ARGUMENT EXTRACTED

1. It is humbly submitted that the Son was acting as a Karta even during the
lifetime of the father as he had retired to live in some other village. At the
relevant time, nobody disputed his authority to act as a Karta. In the view
of the circumstances, the son became the Karta of HUF as the previous
Karta relinquished his right of management and there is an implied
consent of all other members.
See Mulla's Hindu Law p. 296, 14th Edn. where occurs the following
passage:
"So long as the members of a family remain undivided, the senior
member of the family is entitled to manage the family properties,
including even charitable properties; and is presumed to be the manager
until the contrary is shown. But the senior member may give up his right
of management, and a junior member may he appointed manager.”
2. The management of the joint family property or business or other
interests in a Hindu joint family, the Karta of the Hindu joint family is a
primus inter pares. The managership of the joint family property goes to a
person by birth and is regulated by seniority and the Karta or the manager
occupies a position superior to that of the other members. A junior
member can, therefore, deal with the joint family property only where the
Karta relinquishes his right expressly or by necessary implication or in
the absence of the manager in exceptional and extraordinary
circumstances such as distress or calamity affecting the whole family and
for supporting the family or in the absence of the father whose
whereabouts were not known or who was away in remote place due to
compelling circumstances and that his return within the reasonable time
was unlikely or not anticipated.
In Raghavachariar's Hindu Law Principles and Precedents (8th edn., 1987
in Section 275 at p. 239) stated thus:
"So long as the joint family remains undivided, the senior member of the
family is entitled to manage the family properties, and the father, and in
his absence, the next senior most male member of the family, as its
manager provided he is not incapacitated from acting as such by illness or
other sufficient cause. The father's right to be the manager of the family is
a survival of the patria potestas and he is in all cases, naturally, and in the
case of minor sons necessarily the manager of the joint family property.
In the absence of the father, or if he resigns, the management of the
family property devolves upon the eldest male member of the family
provided he is not wanting in the necessary capacity to manage it.
3. It is humbly submitted that The Karta of HUF was away in a remote place
(in this case a far-off village )and his return within a reasonable time was
unlikely, a junior member can, thus, act as a Karta of the family. In the
present case, the Elder member of the HUF are not only staying away in a
remote place but also not earning and thus, relinquished his right of
management. the son in the present case thereby took up the management
and became the Karta of HUF and the elder having relinquished his right
will not be considered as Karta of the HUF.
4. It is humbly submitted that it is not enough to show that a particular
person is the senior most male member, it must further be shown that he
was factually in management. The manager of a Hindu family occupies a
position superior to that of other members in so far as he manages the
family property or looks after the family interest on behalf of the other
members. This right of management comes to him by birth and is
regulated by seniority, and of course, it is nevertheless terminable by
resignation and relinquishment and is not indefeasible. The general
presumption that the eldest member acted as the manager is rebuttal on
facts.