A Hindu widow cannot be the karta of her late husband’s Hindu Undivided Family

We have a Hindu Undivided Family, which includes my father, my two brothers, one elder sister, and my mother. My father was the karta. A couple of months ago he passed away. All of us want to make my mother the karta. Please advise how to do it. 

—Pratik K. Parekh

For the purpose of my response, I have assumed that you are Hindu and your Hindu Undivided Family (HUF) is governed by Mitakshara law. 

I understand that your present HUF comprises: you, your sister, your two brothers, and your mother.

Please note that prior to the Hindu Succession (Amendment) Act 2005, only male members descended from a common ancestor—such as sons, grandsons and great-grandsons—could be coparceners and had an interest by birth in coparcenary property.

However now, by virtue of the Hindu Succession (Amendment) Act 2005, daughters are also coparceners in their own right in the same manner as sons. Accordingly, in your HUF—you, your sister, your two brothers would be the present coparceners and your mother would be a member. According to Mitakshara law, only a coparcener can be a karta or manager of an HUF. Therefore, since a Hindu widow is a member of the HUF but not a coparcener, she cannot be a karta of in her husband’s HUF. [See Shreya Vidyarthi vs Ashok Vidyarthi & Ors AIR2016SC139 and Commissioner of Income Tax v. Seth Govindram Sugar Mills Ltd. AIR 1966 SC 24]. It is pertinent to note that in some cases, where the adult coparcener had died and there was no coparcener surviving or where the sole coparcener was a minor, courts have held that the HUF does not come to an end and the mother of the minor coparcener could act as the legal guardian of the minor and look after the role of karta, on behalf of the minor, in her capacity as legal guardian of the minor.

In view of the above, since there are other adult coparceners in your HUF and your mother is not a coparcener, she cannot be the karta, even though all of you desire and agree to make your mother the karta. It is usually the senior-most coparcener of the HUF, that is the karta. However, if the senior most coparcener relinquishes his right, then by consent, you could consider any other coparcener (even though junior to the senior coparcener so relinquishing his/her right) to be the karta of the HUF.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.

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