JOINT FAMILY PROPERTY:

Under the Mitakshara School, the joint family property devolves by survivorship.

As per section 6 the Hindu Succession Act

When a male Hindu dies after the commencement of this act, having at the time of his death an interest
in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the
surviving members of the coparcenery a..nd not in accordance with this Act.

If a member of joint family, acquired property in his own name in the presence of ancestral nucleus, it
shall be presumed to be joint family property.

In Mulla’s Principles of Hindu Law, Thirteenth Edition, at page 246, in paragraph 220 classification of the
property has been given only as follows:

Classification of property: Property, according to the Hindu Law, may be divided into two classes,
namely,

(1) Joint family property, and (2) Separate 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 common coparcenary stock.

Property jointly acquired by the members of a joint family with the aid of ancestral property may or may
not be joint property; whether it is so or not is a question of fact in each case.

The term ‘joint family property’ is synonymous with “coparcenary property”.

‘Separate’ property includes ‘self-acquired’ property.

The same was affirmed by the Madras High Court in V . Devaraj vs Jayalakhmi Ammal (Decsd.) &Ors.,
on 28 February, 1969,

It was further observed in the same judgement that “The Courts of this Country as well as the Privy
Council and the recoginsed text-book writers have indiscriminately used the expressions, ‘joint
property’, ‘joint family property’, ‘ancestral property’ and ‘coparcenary property’ to denote one and the
same property, without intending to make a distinction between the legal incidents depending upon the
use of one or other of the expressions.

ANCESTRAL PROPERTY (unobstructed heritage):

We often hear people saying that we own an ‘Ancestral Property’ but what does it exactly mean.
Though the concept of ancestral property has been in existence since time immemorial, the term has
not been defined in any of the legislations governing the inheritance and succession of property
amongst the members of a family. The Courts in India, however, every now and then, have come to
rescue, at-least to clarify the position of law with respect to ancestral property in India.

In general view we know that the property which is inherited up to three generations is referred to as
ancestral property. This is a part of the coparcenary property. It is the property descends from father,
father’s father, and great grandfather.

What includes ancestral property:

Any property inherited up to four generations of male lineage is called ancestral property. This property
should have remained undivided till the fourth generation upward. Any right to a share in such a
property accrues by birth itself.

Further, the rights is ancestral property are determined by per stripes and not per capita. Which means
the share of each generation is first determined and the successive generations share in turn is sub-
divided. Each generation inherits from its predecessors.

What doesn’t included by ancestral property:

 Ancestral property does not include self-acquired property.

 Any property divided through a partition deed, family arrangement etc., loses its ancestral
character.

 Properties inherited from mother, grandmother, uncle and even brother is not ancestral
property.

 Properties inherited through Will and Gift are not ancestral properties.

If we have to simply understand from the pointers above we can conclude that ancestral property is a
species of coparcenary property. As stated above if a Hindu inherits property from his father, it becomes
ancestral in his hands as regards his son. It would further connote that whenever an ancestor inherits
any property from any of his paternal ancestors up to three generations above him, then his legal heirs
up to three generations below him would get an equal right as coparceners in that property.

It is pertinent to mention here that key word of the ancestral property is it should not have been divided
by the members of the joint Hindu family. 

As per The Hindu Succession Act, amended in 2005, it now allows women to enjoy equal rights to the
property. Now women have the same right as men over the ancestral property. Once the division/
ancestral property partition happens, all members will get an equal share from the property. Further, it
was cleared by the Supreme Court the 2005 amendment is not retrospective in nature.

SELF ACQUIRED PROPERTY:

The term ‘property’ though not specified means property of the deceased inheritable under the Hindu
Succession Act. It includes both movable and immovable property owned and acquired by inheritance or
by demise or at a partition or by gift or by her skill or exertion or by purchase or prescription.

All property other than joint family or coparcenary property is separate property. Even if a hindu is a
member of a joint family, he may possess separate property. The term self-acquired indicates that the
property has been acquired by a coparcener by his own exertion without assistance of family funds.

Property acquired as legal heir or by a testamentary document as will, property inherent from mother,
brother, grandmother property it is self-acquired property.

If a Hindu who is still a member of Joint Hindu Family acquires a property by a Hindu by his exertion or
by adverse possession for 12 years is treated as self-acquired property

But most of us are really baffled in regard to term self-acquired property as some ancestral property is
considered as self-acquired property. So, the next question is when ancestral property is considered
self-acquired property.

When a division or partition happens in a joint Hindu family, then an ancestral property it becomes a
self-acquired property in the hands of a family member who has received it.

Self-acquired property can become ancestral property if it is thrown into the pool of ancestral properties
and enjoyed in common.

DIFFERENCE BETWEEN ANCESTRAL PROPERTY, JOINT FAMILY PROPERTY AND SELF ACQUIED
PROPERTY:

Mr. Mayne in paragraph 277 of his book while laying down that property acquired by the members of a
joint family by their joint labour, would form their joint property, suggests a doubt as to whether their
male issue would by birth alone acquire a right in such property. 

This view was taken by Bombay High Court in Chatturbhooji v. Bharambhi Naranji (1885) I.L.R. 9 Bom.
438, cited by Mr. Mayne. If the joint acquirers intended to hold the property so acquired as co-owners
and not as joint family property in the Mitakshara sense of that expression, this view would be perfectly
sound. But, if, as supposed, the property was acquired by all the members of the undivided family by
their joint labour, it would, in the absence of any indication of intention to the contrary, be owned by
them as joint family property and in that case their male issue, who by their birth, become members of
such undivided family, necessarily acquire a right by birth in such property.

The other question arises that ancestral property is also birth right then what the difference is.

Where the members of a joint family acquire property by or with the assistance of joint funds or by their
joint labour or in their joint business or by a gift or a grant made to them as a joint family, such property,
is the coparcenary property of the persons who have acquired it, whether it is an increment to ancestral
property, or whether it has arisen without any nucleus of descended property.
I see no difficulty in principle in holding that a member of joint Hindu family who has acquired property
of his own may convert it into’ joint family property in the ordinary sense of the term and thereafter
that all the members of the family will have the same rights in it as though it had been acquired
originally by their exertions or descended to them from a common ancestor.

The Courts in India, however, every now and then, have come to rescue, at-least to clarify the position
of law with respect to difference between ancestral property, joint family property and self acquired
property.

Commisioner of Wealth Tax, Kanpur & Ors. Vs. Chander Sen & Ors. [(1987) 1 SCR 516] where
Sabyasachi Mukharji, J observed that under the Hindu Law, the moment a son is born, he gets a share in
father’s property and become part of the coparcenary. His right accrues to him not on the death of the
father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever
the father gets a property from whatever source, from the grandfather or from any other source, be it
separated property or not, his son should have a share in that and it will become part of the joint Hindu
family of his son and grandson and other members who form joint Hindu family with him.”

Bhanwar Singh Vs. Puran (2008) 3SCC 87,  it was held by Supreme Court that coparcenary property
means the property which consists of ancestral property and a coparcener would mean a person who
shares equally with other in inheritance in the estate of common ancestor.

Coparcenary is a narrower body from than the Joint Hindu Family and before commencement of the
Hindu Succession (Amendment) Act, 2005, only male members of the family used acquire by birth an
interest in the coparcenary property. a coparcener has no definite share in the coparcenary property but
he has an undivided interest in it and one has to bear in mind that if enlarges by deaths and diminishes
by births in the family. It is not static. 

Further, in a Landmark Judgment pronounced by Supreme Court of India in case titled Uttam vs Subagh
Singh,  Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has re-laid the Law on to the Concept
of Ancestral Property.

Apex Court ruled that a conjoint reading of Sections 4, 8 and 19 of the Hindu Succession Act, 1956, after
joint family property has been distributed in accordance with Section 8 on principles of intestacy, the
joint family property ceases to be joint family property in the hands of the various persons who have
succeeded to it as they hold the property as tenants in common and not as joint tenants.

In another judgement of Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC
204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of
the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF
property/ joint family property and inheritance of ancestral property after 1956 therefore does not
result in creation of an HUF property.

Thus, in law ancestral property can only become an HUF property if inheritance is before 1956, and such
HUF property therefore which came into existence before 1956 continues as such even after 1956. In
such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its
properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case,
members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.

So, now we got a clear picture with the help of several landmark judgements we can purely conclude
that a joint family property cease to exist after 1956. Further we can state that joint family property is
synonyms of coparcenary property and ancestral property is the part of joint family property. As joint
family property and ancestral property accrues from birth right and self-acquired property can be
converted to joint family property or ancestral property.

The two types of property which exist are ancestral and self-acquired as per The Hindu Succession Act.

Some of the differences between ancestral property and self-acquired property are laid down as under:

 On the death of a coparcener, his undivided interest in the joint family property devolves by
survivorship, and not by succession, (subject to the provisions of Sections 6 and 30 of the Hindu
Succession Act, 1956).

 The children, grandchildren and great-grandchildren of the coparcener acquire an interest in the
coparcenary property by birth. But, no other coparcener (not even his own son) acquires any
interest by birth, in the separate property of a Hindu.

 A joint family or coparcenary property is liable to be partitioned, whereas there can be no

question of partitioning the separate property of a member of a joint Hindu family.

 No coparcener can alienate his undivided interest in a coparcenary by sale or mortgage, without
the consent of the other coparceners. Thus, the manager of a Hindu joint family can alienate, by
sale or mortgage, a portion (or even the whole) of the joint family property for a legal necessity
or for the benefit of the estate, even without the consent of the other coparceners. The
separate property of a coparcener can, on the other hand, be freely alienated by him, by way of
sale or mortgage, or otherwise.

CONCLUSION:

Law relating to blending of separate property with joint family property is well settled. Property
separate or self- acquired of a member of a joint Hindu family may be impressed with the character of
joint family property if it is voluntarily thrown by the owner into the common stock with the intention of
abandoning his separate claim therein but to establish such abandonment a clear intention to waive
separate rights must be established.

From the mere fact that other members of the family were allowed to use the property jointly with
himself, or that the income of the separate property was utilised out of generosity to support persons
whom the holder was not bound to support or kindness will not ordinarily be regarded as an admission
of a legal obligation.(Lakkireddi Chinna Venkata Reddi vs Lakkireddi Lakshmama,1963 AIR 1601, 1964
SCR (2) 172.)
It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in
food, worship and estate and in the absence of any proof of division, such legal presumption continues
to operate in the family. The burden lies upon the member who after admitting the existence of
jointness in the family properties asserts his claim that some properties out of entire lot of ancestral
properties are his self-acquired property. 

An individual get a share in the ancestral property by birth. In case of self-acquired property, an
individual can inherit only on the death of the owner of the property. If the father owns a self-acquired
property and also an ancestral property, he has the right to exclude his son/daughter from inheriting his
self-acquired property. However, he can’t deny their share in the ancestral property; but the self-
acquired property of father inherited by his son it is the ancestral property.

After going through several journals and judgements what I understand that the Hindu succession act,
1956 till today haven’t abolished HUF.

Hindu Succession act, which basically governs with intestate succession till today it recognize the
existence of joint Hindu family Mitakshra law. Mulla article 218 define unobstructed heritage when
property in which a person has acquired an interest by birth and obstructed heritage property the right
to which accrues not by birth but on the death of the last holder.

The eminent point is that the property which devolves on a Hindu on the death of his father intestate
after the coming into the force of Hindu succession act, 1956 did not constitute HUF property but
according to supreme court judgement mentioned in the above paragraphs HUF properties are
abolished due to section 8 of Hindu succession act.

On the other hand the supra judgment also laid down two exceptions

 firstly, HUF property remains continue in case HUF existed and continued before and after 1956
and

 secondly after 1956, a person who owns the self-acquired property throws such property into a
common hotchpotch.

Therefore, old concept of joint family property is still to be maintained along with Hindu Succession Act,
1t956.  Most importantly it will be safer to say that the persons who acquire an interest by birth in a
joint family property or coparcenary property are sons, grand sons and great grand sons of the holder of
the joint property. Sons, grandsons or great grandsons are joint owners/coparceners.

As we have already mentioned above that ancestral property is a species of coparcenary property. If a
Hindu acquires coparcenary property from his father, it becomes ancestral in his hands as regards his
sons. And when a hindu inherits the self acquired property of his father the sons take a vested interest
in the property by reason of their birth and the property inherited by their father would become
ancestral property in the hands of the son.
But to sum up our discussion on this topic we can only articulate that the concept of the property matter
is vast and complex, no clear distinction has been given till date by the courts on what is ancestral
property, joint family property or self acquired property as these can include in each other on the basis
of facts and circumstances of cases only. 

Introduction:-
Whenever the Kartha of a joint family purchases an item of property by selling an item of joint family
property, the one so purchased needs to be treated as owned by the joint family. If a member of joint
family property acquired in his own name in the presence of ancestral nucleus, it shall be presumed to
be joint family property. Law relating to blending of separate property with joint family property is well
settled. Property separate or self- acquired of a member of a joint Hindu family may be impressed with
the character of joint family property if it is voluntarily thrown by the owner into the common stock with
the intention of abandoning his separate claim therein but to establish such abandonment a clear
intention to waive separate rights must be established. There are judicial pronouncements that
whatever may be the extent of the contribution of the acquiring member himself out of his self-acquired
fund, if he takes the aid of any portion of joint or ancestral property in acquiring the property, however
small that aid may be, the property so acquired assumes the character of joint family property and
cannot be claimed by him as self-acquisition.

Severance of joint status:–

As was held in Mudigowda Gowdappa Sankh & Ors vs Ramchandra Ravagowda Sankh & Anr, 1969 AIR
1076, 1969 SCR (3) 245, in order to operate as a severance of joint status, it is necessary that the
expression of intention to separate himself, by the ‘particular member must be definite and
unequivocal. If the expression of the intention is a mere pretence or sham, there is, in the eye of law, no
separation of the joint family status. There is no presumption that a joint Hindu family, because it is
joint, possesses any joint family property or if there was a nucleus, any acquisition made by any member
of the joint family is joint family property. It is only after the possession of an adequate nucleus is shown
that such a presumption is drawn and the onus shifts on to the person who claims the property as a self-
acquisition to make out his claim.
Where it is found that the family possessed some joint property which from its nature and relative value
may have formed the nucleus from which that property may have been acquired, the burden shifts to
the party alleging that it was a self-acquired property. (Ref: Rajendra Nath Majhi vs Tustu Charan Das
And Anr, AIR 1979 Cal 105)

Doctrine of blending:
The ‘doctrine of blending’ was clearly explained in Mallesappa Bandeppa Desai And another vs Desai
Mallappa And Others, 1961 AIR 1268, 1961 SCR (3) 779. It was observed in this ruling that the rule of
blending in Hindu Law as evolved by judicial decisions can have no application to a property held by a
Hindu female as a limited owner. That rule postulates a coparcener deliberately and intentionally
throwing his independently acquired property into the joint family stock so as to form a part of it.

Joint Family Property : Presumption

If a member of joint family property acquired in his own name in the presence of ancestral nucleus, it
shall be presumed to be joint family property. Law relating to blending of separate property with joint
family property is well settled. Property separate or self- acquired of a member of a joint Hindu family
may be impressed with the character of joint family property if it is voluntarily thrown by the owner into
the common stock with the intention of abandoning his separate claim therein but to establish such
abandonment a clear intention to waive separate rights must be established. From the mere fact that
other members of the family were allowed to use the property jointly with himself, or that the income
of the separate property was utilised out of generosity to support persons whom the holder was not
bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred,
for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation.
See: Lakkireddi Chinna Venkata Reddi vs Lakkireddi Lakshmama,1963 AIR 1601, 1964 SCR (2) 172.

It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in
food, worship and estate and in the absence of any proof of division, such legal presumption continues
to operate in the family. The burden lies upon the member who after admitting the existence of
jointness in the family properties asserts his claim that some properties out of entire lot of ancestral
properties are his self-acquired property. See. Adivappa vs. Bhimappa, CIVIL APPEAL No. 11220 OF 2017
(ARISING OUT OF SLP (C) No.5664/2012), Dated of judgment. 6 September, 2017.

What extent of contribution is required to assume the character of joint family property?
Whatever may be the extent of the contribution of the acquiring member himself out of his self-
acquired fund, if he takes the aid of any portion of joint or ancestral property in acquiring the property,
however small that aid may be, the property so acquired assumes the character of joint family property
and cannot be claimed by him as self-acquisition. It was observed that the extent of his contribution or
that of the family property it is enough to make the self-acquired property, the property of the joint
family. (Ref: Bhimavarapu Subba Reddy And Anr. vs B. Nagireddy And Anr, AIR 1973 AP 184).

On whom the burden lies?

Since more than half a century, the law is consistent that where possession is through invalid sale, the
vendee ipso facto acquires adverse possession from the date of possession itself and in such case, such
person becomes the owner after the lapse of the statutory period. Here, the burden lies on the person
asserting that it is his self acquired property to prove the same. See. Nakkalapu Annapurnamma v.
Nakkalapu Narendra Kumar and Ors., 1997 (3) An.W.R. 564 = 1997 (4) ALD 97 (D.B.).

It is not necessary to prove with mathematical precession:

it is too well settled that whenever the Kartha of a joint family purchases an item of property by selling
an item of joint family property, the one so purchased needs to be treated as owned by the joint family.
As long as the sale of the joint family property and purchase of a new item are contemporaneous, it is
not necessary to prove with mathematical precession, that the sale proceeds were sufficient to purchase
the new item or that timing was accurate. (Ref. Raavi Nookaraju v. Kotaru Latchayyamma and others,
2012 (3) ALD 423.)

Whether the Joint family necessarily own any property to presume as Joint family properties?
It is a settled law that though joint family need not necessarily own any property, but once ancestral
nucleus is proved, all the subsequent acquisitions irrespective of the fact as to whether they stand in the
name of either ‘kartha’ or other member of joint family, even female members, are deemed to be joint
family properties, unless the same is rebutted by clinching evidence by the person setting-up the said
properties as his self-acquisitions. See. Kolluru Sambasiva Rao vs Kolluru Nagabhushanam Alias
Nageswara Rao and Ors,1993 (3) ALT 256 (DB)

Conclusion:- If a member of joint family property acquired in his own name in the presence of ancestral
nucleus, it shall be presumed to be joint family property. Similarly, if the Kartha of a joint family
purchases an item of property by selling an item of joint family property, the one so purchased needs to
be treated as owned by the joint family. The rule of blending under the Hindu law postulates a
coparcener deliberately and intentionally throwing his independently acquired property into the joint
family stock so as to form a part of it. From the above analogy, it is clear that there is no presumption
that a joint Hindu family, because it is joint, possesses any joint family property or if there was a nucleus,
any acquisition made by any member of the joint family is joint family property. It is only after the
possession of an adequate nucleus is shown that such a presumption is drawn and the onus shifts on to
the person who claims the property as a self-acquisition to make out his claim. Despite joint family need
not necessarily own any property, once ancestral nucleus is proved, all the subsequent acquisitions
irrespective of the fact as to whether they stand in the name of either ‘kartha’ or other member of joint
family, even female members, are presumed to be joint family properties. But it can be rebutted by the
person setting-up the said properties as his self-acquisitions.