Family Law II

Analyze the Devolution of Interest Relating to Mitakshara Family

Submitted By

Prabhnoor Guliani

Division: E… PRN: 18010223095… Class 2018-23 of

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In

January, 2020

Under the Guidance of

Ms. Deepali Sahoo and Dr. Furkan Ahmed

62 A Block Phase, 47/48 Opposite Nokia Siemens Building, Industrial Area, Sector 62, Noida,
Uttar Pradesh 201301
 CERTIFICATE

The project entitled “Centre and State Legislature: Functions”, submitted to the Symbiosis Law School, NOIDA
for Law of Family Law II as a part of Internal Assessment is based on my original work carried out under the
guidance of Dr. Furkan Ahmed and Ms. Deepali Sahoo from December, 2019 to April, 2020. The Research work
has not been submitted elsewhere for award of any degree

The material borrowed from other sources and incorporated in the research paper has been duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the Candidate

Date:

INDEX
Contents
Introduction................................................................................................................................4
Meaning.....................................................................................................................................4
Research Questions....................................................................................................................4
Conclusion.................................................................................................................................4
 Introduction and Evolution

The evolution of Mitakshara starts from a joint familial paradigm which refers to an extended family group
formed by persons who are lineally descended from a common ancestor and when women are married into these
families they get inducted into their husband’s joint families. Same are the cases with unmarried daughters in
these families where once they are married off they become a part of the lineage of the husband’s family. There
may be families where the joint family does not live together or have a share in common property, but this is not
something that defines a Mitakshara family which in actuality consists of consanguinity, affinity or adoption. The
Mitakshara School of joint family concept is based on the doctrine of right by birth called Janmswatavada. The
coparcenary consists of a man and its male descendent of the next three generations in the direct line of descent
where they all are coparceners irrespective of their numbers. We can define coparcenary unit as an outgoing unit
which changes from time to time as per the changes in the family.

Non-coparcenary on the other hand is also a prevalent concept which includes the coparcener’s wives and
widows, daughters until they are wedded of or the descendants which are even degree below the 4 th generation.
The Non-Coparceners have the rights of subsistence in joint family but do not have a right in the property of the
coparceners. The concept of a Mitakshara family is that the existence of the family and the continuation relies on
from one generation to the next, even if it does not consist of a common ancestor or more. It is also possible that
in this familial paradigm the family can survive on a sole coparcener and may continue to live in a joint family
with non-coparcenary members as well. However, the coparcenary has the sole authority on the ownership of the
property and non-coparceners have no defined interest in matters of ownership is based on the principle called
Upramwatvavada.

The Law Reports in India contains many of judicial decisions in both pre and post-independence era. The
majority of the cases lie under tax collection laws of India which has an uncommon arrangement under it for
Hindu Undivided Family (HUF). Much of the time chose over some undefined time frame it has been held that a
joint family may comprise of a coparcener and his perished sibling's widow or his better half and unmarried little
girl, at that point it isn't essential for a joint family to have its own property and the law likewise doesn't expect it
to be and neither requests the proprietorship with respect to any joint family, where a rent deed is recorded for the
sake of an individual from the joint family however there is no proof that the rent was allowed to him in his
individual limit than in such cases after disturbance of the joint family the rented land will have a place with the
joint family.

In the modern world the concept of joint family is getting weaker and the new descendants prefer to live away
from the family for work or for gaining education or for a desire for separate property 1. In a judicial decision it
was put forward that for the management of a Mitakshara family the Karta (coparcener) is responsible for taking
care of its members and the non-coparceners member of the joint family cannot act as a Karta but a junior
member of the family can with the consent of all the members of the family2.

Meaning

A joint family unit is known to exist in a lot of communities of Ancient Asia and Europe where the family plays
to be a primary unit for the development of a person living with their significant others. In India, like many other
joint family structure, the Hindu father was the absolute proprietor of person and the property of the family but I
the modern era he only represents a family and the property rights can be shared with the wife and children and
other non-coparceners also have certain degrees of rights. It can be observed that the joint and undivided family is
a normal condition of the Hindu society3. Mitakshara are the two resources of law that administer the law of
progression of the Hindu Undivided Family under Indian Law is getting more vulnerable and more fragile a great
many relatives as a result of the proof of isolated ownership of property which is getting increasingly
unmistakable throughout the years particularly the post-autonomy period and furthermore in view of different
reasons and enactments which are clarified beneath.

In 2005 central amendment of Hindu Succession Act, 1956 has canceled the rule of devout commitment with
impact from the date of its initiation and has set out that after this no court will perceive the privilege of a leaser
to look for legal help for understanding his obligation just on the grounds of this regulation of Mitakshara
coparcenary. In any case, it isn't expelled absolutely, the old rule stays pertinent just to those obligations which
are caused before 9 September 2005 and that excessively just against the relatives of the individuals who are
conceived before that date. If we look at classical Mitakshara law, a son, grandson and great-grandson they are
bound by an obligation called ‘vyavaharik’ which means to pay the unpaid in a lawful manner and purpose. This
means the further generations shall take care of the debts borrowed by the previous ancestors. This obligation
1
UR Viruprakashiah vs Saarwamma AIR 2008
2
Commissioner of Income Tax vs Govindram Sugar Mills AIR 1966 SCR (3) 488
3
Indranarayan vs Roop Narayan and Anr. AIR 1971 SCR 796
however implies only if they are living together in a joint family and the debt is contracted but if they have been
already separated then they are not bound by this obligation, although they cannot escape the obligation after
incurring of the debt.

The Supreme Court continues to explain this Mitakshra doctrine and has given renounced judgements on cases
like Pannalal vs Naraini4, Sideshwar vs Bhubhaneshwar5, Faqir Chand vs Harman6, Prasad vs Mudalir7 and many
other judgements.

From 1986 onwards there were changes made in the laws by many State High Courts where to give the status of
coparceners to the daughters to bring them in par with the sons which was originally beyond the scope of 1956
Act. Andhra Pradesh became the first state in India to amend Hindu Succession Act in 1986 followed by Tamil
Nadu and Maharashtra in 1989 and 1994 respectively. The consent which was required from the President of
India was postponed thus it came into power simply following four years on July 30 1994. Thusly all the three
states presented changes which were huge in the Mitakshara law of joint family. Till now every one of them stay
in compel and have not been revoked either by the state or by the union government.

Research Questions

Q1. How and what kind of changes were brought in the authority structure in the modern era?

In the modern era we see that there is more of the existence of nuclear families so naturally the authority of the
family is no longer the father alone and other male members of the family commonly known as Karta in Hindi.
The general attitude of the members of the family towards the traditional patriarchy was mostly the essence in
previous familial paradigm and is heavily influenced now also. The patriarchal family condition consisted mostly
of mainly the eldest male member of the family acting as the bread-winner for the family and the female members
of the family or younger male members participated in household activities. The Karta were dominant and the
non-Karta members were often submissive. The father or in his absence, the eldest male member of the family
was consulted on all important family matters like litigation in courts, arranging marriages for unwedded

4
AIR 1952, SCR 544
5
AIR 1953, SCR 177
6
AIR 1967 SCR (1) 68
7
AIR 1982 SCR (2) 109
daughters or even as basic as building a house. We see in the previous joint family relationships an age based
hierarchy and in the modern generation the people often don’t show interest in acting according to the orders
shown by the elders.

Earlier the position of authority for women was also very different. The women in the family were totally
dependent on the male members of the family and could establish their authority in the household as per the
position of the husband in the family. The spouse of the head of the family like wife or mother-in-law was in
charge of the household and her words were the law or was given at least some importance. The young women in
the family were expected to be docile and always abide by the rules. Most of the married women in the family
were promised a roof over their heads but had no voice of their own in the family. The situations used to become
worse for widows as their rights of self-assertion were totally dismissed.

With the idea of resolving the issue within a joint family, the parents encouraged their sons to marry well-
educated daughters and both the spouses were free to make their own independent decisions. A high level of
education and a greater exposition to the world has led to a better bond between the family members. Both men
and women and boys and girls are beginning to assert their own wishes in mate selection and the elders of the
family have a limited role in it now. In any case, an intriguing certainty was found about the adjustment in power
structure inside the family is that around nine to 10% of the families are going by ladies (female individuals)
while the National Family Health Survey-1 (1995:46) gives a marginally unique picture which is somewhat
higher in figure (up to 10 percent). It shows that the vast majority of the family unit heads are normally
autonomous and profitably utilized. Without their spouses which could be either a direct result of their demises,
division, move in employments or business commitment or possibly on account of different reasons ladies are
themselves ready to run the undertakings of the family.

Q2. What were the revolutionary changes that led devolution of interest in Mitakshara family in
post-independence period?

In 1976, Kerala State Legislature enacted the Kerala Joint Hindu Family (Abolition) Act to abolish the doctrine of
right to property by birth. All Mitakshara coparcenary which was present at the time were converted by this law
into tenancy-in-common in which shares are held in common presuming that a partition had taken place between
all the coparceners but they were holding it as their respective shares separately as their full owners. The Act
passed by the lawmaking body additionally had a ramifications of altering segment 6 of the Hindu Succession Act
1956 that is while applying it in every single case the portions of individual joint relatives would be administered
by the laws of the act.

Before the beginning of the (Hindu Succession Act) HSA, systematizing the approaches of succession, the
possibility of a Hindu family under Mitakshara law become that it was joint not just in bequest anyway in
profound subjects moreover. Coparcenary resources, in logical inconsistency with the supreme or separate
resources of an individual coparcener, lapse after enduring coparceners inside the family, in accordance with the
standard of devolution by method for survivorship. 

One of the transcendent changes conveyed in by methods for the correction is that during a Hindu joint family,
the diverse privilege of guys to be coparceners has been changed out and out and the best possible by methods for
conveyance inside the coparcenary resources has been presented for a little girl also. This extreme exchange has
basically modified the individual of a Mitakshara coparcenary. Prior to this applicable enactment, four Indian
states had conveyed in a comparative exchange, the presentation of little girls as coparceners. A blessing, instead
of best, the child having a directly through birth, any infant brought into the world inside the possess family or
legitimately embraced can be a coparcener and could have a leisure activity over the coparcenary resources. In
this manner, the conventional idea that solitary guys may be individuals from the coparcenary and no young lady
may need to ever be a coparcener nor may need to individual coparcenary resources isn't the law.

These days or one can say in present day state of society has debilitated the assumption that jointness is more
grounded if there should arise an occurrence of close to relations like dad, children and the remote it gets so
feeble it goes. In this manner, the harmony that used to tie the individuals from a family isn't property however
the relationship. One thing which is critical to recollect is that Hindu family is definitely not a juristic individual
thus it can't hold the property of its individuals autonomously.

Conclusion

In conclusion the research says that the devolution of interest in Mitakshara familial paradigm is because of the
will of the new descendants to have a separate possession of property and lead their own lives. At the point when
a coparcener passes on, his unified enthusiasm for the joint family property degenerates by the individuals who
are enduring. Yet, it doesn't decay by succession to his beneficiaries said in one of the cases. What's more, when
there is a different property of an intestate coparcener and on his demise, Hebait passes by succession to his
beneficiaries however not by survivorship to the enduring coparcener. As it is observed today, that the standards
of Hindu guideline comprise an irregularity unfathomable inside the historical backdrop of the area. Law, no
considerably less than ways of life, ought to comply with the thoughts of interchange to have the option to be
significant and to adjust itself to changed social circumstances. It is a cliché that vintage creeds soften in new
flows of thought. Law should consistently be dynamic, no longer static, if it's miles to be acclimatized to the
power of milieu.

The antique race of analysts who through understanding, comment, and similarity aligned the Hindu guideline
with changed social circumstances, is wiped out and their vocation is no more. The insufficient riches including a
few pots and container, some domesticated animals, and a piece grain which turned into all that the Aryan
householder became told to have and for the removal of which a couple of extreme and prepared lawful offense
guidelines had been set down, is a hanging chronological error in as of late of developing industrialization and the
sizable gathering of riches.

Further, avocation of the ceaseless avoidance of women from property on the reason of the need to defend them
from cases of aggressive behavior at home adds up to an award of an exception to the State from due generally
speaking execution of its greatest basic obligation. Also, this contention presumes the non-arrangement of
reasonable standards in the public arena ensuing to a due trade in the law which can effectively trade conduct
inclinations. On a finishing up note, hence, it might be expressed that despite the fact that the HSA turned into a
huge measure, it didn't effectually benefit of the chance to actually enable the women of India.