JAMIA MILLIA ISLAMIA

MITAKSHARA AND DAYABHAGA

JOINT FAMILY AND KARTA
Submitted to – Dr. Kahkashan Y. Danyal

Submitted by – Anas Mohsin

B.A. LL.B.(H) 5th Semester

25-Nov-18

TABLE OF CONTENT

Serial No. Topic Page No.

1. Acknowledgement 2
2. Introduction 3
3. Powers of Karta of Hindu Joint Family 4-7

4. Responsibilities of Karta of Hindu Joint 8-9

Family
5. Difference between Dayabhaga & 10
Mitakshara Coparcenary
6. Conclusion 11
7. Bibliography 12

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher ‘Dr.

Kahkashan Y. Danyal’ who gave me the golden opportunity to do Assignment on
‘Mitakshara and Dayabhaga Joint Family and Karta’ which also helped me in
doing a lot of Research and I came to know about so many new things, I am really
thankful to him. Secondly, I would also like to thank my parents and friends who
helped me a lot in finalizing this assignment within the limited time frame.

- ANAS MOHSIN

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 MITAKSHARA AND DAYABHAGA JOINT FAMILY AND
KARTA

INTRODUCTION

The ancient Schools of Hindu laws are believed to be of two types and were in existence before
the Hindu law was codified with the Hindu Succession Act of 1956.

1. The Mitakshara School, and

2. The Dayabhaga School or Bengal School

In Bengal and Assam the Dayabagha School was established and in the entire of India apart from
in Bengal and Assam Mitakshara School was broaden. The two main interpreters who wrote on
Mitakshara and Dayabagha Schools were Vijnaneshwar and Jeenutavahan respectively.

The position of the ‘Karta’ or the ‘manager’ of the Hindu joint family finds its roots in the
‘Patriarch’ of the ancient family units. The term ‘Karta’ has been defined in the case of Suraj
Bunsi Koer v. Sheo Persad.1

“Manager – Property belonging to a joint family is ordinarily managed by the father or another
senior member of the family: The Manager of a joint family is called Karta.”2 The absolute
powers of the ‘Patriarch’ have now evolved into superior powers that are accompanied by similar
responsibilities. These powers and responsibilities are several and quite multifaceted. The power
of alienation of a Karta is limited since alienation can only be done in exceptional cases. The
other powers of the Karta, however, are almost absolute.

1
1880 ILR 5 Cal 148.
2
Mulla, Principles of Hindu Law § 236.

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 POWERS OF KARTA OF HINDU JOINT FAMILY

 Power of Alienation of Joint Property

No individual member of a coparcenary has the power to alienate joint family property without
the consent of all other members. However, the Dharma Shastra recognizes that in some
circumstances a member has the power to dispose of the joint family property. Mitakshara Law
explicitly states this; wherein – “….even one person who is capable may conclude a gift,
hypothecation or sale of immovable property, if a calamity (apatkale) affecting the whole family
requires it, or the support of the family (kutumbarthe) renders it necessary, or indispensable
duties (dharmamarthe), such as obsequies of the father or the like, made it unavoidable.”

The Mitakshara Law, in this aspect, has, over the years, been modified on the following two
facets: –

 This power can only be exercised by the Karta and no other member.
 The joint family property cannot be alienated for any reason other than the following
three:

Apatkale: Legal necessity can be varied, and it is not possible to define it precisely. It,
colloquially speaking, includes all things deemed necessary for family members. It, however,
needs to be shown that the alienation of the property was for the satisfaction of such a need. In
Dev Kishan v. Ram Kishan3, the Karta, under the influence of one other member of a Joint
Hindu Family mortgaged and sold the property for the illegal purpose of marriage of two minor
daughters. Their contention was that the act was done in furtherance of a legal necessity. The
court, in this case, held that the act was done in furtherance of an unlawful purpose, as the act
was in contravention of the Child Marriage Restraint Act, 19294; hence, it was not a lawful
alienation.

Kutumbarthe: Anything done for the benefit of the Hindu joint family property constitutes a
benefit of the estate. One view, which is no longer valid, included defensive construction. The
Supreme Court has observed that it also includes anything done for positive benefit.5 The test is a
thing that a prudent person would do for his property.

3
AIR 2002 Raj 370.
4
Child Marriage Restraint Act, 1929.
5
Balmukund v Kamlavati, AIR 1964 SC 1385.

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 Dharmamarthe: Religious obligations consists performance of acts which are of a religious,
pious, or charitable nature. The example of Dharmamarthe given by Vijnaneshwara entailed the
expression “or the like”. This includes all indispensable duties like sradha, upananyana and the
performance of any other necessary sanskars, for the furtherance of which, the karta may alienate
the whole property. The power of alienation for charitable or pious purposes is only a portion of
the property (movable or immovable).

Alienation for the above three purposes is binding on all family members, even
minors6.Alienation for any purpose other than the three stated above is not void. It is voidable at
the instance of any one of the coparceners. This was decided by the Guwahati High Court in CIT
v Gangadhar Sikaria Family Trust7 where the court held that the transfer not for the purpose of
legal necessity or benefit of the estate is voidable, not void ab-initio.8

 Separate Property
A Hindu may possess separate property even if he is a part of the joint family. Such a property
must be self-acquired. It is his personal property, and nobody else belonging to the coparcenary
has any right in it. It passes onto his heirs in case of intestate death. It does not get transferred to
members of the coparcenary.

The difference between the Dayabhaga and Mitakshara Schools with reference to the power of
alienation invested with the Karta is that in the Dayabhaga School, the Karta must render
accounts whenever demanded by any of the coparceners under Mitakshara Law, he must only
render accounts in case there are charges of fraud or misappropriation against him.

 Powers of Management
The powers of management of the Karta are absolute. He can manage or mismanage the
property, family affairs and business any way he likes without being questioned by anyone. He
cannot be liable for positive failures. He can discriminate between family members. However, he
cannot deny maintenance or occupation of property to any member of the coparcenary. The
possibility is a check on the Karta’s absolute power. Affection and natural concern for the family
members and the faith and confidence of the members in him is considered the most important
check on his powers

6
VVV Ramaraju v KoradaMalleswaraRao, (1999) 2 HLR 257 (AP)
7
CIT v GangadharSikaria Family Trust (1983) 142 ITR 677
8
Mukhtiar Singh v Amarjit Singh, 1975 Cur LJ 121.

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 Right to Income or Remuneration and Expenditure
The income of the joint family property, in its entirety, must be given to the Karta. It is then his
responsibility to allot the funds to members and to fulfill their needs. “The income of the Karta is
considered expenditure incurred in interest of the joint family, in the interest of and wholly and
exclusively for the purpose of the business of the Hindu undivided family, is not a deductible
expenditure under the Income Tax Law in computing the income of the Hindu undivided
family.”9 The Karta controls the expenditure of the funds. The scope of his power to spend
extends only to family purposes, i.e., management, protection of estate and residence, realization,
maintenance, marriage, education, religious ceremonies, etc.10

 Right to Represent Joint Family

The Karta represents the family in legal, religious and social matters. His Acts are binding on the
members of the family. The family does not have corporate existence; it acts only through its
Karta. It has been held that if a Karta contracts debts in order to carry on a family business, he
renders the entire family property, along with shares of the other members of the family, liable
for such a debt.

 Power of Compromise
The Karta can compromise disputes regarding the family property and/or its management, family
debts as well as other transactions. A mala-fide compromise can be challenged in a partition. The
Karta can even compromise a suit pending in court, and the members will be bound by it.
However, minor coparceners can use Civil Procedure Code.11, whereby the compromise has to
be approved by the court if one of the parties is a minor.

 Power to Refer a Dispute to Arbitration

The Karta can refer a dispute to arbitration. If the award is valid, it becomes binding on all
members of the joint family

9
Jugal Kishore BaldeoSahai v. CIT (1967) 63 ITR 238; JitmalBherumal v. Commissioner of Income Tax, (1962) 44 ITR
887.
10
Narendra Nath Roy v Abani Kumar Roy, AIR 1938, Cal 78.
11
O.32, Rule 7 C.P.C

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 Power to Contract Debts
The Karta exercises an implied authority by which he can contract debts or pledge the credit of
the joint family for family or business purposes and pay interest on it.12 Such debts are binding
on the entire family if the following conditions are fulfilled:

 Debts for business purposes

The debts must be incurred in the ordinary course of business.

 Debts for family purposes

Family purpose, in this context, has nearly the same meaning as a legal necessity, the benefit of
estate and performance of indispensable and pious duties. The creditor must prove that the loan
in question had been taken in the ordinary course of business, for family purposes or that he did
make bona fide and proper inquiries regarding the existence of the need, in case he wants to hold
the whole joint family liable for the debts.

 Loan on Promissory Note

A loan taken or a promissory note executed by the Karta for the business or any family purpose,
gives rise to the possibility of all members of the family to be sued, even though they may not be
parties to it. Each member’s liability, however, is limited to the extent of their share in the
property.13 The Karta, on the other hand, is personally liable.

 Power to Enter into Contracts

The Karta can enter into contracts which will be binding on the family. The contract is
specifically enforceable against the family also.

12
AnandaCharan v JhateeCharan, AIR 1935 Cal 648; Nagarmal v Bajranlal 1950 77 IA 22; Ram Autar v Beni Singh,
AIR 1922 Oudh 135.
13
Krishnanand v Raja Ram Singh, AIR 1922 All 116.

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 RESPONSIBILITIES OF KARTA OF HINDU JOINT FAMILY
The most basic duty of a Karta is to provide food, shelter, clothing, etc. to the members of the
joint family. His several responsibilities include:

 Maintenance
All coparceners, from the head of the family to the junior most members, have the inherent right
to maintenance. It is the responsibility of the Karta to maintain all the members of the family.
“Those who would be entitled to share the bulk of property are entitled to have all their
necessary expenses paid out of its income.” If he unjustly excludes a member from getting
maintenance or if he does not maintain a member properly, he can be sued for both, the
maintenance and arrears of maintenance.

 Marriage
The Karta is responsible for each unmarried members’ marriage, especially the marriage of
daughters since it qualifies as a sacrosanct duty in Hindu law. The expense of the marriage is
taken out of the joint family property. If the expenses are met externally, they must be
reimbursed out of the joint family funds.14

 Accounts at the time of Partition

Partition brings the joint family status to an end. Under Mitakshara Law, it means:

 Severance of status and interest

It is an individual decision; wherein a member wants to sever himself from the joint
family and enjoy undefined and unspecified share separately.

 Actual division of property

The specified shares do this. It is a consequence of the declaration of desire to severe. It
is, however, a bilateral action.

Opening of accounts refers to the inquiry of the assets of the joint family assets: An inventory is
prepared. This includes all items of the family property. The Karta under the Mitakshara Law is

14
Chandra Kishore v. Nanak Chand AIR 1975 Del 175.

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 required to disclose the accounts only if there are charges of misappropriation, fraud or
conversion of assets or property of the joint family against him. In the absence of proof of
misappropriation, fraud or conversion against the Karta, the coparcener pursuing the partition
cannot demand the disclosure of the past dealings of the Karta with the joint family assets and
property.15 However, if the coparcener who is suing for the partition is wholly excluded from the
enjoyment of the property, he can ask to look into the accounts. After severance of status, the
Karta must render accounts of the expenditures and income in a manner similar to that in which a
trustee or agent has to render accounts. This implies that the Karta has to account for and report
all profits.

 Representation
The Karta is the sole representative of the family vis-a-vis the government as well as all other
outsiders. It is because of this position that he must perform several responsibilities and liabilities
on account of the family. He must pay taxes and all other dues.16 He can also be sued on behalf
of the family for his dealings.

15
Ghuia Devi v. ShyamlalMandal AIR 1974 Pat 68
16
LalithaKumari v Rajah of Vizianagaram, AIR 1954 Mad 19.

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 DIFFERENCE BETWEEN DAYABHAGA COPARCENARY AND
MITAKSHARA COPARCENARY

Serial Field of Mitakshara Dayabhaga

No. Difference Coparcenary Coparcenary

As to how the The Mitakshara Coparcenary Under the Dayabhaga school of

1. arises during the lifetime of the Hindu law there is no right by birth.
coparcenary
father itself and his sons have So during the father's lifetime
arises
right birth. between the father and the sons, there
is no Coparcenary. When the father
dies, his sons constitute a
Coparcenary.
Nature of interest In the Mitakshara births and In the Dayabhaga school of Hindu
2. deaths of coparceners. It passes law, each coparcener has a defined
of coparceners
by survivorship. So the power of interest. It can be alienated. It does
alienation either does not exist or not pass by survivorship.
is recognized only to a limited
extent (as in Bombay and
Madras).
Expansion of Under the Mitakshara system Under the Dayabhaga system, on the
3. only males can be coparceners. death of one coparcener his heirs
Coparcenary
On the birth of a son to a become coparceners. So even females
coparcener, the son also becomes may in this way become coparceners.
a coparcener under the
Mitakshara system.
Alienee's right to Under Mitakshara since there is Under the Dayabhaga law, the alienee
4. no defined share, a suit for can ask for joint possession along
ask for partition
partition is the only appropriate with the coparceners. This is because
remedy of the alienee. he has a defined share.

Persons entitled to Under the Mitakshara as The Dayabhaga law does not confer
5. administered today the son can on the son a right by birth and so he
partition
institute a suit for partition even has no right of partition as against the
against their father. father.

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 CONCLUSION

Basically, there are two schools of Hindu Law, namely; Mitakshara and Dayabhaga. In Bengal
and Assam the Dayabagha School was established and in the entire of India apart from in Bengal
and Assam Mitakshara School was broaden. The two main interpreters who wrote on Mitakshara
and Dayabagha Schools were Vijnaneshwar and Jeenutavahan respectively. Karta is the head of
the family and considered as the ‘Manager of Family’, who manages all the affairs of the family
and enjoys numerous powers and also holds numerous responsibilities. The most basic duty of a
Karta is to provide food, shelter, clothing, etc. to the members of the joint family. There are
several differences between Mitakshara and Dayabhaga School of law regarding the powers &
Duties of Karta. But, the basic idea is to declare a head of family in the form of Karta, where the
power is concentrated and to specify the representative of family.

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 BIBLIOGRAPHY

BOOKS
 Mulla, Principles of Hindu Law, 17th Edition, Vol.1, Butterworths India.
 M. Gandhi, Hindu Law, 2nd Edition, Eastern Book Company.

STATUTE
 Child Marriage Restraint Act, 1929
 Hindu Succession Act of 1956.
 Civil Procedure Code.

WEBSITES

 www.ipleaders.in
 www.lawctopus.com
 www.scconline.com
 www.indiankanoon.com

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