GAIN OF LEARNING AND PROCESS UNDER MITAKSHARA LAW

A project submitted in partial fulfillment of the course Family Law, Semester IV

during the academic year 2018-19

Submitted by-

Vijayendra Kumar

Roll No.- 1773

B.A LL.B

Submitted to-

Mrs. Pooja Srivastava

March, 2019

Chanakya National Law University,

Mithapur, Patna, 800001

Page 1
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL.B. Project Report entitled
“GAIN OF LEARNING AND PROCESS UNDER MITAKSHARA LAW” submitted
at Chanakya National Law University, Patna is an authentic record of my work carried
out under the supervision of Pooja Srivastava Ma’am. I have not submitted this work
elsewhere for any other degree or diploma. I am fully responsible for the contents of
my Project Report.

(Signature of the Candidate)

Vijayendra Kumar

Chanakya National Law University, Patna

Page 2
 ACKNOWLEGEMENT

I would like to take this opportunity to thank Pooja Srivastava Ma’am, for her invaluable
support, guidance and advice. I would also like to thank my parents who have always been
there to support me. I would also like to thank the library staff for working long hours to
facilitate us with required material going a long way in quenching my thirst for education.

Moreover, thanks to all those who helped me in any way be it words, presence,
encouragement or blessings.

Page 3
OBJECTIVES OF STUDY
The researcher throughout the course of this project aims
• To study in about the gains and learning act.
• To study the historical evolution
• To study the judicial interpretation and critically analyse

HYPOTHESIS
The researcher while dealing in detail the concept of gains and learning is of the view that
Gains of learning are thus always self-acquired property with this supposition has proceeded
further in the project. At the last the hypothesis will either be proved or disproved.

RESEARCH METHODOLOGY
The research is an imperative use of Doctrinal Research. Doctrinal in the sense that the
researcher has collected theoretical material from different sources such as text books,
journals, reports and Internet resources.
SOURCES OF DATA
This research is a blend of primary sources, like judgments of the case, and secondary sources
like books, articles, magazines and law journals and also have include statistics and important
quotes from different sources, as and when considered suitable.

Page 4
 TABLE OF CONTENTS

Contents
DECLARATION BY THE CANDIDATE ......................................................................................................... 2
ACKNOWLEGEMENT................................................................................................................................ 3
OBJECTIVES OF STUDY ............................................................................................................................. 4
HYPOTHESIS ............................................................................................................................................. 4
RESEARCH METHODOLOGY ..................................................................................................................... 4
SOURCES OF DATA .................................................................................................................................. 4

1. INTRODUCTION ................................................................................................... 6

CONCLUSION AND SUGGESTION ........................................................................... 18

BIBLIOGRAPHY ....................................................................................................................................... 19

Page 5
 1. INTRODUCTION

According to the Mitakshara, property acquired by means of learning would be self-acquired

provided that learning was obtained without detriment to the ancestral property.

The Privy Council drew a distinction between ordinary education and specialised training.
When a person receives ordinary education though this was done at the expense of the
ancestral property, subsequent acquisitions by him, through based upon such ordinary
education received by him are his self-acquired property, Mehta Ram v. Rezva Chand, 45 Cal.
666 (PC) (Acquisition made by a stock broker).

When, however, the education is of a specialised kind, the use of ancestral property for having
such education makes the subsequent acquisitions attributable to such specialised training
coparcenary property.

Thus in Gokul Chand v. Hukam Chand, 2 Lah. 40 (PC) joint family properties were utilized to
send a coparcener to England and educate him there so that he became a member of the Indian
Civil Service (I.C.S.). It was held that the salary of the officer becomes a joint family asset in
such a case. Accordingly it was held to be attachable in execution of decree debt binding upon
the family.

The decision in Gokul Chand’s case led to the passing of the Hindu Gains of Learning Act of
1930. By this Act (known as the Jayakar Act) this decision was statutorily superseded. Under
this Act gains of learning are only self-acquired property, whether the education imparted
happens to be ordinary education or specialised education. Gains of learning are thus always
self-acquired property as a result of this Act.

Page 6
 A CRITICAL APPRAISAL OF THE HINDU GAINS OF LEARNING ACT

TO MEET the ends of justice it is necessary that all factors of production like capital and
labour are given due recognition and a fair recompense. Family law is no exception to this
goal although it is difficult to achieve a viable formula of distributive justice in a sphere
where sentiments, sense of moral duty and legal rights interact.

In the Hindu joint family system this difficulty is seriously realised and attempts have been
made, sometimes unsuccessfully, by Sastric writings, judicial decisions and legislation to
solve the problem. The law relating to Hindu gains of learning has failed to satisfy the claims
of all the economic factors.

The gains of learning or vidyadhana is that earning which a Hindu coparcener makes by
employing the knowledge and qualification acquired through education. The Hindu Gains of
Learning Act 1930 (H.G.L.A.) makes the gains of learning the exclusive property of the
acquirer, thereby creating an exception to the basic principle that property acquired at the
expense of the joint family accrues to it.

This project seeks to inquire whether the H.G.L.A. provides for an equitable distribution of
family property among the persons equally situated and whether non-recognition of labour of
an unlearned coparcener is just, fair and constitutional.

Page 7
 HISTORICAL ASPECT

The march of the Hindu society reflects a movement from community and household
ownership to individual ownership. Patriarchal control yielded place to the joint family
system where rights of the coparcener in family property by birth were recognised. The idea
of self-acquired property was not in vogue. Labour for and comforts from the family balanced
each other in the predominantly agricultural society. The agricultural family could claim the
assistance and lab in cultivation. But emergence of modern industry and the conditions. The
family could not claim the fruits labour of its members who did not use family propertion.
From this arose the idea of self-acquisition a detriment. This change in the property relations
was dynamics of social needs, occupational mobility and society.

The doctrine of detriment requires that whatever is acquired at the detriment of the family
property should be regarded as its accretion. The rational foundation for this doctrine can be
found in the social security,economic base and psychological set-up provided by the joint
family property to its members which was to be protected against frittering. The rule prevailed
even in the area of gains of learning.

Manu stated that what one (member of a joint family, brother, etc.) acquires
by his own labour without using (or without detriment to) the paternal
estate shall not be shared with others, unless he st) desires since that
acquisition was the result of such labour.* Manu also said: "Property
(acquired) by learning belongs solely to him to whom (it was
given),likewise the gift of a friend, a present received on marriage or with
the honey-mixture." Reading these statements together, the effect would be
the same as that prescribed by Narada, namely, "A learned man is not
bound to give a share of his own (acquired) wealth against his will to an
un-learned co-heir, unless it has been gained by him using the paternal
estate .

However, reading the second verse of Manu in isolation, as done by advo-

cates of the H.G.L.A.,damages the spirit of Manusmriti and is opposed to
the principle of interpretation. Katyayana's statement of the law also leads

Page 8
to the same conclusion. Even so is Yajnavalkya's who explained what may
not be divided as follows:

Whatever is acquired by a person himself, without detrime or expenditure

of paternal wealth, gifts from friends, gifts at are not liable to be divided
among a man's coparceners;

Similarly he who recovers ancestral property lost to the famwould not have
to share it at a partition with his coparceners his gains of learning.

Mitakshara , interpreting this clause states that the words whatever is acquired without
detriment to the father's wealth, are to be understood as qualifying each of the.kinds of
property.This practice prevailed amongst the ancient guilds .The more the agrarian economy
and labour of the time also supported position. However, some jurists attempted at formulae
to balance interests of the learned coparcener and the family.

In the application of the doctrine of detriment to the sphere o of learning certain complicated
questions arose: What was the type ment to patrimony that would entitle the family to the
acquisition by the coparcener-acquirer? Was the family assistance entitling sharing fined to
direct assistance only or would it cover indirect assistance

As the doctrine of detriment emerged to compensate the family its deprivations and as
deprivation could be found both in direct a direct detriment to the family property, the
distinction betweenand indirect use of the family property was never recognised in mining
whether the property was self-acquired or belonging to thefamily. Concerning the extent of
family assistance that partible property, there was no unanimous opinion a Katyayana and
Srikara followed a rigid policy where Dayabhaga was liberal. According to Katyayana, « 4 t
be the gains of vidya which is acquired by means from another while subsisting on food
furnished by ed acquisitions made by exhibition of knowledge, solution

teaching as gains of learning. Srikara also held coparcener was maintained by the family
during hisning and the subsequent earning were at the expense of bhaga opposing Srikara's
view argued that as a coparc depends upon his family for food and maintenance...say that no
paternal wealth was expended on him and ever kind would have to be deemed to be

Page 9
partible"24 where it is attempted to reduce a separate acquisition property, it must be shown
that the joint stock was used poses of gain. Dayabhaga likened food and maintenance to
sucking of mother's breast.25 J.D. Mayne regarde rational and observed that only the
extraordinary education and training of a coparcener was to be a legitimate expectation.The
distinction between ordinary and substantial assistance by the family was gradually
recognised by the judiciary also.

Page 10
 JUDICIAL REFINEMENT

It appears that the judicial trend was towards narrrowing down the category of partible gains.
Judicial doubts arose as to the following points: What would constitute detriment to the
partrimony? Whether substantial assistance from the family is neccssary for this? Whether
lear- ning suggested specialised education or mere general and elementary éducation? for the
purpose what belongs in common to the family".

In Laxman v. Malhar Rao a large estate of one Bhao, worth over Rs. 30 lakhs made by him
was considered by the Privy Council as joint family property although he had received no
more than elementary education at the expense of the joint family. It appears that the Privy
Council failed to note that ordinary assistance such as maintenance and elementary education
were like sucking of mother's breast and did not amount to substantial deprivai of family
property. The Laxman case is the result of wrong causation. The error in the reasoning of this
Judicial Committee was perpetuated by lower courts in several cases. In Chalakonda Alasani
v. Chalakonda Ratnachalam , which concern- ed a family where girls were trained to be
dancing girls as a part of the then existing social custom, the High Court of Madras,
upholding the appeal, held the property of a dancing girl, who had learnt singing and dancing
at the family expense, as partible. Taking the same strict view, it was held that gains of a
pleader were partible because either his learning was not science or they were deemed to be
acquired at the family expense, even though it was responsible for no more than a general
education. It appears that the judicial hesitation towards individualisation of gains of learning
expressed in these cases was influenced by the familism based strong abhorrence of self-
acquisition canvassed by certain jurist theologians and a lack of judicial enthusiasm. But clear
changes in the judicial approach can be found in the sub- sequent period. For this, certain
factors were responsible.

Firstly, the judgment in Chalakonda that the doctrine of detriment operated only in cases of
substantial assistance from the family nucleus.Secondly, the obiter dicta of Justice Mitter in a
Bengal case that the Hindu law no- where sanctions the contention that acquisitions made by a
learned coparcener by the aid of education received at the family expense are partible. His
view was accepted by the Privy Council in a case even though this issue was not directly in
question. But, this view clearly went against Sastric writings as discussed above. These two

Page 11
factors influenced the courts to narrow down the category of partibles to those cases where
family property was substantively used in the process of learning. The Judicial Committee
regarded the substantial outlay of family funds in educating a coparcener as a continuing
invest- ment for the family benefit and thus income earned by such coparcener was an
accretion to the family property. It made no distinction between direct and indirect assistance
by the family, as the deprivai of family pro- perty did exist in both the situations.48 In Gokal
Chand the Privy Council had the best opportunity of satis- fying the claims of family capital
and labour by equitable apportionment of the gain. By frittering it away it stretched the legal
pendulum to one extreme (i.e., capital). But legislative intervention snatched it to the other
extreme {i.e., labour) with certain discriminations.

Page 12
 CRITICAL ANALYSIS

The operation of the H.G.L.A. in the Hindu joint family system of the
Mitakshara school can be analysed through the following practical
illustration. A Hindu joint family consists of H, the father, and four sons
A,B,C, and D. A and B, the elder coparceners with their father cling to
agriculture or business in the paternal estate after their elementary or
secondary education. Through their hard work, experience and skill earned
in course of time they contribute to the maintenance and substan-tial growth
of paternal property. C and D by using the huge family assistance (say, Rs.
50,000) get specialised education of a formal type and begin to earn through
their special skill, thus got, outside the family.

After a lapse of considerable time (say, 25 years) it is intended to effect a general partition of
the family property. It is interesting to discuss who really gains and who really loses in such
an event. In the above illustration, the growth of the family property wi considered as an
accretion to the paternal estate because of the appltion of the doctrine of detriment. The
H.G.L.A. does not secure the fruits of labour of A and B, either because theirs is not learning
or because it is applied on the family property. Thus, the family property will have to be
divided equally among all the coparceners.

But the properties acquired by C and D become their self-acquisition by the operation of
section 3. As the past accounts and expenses of the family cannot be considered at the
time of partition unless agreed to otherwise, the huge financial assistance made by it
during the specialised education of C and D, will not be taken into consideration. Hence,
for C and D, expenses of their education are diffused by distribution, their personal
earnings by the use of specialised skill are secured, along with respective shares, not only
in the original nucleus of paternal estate but also in all the accretions to it due to the
efforts of the unlearned coparceners. For A and B there is the burden of sharing the
expenses of education of learned copar-ceners and also the pain of sharing the fruits of

Page 13
their own labour gained through the medium of family property. Where lies the fault for
this unreasonable state of law?

The H.G.L.A. provides for a very wide connotation of the term "learning". It means
"education, whether elementary, technical, scientific,special or general, and training of
every kind which is usually intended to enable a person to pursue any trade, industry
profession or avocation in life."

The definition cannot be confined to formal learning as is done in practice. Modern business
or scientific farming require personal skill,managerial ability, hard labour and planning. It is
usually the school of experience which teaches and trains the unlearned coparceners in their
family avocation. From the view of personal element and labour there is no real distinction
between formal and informal learning. Thus, to exclude informal learning from the
advantages of the H.G.L.A. would violate the right to equality as its object is to protect the
individual labour of the coparceners. For the simple reason that their effort is applied on
family property or for the reason that their role in the improvement of family property cannot
be precisely determined, the personal application of their learning acquired through
experience cannot be ignored.It may be argued that even if informal learning is included
within the scope of the term "learning", to the cases of A and B, the H.G.L.A. is not
applicable because of the operation of the phrase "merely by reason of". As the acquisition
made by A and B is through the medium of or on the family property, the acquisition cannot
be said to be "mere of... learning". Suppose C and D apply their specialized paternal estate,
then also the acquisition does not become se property as the former is not "merely by reason
of. . . lea learning plus use of paternal estate. Going a step further, it intended that there is
legal equality amongst learned coparceners unlearned ones, as the law applies to them equally
in similar

But this 'legal equality' situation is only a facade or a treatment covering the real inequality
and injustice. In almost a covered by sociological survey, persons getting specialize work
outside the family.Even those few applying their family property, usually arrange for
remuneration for their On the other hand, the unlearned coparceners apply their skill on the
family property with usually no arrangement for remun work. Thus, the H.G.L.A. is operating
unequally against the coparceners for the sole reason that their learning is applied property.

Page 14
A legislation enshrining the avowed policy and the object that "the
acquirers should not be forced to share the fruits of their labour with idlers"
should not permit the interests of capital to totally foreclose the claims of
labour for the result would be obviously unequal sharing of burdens but
equal sharing of advantages arising from them. This position cannot be in
consonance with article 14 of the Constitution which does not permit equal
treatment of unequals. Injustice would also arise when claims of family
capital are totally ignored.In Venkataramayya v. Ventakataramappa ,M a
member of a Hindu joint family, started trade with an initial financial
assistance from the joint family funds without any further assistance. The
Madras High Courtextended the principles of the H.G.L.A. to the case and
regarded the acquisitions made through trade by the member as his self-
acquisition. The court noted that any continued assistance by the family
would have made it the joint family property. In this case, the interests of
other members of the joint family in the family investment are totally
ignored. Derrett rightly criticises the decision for its rejection of the
doctrine of detriment altogether.What is needed is equitable apportionment
of the returns between family capital and labour. Manu himself provided
for a highly equitable principle in this regard. He stated:

Avidyanam tu sarvesam thaïs' ceddhanam bhavat samastatra

vibhaga syadapitryah iti dharanď'n (The income acquired through

agriculture and business by unlearned brothers is liable to be

shared equally among them as it is not an ancestral property).

Page 15
Kulluka, interpreting this verse, points out that the income so earned is after pitrya varjite or
after meeting the claims of the family property.The Maniprabiia Commentary also suggests
the same. It would appear that when unlearned coparceners conduct agriculture or business
with family property and earn income or develop the family property, what remains after
deducting the claims of family capital (with interest), can be taken by them as self-
acquisition. Any other meaning would, it is submitted, make the above verse redundant in the
light of the verses discussed earlier.

Vasishta has laid down the principle that earners using family property and contributing their
own skill and enterprise are entitled to double-share.60 Derrett,61 citing Jagannatha,
interprets "double share" to mean that in which the earner takes a proportionate share,
quantified by the relation between his own contribution or personal skill and that of the
family. In his view section 88 of the Trusts Act 1882 should be applied in such cases. He
observes:There should be an evaluation of the family's rights as against the individual's rights.
In so far as nothing is claimed for personal skill, the proportion of the family's capital to the
whole should be the guiding principle: when skill is alleged and proved that should be a
ground for an allowance to the acquirer.

Another aspect of the operation of the H.G.L.A. is equal huge expenses incurred by the
family in their specialised learned coparceners. Today, acquisition of special education
extraordinary outlay of family funds (even up to a lakh) did not exist in 1930. It is no longer
an ordinary and routine expense the family but is an investment itself. Unless a fair
recompense to su investment is provided, it would cause unreasonable consequences. Such
investments necessarily withdraw the family capital from the usual process of growth. But
the H.G.L.A. restricts its advantages exclusively to learned coparcener permanently, thereby
unjustly depriving other coparceners of their legitimate expectations. The family has a
legitimate right to receive a fair return on the family capital which would be more com ling
as a moral principle, especially in circumstances pointed out by Go

Page 16
In fact, the elite dissatisfaction against Gokal Chand type of caarose when the learned
coparcener was required to return not the his special education with fair interest but the
incomparably higher fort by the application of his learning. If the obligation was to
return the of education only (with interest), such an equitable rule would not have raised
any protest.

Page 17
 CONCLUSION AND SUGGESTION

The H.G.L.A. was passed to protect the interests of a coparcener's labour from unjust
operation of the capital-oriented principle, i.e., the doc- trine of detriment. By confining its
advantages only to learned coparceners and by ignoring the need for reimbursement of
educational expense, the H.G.L.A. has caused serious imbalance in the society where mobility
to outside employment is more. For the sole reason that the learning, skill and labour of
unlearned coparceners are applied on family property, fruits of their labour are not protected
against sharing with idlers. Today the H.G.L.A. has made a dent into the countryside.

But its failure to compensate all factors of production in proportion to their role in the
economic process has created injustice and deprived equal pro- tection of the laws. However,
reverting back to the pre-1930 position would also cause similar injustice. The following
suggestions can be made to avert present injustice: When the property of a Hindu joint family
is developed by the skill, experience and labour of the coparcener/s, he/they shall be
adequately compensated for their inputs. This position can be reached even by judicial
interpretation by regarding the part of the accretions from the experience, skill and labour of
the coparcener as "merely by reason of... learning" for the purpose of the H.G.L.A. as
informal learning is also learning.

The learned coparcener shall be required to reimburse to the family the extra outlay of the
family funds in his specialised education with reasonable interest. The reimbursement may be
through debiting the expenses to his share at partition. For the sake of uniformity and
certainty, a legislative amendment on these lines may be desirable. There may be certain
difficulties in evaluating the labour and contribution of unlearned coparceners and also the
advantages derived by them from the family. Assessing the expenses of learning may also be
a difficult task. If not a chemist's balance at least a butcher's scale is to be provided by the law
where mathematical precision is an impossibility. The fact that unlearned coparceners are not
organised and face the problems at different points of time would make the need for reform
compelling as the injustice resulting is glaring.

Page 18
 BIBLIOGRAPHY

www.lawcrics.com
www.familylaws.com
www.hindusuccession.com/act

Page 19