MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B.(Hons.) Year-II, Semester-IV: Academic Year : 2020-2021

First Open Book Assessment, March-2021

Course Code and Name: 4.3 Family Law - II

Name of Student: Akanksha Bohra UID: UG19-08

Answer 2.
In ancient Indian, the family as headed by the senior most male member due to the patriarchal
setup prevailing in the society. He was considered the undisputed head of the family who
represented the family in all matters and his decisions were absolute and binding. The term
used for such person in Hindu Joint Family is “Karta”.( Suraj Bunsi Koer v. Sheo Persad,
(1880) ILR 5 Cal 148.) Karta is the eldest male member of the family e.g. Father, uncle, eldest
brother. His position in the family is sui generis i.e. of his own kind or peculiar to himself. He
is the head of the family and acts on behalf of the other members. This pivotal position of
Karta is conferred upon the male member by birth and is not appointed by anyone. As long as
the person is alive, may be aged or infirm, he will continue to be the Karta.
WHO CAN BE A KARTA ?
Considering the patriarchal nature of Indian society, usually the eldest male member of the
Hindu Joint Family is Karta. This position is decided according to the seniority. However, in
certain situations the position of Karta is occupied other member when the senior most
member is not available, relinquishes his right as Karta, is in remote place or cannot return
with reasonable time period and lastly nowhere abouts of Karta (Nopani Investment Ltd v.
Santok Singh 2005). Even a minor can act as a Karta through his legal guardian. With the
Hindu Succession Amendment Act dated 9th September 2005, a step was taken towards
ensuring gender equality and thus female members have been conferred with the right of co-
parcener by birth and thus due to the changed position of daughters as coparceners they may
occupy the position of Karta in certain exceptional situations.
HINDU FEMALE AS A KARTA IN CONTEMPORARY SOCIETY
The position of the Karta in Hindu joint family is regulated by birth and is guided by
seniority.. In order to be a Karta, there exist three essentials i.e. Permanent Member,
must be a Co-parcener, Senior most member. In ancient times, women were not conferred
with the right of co-parcener in the joint property and she was not considered a permanent

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 member of the Hindu joint family as she ceased to be a member of the birth family on her
marriage. Thus, the interests of female members were supressed and ignored in ancient times
and this was clearly reflected in the property rights given to them. They were conferred with
restricted rights when it came to succession or claiming property i.e. their shares were lower
than their male counterparts. In the ancient patriarchal scenario, the society provided women
with property known as stridhan which came from marriage gifts but were denied property
rights to the ancestral or marital property. Thus, the female child was neither considered a
permanent member nor a co-parcener in her birth family.
The provision of Section 6 Hindu Succession Act was reiterated by the Hindu Succession
Amendment Act,2005 which eliminated this segregation by giving equivalent right to
daughters under the Mitakshara coparcenary property. However, with the inclusion of female
member as co-parcener, the amendment remained silent on the fact that whether the female
member be entitled to become Karta of Hindu Undivided Family. It is concluded that even if
she receives the coparcenary rights she does not possess the permanent status in the birth
family.(Doctrine of dual membership).This situation of female being entitled to become Karta
has been discussed and debated in various Supreme court and High court judgements but a
specific legislature removing the vagueness related to this fact has not been formed.
CASE LAWS DISCUSSING FEMALE AS KARTA
1. COMMISSIONER OF INCOME-TAX, C. P. & BERAR V. SETH LAXMI NARAYAN
RAGHUNATHDAS, 1948 16 ITR 313 NAG.
The issue before the court was regarding the competency or incompetency of the mother to
act as a Karta of the family. It was accepted by the court that in archaic views woman were
excluded from interfering in the matters of property and had no freedom. But with the Hindu
society progressing in the modern times, the statement that woman is inherently incompetent
to be the manager of a joint family is obsolete and antediluvian. It has been laid down by a
Full Bench in Kesho Bharati v. Jagannath that any adult member of the family, male or
female, is entitled of right to be the manager of a joint Hindu family. This decision was relied
upon by Puranik, J., in Pandurang Dahke v. Pandurang Gorle and it has been held by the
learned Judge that mother can be the manager of a Hindu family.
2. COMMISSIONER OF INCOME TAX V. SETH GOVINDRAM SUGAR MILLS, 1966 AIR 24
The issue before the court was that, Whether the widow of Nandlal under Hindu Law be a
Karta of the Hindu Joint Family consisting of 3 widows and 2 minors. The Supreme Court in
this case held that a widow could be a co-parcener which is although revolutionary in the eyes
of Hindu Law but being the senior most member of the HJF she could be the manager and
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 would be the guardian of her minor sons till the eldest of them attains majority. In case of
V.M.N. Radha Ammal vs The Commissioner of Income-Tax AIR 1950 Mad 538, it was held
that, “The managership of a joint Hindu family is a creature of law and in certain
circumstances, could be created by an agreement among the co-partner of the joint family.
Coparcener ship is a necessary qualification for managership of a joint Hindu family.”
(Similar holding in Budhi Jena vs Dhobai Naik And Anr, AIR 1958 Ori 7).
3. SHREYA VIDYARTHI VS ASHOK VIDYARTHI & ORS, (2015)16 SCC 46
The court observed that the mother of the male coparcener act as the legal guardian of the
minor and look after his role as the Karta in her capacity as his (minor’s) legal guardian.
( Referred Sm. Sushila Devi Rampuria vs Income Tax Officer and Anr, AIR 1959 Cal 697). It
was held that the terms “Karta” and “Manager” should not be considered synonymous and
denote a distinct role. The word ‘Manager’ would be consistent with the law if understood
with reference to the mother as the natural guardian and not as the Karta of the HUF. the legal
position which recognizes a Hindu Widow acting as the Manager of the HUF in her capacity
as the guardian of the sole surviving minor male coparcener.
Position of Mrs. Brinda and Mrs.Keya
Considering the given factual matrix, it can be concluded that Mrs. Brinda as widow acting as
a “guardian” of the minor male co-parcener can take actions necessary for the benefit of the
family and estate. Relying on the above-mentioned judgement, Mrs. Brinda can be appointed
as legal guardian to Mr.Jeetu and look after his role as the Karta. As stated by Nagpur High
Court, in certain special circumstances she can act as Karta in order to protect the interests of
family members.( Pandurang Dahke v. Pandurang Gorle, ILR 1947 Nag 299). However,
Mrs.Keya cannot be a Karta as she fails to acquire a permanent membership in her birth
family as upon her marriage she acquired the same in family of her husband. (Doctrine of
Dual Membership) Thus although conferred with co-parcener rights she fails to have a
permanent status thus failing to fulfil the condition for Karta. However different courts from
time to time has ruled different reasoning when it comes to Daughter as Karta and no specific
legislation has been made.
Answer 3
The Mitakshara Joint Family is a unique contribution of Hindu jurisprudence which has no
parallel in any ancient or modern system of law. It forms a fundamental aspect in the life of
Hindus. In a Hindu culture, the concept of Join family is inalienable, one generation may end
by partition but the jointness comes again in the next generation of the branch. The concept of
Mitakshara coparcenary was spiritual in nature. According to Hindu Jurisprudence, the
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coparcener in relation to the father is a person who can offer a funeral cake to him. This
capability to offer spiritual salvation by the performance of funeral rites was with the son, son
of a son (grandson), and son of a son of a son (great-grand-son) and as a consequence of it
they were conferred a right by birth in the property of the father. There existed a spiritual and
religious benefit behind this practice but later the focus was placed completely on the property
perspective by the legal and revenue authorities.
According to Hindu Law, the concept of coparcenary emerges from the concept of “Daya”.
Vijaneshwara in his Yajnavalkyasmriti explained Daya as that property which becomes the
property of another person, solely by reason of relation to the owner. The words solely by
reason of relation exclude any other cause, such as purchase or the like. Under the Western
jurisprudence, coparcenary is the creation of act of parties or creation of law. However, under
Hindu Law, coparcenary is not a creation by act of parties rather limited to the male members
of the family who descend from common male ancestors. The justification behind including
only male members was that only those who can offer funeral oblation i.e. Pindh Daan are
entitled to property. Thus, a coparcenary is completely a creation of law and a partitioned can
be claimed by any person who is within the four degrees of generation.
Thus, the Hindu Coparcenary was a narrow body which included only those persons who
acquired an interest by birth in the coparcenary property. Female were not entitled as a
coparcener under the Mitakshara school. The status of a mother, wife and daughter of a
coparcener was limited in nature. For.eg a wife was entitled to maintenance out of her
husband’s share but was not a co-parcener, a mother was not co-parcener with her son etc.
The position of the female was thus supressed and minimal. She had no independent rights as
compared to her male-counterparts of the family. Thus, under the patriarchal system, woman
was treated as a member of a joint family, but was not admitted to coparcenary or vested with
control and ownership and excluded from inheritance.
The Hindu Succession Act,1956 conferred rights of succession on Hindu Females as provided
under Section 6 of the act, relating to succession to an undivided interest in a joint family
property when a coparcener dies intestate. The provision deprived the female of equivalent
propertiary rights and excluded a daughter from participation in the ownership of coparcenary
property. In order to confer the daughters with equal rights and to end gender inequality, a
step was taken by the Andhra Pradesh Legislative Bill(came into force in 1985) which gave
right to property to a Hindu female by birth. Subsequently the Hindu Succession Act, 1956
was amended in 2005 which conferred daughter as a coparcener by birth along with other

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male member and have equal share upon partition. This progressive step removed the
anomalies and inequalities that existed between males and females to a large extent.
It must be realised that although amendments were made to remove the inequality aspect but
the age-old practices and customs continued to exist. The reason was that the family is an
important social institution. The long practised patriarchal system has rooted itself in the
society. The inclusion of daughters in the Coparcenary property as a gender friendly
amendment has however changed the dynamics of Mitakshara coparcenary. The position of
“daughter of a coparcener” is still ambiguous and need a clearer perspective.
Section 6 of the said act, states that a daughter shall be a coparcener by birth and have same
rights and liabilities as a son. But the section fails to draw a distinction between married and
unmarried daughters .There lies a difference between the two as the membership in the family
changes depending on the doctrine of dual membership. However, it is assumed that it is
inclusive of both married and unmarried daughter.
Another interpretation required is with reference to inclusion or exclusion of “adopted
daughter”. Under Section 6, there is no reference of adopted daughter and includes only those
daughters who become a part of coparcenary by birth. Thus, the ambiguity arises when it
comes to the interpretation of phrase “the daughter of a coparcener”. Also, the children of a
daughter do not receive a share in their mother’s coparcenary as they will receive a share in
their father’s coparcenary. A daughter’s son is excluded from his mother’s coparcenary and so
is her daughter because in case she is granted one she will receive double share which will be
unequal and unjust.
This amendment brought a fundamental change in the Mitakshara coparcenary as it changed
its meaning completely, because the only pre-requisite of membership was removed. By the
mode of amendment, a daughter who is not a member of the family becomes a coparcener.
The system of the coparcenary proves itself futile as no matter how the property passed onto
the married daughter, it will only benefit the family of her marriage. Thus, it becomes
essential to reconsider the concept of coparcener and the elements of Hindu Joint Family.
Thus, after the amendment, a Mitakshara coparcenary, “the common ancestor, the son, son’s
son, son’ son’ son, the daughter of common ancestor, son’s daughter and son’s son’s
daughter”.
Based on the interpretation, it can be said that the Hindu Succession Act,2005 presumes that a
married daughter continues to be a part of her family of birth. The act must rather provide that
upon marriage, a daughter ceases to be a coparcener in her birth family and her coparcenary
interest in family of birth to be determined at the time of marriage. On her marriage, her

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severance of status occurs thus affecting her interest in the birth family and leading to logical
and actual division of property. Therefore, it is suggested that the aforesaid provision
regarding continuance of a daughter as coparcener even after marriage be removed. Further it
is necessary to amend the section and include adopted daughters to be a part of coparcenary
property upon adoption in the family as done in case adopted son.
Lastly, in order to protect the female/daughters from adverse situations and to give them
independence from their male counterparts. The daughters must be granted co-parcener rights
in their marital family. The reason behind his may be that her share in the family of birth
depends on the very existence of coparcenary property and the living status of her father. The
conferment of status of coparcenary may prove futile and nonbeneficial when it comes to
protect the economic and financial independence of the daughter.
The wife i.e. the daughter upon her marriage should be made a sharer in the property at the
moment she enters in the family of her marriage. Since her entry in the family of her marriage
is not temporary but is permanent for life, the female should be made a sharer in the property
of the relations of her husband. Where the husband is a sharer, she should be an equal sharer
with her husband. Thus, in order to ensure a stable financial position to the Hindu female, the
wife should make a law that should give them equal economic rights in the property of her
husband and equal right of heirship with her husband in the property of relatives of her
husband. This provision will be in total conformity with the spirit of Hindu view of life as she
is Sapinda Gotraja. On the analogy and rationale of Dattaka, all her rights must cease in the
family of her birth after marriage and consequent replacement must take place in the family of
her marriage.
Answer 5
Alienation or transfer of property is a basic concept related to incidents of ownership. It refers
to the transfer of property inter vivos such as sale, mortgage, gift, license or even lease. In a
Hindu Joint Family, the property is jointly owned by al the coparceners and Karta are the
person who is entrusted with the management of the property. Karta is not the sole owner of
the property and is conferred with a limited interest just like other co-parcener. If all the co-
parceners agree or gives their consent to sell the property, the Karta can do so and such an
alienation will be binding on the interest of all members. (Mahadu v. Gajara Bai, AIR 1954
Bom 442). The reason behind the mutual consent of all co-parceners is that the joint property
should not be sold to the detriment of its members as property is considered as a security in
times of need.

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However, Karta is empowered to alienate the property despite the dissent of other major and
minor coparceners in three exceptional situation i.e Apatkale, Kutumbarthe and Dharmarthe.
Apatkale refers to a situation of distress or an emergency faced by the family. It is a situation
to avert a danger or damage or to avoid an adversely situation. Kutumbarthe means benefit of
Kutum or family members. A situation where the sale proceeds are utilised for the sustenance
of the family members, such as for providing for their needs of food, clothing, shelter,
education, medical expenses etc. Dharmarthe means for pious or religious purposes. The
performances of certain religious obligations which are compulsory under Hindu Law. Under
these three exceptional situations, the Karta can sell the property without consulting the other
coparceners. These three categories are now expanded and understood as “Legal Necessity
(Dhiraj Singh v. Satpal Singh, 2010 (1) ALJ 431), Benefit of Estate and Performance of
religious and indispensable duties”.
Under Hindu Joint Family, Karta is considered as the head of family and the one who
manages the affair of the family socially and economically. He is considered to be a person
who works for the benefit of the family and in the best interest of the family. Thus, when the
Karta alienates the property for a legal necessity, benefit of estate or for performance of
religious duty, he cannot be challenged by other co-parcener even if he does so without the
consent. But when the Karta alienates the property without the consent of the other
coparceners, the validity of such a transfer can be challenged in the court on the ground that
none of the three categories for which the Karta is permitted to alienate the property existed.(
Kailash Chand v. Bajranglal, (1997) 1 HLR 342 (Raj)).
Legal Necessity means any necessity that can be sustained in law or justified in law. Under a
Hindu Joint Family, it means a necessity of the family and the members of the family.
Necessity refers to a situation where the family is in dire need of money. Thus in order to be a
legal necessity, four essentials exist i.e existences of a need, requirement is for an awful
purpose i.e should not be immoral, illegal or oppose public policy (Maheswar Das v. Sakhi
Dei, AIR 1978 Ori 84), family does not possess the money or alternative resources and the
action of Karta is as of an ordinary prudent person. Various examples of legal necessity are
providing food, clothing and shelter to family members, for education of family members, for
medical treatment to family members(Babaji Behara v. Laxmidhar Behara, 2000 AIHC 45
(Ori)), for marriage expenses of the children but does not include second marriages or
marriage of minor (Narasimhan v. Venkata Narasimhan, (1973) AP 162), for payment of
debts due to family, for migrating to a new place for better living.

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When the alienation by the Karta without the consent of other co-parceners fails to fall under
the specific exceptional situation, the validity can be challenged in the court and the transferee
i.e the alienee has the burden of proof and not the Karta. The reason is that it is the duty of
alienee to effect the transaction only after exercising due diligence as the property sold is
jointly owned and the Karta is not the exclusive owner of the property. The alienee should
enter into the transaction only when he satisfies himself after making bonafide inquiries about
the transfer being permissible in law. In case of an unauthorised transfer which is against the
interests of coparceners or is prejudicial in nature, the alienee is seen as a beneficiary of such
transaction and when the burden of proof is placed on him, it indirectly makes the Karta
accountable to him for such a transfer.
FACTUAL ANALYSIS
In the given factual scenario, A is the Karta of the family, B1 B2 S1 S2 S3 D1 D2 S4 S5 S6
are the coparcenary in the joint property along with A. The joint property of the family
includes an ancestral house worth Rs 2/- crore, Gold Jewellery worth Rs.20/- lakhs; A joint
account in State Bank of India which had Rs.30/- lakhs deposit; 30 acres of Agricultural land
worth Rs.6/- lakh per acre; and a plot of 700 sq. yds. located at R.K. Colony, Agra worth
Rs.40/- lakhs. The Karta i.e A alienated i.e executed a mortgaged deed in favour of the plot
located at R.K.Colony,Agra and 5 acres of agricultural land of the joint family. The
conditions for which Karta made alienations were (a) to fulfil the marriage expenses of D3;
(b) to support the medical expenses of his wife-W1 who was terminally ill for a quite-long
time; (c) to fulfil his desire of gambling and consumption of liquor; and (d) to purchase a new
plot in Muni Nagar, Agra of Rs.23/- lakhs to build a house for his family.
Considering the given facts and the provisions discussed, the Karta cannot alienate the
property without the consent of all the co-parcener and can do such alienation without the
consent only in exceptional situation. In the given factual scenario, only the condition of
supporting the medical expenses of his wife W1 falls within the purview of “Legal
Necessity”. The condition of fulfilling the marriage expenses of D3 in not a legal necessity as
the marriage of a minor is against public policy. In Dev Kishan v. Ram Kishan, AIR 2002 Raj
370, the court held that the transfers were held void as opposed to public policy, in view of
the Child Marriage Restraint Act, 1929. The condition of fulfilling his desire of gambling and
consumption of liquor is immoral and illegal and thus fail to fall within the legal necessity.
Lastly the condition of purchasing a new plot in Muni Nagar, Agra of Rs.23/- lakhs to build a
house for his family is also not an immediate r emergency situation where the family is in dire
need of money as they already possessed a residential house at Muni Nagar, Agra. Thus, there

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is only one valid legal necessity for which the Karta could alienate without the consent of co-
parceners. The condition falls within reasonable expense. However, the remaining transaction
of transfer is invalid and can be challenged on the above-mentioned grounds of failing to fall
within legal necessity and completed without the consent of all the coparceners.