relation
between him and the other family members is difficult to explain, as it has no parallel in any other kind of
relationship. He is the custodian of the family interest and his actions are backed by a presumption of the
promotion of general family affairs. He is the head of the family, but the relationship is not that of principal and
agent under the Contract Act, nor even of partners. It is at best, comparable to that of a trustee, as he stands in a
fiduciary relationship with the other members of the family, but unlike a trustee, he is not accountable to the
family generally, and even where he mis-manages or incurs a loss while managing the family affairs, unless he
is charged with fraud or misappropriation of the joint family property his actions and decisions are binding on
all the members of the family, including those who may not like his decisions. The Karta cannot be held liable
for negligence and where he acts honestly and with bonafide intentions, in the best interests of the family, his
discretion cannot be closely scrutinised, but where he misappropriates the joint family funds or uses them for
purposes other than for family benefits, he is accountable and will be called upon to refund the amount to the
joint family corpus.

RESPONSIBILITIES

The superior position of a Karta is saddled with superior responsibilities. He has the primary responsibility of
providing food, shelter, clothing, or in other words, a residence and maintenance to all the family members. This
also includes a responsibility to provide for marriage expenses of unmarried children, more specifically the
daughters, and for funeral expenses of the departed members. As he represents the family, he has to defend the
family in all litigations that may be filed against the family, by a member of the family or outsiders. As he
manages the property, he has the responsibility to pay all the statutory or other dues, such as taxes, debts etc,
due to the family or to the family property.

POWERS

Power to Manage Family Affairs

The Karta is the head of the family and has the power to manage the family affairs and the family property. It is
said that though his powers of alienation are limited, his powers of management are absolute. He has the power
to take possession of the total property and receive the joint family income from whichever source it may come.
No individual coparcener can either retain the exclusive possession of a specific joint family property or joint
family income, without his permission. If a coparcener insists on possessing a specific portion of the property
without the consent of the Karta, the Karta can evict him from that portion. If a coparcener’s presence in the
family home proves to be a nuisance due to his disorderly behaviour or bad habits, the Karta has the power to
throw him out of the house. The coparcener cannot challenge his decision and the only remedy available with
him is to ask for partition, specify the share and go out of the family. The Karta, therefore, has a right to decide
or allot specific portions of the house for family member’s residence, which the latter have to obey. While
taking decisions with respect to family members, the Karta need not be equitable or even impartial. He can
bestow excessive favoritism on one child in comparison to another, he can give a specific reasonable sum of
money to one son for his maintenance, while on others, he can spend lavishly. It is he who has to decide, how
much is to be spent on each person’s education and no one can legally interfere with his decision. He may or
may not pay a fixed amount of maintenance to any member, and even if he enters into any kind of agreement to
this effect, he is free to repudiate it at his pleasure, only to enter into any other kind of arrangement, or no
agreement at all. If there is an emergency that requires an application of money, issues like from where the
money is to be raised, whether it is to be raised at all or not and what action is to be taken, would be for the
Karta to decide, as that is an inherent part of management. No member of the family, and for that matter, not
even the court, can force the Karta to take a particular decision, as that would mean an interference in his
inherent powers of management.

Right of Representation
The Karta has a right to represent the family in all legal, social, religious and revenue matters, including
litigations,35 with
respect to matters connected with immovable properties or otherwise. A suit will be filed in a court by the
family in his name
and likewise, a suit filed against the family will be defended by him. The joint family, therefore, acts through the
Karta, as it
has no corporate existence, and a decree passed against the Karta binds all the members, including minors, 36
irrespective of the
fact that they were not direct parties to the suit. It is presumed that the Karta represents the family in all legal
proceedings andthere may not be a specific mention of him being in the representative capacity, 37 unless it can
be shown that he himself is
claiming an interest that adversely affects the interests of the family. 38 The Karta is expected to pursue the
litigation with
utmost sincerity, but if he does not do so and because of this, the family loses a case or a decree is passed
against the family,
such decree cannot be set aside on the ground that, had the Karta been more vigilant, the family might have won
the case.39
Similarly, where the father represents the minors in a suit, the contention that his actions are not in the interests
of the minors,
will not alter the binding nature of the judgment.40
Power to receive and spend the Family Income
As aforesaid, the right to receive the joint family income is one of the inherent powers of the Karta, in the
exercise of the
management of joint family affairs. The income, from whichever source, will be received by him. The decision
of how to spend
this joint family income and on whom to spend it, is with the Karta. He is not under any obligation to economise
or save, as in
the case of an agent or a trustee.41
The Karta can spend the income for the maintenance of family members and for one of the permitted purposes, 42
i.e., legal
necessity, benefit of estate and for performance of religious and indispensable duties. He can spend the money
for providing for
the residence of the family members, including for the maintenance of a destitute daughter.43
Powers of Alienation
The Karta’s power of alienating the joint family property are limited or qualified, and can be exercised with the
consent of all
the coparceners. Where the coparcener does not give consent or is incapable of giving consent, being a minor,
the Karta can
alienate the property only for legal necessity or for performance of religious or charitable purposes or where the
transaction
would amount to benefit of estate. In such cases, the alienation would bind all the members of the family,
including minors.44
In the case of an unauthorised alienation, the coparceners have a right to challenge it and get a decree setting it
aside.
Liability to Account
The Karta is not bound to keep accounts of how he has spent the family funds, as he is presumed to act in the
best interests of the family, but where a coparcener demands partition, he can require the Karta to give him
accounts. The Karta has to give him accounts for the money he had actually received and not what he could have
received if he had managed the property in a better manner. Further, he can only be asked to render the accounts
as they existed on the date of the demand and he cannot be forced to render past accounts, unless there are
charges of fraud, misappropriation or conversion of joint family property into his personal acquisitions, or the
nature of business is such that necessitates proper accounting at all times. In such cases, the Karta has to give
accounts to a member demanding it, at the time of partition. The coparcener can also refute the stand of the
Karta where the accounts are not acceptable to him, on the ground that either the Karta has not spent the money
that he claims to have spent, or the Karta has not been honest in showing the properties available for partition
and has not included all the joint family properties.
In Bengal, however, for families governed by Mitakshara or Dayabhaga law, a coparcener has a right to require
the Karta to give him accounts of the dealings with respect to the joint family property, including that of the
income and profits thereof and upon a refusal by the Karta to do the same, a coparcener can take the help of the
court by filing a suit for the rendition of accounts.
Power to Acknowledge and Contract Debts
The Karta has the authority to acknowledge debts due to the family and to pay interest on it, though he cannot,
however, revive a time barred debt. The debt might have been contracted by all members of the family or by the
Karta alone, acting on behalf of the family. The Karta also has the power to contract debt for using the loan in
family business or for any other lawful purpose and such a debt binds the share of all the coparceners. A
coparcener, even after seeking partition, cannot escape the liability of the debt contracted by the Karta, from his
share of the property. Where a loan is raised by the Karta by executing a promissory note in his name, but for a
lawful purpose, such a note binds the other coparceners, but only to the extent of their shares, unless it can be
shown that they were parties to this contract.
Power to settle Family Disputes
In case of a dispute between the members of the family or between family members and outsiders, the Karta can
refer the dispute for arbitration. He can also enter into a compromise on behalf of the family, but not where such
a compromise is for his personal advantage. Where such reference to arbitration or compromise is for the benefit
of the family, all family members including minors, are bound by it.

ALIENATION OF JOINT FAMILY PROPERTY

Alienation or transfer of property is one of the basic incidents of ownership. The term ‘alienation’, here, refers
to the transfer of property inter vivos, such as by sale, mortgage, gift, licence or even a lease, including a
perpetual lease. Where a property is owned by more than one person, no single person can acquire the power to
alienate the whole of it, unless and until other co-owners expressly authorise him to do so. With respect to a joint
family property, the Karta is entrusted with its management. However, he does not own the property as a whole,
and has an interest in it just like the other coparceners and if all the coparceners give their consent or authorise
him to sell the property, he can do so and such a transfer will be binding on the interests of all the members and
the purpose of the sale will be immaterial. But in this collective ownership, if one or more of the coparceners
withhold their consent, or express their dissent to such alienation, or where coparceners are incapable of giving a
valid consent due to minority, there is a collective ownership, though no collective consent to transfer it, and
ordinarily, the property cannot be transferred. The predominant reason behind this is, that till the family is joint,
its property should not be sold to the detriment of its members, yet at the same time, an absolute denial of
permission to the Karta to sell the property or otherwise transfer it, even when the family needs money, can be
disadvantageous to the family itself. The Dharmashastras cautioned against the indiscriminate transfer of joint
family property to the detriment of its members, as property is always a security in times of need and it is this
need backed authorisation that is reflected in the dictates of the Smritis and the commentaries which empower
the Karta to alienate the property, despite the dissent of the other major coparceners or the presence of minor
coparceners. Vijananeshwar specifies in Mitakshara,7 that joint family property can be transferred in three cases:

(i) Apatkale or Legal necessity;

(ii) Kutumbarthe or Benefit of estate; and
(iii) Dharmarthe or Performance of religious and indispensable duties.
(i) Apatkale: Apatkale refers to an emergency faced either by the family together or by one of its members, or
with respect to its property. It does not refer to a mere benefit accruing to the family by such transaction. Rather,
it is more in the nature of averting a danger, an attempt to avoid a calamity for which money has to be raised. It
has been explained in Mitakshara as ‘times of distress’. The term ‘Apatkale’ also suggests that money needs to
be procured on an urgent basis. Where it refers to the property, it indicates the transfer as being necessary for its
protection, or conservation, and for which, immediate action is to be taken. It is not a mere profitable
transaction, but a transfer, which if not effected, may result in loss to the family, to this property or some other
property owned by the family.
(ii) Kutumbarthe: Kutumbarthe was explained in Mitakshara as meaning, ‘benefit of "Kutumb" or family
members’. It therefore, permits the transfer of property where the sale proceeds are utilised for the sustenance of
the family members, such as for providing for their needs of food, clothing, shelter, education, medical expenses
etc.
(iii) Dharmarthe: Dharmarthe means ‘for pious purposes’, i.e., for the performance of indispensable duties,
such as obsequies of ancestors. The Shastric law laid down elaborate rituals and religious ceremonies, the
performance of some of which were obligatory for a Hindu.