KARTHA HINDU LAW

HINDU LAW 

CHAPTER- 9

• KARTHA 

(i) Kartha  

(ii) Kartha’s power of alienation

KARTHA

(i) Karta: 

i) One of the cardinal principles of the Mithakshara”: coparcenary is that the management is vested in the ‘Karta’. As a general rule, the father of the family or if he is not alive, the eldest son, (the senior coparcener) is the karta. Even a junior member can become a karta, with the consent of all the coparceners. 

ii) Male : Only a male member can be karta and a woman or a widow is disqualified. (C.I.T.V. Govindram Sugar Mills). Further, there cannot be two kartas in a coparcenary. 

iii) Management: The Karta is entitled to full possession of the property and is absolute in its management. He possesses the power and the right to represent the family in all its transactions. He is entitled to act without the consent of the other members or even inspite of dissent, when his act is within his legal authority and for family purpose. His act binds the others. Under him, the other coparceners have only the right to maintenance and residence. They cannot claim any specific share of the income. 

iv) Legal position : His position is Sui generis. He is not an agent of the other coparceners. He is not a trustee. He need not save or economise. If a Karta is wasting the property the only remedy is to effect partition. On partition the account is taken on the actual receipt and expenditure, not on what would have been saved prudently by the Karta. 

v) Expenses : The Kartha has absolute discretion in the manner of spending for family purpose like expenses of management, of realisation and protection of the family property, ordinary maintenance, residence, education, marriage, shradha and religious ceremonies etc. He cannot however mis-appropriate or apply the family income or property to any purpose other than family purpose. He is not accountable for pasttransactions. He need not give accounts, but where the family transaction is such as to make it necessary to keep accounts, he must maintain true and accurate accounts. 

vi) Suits : Karta has legal right.to represent the entire family in all its transactions, legal or otherwise. He can bind the other coparceners by his act. He may sue or be sued in his own name. Decree passed against the Karta is binding on all coparceners. One coparcener cannot sue another coparcener. Only the Karta may sue or be sued. 

vii) Family business : A joint family may carry on a joint trade or business. Karta has the implied authority to borrow money for family business purposes so as to bind the other co-parceners. He may sell movable or immovable property or pledge the properties for the purpose of the business. This is not a partnership firm. 

viii) Alienation : Karta has the power to alienate property for reasonable consideration so as to bind the other coparceners. This right is absolute. A Karta may alienate for legal necessity. 

xi) Other powers: A Karta may refer disputes to arbitration. The award will be binding on the coparceners. He may compromise with bonafide intention. He has no right to waive a time barred debt. He may give valid discharge on behalf of the family. 

(ii) Karta’s power of alienation: 

1. Kartha, as the manager of the Hindu joint family is empowered to transfer or alienate the joint family property. His act binds the other coparceners. However, his alienation is subject to certain restrictions. According to Mithakshara : ‘Apatkale, Kutmbarte and Dharmarthe’. This means times of distress, for the sake of the family, and pious purposes. In other words, legal necessity, benefit of the family (or estate) and dharma or pious purposes. (Kane’s Commentaries on Dharmasastras). 
2. Legal necessity: It means 

                a) Payment of Govt. revenues 

                b) Maintenance of coparceners and their family 

                c) Marriage expenses of coparcener and daughters 

                d) Family ceremonies and funeral expenses 

                e) Legal expenses spent for legal litigation to preserve the estate 

                f) Expending towards family debts 

                g)  Family business expenses and discharge of family business debts     etc. 

     iii)     Benefit of the estate : 

               The touchstone to test the legal necessity is whether the alienation is  for the benefit of the estate. The leading case is: Human Prasad V. Musamat Baboe. The question in this case was whether a mother acting as the manager (not karta, as a woman is incompetent) of an infant heir has the power to mortgage. The Privy Council held that her power was limited and qualified. It can be exercised only in case of need and for the benefit of the estate. The creditor or alienee is expected to enquire into the (a) Legal necessities and b) The bonafides. This test applies in the case of Karta also. 

4. Void alienation : 

If transfers or alienations, are not for legal necessity the alienation become voidable ; (voidable at the option of the other coparceners). 

The most authoritative explanation to ‘the benefit of the estate’ was given inPalaniappa V. Devasikamani. (This was the right of the mahunt over debuttor property). The protection, preservation from injury and deterioration and a host of such things to save the property come within this. 

Alienation includes sale, mortgage, lease ; and also for pious purpose. Leading case: Guramma V. Mallappa 1964. A gift made by a Karta (father), to his daughter after marriage for her maintenance ^vas held valid.