16 October 2013
In case of my client KARTA of HUF, who is having spouse and only 2 married daughters . Bank Manager is not accepting either daughter or his wife as a nominee for Fixed deposit made by the HUF.
Senior Most Male Member: - It is a presumption of Hindu law, that ordinarily the senior most male member is the Karta of the joint family.
Jandhayala Sreeamma v. Krishnavenamma AIR 1957 A.P.434 In the case of Hindu Joint Family a suit to set aside on alienation filed by the younger of the two brothers within three years of his attaining majority would be barred by limitation if the elder brother, who was the manager and an adult has failed to sue within three years of his attaining majority.
The senior most male member is Karta by virtue of the fact that he is senior most male member. He does not owe his position to agreement or consent of other coparceners. So long as he is alive, may be aged, infirm, or ailing, he will continue to be Karta. Even a leper may continue to be the Karta1. However, in cases of insanity or any other disqualifications, the next senior male member generally takes over the Kartaship. Once this is done the former will cease to be a karta.
So long as the father is alive, he is the karta. After his death it passes to the senior most male member, who may be the uncle, if coparcenery consists of uncles and nephews, or who may be the eldest brother, if coparcenery consists of brothers.
The concept of a “manager” of a Joint Hindu Family has been in existence for more than two thousand years or more. Courts in India have given diverse views: -
C.P. Berai v. Laxmi Narayan AIR 1949 Nag 128 It was held that a widow could be a karta in the absence of adult male members in the family. It was said that the true test is not who transferred/incurred the liability, but whether the transaction was justified by necessity.
Sushila Devi Rampura v. Income tax Officer AIR 1959 Cal It was held that where the male members are minors, their natural guardian is their mother. The mother can represent the HUF for the purpose of assessment and recovery of income tax.
Radha Ammal v. Commissioner of Income Tax AIR 1950 Mad 588 It was held that since a widow is not admittedly a coparcener, she has no legal qualification to become a manger of a JHF.
Commissioner of Income Tax v. Seth Govind Ram AIR 1966 S.C. 2 After reviving the authorities it was held that the mother or any other female could not be the Karta of the Joint Family. According to the Hindu sages, only a coparcener can be a karta and since females cannot be coparceners, they cannot be the Karta of a Joint Hindu Family.
The above views seem to be rigid. Rigidity in law is a fatal flaw. Since it is depended upon an ill directed question whether the transferor was a coparcener.
Dharmashastra is one and only sure guide. According to Dharmashastras, in absence of male members female members can act as karta, or in case where male members if present are minors, she can act as karta. Debts incurred even by female members under such circumstances will be binding upon the family and must be paid out of the joint family funds whether at the time of partition or earlier. Often the question is raised as to whether her acts are for the benefit of the family. Dharmashastra answers it by saying that she might act as manager by doing acts of positive benefit and not merely conservative/negative acts.
"The position according to the Mitakshara theory as developed by Vijnaneshwara seems to be this, that a wife gets rights of ownership of her husband's separate and joint family property from the moment of her marriage and a daughter from the moment of her birth. But Vijnaneshwara does make a distinction between males and females and says that females are asvatantra or unfree. If we are to translate his notion into the language of the coparcenary, I think we can state that women are coparceners but 'unfree' coparceners."
But my question in the above particular case who can be nominee then. He has option. Wife or married daughters. cant he keep nominee then if there is no male member?
CAclubindia
