“CRITICAL

CRITICAL STUDY
“CRITICAL STUDYONONTHE
THECONCEPT
OF JOINT HINDU FAMILY PROPERTY”
PROPERTY
CONCEPT OF JOINT HINDU

FAMILY LAW- II (LAW214)

(LAW

SUBMITTED TO:-
Ms. Ananya Goshal
Asst Professor
Amity University Kolkata

SUBMITTED BY:-
BY:
GITIKA JAIN
MOHIT CHAMARIA
DEVESH ARORA
PARVEZ MALLICK
BBA LL.B(H) SEM-4
SEM
 INDEX

S NO TOPIC PAGE NO
1 ABSTRACT 1
2 INTRODUCTION 2
3 EFFECT ON COPARENCY 3
4 INTEREST BY POSSESION 3
5 DOCTRINE OF SURVIVORSHIP 3
KEY ROLE PLAYERS IN THE
6 JOINT HINDU FAMILY 4
STATUS OF PROPERTY WITH
7 RESPECT TO PARTITION 6
ADVANTAGES OF JOINT HINDU
8 FAMMILY 8
DIS-ADVANTAGES OF JOINT
9 HINDU FAMMILY 9
10 CONCLUSION 11
 ABSTRACT

Family is one of the universal and permanent institutions of mankind. In every society and at every
stage of development we found some sort of family. As a result we found different types of family all
over the world. But in India we found a peculiar family system which deserve special attention. The
family in India does not consist only of husband, wife and their children but also of uncles, aunts and
cousins and grandsons. This system is called joint family or extended family system. This joint
family system is a peculiar characteristic of the Indian social life. Usually a son after marriage does
not separate himself from the parents but continue to live under the same roof eating food cooked at
one hearth participating in common worship and holding property in common and every person has
share in it.All the members of joint family keep their earnings in a common fund out of which family
expenses are met. Accordingly Indian Joint family system is like a socialistic community in which
every members earns according to his capacity and receives according to his needs. This joint family
or extended family is organized on close blood relationships. It normally consists of members of
three to four generations.In other words joint family is a collection of more than one primary family
on the basis of close blood ties and common residences. The entire members are bound by mutual
obligations and have a common ancestor. It consist of an individual his wife and married sons their
children and unmarried daughter, his brother and his parent.But to have a clear understanding of the
meaning of joint family we must have to analyze some of its definitions given by different
sociologists.

Some of this definitions are as follows:

(1) According to Smt. Iravati Karve, “A joint family is a group of people who generally live under
one roof, who eat food cooked at one hearth, who hold property in common and who participate in
common worship and are related to each other as some particular type of Kindred.”

(2) According to K.M. Kapadia, “Joint family is a group formed not only of a couple and their
children but also other relations either from father‟s side or from mother‟s side depending on
whether the joint family is patrilineal or matrilineal.”

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 INTRODUCTION:

A Hindu Joint Family setup is an extended family arrangement prevalent which has an enormous legal
significance in India. Simply, a Hindu Joint Family would at best be described as, the lineal
descendants and their dependants where, the former trace their origin to one common ancestor. The
underlying essence of a joint family is the fact that it traces its origin back to one common ancestor and
with the addition and deaths of members, joint families can continue till eternity.It is important to
understand that though a single familial unit, a Joint Hindu Family does not have a separate legal
identity and is not a juristic person.Though, the only collective statutory recognition that has been
bestowed upon a Joint Hindu Family is for the purposes of taxation.

The focal points of the research are drawn into the following heads:

• Distinction between the Mitakshara and Dayabhaga schools of law

• A brief insight into who are the Important Role Players – the Karta and the women
(especially in the context of them becoming coparceners post 2005
• Status of the Property for the Joint family
• Advantages and disadvantages

Distinction between the dayabhaga and mitakshara schools:

Important terminology:

Before embarking upon an explanation as to what is the distinction between the schools of law, it
is important to define some important terms.

• Coparcenary: Partnership in inheritance; joint heir ship; joint right of succession to an

inheritance.
• Unity of Possession: Though, a coparcenary may exist, yet till partition takes place there
cannot be a definite share for any of the coparceners.
• Doctrine of Survivorship: The concept basically states that, the property would be
devolved upon the death of the coparcener to his next survivor, irrespective of who his
heir is.

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 • Karta: The eldest member of a Hindu Joint Family is known as the Karta of the
coparcenary. He is the representative of the family.
• Alienation: the voluntary and absolute transfer of title and possession of real property
from one person to another.

EFFECT OF COPARCENARY:
There is a difference in the way a joint family comes into existence in the Mitakshara and the
Dayabhaga systems.Under the Dayabhaga School on the death of the Karta, the succession is Per
stirpes; that each son has an equal and absolute share. By absolute, one may note that none of the
descendants of the heir inheriting have any right over the property. In addition to this, if one of the
heirs dies then, even his wife or unmarried daughter have a share over his property which is not
possible under Mitakshara law.

INTEREST BY POSSESSION
Another point of distinction between the Mitakshara and the Dayabhaga schools is that a coparcener
takes a fixed share once the Karta dies. In other words it’s a certain share. Thus, for example a person
dies leaving behind 4 sons, then each son would have a determined 1/4th share to the property.Under
the Mitakshara school of Hindu law, it may be said that there is a literal presumption of love and
affection in the family, i.e. there is a community interest in the family property. By community
interest one means that all the coparceners have an interest in the joint family property. Under the
Dayabhaga School though, there is a constant notion of having a fixed share of property. Though,
there may be a community interest as long a partition by metes and bounds hasn’t taken place.

DOCTRINE OF SURVIVORSHIP
This doctrine has been explained earlier. The Dayabhaga School allows for devolving of properties
only at the point of succession. Thus, there is no question of inheriting any property. It is due to the
application of this concept that there exists no coparcenary between a grandfather and his grandson
under the Dayabhaga School.The application of this rule is also related because classical Hindu Law
recognised the concepts of unobstructed heritage and obstructed heritage to property. By
unobstructed heritage one means that between the lineal descendants the Coparcenary never ends.
Thus, if one of the chain members dies then the coparcenary shifts to the next lineal descendant. This
phenomenon has been accepted under Mitakshara School. On the other hand, the Dayabhaga School

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recognizes only obstructed heritage.There are two further differences between the two schools of law
that the researcher wants to delve upon but they would be explained in the next part of the essay
owing to the fact that they involve the role players such as the Karta.

KEY ROLE PLAYERS IN THE HINDU JOINT FAMILY

The Hindu Joint Family being considered as the close knit unit as it is though has a few prominent
members while its legal status is being considered. The researcher intends to reflect the legal status of
two prominent members: the Karta, the status of a female as a coparcener post the 2005 amendment.

THE KARTA:
In a Joint Hindu Family, the Karta being the representative is responsible for the family. He is
supposed to oversee the income and assets of the joint property. He is accountable to all other
family members for the use of their shares of all sums which he spent. The Karta’s powers and
liabilities and his power of alienation are similar in both the Dayabhaga and the Mitakshara
Schools. The difference that draws a contradistinction between the two is that the latter must be
in a position to render full accounts at all points of time. On the other hand the Karta under the
Dayabhaga School should render accounts only at the time of partition.As per Hindu law’s
convention, the senior most male member is generally the Karta of the joint family. The Andhra
Pradesh High Court has stated that the Karta does not owe his position to agreement or consent
of other coparceners. His status has been a part of Hindu Culture for long. As long as he is alive,
irrespective of his age, health or strength, he continues to be Karta.A conflict arises when in the
presence of a senior male member can a junior male member be the Karta? The position of law
decided on this is that if all the coparceners agree, then a junior male member can be a Karta.
Though, this is contingent upon the whims and fancies of the coparceners who may withdraw
their consent at any time.

Can A Female Member Be The Karta?

The Mitakshara School sets a position of law, that on marriage the wife entails ownership rights
to her husband’s separate and joint family property. Similarly, a daughter garners this right at
birth. The contingency to this being that there is a distinction between males and females.
Mitakshara law sets the status of women as bound to the family or asvatantra. Thus, their rights
can be entailed only while they belong to the family.The Hindu Joint Family Setup has since

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 time immemorial been criticized for being a patriarchal setup. Thus, even the “manager” of a
Joint Hindu Family has not been spared from this patriarchal approach. The position of law qua
the status of women as the Karta has been inconclusive. The views seem to be rigid which, is a
fatal flaw. Courts all over India have given different views: –

Women, per courts, have been allowed as the Karta as a last resort. She may be a widow who
takes over in the absence of adult male members in the family. The court though does not delve
into what could this absence mean? The true test as per the court is not who transferred/incurred
the liability, but whether the transaction was necessary. The courts though have rejected the
notion of a widow as a coparcener for the want of a legal qualification to become a manger of a
JHF. The mother then may be the Karta as the natural guardian of minor male members. She can
also, represent the HUF for the purpose of assessment and recovery of income tax. After
refreshing through the authorities it was held that the mother or any other female could not be the
Karta of the Joint Family. Per the interpretation of the Court Hindu Law allows only a
coparcener as a Karta and since females cannot be coparceners, they cannot be the Karta.

Dharmashastras are the one and only sure guide. The Dharmashastras give recognition to two of
the above decisions. The status of female members qua debts incurred as the Karta will be
binding upon the family and must be paid out of the joint family funds. Thus, it may be
submitted that there does exist a certain sense of gender neutrality. Dharmashastras also mandate
her acts as manager by accepting positive benefits as well and not merely conservative/negative
acts. Thereby, the texts mandate her judgement as the Karta.

STATUS OF FEMALE COPARCENARY (PRE AND POST AMENDMENT)

There is an inherent bond between property and personal laws in India. Before 1956, property laws
qua Hindus lacked coherence and differed on a regional basis. This can be seen in the distinct
application of the Mitakshara and the Dayabhaga Schools.The Mitakshara School of succession,
dominant in North India, was excessively patriarchal and the heirs had to be males. Under this, only
lineal male descendants have a right by birth to familial property that their father has. Their interest
is equal to that of the father. The coparcenary was exclusive till 2005 for male members. Distinct to
this, the Dayabhaga system did not acknowledge inheritance rights. Though there are instances
where the patriarchal shackles are broken, for instance under the Marumakkattayam law, in Kerala,
lineage is traced through the female line.Though, with the advent of common law in India, the

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 lawmakers sought to change this patriarchal bias. Women were bestowed with greater rights but still
denied coparcenary rights. Subsequently, through state amendments, this need of gender neutrality
was fulfilled.For instance the State of Kerala abolished the concept of coparcenary according to the
Kerala Joint Family System (Abolition) Act, 1975. As per the statute the heirs (male and female)
did not acquire property by birth but hold tenancy rights till the property is partitioned.
Subsequently, Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra
(1994) equal ‘coparcener’ rights on ancestral property by birth to both sons and daughters.
The 15th Law Commission via its 174th report (2000) suggested amendments to balance the
discrimination against women. The present amended Act was modelled upon this report’s
recommendations. The 2005 amendment gives women equal rights in the inheritance of ancestral
wealth, thus, bringing them at par with their male heirs. Section 6 of the Hindu Succession Act,
1956 (amended 2005) embodies this equality. An important question though, is still unanswered
even after the amendment; whether women or daughters can be allowed to become managers or
Karta of the joint family? The issue raised against them being the Karta was their “absence” from
the joint family home post the amendment.

STATUS OF PROPERTY WITH RESPECT TO PARTITION

Every adult coparcener has the right to demand a partition of the joint Hindu family. The conflicting
point is whether the son can demand a partition, if the father has an interest with his brother, father
or other coparceners? The position of law qua this point is inconclusive. In Bombay, it has been
held that the son is not entitled to a partition without the consent of his father, if the father is joint
with his father, brothers or other coparceners. However, if the joint family consists only of the
father and the sons, the son can demand a partition against the father and if the family consists only
of the grandfather and the grandsons, the sons can also enforce a partition against the grandfather.

Right Of Father
A Hindu father joint with his sons and governed by Mitakshara Law in contradistinction to other
manager of a Hindu undivided family or an ordinary coparcener enjoys the larger power to
impose a partition on his sons with himself as well as amongst his sons inter se without their
consent, whether the sons are majors or minors.However, the partition made must be fair and
equal, and if not, then the major sons have a right to repudiate the partition and the minor sons
have a right to avoid that partition when they attain majority. In case of such an unfair partition,

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 it is voidable and not void ab initio. However, a grandfather cannot bring about a partition
amongst his grandsons. The father also has the superior right to bring about a partial partition of
the properties, with the rider that the partition has to be bona fide and fair and just.

INTENTION TO SEPARATE

Partition is a severance of status and thus is a matter of individual volition. The division of the joint
status may be brought about by any adult member of the family by intimating, indicating or
representing to the other members, in clear and unambiguous terms his intention to separate and
enjoy his share in the family property in severalty. It is immaterial in such a case whether the other
coparceners give their assent to the separation or not. Further, when there is communication of
intention by a single coparcener, the question to be proved on the facts of the case is whether there
was a total partition, or that the other members decided to remain united or to reuniteThe
manifestation of the intention should be “declared”, i.e. that it should be to the knowledge of the
person affected thereby. Thus it is a necessary condition that a member of a joint Hindu family,
seeking to separate himself from others will have to make known his intention to the other members
of the family from whom he seeks to separate.Once a communication of intention has taken place in
clear and unambiguous terms which has resulted in the severance of the joint family status, it is not
open for the coparcener to get back to the original position by merely revoking the same. There has
to be an agreement to reunite and that a mere revocation of the intention cannot amount to an
agreement to reunite. However, it has been held that a notice that been given to the other
coparceners can be withdrawn with their consent.

Thus, it is submitted that once a notice has been issued that has come to the knowledge of the other
members, a severance would take place and such a notice cannot be withdrawn. It is submitted that
this is also reflected from Radhakrishna v. Satya Narayan, where the court held that when in a suit
for partition, the plaint contains a clear and an unambiguous expression of an intention to separate,
and summons have been served on the other coparceners, division in status is effected from the date
of the filing of the suit.

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 “It sometimes happens that persons make statements which serve their purpose or proceed upon
ignorance of the true position, and it not their statements but their relation with the estate which
should be taken into account while determining the issue.” It is submitted that this statement has to
be read in the context of a further statement in the same case which said that “If the document
clearly shows a division of right, its legal construction and effect cannot be controlled or altered by
evidence of the future conduct”. It is submitted that reading these two statements together, the
conclusion that can be drawn is that, if the document is a clear expression of the intention to
separate, then it does act as a separation and the future conduct of the parties does not matter, unless
it can be shown that the document was never intended to act as one for partition but was a sham one
for another ulterior purpose.

It is also important to note the once a severance of joint status has taken place, the subsequent
conduct of the parties is not relevant to be determined. The mere fact that separated coparceners
chose to live together or act jointly for purposes of business or trade or in their dealing with
properties, would not give them the status or coparceners under the Mitakshara law. The important
point here is that the coparceners must be proved to have been separated, and if so, then mere
subsequent conduct unless a reunion takes place, would not restore the joint family status.

Advantages of Joint Hindu Family Business:

The chief advantages of Joint Hindu Family Business are given below:
1. Easy to Start:
It is very easy to start the Joint Hindu Family Business. No legal formalities are required to be
faced, such as registration. It requires no agreement.

2. Efficient Management:
The management of Joint Hindu Family Business is centralised in the hands of Karta of family.
In this business, Karta takes all decisions and gets them implemented with the help of other
member. No other member interferes in his management.

3. Secrecy:
In Joint Hindu Family Business, all the decisions are taken by the ‘Karta’ himself. He is in a
position to keep all the affairs to himself and maintains perfect secrecy in all matters.

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 4. Prompt Decision:
The Karta is the only person who exercises control and direction over the business. He may not
consult anyone in taking decisions. This ensures prompt or quick decisions. Being the sole
master, he takes prompt decisions and makes advantage of the opportunity.

5. Economy:
For the success of any business, economy is a must. It is well- balanced and maintained in Joint
Hindu Family Business. The Karta of family spends money with great caution and economy.

6. Credit Facilities:
In Joint Hindu Family Business the credit facilities are more. One reason for this is that liability
of the ‘Karta’ is unlimited. Karta is having personal relations with others, which are also helpful
in raising credit.

7. Natural Love between Members:

In Joint Hindu Family Business, it is the natural love and affection which the members are
having for each other. It helps to run the business more efficiently and smoothly.

8. Freedom regarding Selection of Business:

The Karta is at freedom to select any business of his choice. He has not to depend on others

Disadvantages of Joint Hindu Family Business:

The disadvantages of Joint Hindu Family Business are given below:
1. Limited Membership:
The membership of the business is limited to the members of family only. No outsider can
become the member of Joint Hindu Family Business.

2. Limited Sources of Capital:

The capital is limited only upto the resources of one family. This is not sufficient to meet the
business requirements for expansion. Thus the size of the business remains small. The Karta
cannot take the advantage of economies of large size due to limited finance.

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3. Limited Managerial Skill:
All the managerial functions which are essential for the successful operation of a business are
performed by the Karta of the family. The Karta may not be able to perform all managerial
functions because of limitation of time, energy and skills. Because of limited scale of operations
and financial resources, it may not be feasible to secure the services of experts in different fields
like purchasing, production and marketing.

4. Unlimited Liability:
The liability of the Karta is unlimited. The Karta is not only liable to the extent of his share in the
business but his separate property is equally attachable and amount of debt can be recovered
from his separate property. This factor puts a ceiling on the growth and expansion of the
business.

5. Misuse of Power:
The management of a Joint Hindu Family Business is centralised in the hands of Karta of the
family. No other member can interfere in his management. This may lead to the misuse of power
and the Karta may use the power for his personal interest.

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 CONCLUSION

SUITABILITY OF JOINT HINDU FAMILY FIRM:

• Where investment required is moderate

• Where application of personal skill and judgement is necessary like services.
• Where avoidance of risky business due to unlimited liability of business is given precedence.
• Normally found in small manufacturing, trading and services.

The main cause for its decline is the gradual breaking of the joint family system itself. The present
day trends of industrialisation and westernisation are giving way to individual/nuclear family
system. The success of Joint Hindu Family business is mostly dependent upon the efficiency of the
karta and the mutual understanding between the co-parceners. Nevertheless, this type of business is
losing its ground with the gradual decline in the Joint Hindu Family system

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