Status of Karta regarding minors rights and his right to sale ancestral properties under Hindu law

KARNATAKA High Court in a case of Gangoji Rao And Anr. vs H.K. Channappa And Ors. Decided on 9/12/1982. Reported in 1983 (1) Kar. L.J. 177; observes as follows

The view that I have taken finds support in the ruling rendered by the High Court of Rajasthan in the case, Girdhar Singh v. Anand Singh. In a similar case, the High Court of Rajasthan, in para 12 of the judgment, has held thus : "As regards the question of taking permission from a competant Court of law in this case, I am in agreement with the view taken in Sunnamani Dei v. Babaji Das that when the minor and his mother constitute a Hindu Joint Family, each with a moiety of undivided interest in any movable property be longing to the family, in the absence of the father, the mother as natural guardian, can alienate even the minor's half share in the immovable property under the personal law. Section 8 of the Hindu Minority and Guardianship Act will not apply to such alienation. This view finds support from Smt. Suggabai v. Hira Lal ."



In Re. Krishnakant Maganlal, , Bhagwati J., delivering the judgment has observed. (at p. 73) "The restrictions contained in Section 8 do not apply in respect of the undivided interest of a minor in joint family property and Section 8 does not debar a Manager and Karta of a joint family from alienating joint family property without obtaining the previous permission of the Court even if the Manager and Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course the alienation would have to be justified under Hindu Law, but Section 8 does not require that any previous permission of the Court should be obtained before effecting such alienation........"


The decisions discussed above would clearly establish that the term 'joint family property' is used in a wider sense in the relevant sections in the Act than in the restricting term 'Coparcenary' used in the Common (Hindu) Law. It further becomes established that in a family, consisting of the mother and her minor children, the mother can act as Manager of the joint family properties though she could not do so under the Common (Hindu) Law with regard to coparcenary properties. It is further established that the mother, as manager of the joint family properties, has the same rights as the 'karta' under the Common (Hindu) Law to bring about alienation of the joint family properties, including the share of the minors for legal necessity or for the benefit of the estate.


KARNATAKA High Court in a case of A. Chidananda (Deceased) By L.Rs. And Anr. vs Smt. Lalitha V. Naik And Ors. Decided on 19/1/2006 observed as follows


In the instant case, as a matter of fact, the property in question was sold in favour of 3rd defendant either for discharge of antecedent debts or for other necessities and it appears, two properties are said to have been acquired for the benefit of the family by the 1st defendant acting in the capacity of a Manager or guardian of the family. In fact, it is also the case of 3rd defendant that the suit filed by the plaintiff is for declaration to declare that the suit property sold in favour of 3rd defendant by defendants 1 and 2 is null and void and also for partition of the suit property and the suit ought to have been dismissed in limine since all the properties are not brought into the common hotchpot for the purpose of partition. At this stage, it is the argument of the appellants' Counsel that they have questioned only the sale of the property by other defendants in favour of 3rd defendant and as such, the suit is maintainable. It has to be noted that the suit filed is not for a mere declaration, it is also a suit for partition and in the circumstances, the plaintiffs should have brought all the properties into the common hotchpot. This aspect has been referred only incidentally although it does not require any comments by me.



Further, in the decision in Kishore's case, referring to the recitals in the deed, this Court has relied upon the decision of the Supreme Court in Smt. Rani and Anr. v. Smt. Santa Bala Debnath and Ors. and Radhakrishnadas and Anr. v. Kaluram (dead) by L.Rs and Ors. , regarding burden of proof on the part, of the alienee is concerned, wherein in Rani's case, it is observed that the recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may he used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstance. In Radhakrishnadas case, it is observed that it is now well-established that what the alienee is required to establish is legal necessity for the transaction and it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself.




Moreover, as is held by the Division Bench, the natural guardian of a minor has the necessary competence to deal with even the separate property of the minors. Nonetheless the natural guardian remains a guardian of the minors in other senses also. It is also emphasised that natural guardian who has a share in the property along with the minors' undivided interest in the property is legally competent to alienate the property as a whole.



Karnataka High Court in a case of Rajasekhar vs Siddalingappa Reported in I.L.R (1986) 2 Kant 2765 Decided on 29/7/1986 by Justice Nesargi, J. observed as follows:-

In Sunamani Dei -v.- Babaji Das, , R. N. Mishra, J. (as he then was) has held that when the minor and his mother constitute a Hindu joint family each having a undivided interest in the house belonging to the family, in the absence of the father, the mother, as natural guardian, can alienate even the minor's half share in the house under the personal law. Dealing with the question that a female member cannot act as the karta of a joint family, his Lordship has held as follows : "The sharp division in judicial opinion as to whether a female member can act as the karta has been set at rest by the Supreme Court in (Commissioner of Income-tax v. Seth Govindram Sugar Mills). Law has also been settled that a Hindu joint family can exist with one male member and his mother (See , G. Buddanna v. Commissioner of Income Tax, Mysore). At the time of the impugned alienation (Ex. A), the minor and his mother were members of such a Hindu joint family each of them having a moiety undivided interest in the property (as conceded in paragraph 1 of the plaint). The plaintiff asked for a declaration that Ex. A was not valid alienation. So far as the mothers (defendant-No. 3's) share is concerned, on the finding of the lower Appellate Court the same has got to be upheld. So far as the minor's half share is concerned, as natural guardian the mother could alienate the same under the personal law."



Karnataka High Court in a case of Smt. Mangala vs Smt. Jayabai And Others Decided on 15/4/1994 By Justice Vasanthakumr, J. Reliance is placed on the decisions held in C.I.T. v. G.S. Mills; , Gangojirao v. Chennappa; , Surjit Lal v. I.T. Commr. Bombay, Rajasekar v. Siddalingapa; , T.Gounder Parvathimmal. and framed following points of Hindu Law

1. Co-parcenership is a necessary qualification for the managership of a Joint Hindu Family and as a widow is not admittedly a coparcenor, she has no legal qualification to become the manager of a Joint Hindu Family.

2. In the absence of father, the mother could manage the Joint family property including the interest of male and female minors, in such property. Section 12 of M and G Act does not empower appointment of Court guardian. Mother managing family property being natural guardian. Section 11 of M. & G. Act is not attracted, and can validly alienate the property including minors in it for family necessity without obtaining permission of the Court. Legislature has in its wisdom used term 'Joint Family' in Section 6 and 16 thus contradistinguishing it from co-parcenary. The mother can also manage the family property is evident from Section 12 referring to family property being in the management of 'an adult member' of the family. The Joint family includes in it the mother, son and umarried daughters and the expression joint family property is used in its wider sense including the shares of these female members.

3. Hindu co-parcenary is a much narrower body than the Joint family. It includes only those persons who acquire by birth an interest in the joint or co-parcenary property and there are sons, grandsons and great-grandsons of the holders of the Joint properly for the time being. Since under the Mithakshara Law the right to joint family property by birth is vested in the male issue only females who come in only as heirs to obsstructed heritage cannot be co-parcerners. Outside the limits of co-parcenary there is a fringe of persons males and females who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. The joint Hindu Family is thus a larger body consisting of group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. The fundamental principle of the Hindu Joint Family is the Sapindaship. The absence of an antecedent history of Jointness between the assessee and his ancestors is no impediment to the assessee his wife and unmarried daughter forming a joint Hindu Family. That it does not take more than one male to form a joint Hindu Family, with female is well established.

4. Thus a man who separates from his father or brothers may nevertheless continue to be joint with member of his own branch. He becomes the head of a new Joint Family if he has family and if he obtains property on Partition with his father and brothers that property becomes ancestral property or hsi branch Qua him and his male issue. It is true that one cannot constitute co-parcenary with his wife and unmarried daughter.

5. Joint Hindu family with all its incidents is thus a creature of law and cannot be created by act of parties except to the extent of which a stranger may be affiliated to the family by adoption. But the absence of antecedent history of jointness, between the male member and his ancestors is no impediment to the male member, his wife and unmarried daughter forming a joint Hindu family. The male member's wife becomes his sapinda on her marriage with him. The daughter too on her birth became sapinda and until she leaves the family by marriage the tie of sapindaship will bind her to the family of her birth.

6. Minors undivided interest in joint family property does not fall within the ambit of Section 6 of Mand G Act. When Section 8 does not take within its ambit minors undivided interest in the Joint Family property. Section 8(3) would not be applicable. It is settled law that natural guardian of minor has the necessary competence to deal with even the separate property of the minors for necessity.

7. Where all members who could succeed to the properties of the deceased are female members the position is clear that such female members who succeed to the ancestor take no doubt definite shares in the estate under the Hindu Succession Act but the interest of each in it is a tenant in common. Though it entitles a sharer to claim an independent share in the Joint Hindu Family yet she cannot act for other members of the family and assume the garb of Joint Family Manager or an eldest member of the family so as to alienate or part with such properties for the benefit of one or such other member.

8. Ratio of the decisions clearly postulates existence of joint Hindu Family constituting of either male members or one male member, by virtue of which after the death of Karta of the Joint Hindu Family, family continued to be Joint Hindu Family provided one male member exists. Mother being natural guardian can meddle with the interest of her minor children which is inclusive of male and female members. We are of the view that in the absence of male member, the famly property in the hands of widow and her female children cannot be characterised as Joint Hindu Family Property with a view to enjoin the widow to act as either Manager or as natural guardian to meddle with the family property with a view to bind the interest of minor daughters who will have succeeded to the estate of their father by virtue of succession under the provisions of Hindu Succession Act de hors the provisions of Section 8(3) of the M and G Act. Further a joint and undivided family may consist of persons who do not form any co-parcenary at all, it may consist of persons only provided there is amongst them a potential mother who in the way of nature or law may add a male member to it.

9. From the ratio of the above decisions, what is to be noted is that Hindu Joint Family can exist with one male member. While dealing with the powers of mother as natural guardian regarding the Joint Family Properties one thing is evident that existence of male member is contemplated. Further, there are instances where male member is a minor even then he can be construed as karta of the Joint Hindu Family and mother can as natural guardian of the Manager minor karta of Joint Hindu Family can meddle with the family properties for family necessity so as to bind all the members of Joint Hindu Family.

10. The question that arises for consideration is whether restrictions contained in S. 8 is applicable to cases where there is no male member in the family and mother as natural guardian of her minor daughters who constitute the family can alienate their shares so as to bind their shares which they have succeeded to the estate of their father, by virtue of Hindu Succession Act, who died intestate and that too when the family property was retained by him as the karta of the joint Hindu Family at the time of death. What is to be noted is that when father dies with sons and minor daughters who are also entitled to inherit jointly with the sons to the father's property under Hindu Succession Act, 1956 the interest of minor daughters in the property left by their father's property will be the undivided interest in the joint family pro- perty and Section 6 of the M and G Act would not apply, since there exists a Joint Hindu Family and share would be undivided interest. But in cases where father dies leaving behind only his wife and minor daughters, the question of family property retaining the character of Joint Hindu Family property does not exist and as such the operation of Section 8(3) of M and G Act is attracted. (NOTE THIS LAW CHANGES AFTER WOMEN IS GIVEN RIGHT TO PROPERTY UNDER 2005 AMENDMENT - DISCUSSION NEEDED)

11. Sales by mother as natural guardian of her minor daughters shares would not be binding on the minor daughters shares and all alienations have to be declared as void subject to the options to be exercised by the minor daughters since there exists no Joint Hindu Family in the instant case after the death of the father who has left no male issue.



In Amrutham Kudumbah v. Sarnam Kudumban reported Reported in AIR 1991 SC 1256 while discussing the scope of sub-section (3) of Section 5 of Minority. & Guardianship. Act, Supreme Court has observed at para. 9 as follows. It reads :

"The effect of this sub-section is that any disposal of immovable property by a natural guardian otherwise than for the benefit of the minor or without obtaining the previous permission of the court is voidable. A person entitled to avoid such a sale is either the minor or any person claiming under him. This means that cither the minor, or his legal representative in the event of his death, or his successor-in-interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e., three years from the date on which the minor died or attained majority, as the case may be. In the present case, the suit was brought, as found by the Courts below, within three years after the minor attained majority."