The eldest surviving male of the family used to be the only Karta of that particular family. Even in cases where the eldest member of the family was the woman then also if there was a minor son, he could become Karta and in case the son was of such age that he could not manage the affairs then the court appointed a person as the Karta.
As far as functions of Karta are concerned it has been held in the case of Narendra Kumar v Commissioner of Income Tax[i] that the function of the Karta is not that of principle, agent or manager but resembles that of a trustee. The functions of the Karta are very wide thus the position becomes of great relevance as can be seen from the fact that one of the most important functions of the Karta is to manage the function of the Hindu Undivided family.[ii]
Introduction
For long the decentralisation in case of the coparcenary property was limited to the male child and only male members of the family had the right by virtue of birth over the property. The women were excluded from such decentralisation for the obvious reason that the society was not able to accept the fact that a married woman being the Karta of a coparcenary property. Further, as far as application of different laws are concerned prior to 2005 amendment of Hindu Succession Act there was different understanding with regard to a female being Karta which was compared in the case of CIT v Seth Laxmi Narayan Raghunathdas[iii] where it was said that as far as Dayabhaga law is concerned both man and women can be Karta as both can be coparcener but it is different from the Mitakshara law according to which the man can be coparcener but women cannot be coparcener, thus women cannot become Karta.
Thus, the present article discusses the evolution of the concept of women being appointed as Karta by discussing the position prior to and after the incorporation of Section 6 of the Hindu Succession (Amendment) Act 2005. The present article also focuses on the difference that exists in women being a member of a Joint Hindu Family and women being a Karta in case of Hindu Undivided Family. Moreover, it discusses the exact scenario or the empirical reality of a family even after the amendment of 2005.
Evolution Of The Concept Of Female As Karta
As already discussed, the path and use of the term Karta always had been quite different and was not generally used in the context of females in India. The earlier position with regard to the female being Karta was not clear as the female was made Karta but they have not settled positions. This can be seen from the fact that there was a number of cases which stated regarding the demand of female to be Karta and such was also allowed by in limited circumstances. One of the earliest judgements with regard to a female being a Karta was that of Pandurang Dahake v. Pandurang Gorle[iv]. In this case, the plaintiff sued the defendant’s fir recovery of his debt advanced on pro notes executed by their mother (who was their guardian as well as manager). The court in this case held that it is not correct to say that the mother could not be the manager of a joint family. In this case, the minor’s mother as guardian and manager of the family was actually managing the property on behalf of the minors and incurred the loan in dispute for purposes binding on the family. So, in this case, the widow asked the court in the present case that she should be appointed as Karta in the present case as the minor son could not manage affairs. The court though decided in the favour of the widow but said that she could only remain Karta till the son attains majority. Therefore, the court recognized a female as Karta in this case but with certain restrictions that ensued.
Subsequently, several cases were brought forth in the court which was related to giving managerial powers to female members and making them coparceners. One of the cases was of Income Tax Commissioner v. Laxmi Narayan[v], wherein it was held that “it is true under Mitakshara law, no female can be coparcener, presumably because she does not possess the right by survivorship, but we do think that either this right or the status of a coparcener is a sine qua non of competency to become the manager of a joint Hindu family of which she is admittedly a member. She was considered as Karta of a family in which she has a personal interest.”
Thereafter, there was a case of Commissioner of Income Tax v. Govindram Sugar Mills[vi] in which the Karta died and since the sons were not on good terms with each other and kept on fighting with each other, thus the mother asked to be made the Karta. The court held in the case that it is not the gender of the person that matters in case of Karta but the co-partnership. Only a Coparcener can become Karta of the Hindu undivided family except some situations e: g, where the son is a minor and, cannot make a decision then the mother can take decisions on his behalf till the son attains majority since the mother cannot be coparcener therefore, she cannot be Karta.
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Amendments In the Hindu Succession Act
The Amendment, Hindu Succession Amendment Act, 2005 is one of the most remarkable and essential amendments which has been brought in when it comes to eradicating gender-biasness and discrimination which have been too prevalent in the Indian society. The Amendment took place to uplift the status of women among the people of India. To eradicate the struggle and suffering of women, this change was needed.
The Hindu Succession Amendment Act, 2005 was enacted by following the points in the 174th report of the 15th Law Commission. From this amendment onwards, the daughters were conferred with the property rights of the Hindu Joint Family. Major changes or amendments can be pointed out in three points:
- “Abolition of Survivorship”
- “Abolition of Pious Obligation of the son”
- “Equal rights of daughters and sons.”
“The impediment which prevented a female member of HUF from becoming its Karta was that of want of qualification of co-partnership. This was resolved by the case of Mrs. Sujata Sharma v. Manu Gupta & Ors[vii].”Section 6 of the Amendment Act is socially a beneficial legislation that has given equal rights of inheritance to both Hindu males and females. In view thereof, if the male member of a HUF, by virtue of being the eldest born member of the family can become a Karta, the same shall be applicable to the eldest born female member of the family too. It was further clarified that the marital status of the Plaintiff does not alter her right to inherit coparcenary to which she has succeeded after the demise of her father.”
Section 6(1)1 of the Amended Act, briefly states, daughter of a Joint Hindu Family of Mitakshara law becomes a coparcener (I) by birth, like a son; (ii) same rights in the property (coparcener) as that of a son; (iii) same liability in the coparcener property as that of a son; and (iv) any reference made to a Hindu coparcener, daughter is also included.
A daughter, a mother, predeceased son’s daughter, widow, predeceased son’s widow and daughter’s daughter, all are entitled to their shares in the Joint Hindu Family. A wife and a widowed mother cannot demand a partition but if the partition happens, they have an equal share as that of their children.[viii]
After the amendment, it was held in the case of Shreya Vidyarthi v. Ashok Vidyarthi & Ors.2, that a daughter, then being a coparcener as that a son is, can be a Karta too with all the equal rights and powers that a son enjoys.
Powers And Responsibilities Of Female As Karta
With the changes in legislation, a woman now has the same powers as Karta as the male. In this chapter, the authors are going to discuss the various powers and responsibilities that a female as Karta has.
Powers
- Revenue and Expenditure Authority
Karta has quite an extensive control over the income and expenses of a family. As her position is not like the trustee or agent, she is not obliged to save as a trustee or agent provided, she spends the family income for the benefit of the members of the family.
- Power to manage a joint family business
- Power to contract the debt for family purposes
Such debt contracts could personally bind the adult co-partitioners also if they were parties to the contract expressly or implicitly or they subsequently ratify the contract and in the case of minors if they ratify by obtaining a majority.[ix]
- Power to enter into a contract
- Power to refer to Arbitration
- Power to enter into a compromise
“Karta may enter into a compromise on any issue relating to joint homesteads. However, he does not have the power to surrender a debt due to the common family and to abandon an object of value without any return or consideration, although he has the right to settle the accounts with the debtors and to reduce reasonably either interest or principal in the interest of the family.[x]”
- Power to give discharge
- Power to pay debts
“The Karta has the power to recognize a debt or make a partial payment, in order to extend the limitation period. But she cannot execute a new promissory note or bond in order to revive a time debt.”
- Power to represent in costume
“The Karta can represent the common family in the case of a complaint by or against the family so that the other members are not the necessary parties to the same thing. The Karta itself issued or it can bring an action with respect to any property or other issues of the common family.”
In the case of Fathiunnisa Begum v. Tamirasa Raja Gopala Charyulu, the Court noted that “a Hindu widow inheriting from her husband under the Indian Women’s Rights Act of 1937 does not per se disturb the common family status.”
Even after the inheritance, she is still a member of the common family and the Karta can represent her in all the lawsuits.
- Power of Alienation
The Karta may alienate to the value of the common family property in order to bind the interests of the other coparceners provided that it is done:
- With the consent of all co-partitioners
- Legal reasons
- For benefit of the state
Responsibilities
- Maintenance
Karta, whether it be male or female has the responsibility to ensure that all coparceners of the family get maintenance. If he/she unjustly excludes a member from maintenance or if he does not properly maintain a member, he can be sued for both, maintenance and maintenance stops.
- Marriage
As stated in the case of Chandra Kishore Family v. Nanak Chand[xi], the Karta of the family is to be responsible for the marriage of the members(unmarried) of the family, especially the marriage of the daughters as it qualifies as a sacrosanct duty in the Hindu Law. Other than that, it also held that “Marriage spending is removed from joint family ownership. If the expenses are externally incurred, they must be reimbursed by the joint funds.”
- Division of Ownership
In case of a partition the division of ownership is done by the Karta and all the previous transactions with respect to the property are also his responsibility.
“Karta in Mitakshara law is required to disclose the accounts only if there are allegations of embezzlement, fraud or conversion of property or property of the family in common against him. In the absence of evidence of embezzlement, fraud or conversion against Karta, the coparcener who pursues the partition cannot request the disclosure of past relations of Karta with the joint property and property of the family.[xii]”
- Representation
Karta’s role also included being the representative of the family to the outside world and the government. So, as a representative, he must pay taxes and fees and can also be sued on behalf of the family.
Empirical Reality
It is rightly said that sometimes a law is written results to be just a piece of paper when it is not implemented in the right way as it is given. Although the Hindu Succession Amendment Act, 2005 brought in some major changes in the Indian Society yet it rarely affected the way the society still thinks. The daughters are still unable to go for their rights as a coparcener after they are married as society believes, “Good women do not inherit property.” This also prevalent because if a daughter is given right in the property then this eventually would reduce the shares of the sons or her brothers. This is what is not acceptable by a majority of the Indian people or men.
Following the old convention till today, makes it really difficult for women to fight for their rights and inherit their part of coparcener property. One of the major things which the authors consider is that the problem is with the upbringing of the majority of the Indian daughters in a Hindu household. They are since their childhood are taunted for behaving well, doing their courses whether it is household or anything else properly else in future their husband and his family would not accept them the way they are. The minds of the major Indian household’s daughters are moulded the way conventionally it has always been.
The daughters being taught this way that they are unable to put forth their points in favour and are unable to fight for their rights. Some people consider dowry, given during marriage, as the share of the daughter in her parental property. It is so, even when the dowry given in cash or kind are given to her in-laws and not to her own daughter.3 The societal norms say that a daughter has no right in the property of her parents after their death if the dowry has been provided to them unless her parents have provided her with one in their will.
Many surveys and interviews have come up with multiple views of women on inheriting property. They say that they want to own land but not to inherit them. This is so they believe in their relationships and inheriting land would in all capacities strain their relationships in their families and would be looked down upon by so-called Indian society. This is what an Indian woman thinks when it comes to inheriting her own parents’ property. Many also say that their brother does agree with their idea of having a share in their parent’s property.
Another issue is of the awareness, more than 60% of women do not know about their right of inheriting their parent’s property as a coparcener. The daughters are unaware of their status of becoming a coparcener from a sharer. Majority of them never attended schools and hence, had more reasons for being ignorant to the amended laws of the land. The need for awareness amongst all the women and Indian society is the need of the hour. Additionally, women are considered as second-sex and second class in Indian society. Women are unable to fight for their rights as they are looked down upon by the society unless there are “socio-economic and cultural strategies” made use of, for their empowerment.4
In the states like Haryana & Rajasthan, daughters are forced to sign release/relinquishment deeds so that they do not ask for partition, later on, relinquishing their rights to other male members of their families. Many villages and communities under Below Poverty line do not recognize women or daughters as coparceners. Therefore, because of their stringency in following a norm or convention, a woman struggles and suffers in her entire life.
Nevertheless, if we consider that portion or percentage of the people of India who are aware of such laws and who claim for their rights, many do not get equal or her rightful share in her ancestral property. Moreover, there has been a study which states that daughters are getting their share only in certain circumstances and not as a matter of right. These conditions include, for example, when there are no sons or all the sons are dead, the daughter(s) getting their part of share.
Conclusion
From the above chapters, it is quite clear that even though cases like Sujata Sharma v. Manu Gupta, when read with the amendment lay the path for a progressive interpretation of the laws when it comes to Female as Karta, the reality still has to catch up to it. Indeed, it has brought forward the values of equality in society and cases where the women of the family were not given equal treatment are now given their right and their fair share which showcases the importance of the ruling. The HC ruling is also very important because it takes the 2005 reform in the Act to its logical conclusion. While the amendment restricted itself to providing women equal inheritance rights, the verdict now allows them to manage property and rituals of a joint family. There is no reason why women should be denied the position of a Karta. The judgment is a major step towards women empowerment in the society, setting a new milestone for women’s rights and would have far-reaching ramifications.
But this should also match the empirical reality and solve the problems that women are facing at a very basic level. In many cases, we see that justice is denied because of a lack of knowledge about one’s rights and awareness of the law. Therefore, it is the author’s hope that this law and amendment will result in greater convenience for women and help them in knowing their rights.
References:
[i] AIR 1976 SC 1953.
[ii] “Female as Karta of a Hindu Undivided Family” Legally India – News for Lawyers, June 23, 2016.
[iii] [1948] 16 ITR 313 (Nag.).
[iv] AIR 1947 Nag 178
[v] [1949] AIR Nag 128.
[vi] AIR 1966 SC 24.
[vii] CS(OS) 2011/2006.
[viii] Dr. Neeta Beril, “Delhi High Court’s Judgement opened the doors for women to be karta” 3 International Journal of Law and Legal Jurisprudence Studies 2 (2016).
[ix] Diva Rai, “Power and Position of a Karta under Hindu Law”, i-pleaders, 07 February 2020, available at< https://blog.ipleaders.in/power-and-position-of-a-karta-under-hindu-law/#:~:text=Section%206%20of%20the%20Hindu,but%20he%20is%20a%20minor. > (last visited on 31 November 2020).
[x] Akash Mishra, “Karta and his Powers: An Overview” Academike, 05 February 2015, available at < https://www.lawctopus.com/academike/karta-powers-overview/ > (last visited on 01 February 2021).
[xi] AIR 1975 Delhi 175.
[xii] AIR 1974 Pat 68.
BY ISHITA SHAILESH & ARNAV MOHAPATRA | NATIONAL LAW UNIVERSITY, ODISHA