Anubhav Singh, Maharashtra National Law University, Mumbai
INTRODUCTION
The Hindu joint family [hereinafter HJF] arrangement is an organisation of which members share land in its name and have differing rights and obligations to one another. It is made up entirely of men. A Hindu coparcenary is a corporate entity, though not incorporated. Coparcenary refers to the property’s “last four generations, including the last male holder”. The last “male-holder” of the property in the Hindu joint family is the senior most member of the family. The foreman of the joint family is called Karta (Manager), and in classical law, there is presumption that the oldest member of the HJF is to be the manager or the Karta.1 Karta is not an agent, nor this relationship is of partnership and agent,2 he is basically the custodian of the HJF property also guardian of the affairs and interest of the HJF.3
The position of Karta in the family is very different or in other words we can say that it is sui generis as he is a person with limited powers even though his powers are more than anyone in the joint family. Thus, Karta can’t be equated with the manager as the power possess by Karta which the ordinary can’t be equated with the power possess by ordinary manager.4 In a Hindu joint family, the father is believed to be the Karta, and in his absence, the senior-most male member to be Karta5 and thus this concept of seniority is so strong that the consent of family members is immaterial and only seniormost male member would be the Karta of the family6 and as long as he lived despite of being “aged, infirm, or ailing , he will be the Karta and is entitled to Kartaship.”7 In the Hindu joint family property can be managed by two persons but joint family can only be represented by one Karta and thus there is no scope for two Karta in a Hindu Joint Family.8 After the death of Karta next male in seniority will become new Karta of
the joint family. Despite having superior responsibilities, powers of Karta are absolute when it comes to management as the Karta can’t be held liable under negligence9 and further if he has acted reasonably and with bona fide intentions his discretion can’t be closely questioned or in other words, can’t be scrutinized.10
The concept of only senior-most male as Karta has supported the problem of gender inequality as only the male can become a Karta of a Joint family because a female can’t be a coparcener and a non-coparcener cannot become a Karta. But the amendment of 200511 in Hindu Succession Act, 1955 has allowed women to be a coparcener and can be a Karta also.
