Female member as KARTHA

  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.