- Anmol Jain and Aditya Saraswat*
Since the ancient Indian civilization, Hindus have lived in a joint family system, wherein a unique position of the Karta has been instituted to manage the family and its joint property and business. The ancient texts, as interpreted by learned scholars, provide that the ‘senior-most’ male member of the family shall act as the Karta (this right has presently been extended to females as well, through a legislative enactment). A study of the Indian jurisprudence on this subject reveals that the phrase ‘senior-most’ means the eldest member of the family and thus, age is the sole determinative factor. This paper is an endeavour to refute this presumption and suggest that it can lead to absurd situations in the family and thus, calls for a reconsideration. We have argued that this presumption in law should be replaced by the determination of Kartaship as a question of fact.
Introduction
The joint Hindu family comprises all the male members who descend lineally from a common male ancestor, along with their ancestress, wives or widows and unmarried daughters. It lays down the basis of a classical Hindu family structure. The ‘coparceners’ are placed at the helm of affairs of a joint family and have legal interest in coparcenary property. The coparceners comprise members introduced in the family by birth or adoption.[1] Amongst the members of the coparcenary, a sui generis position of the Karta, loosely termed as manager, is instituted. The Karta possesses the sole power to represent the joint Hindu family legally, socially and religiously, portraying the extensive powers that he has to deal with family property and decide upon family affairs.
More interestingly, the Karta performs his actions without any accountability except in certain exceptional situations. For instance, the Karta is generally not obliged to disclose the accounts of the family/business assets and liabilities unless the coparceners demand a partition, there is an allegation of misuse or fraudulent conversion of the joint family property, or where the nature of business legally mandates the Karta to keep accounts open to all the members. The only way to resolve an internal dispute among the members is to demand partition, which is also restricted to the coparceners. Though these powers have now been diluted by the Hindu Succession Act, 1956 and the constitutional principles,[2] the position of Karta is still relevant and has scope for reformative reflections.
Despite a long history of Hindu law, there is no reasoning which underlies the criteria for the determination of a coparcener as the Karta of a joint Hindu family. According to the classical understanding, the father, and in his absence the senior-most male member of the family, is presumed to be the Karta, despite any opposition from the other family members.[3] Nevertheless, pragmatism is ensured by allowing some space for certain exceptions like the absence of the Karta in exceptional circumstances, relinquishment of the right by the Karta, etc.[4] The learned scholar Paras Diwan has best summarised this position in the iconic phrase: ‘the senior most male member is Karta by virtue of the fact that he is senior-most male member’.[5] Therefore, the qualification for being a Karta is merely the seniority of the individual. It is not backed by any other reasoning such as the mental and physical capability of such a senior member.[6] The Patna High Court opined that ‘the post of Kartaship is neither selective nor elective. The right is attached with the senior-most member of the undivided family.’[7]
In light of this background, it is pertinent to inquire into the meaning of the phrase ‘senior-most’. One must look into whether the concept of the Karta pertains to the age of the member, his/her experience owing to the time spent in the family or the fact that he/she belongs to a superior generation vis-à-vis other members of the family.
A survey of decisions rendered by the Supreme Court and various High Courts would lead one to conclude that the phrase ‘senior-most’ is concerned only with the age of the member of the joint Hindu family. By implication thereof, the eldest member of the family, be it a male or a female (only married/unmarried daughters), can act as the Karta of the family. For instance, in Ramesh Chandra Agarwal and Ors. v District Judge, Hardoi and Ors.,[8] the Allahabad High Court noted that after the death of the father, it is the ‘elder brother’ who shall act as the Karta in normal course. Similar rulings were also made by the Supreme Court in Nopany Investments (P) Ltd. v Santokh Singh[9] and by the Delhi High Court, though with respect to the eldest female member.[10] Such focus on the criterion of age can also be ascertained from family practices, as indicated in the factual scenarios discussed by the courts in family, property or tax matters, wherein the families had chosen the eldest member of the family to act as the Karta.[11] Therefore, it can be safely concluded that the phrase ‘senior-most’ member means the ‘eldest’ member of the joint Hindu family and thus, age is the determinative criterion for the post of Karta. Interestingly, courts have also followed this rule without citing any reason for the same. Against this conclusion, we submit that ‘age’ should not be the criterion for determining the Karta of a joint Hindu family as it fails to apply in all cases and might lead to problematic consequences as it is based on shallow reasoning.
In the following part of this paper, we shall highlight the loopholes within the present system and suggest certain reforms in the selection of a member as the Karta in order to make this institution more efficient in its functioning. We shall argue that instead of relying on the sole criterion of age, one must look at the entirety of facts regarding the manner in which a family is being managed to determine the righteous holder of Kartaship. In other words, the presumption of Kartaship based on age must be done away with.
Reforming the Concept of ‘Karta’
Consider a family constituted of a male Karta, two widows, and a minor son aged two years born to the first widow. After the death of the Karta, the minor son shall become the Karta of the family, acting though his guardian.[12] In this scenario, if the second widow adopts a child older than the naturally born son of the first widow, such older child will not be qualified to act as the Karta of the family as the first child was already made the Karta. Therefore, the rule that age is the absolute determinative factor does not hold true in all circumstances.
Apart from this situation where age fails to be the determinative factor, there can be two other scenarios wherein having age as the determinative factor can lead to problematic consequences and family distress. First, consider a similar family which comprises a male Karta, two widows and a minor son belonging to the first widow. In light of the Karta suffering from a chronic disease with limited chances of survival, the childless widow adopts an older child, with an intention to confer Kartaship on such adopted child. Such blind reliance on age as the determinative criterion might lead to situations where an incompetent member or a member with mala fide intentions can be appointed as the Karta, which, in most circumstances, may lead to court proceedings.
Second, consider another family set-up wherein there is a Karta and a certain number of coparceners, with an older coparcener (by age) in the younger generations of the family and a younger coparcener (by age) in the oldest generation. These situations can arise when the oldest generation has coparceners with a high age difference and the first-born of that generation gives birth to a child early in his life. In this situation, if one were to follow age as the determinative criterion, then the elder member in the younger generation shall be the next Karta and not the member in the older generation. These scenarios may lead to a couple of issues: first, the members of the older generation are generally more involved in family and property matters and thus, possess greater knowledge about managing the same. Second, there may be ego clashes between such Karta and the member in the older generation because the latter might not accede to the instructions of the Karta, who is actually junior to him in family-relations.
These scenarios compel us to argue that assigning age as the sole determinative criterion to decide the Karta might lead to absurd situations and thus, the criterion requires reconsideration. This also furthers our claim that the existing ‘age’ criterion is flawed in nature due to the lack of any underlying reasoning.
Before laying down a different criterion for the determination of Karta, let us first understand what the position of Karta demands from its holder. As pointed out in the introduction to this paper, the Karta is vested with the most important responsibilities and has the power to manage the family, business and property affairs of a joint Hindu family. Therefore, the post demands skill and prudence in functioning; otherwise, the family might suffer from instability and losses. In Baijnath Prasad and Ors. v Binda Prasad Singh and Ors.,[13] while expounding on the limitations on the power of the Karta, the Patna High Court indicated the broad parameters that the Karta might want to bear in mind while performing his/her actions. It was noted by the Court that the exercise of the wide powers of the Karta must be in furtherance of the family’s benefit and therefore, ‘the only reasonable limitation which can be imposed on the Karta is that he must act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct’.
Therefore, the Karta has been vested with absolute powers while performing actions that further the benefit of the family. These powers are limited only by prudence and non-arbitrary conduct. Drawing from Bajinath Prasad, we argue that age must not be the sole determinative criterion for the selection of the Karta and other factors must also be considered. We propose that a person who possesses sufficient prudence, skill and experience in handling family affairs, managing the business and the coparcenary property must be selected to act as the Karta of the joint Hindu family. Such a Karta can perform his functions for the benefit of the family in a more efficient and effective manner. The presumption in law that confers Kartaship on the eldest member of the family must be replaced with determination of Kartaship as a question of fact. Firstly, this will allow families to excel towards betterment under the guidance of an efficient manager. Secondly, litigating parties would be prevented from raising a hyper-technical objection against the validity of contracts or sale deeds signed by a junior member, while performing the functions of an actual manager of the family business/property. If the presumption of age were to play its role, the courts would be obligated to deem such contracts as invalid for wrongful impersonation.[14]
This conclusion is also supported by certain judicial decisions, which used a pragmatic approach rather than a technical approach. The Patna High Court, in Basruddin Khan and Anr. v Gurudarshan Das and Ors.,[15] while dealing with a matter regarding specific performance of a contract signed by a junior member in the capacity of the Karta, held:
[T]he senior most member is to function as the Karta of a joint Hindu family, but this is not the universal rule. Even in this family, there are many senior members who are uncles of these two defendants, but it is not said that anyone of them ever worked as the Karta of the family. So, the Kartaship does not necessarily go with the seniority of a member in the family. Both these defendants are evidently educated persons. As defendant no. 2 Birendra Bahadur Singh has stated, he practiced as a lawyer at Banaras and Deoria …
The court, instead of focussing on the age of the family members, laid greater emphasis on facts regarding the actual person who was more involved in the family matters. This led the court to conclude that the defendants shall not be disqualified from acting as the Karta merely because they junior members, when the senior members have clearly stayed out of family matters.
Similarly, the Orissa High Court dealt with an argument regarding the presumption of Kartaship attached to the eldest member of the family in the following manner:
Mr. Das contends that plaintiff 1, the elder brother must be presumed in law to be the manager of the family on attainment of majority. I am unable to accept such a contention. There can be no presumption that the elder brother is the manager of the family on attainment of majority. Whether a person is the Karta of the family or not is a pure question of fact. Cases are in abundance to indicate that even the eldest member of the family is not the manager of the family.[16]
An argument can be made that these High Court cases are per incuriam as they are contrary to the Supreme Court judgments, which specifically hold that until an elder member is alive, no junior member can act as the Karta, unless the matter falls under one of the exceptions. However, the arguments made in this paper clearly show that the Supreme Court’s position on the issue can give way to impractical and absurd situations, and that these High Court decisions are in fact sound in their reasoning.
Concluding Remarks
An exhaustive analysis of decisions allowed us to conclude that the phrase ‘senior-most’ concerns itself with age. All the existing treatises and cases on this subject provide no certainty regarding the reason for ‘age’ being the sole determinative criterion for a post that envisages utmost power and responsibility in family affairs. In this light, we proposed that Hindu family law must give way to reformation. The presumption of Kartaship, which is currently based on age, must rather be determined as a ‘question of fact’ for logical as well as legal appropriateness.
*Anmol Jain is a penultimate year law student at National Law University, Jodhpur (India). He is presently working as a Research Assistant to Prof. MP Ram Mohan, IIM Ahmedabad.
Aditya Saraswat is a penultimate year law student at National Law University, Jodhpur (India).
[1] Prior to the enactment of Hindu Succession (Amendment) Act, 2005, only male members, born or adopted, in the family were part of the coparcenary.
[2] For instance, under classical law, the Karta had the absolute power to choose the husband for his daughter. However, under the Constitution of India, every individual is vested with the right of self-determination and thus, reserves the power to choose his/her life partner: See, Shakti Vahini v Union of India (2018) 7 SCC 192; Shafin Jahan v Asokan KM AIR 2018 SC 1933.
[3] Tribhovan Das Haribhai v Gujarat Revenue Tribunal and Ors, AIR 1991 SC 1538, cited in Mrs Sujata Sharma v Shri Manu Gupta (2016) 226 DLT 647; A Kunjipokkarukutty v A Ravunni AIR 1973 Ker 192; Poonam Pradhan Saxena, Family Law II (LexisNexis 2011) 143; Mulla, Hindu Law (22nd edn, LexisNexis 2016) 364; Vijendra Kumar and Ranganatha Misra, Mayne’s Treatise on Hindu Law & Usage (15th edn, Bharat Law House 2003) 719.
[4] Tribhovan Das Haribhai v Gujarat Revenue Tribunal and Ors AIR 1981 SC 1538.
[5] Paras Diwan, Modern Hindu Law (14th edn, Allahabad Law Agency 2001) 258.
[6] Poonam Pradhan Saxena, Family Law II (LexisNexis 2011) 143-144; Man v Gaini (1918) 40 All 77, cited in Paras Diwan, Modern Hindu Law (14th edn, Allahabad Law Agency 2001) 258.
[7] Shyam Kishore Prasad and Ors v Shiv Mahto and Ors First Appeal No. 148 of 1977.
[8] Ramesh Chandra Agarwal and Ors v District Judge, Hardoi and Ors 1999 (37) ALR 706.
[9] Nopany Investments (P) Ltd v Santokh Singh (2008) 2 SCC 728.
[10] Mrs Sujata Sharma v Shri Manu Gupta (2016) 226 DLT 647.
[11] L Gowramma v Sunanda and Ors Civil Appeal Nos. 174-175 of 2016 (Supreme Court of India); Dwarkaprasad v Niranjan and Ors (2003) 4 SCC 549; Anant Kibe and Ors v Purushottam Rao and Ors (1984) Supp (1) SCC 175; Benoy Krishna Tiwary and Ors v State of West Bengal and Ors AIR 1987 Cal 190; Vilas Vasantrai Shastri v Vasantrai Vishnu Shastri and Ors AIR 1976 Guj 17; Her Highness Maharani Sarojini Devi v The Save the Children Fund, ILR 1973 (2) HP 1244; Khoku Mandal and Ors v Lulu Mandalani and Ors MANU/JH/1061/2017; Kowkuntla Rejendra Setty v Kowkuntla Vijay Kumar MFA No. 101760/2014 (CPC); ICICI Bank Ltd v Trishla Apparels Pvt. Ltd 2015 (2) LW 835; Mool Chand v Sagar Mal 2004 (3) WLC 688.
[12] Budhi Jena v Dhobai Naik, AIR 1958 Ori 7; Jaggernath Singh v Narayan AIR 1965 AP 300.
[13] Baijnath Prasad and Ors v Binda Prasad Singh and Ors AIR 1939 Pat 97.
[14] See, Tribhovan Das Haribhai Tamboli v Gujarat Revenue Tribunal and Ors (1991) 3 SCC 442.
[15] Basruddin Khan and Anr v Gurudarshan Das and Ors AIR 1970 Pat 304.
[16] Nidhi Padhan v Bhainra Khadia and Ors AIR 1963 Ori 133.