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Position of Karta: Before and After The Hindu Succession (Amendment) Act, 2005

Family is the important part in everyone's life. The concept of family is very old, especially the joint family concept. In ancient times, people live in their joint family and prefer it more over single family. In joint family, people used to live together, with their sons and their wives, children and unmarried daughters. In joint family there is a common ancestor of the family, who is elder among all and consider as the head of family.

Most of the decisions related to the family taken by that head and his decision consider as to be final and important. Ancient societies are patriarchal in nature, therefore mostly males were considered as a head of the family.

This concept of Joint Family is important under Hindu Law. Hindu law contains this joint family joint family system and include its essential elements. Hindu law also contains provisions related to the joint family property and distribution of the joint family property among all the members of the joint family. Under Family Law, head of the family called as Karta of the family.
In a case of Suraj Bunsi Koer v. Sheo Persad, Karta defined as the Manager – Property belonging to a joint family is ordinarily managed by the father or another senior member of the family: The Manager of a joint family is called Karta.

The absolute powers of the Patriarch have now evolved into superior powers that are accompanied by similar of alienation of a Karta is limited since alienation can only be done in exceptional cases. The other powers of the Karta, however, are almost absolute.[1]

The position of the Karta, is unique in the family. He takes care of the family and the property of the family and administer it. All the member of the family remains under the control of the Karta. When joint family consist of joint family property than it is known as coparcenary. It is up to the four successive generation of the family, including the last generation of the family. Only the coparcener can become a Karta of the family.

In a Hindu family the Karta or manager occupies a position superior to that of the other members in so far as he manages the family property or business or looks after the family interests on behalf of the other members.[2]

Who can be a Karta?

Mostly the eldest male member of the family become the karta of the family. As long he is alive, he remains the Karta of the family. Court also held that there is always a presumption that senior most male member of family, is the Karta of the family.[3] In Indian families, father is senior most male member, therefore father is the Karta of the Family.

But in absence of the father in the family, the senior most member of the family become the Karta, or if the father resigns, the management of the family property devolves upon the eldest male member of the family provided he is not wanting in the necessary capacity to manage it.[4]

A general rule lays down in case of Sunil Kumar and another Vs. Ram Prakash, that the father of a family, if alive, and in his absence the senior member of the family would be entitled to manage the joint family property.

Can a junior member of the Hindu Joint Family be a Karta?

Now question is whether the junior member can become Karta in the presence of the senior most member of the family. Supreme Court in a case of Narendrakumar Modi v. CIT, held that Gulabchand was acting as a karta even during the life time of his father Bapalal as he had retired to live in Brindaban.

At the relevant time no body disputed his authority to act as karta. His eldest brother Vadilal was an old man of about 70 years of age. His elder brother Jayantilal--father of the appellant died in the year 1956. In these circumstances he appears to have acted as the karta with consent of all the other members. A junior member of the family could do so.[5]

In Tribhovandas's case, it has been made clear that under the following circumstances, a junior member of the Joint Hindu family can deal with the joint family property as manager or act as the Karta of the same.
  1. if the senior member or the Karta is not available;
  2. where the Karta relinquishes his right expressly or by necessary implication;
  3. in the absence of the manager in exceptional and extra ordinary circumstances such as distress or calamity affecting the whole family and for supporting the family;
  4.  in the absence of the father:
(a) whose whereabouts were not known or(b) who was away in a remote place due to compelling circumstances and his return within a reasonable time was unlikely or not anticipated.[6]

In Nopany Investments (Pvt) Ltd. v. Santokh Singh, Karta used to live in U.K. and not able to handle the property of the joint family, due to the reason of long distance. Therefore, he appointed the younger brother as a Karta, with the consent of all the members of the joint family property. Court held it valid.[7]

Can a female be a Karta of Hindu Joint Family?
As far as female are concerned, earlier societies are patriarchal in nature. Therefore, only the eldest male was recognized as a Karta of the family and Hindu female cannot be Karta of the family because they are not coparcener in the Hindu Undivided family.

In Commissioner of Income Tax Vs. Seth Govind Ram, the Supreme Court held mother or any female member could not be Karta of joint family and therefore cannot alienate joint family property.[8]

Madras High Court in V.M.N. Radha Ammal v. Commissioner of Income-tax, held that "The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family. Further, the right is confined to the male members of the family as the female members were not treated as coparcener though they may be members of the joint family.[9] Therefore female cannot be Karta of Joint Family.

But under certain cases court accept the representation of female as the Karta these are:
  • It was held in Commissioner of Income Tax v. Lakshmi Narang that a female member can be allowed to be the karta under some situations but this judgment is held to be incorrect due to the non-coparcener aspect.[10] But in times of necessity, a widow can be appointed as a Karta of the Hindu Joint Family.

    In the case of C.P. Berai v. Laxmi Narayan, it was held by the court that a widow could be a Karta in a situation when there are no adult male members left in the family. Any Karta should act for the benefit of the Hindu Joint Family and if a widow has the intention of doing so, she should be appointed as the Karta.[11]
     
  • In Sushila Devi Rampura v. Income tax Officer, the court held that in case if the Karta died and leaving behind his minor and wife, then the widow as a natural guardian of her son can represent the Joint Family Property as a Manager of the family. But it doesn't make her Karta or coparcener of the Coparcenary.[12]
     
  • In Sm. Champa Kumari Singhi v. Additional Member, Board of Revenue, case court held that in the above case of Sushila Devi, widow is not recognized as Karta of the family, but acting as a guardians of minor, she represent the Joint Family Property as Manager.[13]

The Hindu Succession (Amendment) Act, 2005

Our earlier societies are patriarchal in nature, therefore preference always given to the boys over girls. As far as Joint Family Property is concerned, the son of the deceased gets the left-over property of his father, daughters have no right in the property, though wife of the deceased get some right in the property under Hindu Succession Act.

In ancient time, female are not consider as independent entity and therefore have no right to property, as it was consider that instead of giving property, the father spent that amount of her share in the property at the time of the marriage of the daughter and also gave certain amount of money to her as stridhan, which include movable assets like jewelry etc, which is consider as her security and this dis-entitle the daughters from the property of her father.

But unfortunately, it was not probably considered by the then people that the same father also spent the equal or more amount of money in his son's marriage too, then why his son has the right in the property and daughters don't. Mitakshara school believed that a woman can never be a coparcener.

But after the commencement of Hindu Succession Act, 1955 the somewhat rights of the women in the property was recognized. And this later amendment in the Act empower women socially and economically, object of article 15 of the constitution of the India has been achieved by the amendment act Article 15(2) enjoins, To accord to women equality with men before law, in particular to administer property. This amendment erases another discrimination between daughters and sons.

Section 6 of this Hindu Succession Act, was amended by the Hindu Succession (Amendment) Act, 2005, which make the section gender neutral and based on principle of equality before law. After 2005 amendment in the Hindu Succession Act, 1955, daughters are also become coparceners of the coparcenary and have equal rights in the joint family property as son has. Just like the son, daughters also have birth right in the joint family property and they are subject to the same liabilities as the sons are. It removes the discrimination against female by providing them rights in the property and considering them as an independent identity.

It was also mentioned in the amendment that nothing in this act shall affect the partition which had take place before 20th December, 2004. So, it does not have retrospective effect.


Changes brought by The Hindu Succession (Amendment) Act, 2005:

  • Daughters, of a coparcener, are also become the coparcener in the coparcenary and have right in the joint family property since birth like a son in the joint family property.
     
  • Daughters are subject to all the liabilities in respect of the coparcenary property, in a similar way a son is held liable.
     
  • This amendment abolished the Section 23 of Hindu Succession Act, which is discriminating in nature and it disentitles the female heir to ask for partition in respect of the dwelling house wholly occupied by the joint family until the male member of the joint family choose to divide their share respectively.[14]
     
  • This amendment abolished the Section 24 of Hindu Succession Act, which is against the inheritance of those certain widows who re-marrying.
     
  • Some new sharer are added to this act by this amendment, these are the share of the pre- deceased son of a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre- deceased daughter, the pre- deceased child of a pre- deceased son or of a pre- deceased daughter both have right. The son of a pre- deceased daughter of a pre- deceased daughter; daughter of a pre- deceased daughter of a pre- deceased daughter; daughter of a pre- deceased son of a pre- deceased daughter; daughter of a pre- deceased daughter of a pre- deceased son" shall be added in the Class I heir of the Schedule of the Principle Act.[15]
     
  • If a Hindu die, after the commencement of this amendment, then his interest in the property devolve under the testamentary and intestate succession, not under the doctrine of survivorship.[16]
     
  • This amendment abolishes the Doctrine of Survivorship.
     
  • This amendment removes the liability of Son, Grandson or Great- Grandson to pay off or discharge the Debt due from the Father, Grandfather or Great- Grandfather.
     
  • It retains the concept of notional partition but modifies the conditions of its application.[17]
     
  • It empowers a female coparcener to make a testamentary disposition of her share in coparcenary property.[18]

Cases After the Amendment of 2005

Can women be a Karta?

By the virtues of this amendment, whether women can be a Karta of the family, this question was decided in a famous case of Mrs. Sujata Sharma V. Shri Manu Gupta the SC court held that the impediment which prevented a female member of a HUF from becoming its Karta was that she did not possess the necessary qualification of coparcener ship. Section 6 of the Hindu Succession Act is a socially beneficial legislation; it gives equal rights of inheritance to Hindu males and females. Its objective is to recognize the rights of female Hindus as coparceners and to enhance their right to equality apropos succession.

Therefore, Courts would be extremely vigilant apropos any endeavor to curtail or fetter the statutory guarantee of enhancement of their rights. Now that this disqualification has been removed by the 2005 Amendment, there is no reason why Hindu women should be denied the position of a Karta. If a male member of an HUF, by virtue of his being the first born eldest, can be a Karta, so can a female member. The Court finds no restriction in the law preventing the eldest female coparcener of an HUF, from being its Karta.[19]

Whether this amendment can apply to the daughters born prior to the amendment?

This question was raised for the first time in the case Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar, the court in this case held that it doesn't apply to all the daughters born prior to the Amendment.

The future tense denoted by the word shall shows that the daughters born on and from 9 September 2005 would get that right, entitlement and benefit, together with the liabilities. It may be mentioned that if all the daughters born prior to the amendment were to become coparceners by birth the word "shall" would be absent and the section would show the past tense denoted by the words "was" or "had been". The future participle makes the prospectivity of the section clear.[20]

This question was again challenged in the case Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, the full bench of the same court in which the above case was decided, held that it is irrelevant whether amendment act made applicable to the daughters, who are born prior to the date the amendment act come into force or after that date. Amendment act is applicable to all the daughter born prior to 17 June 1956, the date on which Hindu succession act come into force, or born after that subject to the condition that they should be alive at that time when the Amendment Act come into force.[21]

This was again reiterated by the court Prakash v. Phulavati, court held that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected.

Whether preliminary decree of partition before amendment affect the rights of daughters in partition?

In case of Ganduri Koteshwaramma v. Chakiri Yanadi court held that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.[22]

In a case Danamma @ Suman Surpur vs. Amar, the court held that the amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth and that the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.[23]

Conclusion
This amendment is another step-in way of making women independent, economically and socially secure. It provides somewhat equal footing to the daughters as to the sons. This provide right to the daughter in the joint family property. And this amendment is helpful in many regards and it provide many benefits to the daughters. But still, even though there are certain anomalies of this Amendment Act like it only talk about the rights of the daughters as it characterizes female into daughter, mother, sister etc and not provide right to all the females, it require living coparcenary of a living coparcener means if the father is dead at the time of the birth of the daughter then she is not a coparcener whereas son still become the coparcener and has birth right in the property it has a prospective operation of the amendment, it doesn't talk about the rights of her in-laws, positions of mother viz-a-viz coparcenary remain same etc.

References
Cases:
  • Abdul Basith Sahib v. Shanmughasundaram [1956] I M.L.J. 513......................................... 3
  • Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari [2014] SCC OnLine Bom 90 10
  • C.P. Berai v. Laxmi Narayan [1949] Nag 12............................................................................ 5
  • Commissioner of Income Tax Vs. Seth Govind Ram [1965] SCR (3) 48.............................. 5
  • Danamma @ Suman Surpur vs. Amar [2018] 3SCC 34....................................................... 10
  • Ganduri Koteshwaramma v. Chakiri Yanadi [2011] 9 SCC 788......................................... 10
  • Jandhyala Sreerama Surma v. Nimmagadda Krishnavenamma [1957] AP 43................... 4
  • Mrs. Sujata Sharma vs Shri Manu Gupta [2016] 226 DLT 647............................................ 9
  • Mudit v. Ranglal [1902] I.L.R. 29.............................................................................................. 4
  • Narendrakumar J Modi v. CIT [1977] SCR (1) 11.................................................................. 4
  • Nopany Investments (Pvt) Ltd. v. Santokh Singh [2008] SC 67........................................... 5
  • Sm. Champa Kumari Singhi v. Additional Member, Board of Revenue [1996] 6 SCC 26 6
  • Suraj Bunsi Koer v. Sheo Persad [1880] ILR5CAL148.......................................................... 3
  • Sushila Devi Rampura v. Income tax Officer [1959] (64) Cal WN 96.................................. 6
  • Tribhovan Das Haribhai Tamboli v Gujarat Revenue Tribunal [1991] 3 SCC 44............... 5
  • V.M.N. Radha Ammal v. Commissioner of Income-tax [1950] 18 ITR 22......................... 5
  • Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar [2012] (5) Bom CR 210.............. 9

Statutes:
  1. The Hindu Succession (Amendment) Act 200......................................................................... 8

Other Authorities
  1. Anonymous, Conclusions and Suggestions accessed on 28th April 2020................................................................... 8
  2. Mishra Akash, Karta and his Powers: An Overview accessed on 24th April 2020..................................................... 5

End-Notes:
  1. Suraj Bunsi Koer v. Sheo Persad [1880] ILR5CAL148
  2. Abdul Basith Sahib v. Shanmughasundaram [1956] I M.L.J. 513
  3. Jandhyala Sreerama Surma v. Nimmagadda Krishnavenamma [1957] AP 434
  4. Mudit v. Ranglal [1902] I.L.R. 29 C
  5. Narendrakumar J Modi v. CIT [1977] SCR (1) 112
  6. Tribhovan Das Haribhai Tamboli v Gujarat Revenue Tribunal [1991] 3 SCC 442
  7. Nopany Investments (Pvt) Ltd. v. Santokh Singh [2008] SC 673
  8. Commissioner of Income Tax Vs. Seth Govind Ram [1965] SCR (3) 488
  9. V.M.N. Radha Ammal v. Commissioner of Income-tax [1950] 18 ITR 225
  10. Mishra Akash, Karta and his Powers: An Overview accessed on 24th April 2020
  11. C.P. Berai v. Laxmi Narayan [1949] Nag 128
  12. Sushila Devi Rampura v. Income tax Officer [1959] (64) Cal WN 963
  13. Sm. Champa Kumari Singhi v. Additional Member, Board of Revenue [1996] 6 SCC 267
  14. The Hindu Succession (Amendment) Act 2005
  15. The Hindu Succession (Amendment) Act 2005
  16. The Hindu Succession (Amendment) Act 2005
  17. Anonymous, Conclusions and Suggestions accessed on 28th April 2020
  18. ibid
  19. Mrs. Sujata Sharma vs Shri Manu Gupta [2016] 226 DLT 647
  20. Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar [2012] (5) Bom CR 210
  21. Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari [2014] SCC OnLine Bom 908
  22. Ganduri Koteshwaramma v. Chakiri Yanadi [2011] 9 SCC 788
  23. Danamma @ Suman Surpur vs. Amar [2018] 3SCC 343

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