This article is written by Khyati Basant, from Symbiosis Law School, Noida. This article contains a brief description of the power of Karta in a joint Hindu Family Property.

Introduction

The Hindu Joint Family is the ordinary state of the Hindu society. A Hindu Joint Family comprises all the individuals from a typical male progenitor together with their moms, spouses or widows and unmarried girls. Joint family is an establishment where various individuals from the family live respectively, having various rights over the property and playing out their privileges and commitments towards one another. A joint family ought to be going by an individual from inside the family who is part to tie all the relatives together and able to speak to it in the law concerning all the issues. His choices regarding the family and property can be considered to be for the wellbeing of the family.

The head of the family or the Karta is a person who regulates the proper functioning of a joint family. Unlike other family members, he enjoys a special position. The Hindu Joint Families’ senior male member is normally the family’s head or Karta. Karta’s status is sui generis (unique). It is a specific position and the relationship between him and other members of the family is not like any other relationship. He is the custodian of his family’s interests and his acts are guided by the presumption that the general family relations are promoted.

A Hindu coparcenary is a much smaller body than the joint family. It incorporates just those people who procure by birth an enthusiasm for the joint or coparcenary property. The embodiment of coparcenary under Mitakshara law is the solidarity of proprietorship. The intrigue is of fluctuating nature, equipped for being broadened by passings in family and subject to be decreased by births in the family. It is just on the parcel that he gets qualified for a clear offer. Joint family property is the making of Hindu Law, and the individuals who own it are called coparceners.

Power of Karta to alienate joint Hindu family property

• Alienation involves wealth transfer, such as donations, purchases, and mortgages. Alienations are of added value in Hindu law, because usually neither the Karta nor any other co-parent has complete alienation control over the common family property or his interest in the common family property, while a co-parent has the right of alienation under the Dayabhaga School over his interest in the common family property. 
• The separation of a Hindu from independent lands, if controlled by the Mitakshara School or either of its sub-schools of the Dayabhaga School, has complete and total control over it. 
• Property may be alienated in two ways: Voluntary alienation and Involuntary alienation. It is voluntary alienation when the property owner voluntarily transfers it. It can be accomplished in three ways: (i) by sale, mortgage, lease or swap, (ii) by donation, and (iii) by will, for consideration. Involuntary alienation occurs when a person’s property is attached by the Court. This style can also alienate the property of a coparcener’s joint family or undivided interest in such property.
• For legal necessity and benefit to the estate, Karta was allowed to alienate the traditional family property. Where the other coparceners are minors, he may alienate joint immovable property to attach not only his interest but also that of the other minor coparceners, given the common family’s needs warrant the same.
• Therefore, the alienee must prove one of the following two things: 

1. The transaction was justified by the legal necessity for the benefit of the estate; and 
2. He made fair or bona fide inquiries as to the nature of need and convinced himself that the manager was acting to the benefit of the estate.

• Vijnaneshwara recognized three extraordinary cases in which the Karta may render alienation of the joint family property: legal necessity (including Vijnaneshwara’s Apatkale as well as a part of Kutumbarthe, i.e. for the sake of the family members), Benefit of the property (including the other part of Kutumbarthe, i.e. for the sake of family property), Acts of essential duty (this income incumbent). With the consent of all adult co-partners in existence at the time of such alienation, the Karta may alienate the joint family property, regardless of the legal requirement or value of the estate. 
• There is a variation in the law existing in various states as to the situation in which the separation is consented to only by some and not by all of the co-parents. According to the law in Bombay and Madras, the shares of the consenting coparceners would be bound. In West Bengal and Uttar Pradesh, a coparcener can not alienate even his interests without the consent of all other coparceners, and hence such alienation would not even bind the shares of the consenting members without the consent of all coparceners.
• In the case of Hunooman Persaud, it is decided that if Karta rendered the alienation for a legal need, it is again for the aliene to show whether he has taken appropriate care to figure out whether the transaction was required or not, but until it has been proven that he has taken proper care of it, the real existence or absence of that need is insignificant. The power should only be properly exerted in case of emergency, or for the good of the family. Although, if the charge is one that a wise owner may create in a specific case, to support the estate the bona fide lender is not influenced by the property’s prior mismanagement. In the individual circumstances, the real burden on the estate, the danger to be averted or the profit to be bestowed upon it is the thing to be addressed.
• In Sunil Kumar vs. Ram Prakash, the Hon’ble Supreme Court held that a co-parent has no right to seek a permanent injunction against the Karta to prevent him from alienating joint family property as he has the right to appeal the same.

Requisite conditions

Legal necessity

The word “legal necessity” must be read in a more general connotation. It is to be understood in due consideration of the circumstances of modern life. If it is shown that the needs of the family were for the thing or that article, and if the property was alienated to satisfy that need, it would be enough. It is now well-established that the word “legal requirement” should not be interpreted in the context of what is completely indispensable, but what would be regarded as proper and fair according to the notions of a Hindu family.

Broadly speaking, all those things that are deemed necessary for family members will include legal necessity. Under Vijnaneshwara, the term ‘Apatkale’ may indicate that joint family property can only be alienated in times of distress such as famine, epidemic, etc., and otherwise. But it has been recognized under modern law that necessity may extend beyond this. It applies to a situation in which the family as a whole or one of its members is facing an emergency concerning their property. 

In Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu, the Court held that need should not be understood in the sense of what is completely indispensable but what would be regarded as necessary and rational according to the notions of the common Hindu family. Legal necessity, therefore, does not mean actual compulsion, it means pressure on the property that can be considered serious and sufficient in law.

The following have been held to be legal necessities:

(i) Payment of Government revenue and debts payable out of the family property;

(ii) Maintenance of coparceners and their family members;

(iii) Marriage expenses of coparceners and daughters of the coparceners;

(iv) Performance of Shraddha, funeral and other religious ceremonies of the members of the joint family;

(v) Expenses of necessary litigation;

(vi) Costs of defending the head of the family or any other member of the joint family against serious criminal charge;

(vii) Payment of debts incurred for the family business;

(viii) Expenses for augmenting the means of livelihood of the members of the family;

(ix) Cost of building a residential house for the family and expenses for repairing the family house;

(x) Sale of family property with the object of conveniently adjusting the shares of the rest of the family;

(xi) Sale of family property for migrating to different places for better living.

Benefit to estate

In the absence of a legal necessity, where the deprivation of the common property is in the interest of the family’s assets, it is justified. The Privy Council had put forth a detailed explanation of the causes of land gain in Palaniappa vs. Devsikmony. In this case, the Privy Council noted that the term ‘benefit of the estate’ as used in the decisions relating to circumstances requiring an alienation can not be precisely specified. It stipulated, however, that “the preservation” of the estate from destruction, the defence against the hostile litigation that affects it, the protection of it or its portion from damage or flood degradation will be the advantages. The legal necessity in the broadest sense requires ‘benefit to the estate’.

To be viewed as a gain to the family, the transaction does not need to have a protective character to be binding on the family. In such a case, the Court must be satisfied with the information before it that, at the time it was entered into, it was, in fact, such as granted or was reasonably intended to give the family benefit. Where there are adult members in a joint family, it is mandated that both the Karta and the adult members make important decisions relating to the benefit of the estate.

‘Estate’ implies landed property. Since the term here is used in connection with shared family property, ‘estate’ would mean shared family landed property. The word ‘benefit of the estate’ to begin with protected cases of a strictly defensive nature, such as protecting it from threatened danger or destruction, but eventually also included alienations that an ordinary sensible man might find suitable for the collection of circumstances in consideration.

In the case of Balmukund vs. Kamlawati & Ors, the Supreme Court later made its conclusion as to what constitutes a benefit that it does not need to be defensive for the transaction to be considered as for the good of the family. Instead, the Court must be pleased in any case with the evidence before it, whether it was in turn given or was intended to grant benefit on the estate.

The examples presented below will indicate the cases in which the Courts held the alienation to be for the good of the estate: In Hari Singh vs. Umrao Singh, the Court held that where land that yielded no income was sold and land that yielded income was bought, the sale was held to be for the benefit. In Gollamudi vs. Indian Overseas Bank, it was considered to be for-profit when an alienation was made to carry out renovations in the hotel which was a family business.

Indispensable duties

The third field in which the Karta’s power to alienate traditional family property lies is where it is invaluable. The word “indispensable duties,” means the execution of moral, holy, or charitable acts. Refers to annual shraddhas, upanayana ritual, the marriage of family-born co-parent and girls and all other religious ceremonies. Apart from these invaluable rituals, donations under acceptable limits may be made for religious reasons, for example, for a family deity or a deity in a public temple, a specific portion of the property may be alienated to.

In the case of Gangi Reddy vs. Tammi Reddi, the Court held that the donation of a portion of a religious charity’s family intent can be legitimate by the Karta without the approval of all the coparceners if the allocated property is limited compared with the family’s overall assets.

Conclusion

The idea of Karta in a Joint Hindu Family isn’t only a place of intensity but it also serves a very important role. With the Karta being the leader of the Joint Hindu Family, the family gets a legitimate structure and appropriate capacities. The Karta goes about as concentrating power. As he is the leader of the family, he has legitimate understanding and information to make suitable choices that are appropriate for the family. Centralization is the way to great administration and is given by the Karta. Despite the considerable number of forces the Karta has, a ton of checks has been additionally forced on the Karta to forestall any abuse of power. This guarantees that the Karta works for the government assistance of the Joint Hindu Family. The Karta have multitudinous rights and powers. He can practice these rights in any way he thinks fit as long as all things are considered for the more noteworthy benefit of the family. Alongside such extraordinary forces, he has various liabilities, for example, upkeep of the relatives and keeping legitimate accounts.

The idea of alienation has progressed on a long journey, and the Courts have also played a very important role in their growth, but the weaknesses still exist in the present situation, and they still need to overcome the weaknesses, and to make laws that are beneficial by taking into account the interests of all concerned members.

The alienee’s duty of showing whether he had taken adequate precautions to determine that there was a genuine need should be lifted, then in cases of illegitimate alienation, the transferor would be needed to show that there was a specific situation that warranted urgent redress. It would be so because the alienee as an outsider is not in a reasonable position to determine it, so much a duty placed on such deals would make borrowers unable to invest with shared property, which in effect would negatively impact the interests of joint family members.

Reference 

• https://blog.ipleaders.in/grounds-karta-can-alienate-property-hindu-law/
• https://www.lawctopus.com/academike/alienation-of-property/#:~:text=KARTA’S%20POWER%20OF%20ALIENATION,alienate%20the%20joint%20family%20property.
• http://www.legalservicesindia.com/article/1497/Karta-of-a-Family-/-Hindu-Law.html
• http://www.manupatra.com/roundup/341/Articles/Karta%20and%20his%20Legal%20Position.pdf
• https://www.shareyouressays.com/knowledge/what-are-the-powers-of-a-karta-regarding-alienation-of-joint-family-property/117736

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: