| Introduction | jurisprudence |
| Relevant Case Laws | Hanooman Prasad pandey vs Mussumat Babooee Sunil Kumar vs Ram Prakash dev Kishan vs Ram Kishan Balmukund vs Kamlawati Nopany invt. vs santokh singh |
| Present problem | question related |
| conclusion | decision as per our reasoning |
Karta is the eldest male member of the family.The presumption of seniormost male member is very strong as this position is regulated by seniority and does not depend upon merely the consent of other family members. As long as karta is alive, no one can be his own can be a karta.If the karta is dead , then agreement is required of all members to be karta and in the case of conflict, the seniormost member would serve as karta.
The position of Karta is Sui Generis, it means he has unique position. The relation karta and other members are very difficult to explain, as it has no parallel in any kind of relationship. He has a lot of positions in family like, custodian of family, legal representative, trustee, manager, agent, etc. There are several responsibilities of karta like to provide food shelter clothes to his family, maintainence of family affairs, bear expenses, pay debts, etc.
Powers of Karta:
- power to manage family affairs
- power to bear expenses
- power to pay debts
- power to be legal representative
- power tyo receive and spend family income
- power of alienation
Can Junior member be a karta?
Generally, junior can’t be a karta during the period of existing karta. But there are some situations when junior can be a karta which was decide in the Nopany Invt. vs Santokh Singh.
Alienation means transfer of property inter vivos, such as sale, mortgage, gift, license, or lease. Where a property is owned by more than one person, no single person is allowed to alienate the whole property unless and until they authorise him to do so. Karta has power to alienate the property without consulting with other family members. If the property belong to other’s then karta either consult for their consent or to even communicate his decision to others.
Where the coparcenors do not consent to alienation, they have two remedies in alternative. The first remedy is that a coparcenor, who doesn’t consent to alienation, can demand his share in the property and cease to be the member of family, even a minor can demand partition in a suit through next friend. The second remedy is that where the transfer has been effected, they can challenge the validity of the transfer in the court of law on the ground that he din’t take consent of family members.
There are conditions when karta can alienate the property without consulting other members:
in these conditions, karta can alienate the whole property and no one can stop him from doing so;
- Legal Necessity: it means any necessity that can be sustained in law. In other words, when a need arise in the family and family doesn’t have any money or alternative resources, with which the need of the family can be satisfied, like legal dispute, debts, education of family members, maintainence, etc. then karta can alienate the property to meet the requirements.
essentials:
-existence of need or purpose
-such requirement is for a lawful purpose
-the family does not posses monetary or alternative resource
-the course of action taken by karta - Benefit of Estate: Benefit means an advantage, betterment, or profit. Estate means landed property.So, a transaction that brings an advantage to the landed property of the family would be covered under ” benefit of estate”. It is of two types : Defensive and Prudential. Defensive means when it is necessary to alienate the property for the family benefit, such as to protect property from threatened danger, whereas, Prudential means when the property is transferred for the improvement not that much necessary. examples – mortgage of property and loan utilised in family, lease, etc.
- Religious and Pious obligations: There are some ceremonies and rituals to be performed in the family like, marriage, pinddaan,etc. It is the duty of karta to performed them, so the property sometimes alienate by the karta when no monetary means or resources is not available.
Relevant Case Laws:
Hunooman Prasad Pandey vs Mussumat Babooee
facts:
Bux Pandey, the father of the appellant-Hunooman Prasad Pandey, was a moneylender who gave loans to landowners in the Gorakhpur district.He gave Raja Jobraj Singh some money as a loan throughout the course of his company. Jobraj Singh mortgaged a piece of land to Bux Pandey as collateral. Raja Jobraj Singh died in the year 1831.
After Jobraj Singh’s death, his son Raja Shivbux Singh adjusted his account with Bux Pandey and signed an agreement in which Raja Shiv Bux Singh agreed to pay an amount of Rs. 5252/- to Bux Pandey.Raja Shiv Bux Singh died later as well. As a result, Hunooman Prasad Pandey adjusted the account with Rani – Digamber Kanwar in 1835, and the two reached an agreement in which Rani – Digamber Kanwar agreed to pay Rs. 3200/-.However, due to Rani – Digamber Kanwar’s non-payment of outstanding payments to the government, the land was likely to be seized.In this scenario, Hunooman Prasad Pandey submitted Rani’s unpaid payment in the collector’s office. As a consequence, the Rani executed three bonds of Rs. 1000 each in favour of Hunooman Prasad Pandey.Both parties adjusted their accounts later in 1842, and Rani agreed to pay Rs. 15800/-. Rani and Lal Indra mortgaged some lands in favour of appellant Diwan Singh as collateral. Lal Indra Diwan Singh was a minor at the time.
When Lal Indra Diwan Singh reached the age of majority, he filed an action in the Gorakhpur court for the collection of a mortgaged deed issued in 1842 and claimed the relief of regaining the title of the property.
issue:
What is extent of the power of a mother as manager of the estate of her minor son, to alienate the estate?
judgement:
“A widow, like a manager of the family, must be allowed a reasonable latitude in the exercise of her powers, provided … she acts fairly to the expectant heir”.
The Court will not interfere with her management, unless there is danger to the estate from the manner in which she is dealing with it.
A widow or other limited heir is entitled to manage the estate inherited by her. Her power to manage the estate is similar to that of a manager of an infant’s estate.
However, where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate.
The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded…Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate.
However, they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably-credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under the circumstances, he is bound to see the application of the money.
The purposes for which a loan is wanted are often future, as respects the actual application, and a lender can rarely have, unless he enters on the management, the means of controlling and rightly directing the actual application.
Their Lordships do not think that a bona fide creditor should suffer when he has acted honestly and with due caution, but is himself deceived.
They decided that the mortgage was executed, but that because the mortgagee obtained the mortgage from a restricted owner, he bore the burden of proving necessity. Their Lordships believed that the case of a mortgage for anything had been established prima facie.
Sunil Kumar vs Ram Prakash
facts:
A person A as Karta of Joint Hindu family executed an agreement to sell the suit property bearing in Mohalla Qanungaon at Kaithal. Three sons of A instituted a Civil Suit in the court of Sub-Judge, Kaithal for permanent injunction stating inter alia that the said property was joint Hindu family coparcenary property; and that there was no legal necessity for sale of the property nor it was an act of good management to sell the same without the consent of the plaintiffs and without any legal necessity. It was, therefore, prayed that a decree for permanent injunction be passed to restraining him from selling or alienating the property to any person and restrain from proceeding with the suit for specific performance pending in the civil court.
issue:
Whether a suit for permanent injunction restraining the karta of the joint Hindu family from alienating the house property belonging to the joint Hindu family in pursuance of the agreement to sell executed already, is maintainable?
judgement:
Where the Karta is contemplating the transfer of the joint family property for a permitted purpose, as ascertained by him, the coparceners cannot prevent him from transferring this property by seeking a temporary or permanent injunction from the court.
Karta of the joint Hindu family has undoubtedly, the power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts.
The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu Undivided Family even if there is a genuine legal necessity for such transfer.
A suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale.
The suit property was coparcenary property of the joint family consisting of A and his sons. Jai
Bhagwan (buyer) has failed to prove that the proposed sale was for legal necessity of the joint family. He has also failed to prove that the intended sale was for benefit of the estate.
A being the manager of the family cannot alienate coparcenary property in the absence of those two requirements. The sons could restrain their father from alienating the coparcenary property since the proposed sale was without justification.
Karta occupies a position superior to other members. He has greater rights and duties. He must look after the family interests. He is entitled to possession of the entire joint estate. He is also entitled to manage the family properties.
The position of a karta or manager is sui generis; the relation between him and the other members of the family is not that of principal and agent, or of partners. It is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees.
Therefore, the Supreme Court held that a suit for permanent injunction by a coparcener to restrain the Karta from alienating joint Hindu family property is not maintainable.
Dev Kishan vs Ram Kishan
facts:
The Karta effected a mortgage, a sub-mortgage and a sale of two houses belonging to the joint family, worth around Rs. 8000 to 9000, for a consideration of Rs. 400 to Rs. 900, which according to him, were to be utilised for the marriage of his three minor children. The sale deed was executed on the day the son was getting married.
issue:
Is it a debt committed for legal necessity or not when a main member or Karta of the family takes on debts through mortgage deeds in order to marry a minor member of the family?
Is it reasonable to assume that the debt incurred by the father to pay off previous mortgages was incurred for legitimate reasons?
judgement:
The transfers were held void as opposed to public policy, in view of the Child Marriage Restraint Act, 1929.
The court held that even if the amount of money was actually spent on the marriage of such children, who were in the age group of 8–12 years, it cannot be termed as a legal necessity.
Secondly, the members of the family were earning and there was no need to sell the family
property to raise the money.
Thirdly, the transfer was grossly undervalued and if there was a need of money, the transfers should have been effected for an adequate consideration.
Karta exercising his discretion as a prudent person, can alienate the joint family property for defraying marriage expenses of the children, more specifically, unmarried daughters, though it may not include second marriages and marriage of minors.
The appeal was dismissed, and the court held that even after the mortgage has obtained a preliminary or final decree against the father or mortgagor, his son is entitled to impeach the mortgage because it was taken out by his father as manager for the purpose of discharging his debt, not for legal necessity or payment of any antecedent debt.
Balmukand vs Kamlawati
facts:
A Hindu joint family owned a small portion of a big plot of land owned by the alienee, who approached the Karta for the purchase of the joint family land, and offered him a higher consideration than the market value. Initially, accepting his offer, the Karta accepted the earnest money, but he later failed to execute the sale deed. The alienee filed a suit for specific performance of the contract and the Karta contended that he was not empowered to sell the land as it was neither for legal necessity nor for benefit of estate.
The family was in affluent circumstances and there was nothing in evidence to show that the Karta was having any difficulty in managing the property or that the family was incurring a loss in retaining that property. Nor was there any suggestion that he wanted to invest the sale proceeds in a profitable manner.
issue:
Whether specific performance should be allowed in the present appeal?
judgement;
Supreme Court observed that there was nothing to suggest that any sale was being contemplated by any consideration of prudence. The Court therefore, held that the contract and the proposed sale was not for benefit of estate and no suit for specific performance of the contract could be decreed.
Since the expression ‘benefit of estate’ was not found in the Dharmashastras and is of later origin, the early judicial views were influenced by Mitakshara’s ‘Apatkale’ with respect to the property, and permitted transfers that were purely defensive or protective in nature and with the dilution of the concept of Apatkale, ‘benefit of estate’ also gradually included not only defensive transactions, but also alienations that an ordinary prudent man would view as appropriate in the given set of situations.
The degree of prudence required from the Karta is higher than the level that is expected of a person when he deals with his exclusive property.
It is solely the prerogative of the Karta, which he has to exercise with due care and diligence, whether to alienate the joint family property or not. Since the utilisation of the amount received on alienation is an important test of whether a transaction would amount to benefit of estate or not.
A mere contract to sell the property at a higher rate by the Karta, cannot be enforced in a court of law by the alienee, on the ground that it would be of monetary advantage to the family. ➢ In each case, the court must be satisfied from the material before it, that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into.
Where adult members are in existence, the judgment is not to be of the manager of the family alone, but of all the adult members of the family including the manager.
Mudholkar, J., held that no part of the joint family property could be parted with or agreed to be parted with by the manager on the grounds of alleged benefit to the family when the transaction is opposed by the adult members of the family. And the suit for specific performance was accordingly dismissed.
Nopany Investment vs Santokh Singh
facts:
The Karta of a Hindu joint family was staying in the United Kingdom and was not in a position to handle the joint family affairs in India. He executed a power of attorney in favour of his younger brother and the whole family accepted the latter’s management of the joint family affairs without any protest. This younger brother filed a suit for eviction against the tenant, and the tenant raised a preliminary objection that as he is not the Karta, the suit for eviction filed by him does not hold good in law.
issue:
Is it possible for Jasraj Singh, in his role as the Karta of Dr. Santokh Singh HUF, to bring an eviction suit when an elder member of the HUF is still alive?
Can a junior member/coparcener act as Karta if the senior member/coparcener has relinquished his right expressly or impliedly or in absence of the Karta under exceptional circumstances?
judgement:
The Court dismissed the contention of the tenant and observed that it was not open for the tenant to raise such a kind of objection with respect to the maintainability of the suit at the instance of the younger brother as the records clearly showed that all along it was the younger brother of the Karta who was realizing the rent from the tenant and the tenant is now stopped from raising any such question, and the suit was maintainable at the instance of the younger brother claiming himself to be the Karta of the joint family despite the fact that he was not the senior most male member of the Hindu Joint family.
The court held that where the Karta of the joint family is away in a foreign land for a long time and his return within a short time period is unlikely and due to his absence he cannot look after the affairs of the Hindu joint family, a younger member of the coparcenary with the consent of all the members of the family can act as the Karta of the family.
He is also empowered to enter into transactions on behalf of the joint family, such as execution of a lease or filing a suit for eviction of the tenant inducted into the joint family premises. The court here clarified that though the settled principle of classical Hindu law remains that Karta would be the senior most male member of the family in the following circumstances a younger brother of the joint Hindu Family can deal with the family property as Karta: → if the senior member or the Karta is not available, → where the Karta relinquishes his right expressly or by necessary implication; → in the absence of the manager in exceptional and extraordinary circumstances such as distress or calamity affecting the whole family and for supporting the family; → in absence of the father; → father’s whereabouts are not known, → who was away in a remote place due to compelling circumstances and his return within a reasonable time was unlikely or not anticipated.
Jasraj Singh successfully stated that his eldest brother (said to be Karta of the Hindu Undivided Family) had spent a significant amount of time in the United Kingdom. Because of his departure from the nation, he could not carry out his obligations as Karta of the Hindu Undivided Family.The filing of the complaint by Jasraj Singh, claiming to be the Karta of the Hindu Undivided Family, received no opposition from any member of the Hindu Joint Family. The elder brother has signed a power of attorney in Jasraj Singh’s favor.
Present Problem:
Morovishwanath, a Karta of Mitakshara joint family, wants to sell his ancestral house in the walled city for a sum of Rs. 80 lakhs to Ganesh. He intends to utilize the money so collected for the following purposes:(a) for the re-marriage of his widow daughter, Damini;(b) for the re-marriage of his son Vineet, after his divorce to his earlier wife;(c) to repay his personal debts;(d) to purchase a housing flat in South Delhi.Ganesh is anxious to purchase the property and seeks your legal advice. Advise.
Answer: (a) This is a legal necessity as remmarige of his widow daughter comes under this head.
(b) It will come under legal necessity as his son’s first wife died, so he can alienate teh property but second marriage depends upon the facts and circumstances of the case.
(c) Personal debt cannnot be paid off from ancestral property, so its not a a legal necessity.
(d) It is the Benefit of estate, he can alienate.
A mitakshara coparcenary consists of Ramesh, father-cum-Karta and his two sons Anil and Amit. They own extensive coparcenery properties including one big land about 60 miles away from Neemrana where this family lives. Ramesh sold this piece of land and utilized the sale proceeds for the following purposes:(i) Renovation and additions in the family house.(ii) Payment of debt of Ramesh which was taken for gambling purpose.(ii) Marriage of his (Ramesh’s) 15 years old sister. Anil and Amit challenge this attention with plea that it is not binding on them as they never consented to such transaction which was neither for legal necessity nor for the benefit of estate. Decide.
Answer: (i) It is benefit of estate, Anil and Amit cannot challenge.
(ii) Its not a legal necessity, they can challenge.
(iii) its not a legal necessity as child marrriage is prohibited by law and they can challenge.
