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Who is a ‘Hindu’?

Under the uncodified Hindu Law

The Following are the instances of persons who were held to be


Hindus by various Courts before 1956.

(1) Hindus by birth;


(2) Hindus by religion, i.e. converts to Hinduism;
(3) Illegitimate children, where both parents were Hindus;
(4) Illegitimate children of a Christian father and a Hindu
mother provided that such children were brought up as
Hindus;
(5) Jains, Buddhists, Sikhs and Nambudri Brahmins;
(6) Hindus by birth, who had renounced Hinduism but reverted
back to the Hindu faith after performing the prescribed
religious rites; and
(7) Persons belonging to Brahmo and the Arya Samaj.

The Courts had held that Hindu Law did not apply to the
following, viz;

(1) To the illegitimate children of a Hindu father by a


Christian mother, if such children were brought up as
Christians;
(2) To Hindu converts to Christianity;
(3) To Converts from the Hindu to the Islamic faith; and
(4) To descendants of Hindus who had formed themselves
into a distinct community with a religion quite
different from that propounded by the Shastras.

Under the codified law


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Section 2 of the Hindu Marriage Act, 1955 provides


that the Act applies to the persons listed below (and
similar provisions are also made in the ether
enactments of Hindu law):
(A) Any person who is a Hindu by religion in any of
its forms or development, including a Virashiaiva,
a Lingayat or a follower of the Brahmo, Prarthana
or Arya Samaj.
(B) Any other person domiciled in India, l who is not
a Muslim, Christian, Parsi or Jew by religion,
unless it is proved that any such person would
not have been governed by Hindu Law, or by any
custom or usage as part of that law, in respect of
any of the matters dealt with in the Act if this Act
had not been passed.
(C) Hindus domiciled in the territories to which the
Act extends, but who are outside such territories.
(D) The Explanation to Section 2 clarifies that the
following persons have also to be considered to be
Hindus, Buddhist, or Jains by religion, as the
case may be, viz.:
a. Any child, legitimate or illegitimate both of
whose parents are Hindus, Buddhists, Jains
or Sikhs by religion:
b. Any child, legitimate or illegitimate, one of
whose parents is a Hindu, Buddhists, Jain
or Sikh, provided such child is brought up
as a member of the tribe, community, group
or family to which such parents belong or
belonged.
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c. Any person who is a convert or re-convert to


the Hindu, Buddists, Jain or Sikh religion.

SCHOOLS OF HINDU LAW

The two principal schools of Hindu law are – (1) the


Mitakshara School and (2) the Dayabhaga School, or
the Bengal School as it is often called.

The Mitakshara (literally meaning “a concise work”) is


a running commentary on the code of Yajnavalikya. It
has been written by Jijnaneshwar (11th Century) and
prevails. In all parts of India, except in Bengal. The
Dayabhaga School, which is followed mainly in Bengal
is not a commentary on any particular code, but is a
digest of all the codes. It has been written by
Jimutavahana, 12th Centaury. It may also be noted
that the Mitakshara is the orthodox school, whereas
the Dayabhaga (or the Bengal school, as it is
sometimes called) is the reformist school of Hindu Law.
The Dayabhaga School is considered to be a dissident
school of the old Benares School.

The Dayabhaga is not divided into any sub-schools;


however the Mitakshara is sub-divided into four
schools prevailing in different parts of India. These
different schools have the same fundamental
principles, but differ in matters of details, especially
with reference to the topics of adoption and
inheritance. These four sub-schools are as follows:-
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(a) The Benares School, which prevails in northern


and north western India except in rural Punjab
where its authority has been considerably
modified by customary law. The main authorities
of the school are: the Virmitrodaya and the
Nirnaya Sindhu.
(b) The Mithila School, which has most of its
followers in Bihar. The main authorities are: the
Vivada Chintamani, the Vivada Ratnakara, the
Madana Parijata and the Vyavahara Mayukha.
(c) The Dravida or Madras School, which prevails is
southern India. The principle authorities are the
Samriti Chandrika, the Parashara Madhaviya, the
Saraswi Vilasa and the Vyavahara Nirnaya.
(d) The Maharashtra or Bombay School, which
prevails in western India. The main authorities of
the school are: the Viramitrodaya and the
Nirmaya Sindhu.

The differences between the two are:-

(1) In respect of law of succession – The


Mitakshara School bases its law of inheritance on
the principle of propinquity (nearness of blood-
relationship or community of blood). While the
Dayabhaga School bases its law of succession on
the principles of religious efficacy or spiritual
benefit.

The Principle of propinquity means that one who


is nearer in blood relationship succeeds. This is,
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purely, a secular principle. The principle applied


to this form would mean that for instance, sons
and daughters would succeed to the property
equally and simultaneously as they are equally
near to their deceased parent similarly, the
daughter’s son and son’s son would equally and
simultaneously succeeded to the property of their
grandparent. However, the Mitakshara did not
give full effect to the principle, and limited it by
two subsidiary rules:
(a) exclusion of females from inheritance, and
(b) preference of agnates over cognates.

The Principle of religious efficacy or spiritual


benefit is that the one who confers more religious
benefit on the deceased is entitled to inheritance
in preference to the others who confer less
spiritual benefit. The conferment or religious
benefit is based on the doctrine of offering of
oblations or pindadana to the deceased. Although
the principle is based on religious doctrines, its
operation does not always lead to preference of
agnates over cognates.

Notably, this difference between the two main


schools is no longer tenable. Under the Hindu
Succession Act, 1956, we have one uniform law of
succession for all Hindus to whatever school or
sub-school they may belong.

(2) In respect of the law of joint family –


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(a) The Mitakshara propounds the doctrine of son’s


(i.e. son, son’s son and son’s son’s son) right by
birth in the joint family property. This doctrine
means that the moment a son is born he
acquired an interest in the joint family property
which by partition, can be at any time, converted
into separate property. This doctrine means that
each son on his birth acquires an equal interest
with his father in the joint family property. The
concomitant principle to son’s birth right is the
principle that the joint family property devolves
by survivorship. In other works, the joint family
property does not pass by inheritance but it goes
to these who, among the group known as
coparceners, survive others, i.e. are able to live
longer than others.
Under the Dayabhaga School, sons have no right
by birth in any property, and all properties
devolve by inheritance. So long as the father is
alive, he is the master of all properties whether
ancestral or self acquired.
(b) The concept of the joint family property under the
Mitakshara School implies the notion of
community of ownership and unity of possession.
This expression means that before partition, no
individual coparcener can say that he own so
much share in the joint family property. The
interest of each coparcener is a fluctuating
interest, the deaths may augment it, birth may
diminish it.
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Since there is no concept of birth right under the


Dayabhaga School, coparceners have specified
and ascertained shares in the joint family
property and their interest does not fluctuate on
births or deaths in the family.
(c) Under Mitakshara School neither the father nor
any other coparcener can ordinarily alienate the
joint family property. Under the Dayabhaga
School, there is no such restriction and each
coparcener has full right of alienation of his
undivided share in the joint family property,
though the Karta, like the Mitakshara karta, can
alienate joint family property only in certain
special cases.

JOINT FAMILY

A joint and undivided family is a body consisting of persons, male


or female, who are the sapindas (relations) of each other by birth,
marriage, or adoption.

1. Conception of a joint and undivided family – In other


words, a joint and undivided family consists of (i) persons,
male or female, who are born in the family such as a son (a
grandson or any other lineal male descendant) or a
daughter, and (ii) persons introduced into the family either
(A) by marriage, such as the wives of the members of the
family, or (B) by adoption. It is part of Hindu law that a
female on marriage ceases to belong to the family of her
birth and passes into that of her husband. Likewise a boy
on adoption ceases to belong to the family of his birth
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(natural family) and passes into that of his adoptive father


(adoptive family). The concept of a joint and undivided
family is, therefore, that of a common male ancestor with
his lineal descendants (natural or adopted) in the male line,
howsoever removed, including the wives and unmarried
daughters of the ancestor and such descendants. Daughters
belong to the family of their birth until marriage only.

2. The features of a joint and undivided family are –


(1) The tie of sapindaship: A joint and undivided family is a
body or group of persons who are united together by the tie
of sapindaship arising by birth, marriage, or adoption.
(i) Where the tie of sapindaship exists, there can be
no limit either to (A) the number of persons of
whom a Hindu joint family may consist, or (B) the
remoteness of their descent from the common
ancestor, and consequently to the distance of
relationship from each other.
(ii) Females as well as males may be members of a
joint family.
(iii) Although a joint family must commence with a
common ancestor it does not cease to be a joint
family on the death of the common ancestor. A
joint family may therefore either consist of a
common ancestor and his descendants or
sometimes or collateral only, such as all the
descendants of the common ancestor after his
death.
(iv) It is not necessary to have at least two male
members to form a joint Hindu family. Property of
a joint family therefore does not cease to belong to
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the family because the family is represented by a


single coparcener who possess rights which an
owner of property may possess.
(v) Apart from the members of a Hindu joint family
and co-widows and daughters, there is no
justification for extending the right of
survivorship.
(3) A fluctuating body: A joint and undivided family
fluctuates by reason of (i) births and deaths in
the family, (ii) marriages, and (iii) adoptions.
Members of the family may also retire therefore by
civil death or by renunciation on their part
acquiesced in by the remaining members
provided such renunciation and acquiescence are
manifested by an over act.
(4) A creature of law: A joint Hindu family is purely
a creature of law and cannot be created by act of
parties, for the fundamental principle of the joint
family is the tie of sapindaship arising by birth,
marriage or adoption (15) except that on
adoption, the adopted son becomes a coparcener
with his adoptive father as regards the ancestral
properties of the latter.
(i) A Hindu family is ordinarily joint in food and
worship but a family does not cease to be joint
and undivided merely because its members are
not joint either in food or worship or both as, for
instance, where they have separate arrangements
as a matter of convenience.
(ii) Similarly, although a family is ordinarily joint not
only in food and worship but also in estate, the
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possession of a joint estate is not necessary to


constitute a joint family for a family which does
not own any property may nevertheless be joint.
Indeed, there is no presumption that a family,
because it is joint, possesses joint property.
Hindus get a joint Hindu family status by birth
(or marriage or adoption) and the joint family
property is only an adjunct of a joint family.
COPARCENARY

(1) A coparcenary is a body consisting of the male


members of a joint and undivided family who are
related to the head of the family for the time being
within four degrees.
(2) A male member of the joint family may enter the
coparcenary when he comes within the limit of four
decrees by the death of an ancestor or ancestors
provided that a break of more than three degrees has
not occurred between him and the ancestor on whose
death he would ordinarily have entered the
coparcenary.

Conception of a coparcenary – It should be noted


that not all members of a joint family belong to a
conparcenary within it; a coparcenary is a narrower
body within the framework of a joint family. While a
joint family is unlimited both as to the number of
persons and the remoteness of their descent from the
common ancestor, a coparcenary is thrown open to
certain only of the members of the joint family. It is
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limited among those family members who are within


the rule of four degree.

Illustration :– A, his son B, a grandson C, a great –


grandson D and a great-great all form a coparcenary?
No. Only such of the lineal descendants of A will form
a coparcenary with him as are within the limit of four
degrees. Therefore A, B, C and D form a coparcenary. E
cannot belong to the coparcenary as he is more than
four degrees removed from the ancestor A and a
coparcenary is limited to four degrees from the head of
the stock then living. Similarly no remoter lineal
descendant, such as a son of, can belong to the
coparcenary. Here therefore E is a member of the joint
family but not a coparcener.

Illustration: – A, his sons B and C, his grandsons D,


E, F, great –grandsons G,H,K, L, and his great-great
grandsons M,N, O, P are members of a joint and
undivided Hindu family. Do all of them form a
coparcenary? No. The male lineal descendants of A
within the limit of four degrees in each line will form a
coparcenary with A; but no person who is outside that
limit in any line can be a member of that coparcenary.
Therefore, from B branch B, D, G and H are members
of the coparcenary with A. Neither M nor N can belong
to that coparcenary as they are outside the limit of
four degrees from the ancestor A. Similarly from C
branch, only C, E, K, F and L are within the
coparcenary but O and P are not within it.
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COPARCENARY PROPERTY

Obstructed and unobstructed Heritage

 Property in which a person acquires an interest


by birth is called unobstructed heritage
apratibandha daya, because the accrual of the
right to it is not obstructed by the existence of the
owner. Property inherited by a Hindu from his
father, father’s father, or father’s father’s father,
but not from his maternal grandfather, is
unobstructed heritage as regards his own male
issue, i.e. his son, grandson and great-grandson.

 Property, the right to which accrues not by birth


but on the death of the last owner without leaving
a male issue, is called obstructed heritage. It is
called obstructed because the accrual of the right
to it is obstructed by the existence of the owner.
Property which devolves on parents, brothers,
nephews, uncles, etc. upon the death of the last
owner, is obstructed heritage. These relations do
not take a vested interest in the property by birth.
Their right to it arises for the first time on the
death of the owner. Until then, they have a mere
succession or a bare chance of succession to the
property.
 Unobstructed heritage devolves by survivorship,
obstructed heritage, by succession.
 Example- A inherits certain property from his
brother. A has a son B. The property is
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obstructed in A’s hands. B does not take any


interest in it during A’s life. After A’s death, B will
take it as A’s heir by succession. The existence of
A is an obstruction to the accrual of any rights in
the property to B.

Classification of Property

According to the Hindu law, property may be divided


into two classes-
(1) Joint family property or coparcenary property
(2) Separate property (includes self-acquired
property)

Joint family property may be divided (according to


the source from which it comes into:

(1) Ancestral property, and


(2) Separate property of coparceners thrown into the
common coparcenary stock.

INCIDENTS OF JOINT FAMILY PROPERTY

(1) There is a community of interest and a unity of


possession in a property between persons who are for
the time being the co-owners (called coparceners of the
property.
(2) The male issue of the co-owners (coparceners) acquires
an interest (co-ownership) in the property by birth
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alone but they do not claim such interest through any


other coparcener or through the joint family.
(3) On the death of a co-owner (coparcener), other than
the sole surviving co-owner (coparcener), his interest
in the property devolves by survivorship on the
surviving co-owners (coparceners) and not by
succession on his own heirs.
(4) Property is liable to partition unless it is impartible.
1. (1) Community of interest and unity of
possession. – So long as the family remains joint
there exist in the joint family property a
community of interest and a unity of possession
between persons who are for the time being the
co-owners (coparceners) of the joint property of
the family. It is the Mitakshara doctrine that until
partition the ownership of the joint family
(coparcenary) property is in the whole body of the
coparcenary with the result that each co-owner
(coparcener) is until partition the owner of the
whole of the joint family property and has not his
rights or ownership fastened upon a particular
portion or part of the property only. This is what
is known as the doctrine of aggregate ownership.
2. Devolution of ownership by survivorship – Joint
family (coparcenary) property, unlike separate
property, devolves by survivorship and not by
succession. On the death of a co-owner
(coparcener), his interest in the coparcenary
property does not pass by succession to his own
heirs. It passes instead by survivorship to the
other co-owners (coparceners).
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Illustration: A his brother B, his son C, and B’s son D


are members of a joint Hindu family owing joint
property of the family. A dies. On A’s death his
interest (undivided) will pass to the surviving
coparceners, viz., B, C and D. If it were to devolve
by succession, it would descend upon his own
heirs, who in the present case would be his son
C.
This rule of survivorship applies on the death of
every co-owner (coparcener) except the last
surviving co-owner (coparcener) on the death of
the last surviving coparcener there would be left
no joint owner to take the property by
survivorship and it must therefore devolve on his
own heirs instead.

PROPERTY THROWN INTO COMMON STOCK

Doctrine of blending – Whenever the karta of the joint family


purchases an item of property by selling an item of a joint family
property the one so purchases need to be treated as owned by the
joint family if a member of the joint family property acquired in
his own name in the presence of the ancestral nucleus, it shall be
presumed to be joint family property law relating to blending of
the separate property with joint family property is well settled.
Property which was originally the separate property of a member
of joint family may by operation of the doctrine of blending
became joint family property, if it has been voluntarily thrown by
him into the common stock with the intention of abandoning all
certain claims upon it.

Where member of a joint family, who have control over joint


estate, blend with that estate property in which they have
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separate interest, the effect is that all the property so blended


becomes joint family property.

The basis of this doctrine is the existence of coparcenary


property as well as the existence of the separate property of a
coparcener.

This doctrine cannot be applied to the case of Hindu female who


has acquired immovable property from her father from she is not
coparcener.

 Example – Three Hindu brothers A, B and C, lived together


as members of a joint family in their ancestral house at
Nagothna, the house being the only property left by the
father. Subsequently, A and B went to Baroda and got
employment as clerks. C remained at home to look after the
family affairs. Both A and B remitted money from time to
time C for the support of the family living at Nagothana. C
applied the income towards the support of the family and
with the savings from such remittances; he purchases
certain immovable property in his own name. A and B sued
C to recover possession of the property from C, alleging that
it was their self acquired property. It was held, that the
property was the self acquired property of A and B, and they
were entitled to it to the exclusion of C, unless it appeared
that the property had been treated by A and B as joint
family property.
 Example – A joint Hindu family, consisting of a father and
his three sons, owns certain villages, which are the joint
property of the family. The father as the head of the family
opens an account with a banker, with whom he deposits
from time to time, the income arising from the villages. The
father also earns a large sum of money every year and these
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are also deposited by him with the banker in the same


account. There is nothing to show that he discriminated
between the income of the joint properties and his personal
income. On the other hand, the evidence shows that he
blended them both in one general account. Upon these
facts, it was held by the Privy Council that the self
acquisitions of the father must be treated as joint family
property, and that he had no power, therefore, to dispose
them by his will.
 If a member of a joint family builds a house on ancestral
land with his own moneys, the other members have a claim
on him only for compensation for their share of the land.

CASE LIST

1. Pushpa Devi Vs. Commissioner of Income Tax AIR 1977 SC


Supreme Court held that if a female inherit property from
her father, where she is not member of joint family, cannot
blend her property into her husband’s joint family property,
yet she can make gift of such property.
2. Shiba Prashad Singh Vs. Rani Pragya Kumari Devi
In this case, Privy Council held that if a member of joint
family augments joint property, whatever may be the mode
of augmentation, the property which goes to augment
became part of joint family property and he is entitled on a
partition to an equal share with the other member not
double share.
3. Rajnikant Pal Vs. Jaga Mohan Pal
Where a member of a joint Hindu family blends his self
acquired property with joint family property, either by
bringing his self acquired property into joint family stock or
by bringing joint family property into his account, the effect
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is that all the property so blended became joint family


property.

SEPARATE PROPERTY
Incident of separate property
 Absolute ownership or rather, ownership exclusive of the
joint family.
 Devolution of property by succession.
1. Absolute ownership or ownership exclusive of joint
family- it will be recalled that separate property means
any property of Hindu other than property shared by
his joint family; in other word, separate of male Hindu
is a property which is of his own absolute ownership
as between himself and his family. No member of his
family acquires any interest in such property during
lifetime of owner himself. The separate of a male Hindu
is a obstructed heritage.
The male issues do not acquire by birth alone any
interest in a separate property of a male Hindu
whether the property is moveable or immoveable.
Property inherited by a female is a separate property
and his male issues do not take interest in it by birth.
Said property cannot be subject matter of partition
between him and his sons.
Since the male issue do not acquire any such interest
it has been held that
I. The separate property of Hindu does not ceases to
be separate property simply by birth of a son.
II. It is not liable to partition between him and his
male issue;
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III. The owner may sell his separate property without


concurrence of his sons;
IV. He may make an unequal distribution of such
property among his sons;
V. He may make a gift of it to one son to the entire
exclusion of other sons.
2. Devolution of property by succession- Hindu law
recognizes two modes of devolution of property, viz.,
succession and survivorship according as it is
separate or joint family property. On the death
intestate of male Hindu his separate property devolves
by succession on his heirs according to law. It devolve
by succession not by survivorship whatever the status
of deceased, whether joint, separate or reunited at the
time of his death. On his death his property passes by
succession to his heirs.

The various types of separate properties are:-


1. Obstructed heritage – Property inherited as obstructed
heritage (sapratibandha daya).
2. Gift – A gift of a small portion of ancestral movable
property made through affection by a father to his
made issue.
3. Government grant – Property granted by government to
a member of a joint family is the separate property of
the done, unless it appears from the grant that it was
intended for the benefit of the family.
4. Property lost to family – Ancestral property lost to the
family and recovered by a member without the
assistance of joint family property. Property acquired
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by a father by adverse possession is his separate


property and not ancestral property.
5. Income of separate property – The income of separate
property and purchases made with such income.
6. Property held by sole surviving coparcener – Property
held by a sole surviving coparcener, when there is no
widow in existence who has power to adopt.
7. Separate earnings – Separate earnings of a member of
a joint family.
8. Gains of learning – all acquisitions made by means of
learning are declared by the Hindu Gains of Learning
Act 1930, to be the separate property of the acquire.
9. Property which was formerly ancestral, but was
alienated by the family and later purchases by a
member out of his self-acquired funds.

Gains of Learning (Gains of Science) –

Gains of learning or gains of science are also known as


vidhyadhana. The tem gains of learning means all acquisitions of
property made substantially by means of learning (of whatever
kind).

Before 1930, income earned by a member of a joint family by the


practice of a profession or occupation requiring a special training
imparted at the expenses of the joint family property was
considered to be joint family property.

After 1930, the position is governed by the Hindu Gains of


Learning Act, 1930 and accordingly, gains of learning are to be
the exclusive and separate property of the member of the joint
family who acquires them even if –
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(a) His learning had been (in whole or in part) imparted to


him by any member of his family, or with the aid of the
joint funds of the family, or with the aid of funds of any
member of the family; or
(b) He himself or his family had, while he was acquiring
such learning, been maintained or supported (wholly
or in part) by the joint funds of the family, or by the
funds of any member of the family.

The above Act came into force on 25 th July 1930. It is


retrospective in operation, and all gains of learning whether made
before or after the said date, constitute the self acquired property
of the person acquiring them.

Moreover, under the said Act, the term learning is given a wide
meaning to mean all types of education whether elementary,
technical, scientific, special or general, and training of every kind
for pursing any trade, industry, profession or avocation in life.

Gokul Chand Vs. Hukum Chand – 1921 PC gains which are not
the result of anything but his own exertions are not joint family
property.

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