PART 3 UNCODIFIED LAW Chapter 10 ‘ JOINT FAMILY AND COPARCEN ARY Early Law of Joint Family—The joint and undivided family jag 5, been the normal condition of Hindu Society. Manusmriti recommendeq ther, the death of the father, the eldest among the sons should take over they patrimony and his other brothers should live under his control respec, “it as they respected their father. The eldest brother should look after his BE bin brothers, as a father looks after his sons; the younger brothers should rn ger same affection to their eldest brother as a son would to his father? Thee te followed by the rule that the brothers may in this manner live together, orn to acquire religious merit, live separately; for by living separately religious 7 grows, hence partition is meritorious.” Joint family living was favoured, ¢ partition but Manusmriti, in clear words, denied to the sons’ right to divide, patrimony during the lifetime of their parents, they may do so only ong death of their parents.‘ The state of society as evidenced from the aforesij statement of law in Manusmriti was more after the patriarchal model than th joint family model as we find. The difference between the position of a fhe as the patriarch and that of the eldest brother as the head of joint family is quit marked. The two distinct systems of Hindu law, Dayabhaga and the Mitakshan have evolved from this position taken by Manu. After Manu, Narada an Devala followed his views. Kautilya, in his Arthashastra, was also of the sam view. But Vishnu, Yajnavalkya and Brihaspati conceded this absolute dominion to the father only in respect of property acquired by the father himself andi respect of property inherited by the father they made the sons equal and jl owners with him. There were thus two schools of thought long before the ttt of Vijnanesvara and Jimutvahana. The earlier theory of Manu, followed bj Narda, Devala and Kautilya found its most powerful exponent in Jimutvahat and is still the law in Bengal and-Assam. Vijnanesvara, on the other hand) 8} his powerful espousal, made joint family and joint property the settled lav ® the vast majority of Hindus. He said ; "Therefore it is settled point that prope] in the paternal or ancestral estate is by birth, although the father independent power in the disposal of effects other than immovable! indispensable acts of duty and for purposes prescribed by texts of law, if through affection, support of the family, relief from distress, and so forthy . Chapter IX, Verse 105. . Chapter IX, Verse 108. . Chapter IX, Verse 111, . Chapter IX, Verse 104. Bere ( 370 )JOINT FAMILY AND COPARCENARY 371 is subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained, though immovables or biped have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born, and they who are yet unbegotten, and they who are still in the womb require the means of support. No gift or sale should, therefore, be made." Joint Family—Origin, its nature and constitution.—The institution of joint Hindu family is very old. It is a unique institution having no parallel in the whole world. It has evolved from the ancient patriarchal family which can be described as the earliest unit of human society. The head of such unit is always, in practice, despotic and enjoyed highest respect. The induction of coparcenary system considerably whittled down the absolute power of the head. But the joint family with its unique characteristics remained the basic tenet of Hindu society. It was considered to be most characteristic way of Hindu life inevitable for the cohesive development of the society. Hence it led to a presumption that every Hindu family is a joint Hindu family. Hindus are accustomed to live in joint family units. A joint Hindu family, at best, may be defined by stating the jointness of members of whom it is made up. Thus, "it consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be a member of her father’s family on marriage and becomes a member of her husband’s family.? The existence of a joint estate is not an essential requirement to constitute joint family, there can be a joint family even in absence of an estate. Generally, a Hindu family is regarded as joint not only in estate but also in food and worship. Under the Mitakshara law the existence of property is not a necessary requisite to constitute a joint family though a practice of common mess and common worship leads necessarily to a presumption of existence of some property, eg., household goods or articles which they enjoy in common.’ The Supreme Court observed that joint Hindu family is a larger body consisting of a group of persons who are united by the tie of Sapindaship arising by birth, marriage or adoption. The fundamental principle of jointness is Sapindaship. That it does not take more than one male to form a joint Hindu family with females. It may consist of a single male member and widows of deceased male members.‘ In Commissioner of Income Tax, Bihar, Ranchi y. Sint. Sandhya Rani Dutta? Dutta, a Hindu governed by the Dayabhaga School of Hindu Law, died intestate leaving behind his widow and two daughters. The assessee widow and t daughters inherited the self-acquired properties of the deceased in equal ee The assessee and the two daughters entered into an agreement. Thereby ey . Mitakshara I, 27-28, Mayne, 11th Ed., S. 259, p. 318. . Raghunandan v. Brojo Kishore, 33 IA 530. . AIR 1976 S.C. 109. . AIR 1970 S.C. 343. . AIR 2001, SC 1155. wRene372 MODERN HINDU LAW ided family and the assessee threw her ’ PPO Riese proce ito the Hty)coF thls Elin undivided ty ine i Supreme Court observed that the concept of Hindu females forming 3 The Hindu family by an agreement amongst themselves appears to be cont, Joint > the basic tenet of the Hindu personal law which requires the presence of ey for the purposes of the constitution of a Joint Hindu family. Therefore we presence of a male is.an essential requirement of joint family. * the In Pushpalatha N.V. v. V. Padma,' the court observed that existence of, estate is not an essential requisite to constitute joint family and family wal does not own any property may nevertheless be joint. The Joint Hindy fant consists of all persons lineal descended from a common ancestor and ingly, y all wives, unmarried daughters. The court also observed that, undivided Hing’ family is originally joint not only in estate but also in food and worship, The court also observed that the status of a coparcenar 1S confirmed on a daught of a coparcenar from the commencement of the Amendment Act 2005, a ‘A joint Hindu family is not a corporation. It has no legal entity distinct ang separate from that of the members who constitute it. It is not a juristic Pe either. It is a unit and in all affairs it is represented by its Karta or Head. Within its fold no outsider, except by adoption, can be admitted by agreement of otherwise. It confers a status on its members which can be acquired only by birth in the family or by marriage to a male member. Members of Joint Family.—The following category of persons constitute claimed to form a Hindu undivi joint family :— (1) Persons, lineally connected in the male line. (2) Collaterals. (3) Any person related by adoption. (4) Dependants. (5) Son born out of marriage between a male Hindu and Christian woman under Special Marriage Act, 1954. Females (1) The wife or widows of deceased male members, and (2) Maiden daughters. One of the special features of joint family is that it includes illegitimate children also. They are treated to be the members of their father’s family. Sometimes married widowed daughters also settle in the joint family and are treated as members thereof, entitled to maintenance. Presumption of jointness.—There is a general presumption of jointness of every Hindu family. The Orissa High Court! has observed that the leading principle of Hindu law is that in absence of proof of division the presumption is that every Hindu family is joint in food and worship and estate. 1. AIR 2010 Kar. 124. 2. Chotelal y. Jhandelal, 1972 All, 424. 3, Ram Kumar v. Commr, Income’ Tax, 1953 All. 150. 4. Binod Jena v. Abdul Hamid, AIR 1975 Orissa. 159. —