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CHANAKYA NATIONALLAW UNIVERSITY

PROJECT
FAMILY LAW -II

TOPIC: CLASSIFICATION OF JOINT FAMILY PROPERTY

SUBMITTED TO

Mr. Ravi Ranjan Kumar

Faculty of FAMILY LAW-II

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TOPIC:
Classification of joint family property

OBJECTIVES:
1. To study about the classification of joint family property.
2. To understand the concept of joint family property under
mithakshara law.

RESEARCH METHODOLOGY:

The research method used in this project and draft is secondary

Method through books and websites.
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INDEX
1. Introduction………………………………………………………………………..4
2. Joint family property……………………………………………………………6
3. Separate or self -acquired property………………………………………10
4. Judicial prouncements…………………………………………………………14
5. Conclusion…………………………………………………………………………..16
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ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide Mr.
Ravi Ranjan Kumar for his exemplary guidance, monitoring and constant encouragement
throughout the course of this project. The blessing, help and guidance given by him time to
time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my seniors, the library staff
and my friends for their valuable information and guidance, which helped me in completing
this task through various stages.

I would also thank my Institution and my faculty members without whom this project would
have been a distant reality. I also extend my heartfelt thanks to my family and well wishers.
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INTRODUCTION

A Joint Hindu Family is the normal condition of Hindu Society, or atleast it was until the last
few decades. A joint Hindu family is a group of relatives tied together by ties of kinship &
marriage and descended from a common ancestor. It includes children, children’s children
down the line, spouses.  A joint Hindu Family is normally joint in worship/kitchen/business.
Even daughter in laws/widowed daughters who has returned back to their parental side are
part of a hindu joint family. A joint family may encompass countless generations. 1By
definition a joint hindu family consists of all persons lineally descended from a common
ancestor including their wives and daughters.The common ancestor is necessary for bringing
a joint family into existence; for its continuance common ancestor is not a necessity.The
death of common ancestor does not mean that the joint family comes to an end.A Hindujoint
family is not corporate.
It has no legal entity distinct and separate from that of the members who constitute it.It is not
a juristic person either. Hindu joint family is a unit and in all matters it is represented by its
Karta[the manager].Within its fold no outsider, except by adoption, can be admitted by
agreement or 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.A single male or female cannot make a
Hindu Joint Family even if the assets are purely ancestral.

In the general body of the Hindu joint family, the Hindu coparcenary is a much narrower
body. It includes only those persons in the family who acquire an interest in the joint family
property by birth. These are the three male generations next to the owner in unbroken male
descent. A coparcenary is creature of law and can not be created by agreement except that a
male can be inducted by way of adoption. No female can be a coparcener. There is difference
between Mitakshra and Dayabhag schools of Hindu Law which fundamentally differ in this
respect as in Dayabhagschool there is no coparcenary between the father and the son. The
father of Dayabhag Joint Family is absolute owner of ancestral as well as separate property
and the co-parcenary comes into existence only after the death of the father. Therefore it can
exist amongst brothers, uncles and nephew and grand uncle and grand nephew. But in case of
Mitakshra school of Hindu Law, the coparcenary exists between father, son, grand son and
1
Classification of joint family property available at: https://bharatchugh.wordpress.com/2012/08/24/all-you-
need-to-know-about-hindu-law-property-joint-hind-familycoparcenoryancestral-self-acquired-property/
(visited on 18thapril at 11pm)
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great grand son.2 In Dayabhag there is coparcenary amongst brothers, uncles and nephews
and grand uncles and grand nephews and cousins. There is only unity of possession and rule
of survivorship of Mitakshra in which the share of a coparcener after his death in the joint
family property devolves to other surviving coparceners, does not apply. The Dayabagh
coparcener has a defined share in the coparcenary property which after his death, devolves by
succession to his heirs. Such heirs, in default of male issue, could be his widow or widows or
his daughter or daughters. A coparcenary under Dayabagh law could consist of males as well
as females.3 But if a separate person dies leaving behind one son, no coparcenary can come
into existence. Similarly, coparcenary can not start or remain amongst females alone.4

JOINT FAMILY PROPERTY

2
For details see ParasDiwan, supra n.1, Ch. XIII.
3
Mullah, supra n. 3 at 432
4
B.K.Sharma&Vijay Nagpal, codification of hindu laws: its effect on joint family structure, 32-33 Ban.L.J.(2003-
04) 88-102
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According to Hindu Law, property can be divided into two main classes, namely,-

(a) Joint family property, and

(b) Separate property.

In turn, joint family property can be divided, according to the source from which it comes,
into two classes, namely,-

(i) Ancestral property, and

(ii) Separate property of coparceners thrown into the common coparcenary stock.5

ANCESTRAL PROPERTY

Ancestral property is a species of coparcenary property. Ancestral property is that property

which is acquired by unobstructed heritage. If property is acquired by obstructed heritage, it
is not ancestral property. The various types of ancestral property differ from one another as
regards the source from which such property is obtained, and may be classified under the
following six heads:

A. Property inherited from a paternal ancestor

B. Property inherited from a maternal grand-father

C. Property inherited from collaterals or from females

D. Share allotted on partition

E. Property obtained by gift or will from a paternal ancestor

F. Accretions6

5
ibid
6
Dr.parasdiwan family law-I pg- 389
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 Property inherited from father, father’s and father’s father’s

father

Property inherited by a male Hindu from his father, father’s father, or father’s father’s father,
is ancestral property. The children, grandchildren and great-grandchildren of the person
inheriting such property acquire an interest in it by birth.7

Thus, the term ancestral property is confined to property descending to the father from his
male ancestor in the male line, and it is only in that property that the sons (and now, the
daughters) acquire an interest jointly with, and equal to that of, their father. (Venkateswarlu
v. ChinnaRaghavalu, 1955 Andhra W.R. 39). Property inherited from other relatives would,
therefore, not be ancestral property.8

 Property inherited from maternal grandfather

According to mithakshara this head is not necessary as under mithashara law property
inherited from any person, other than the father, father’s father fathers and father’s
father’sfather’s father is obstructed heritage and therefore no distinction whether property is
inherited from maternal or paternal side.9
 Property inherited from collaterals or from females:
As seen above, the only property that can be called ancestral property is that which has been
inherited by a person from his father, father’s father, or father’s father’s father. Therefore,
property inherited by a person from his collaterals, such as brother, uncle, etc., or property
inherited by him from a female, e.g., his mother, will be his separate property.

 Share allotted on a partition:

The share obtained by a coparcener on a partition of ancestral property is ancestral property
as regards his issues. They take an interest in it by birth, whether they are in existence at the
time of the partition or are born subsequently, 4s regards other relatives, however, such a
share is separate property. So, if the coparcener dies without leaving any issue, it will pass to
his heirs by succession.

7
Supra3
8
Ancestral property under hindu law available : http://www.shareyouressays.com/117201/what-are-the-six-
different-types-of-ancestral-property-under-the-hindu-lawvisited on 18 thapril 11:30 pm
9
Parasdiwan ,family law-II
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 Property obtained by gift or will from a paternal ancestor :

Where a Hindu makes a gift of his self-acquired or separate property to his son, or bequeaths
it to him under a will, the question that arises is whether such property is the separate
property of the son, or whether it is ancestral in his hands as regards his (his son’s) male
issues.

 Accretions:
Accumulations and accretions of income of ancestral property are ancestral property.
(Ramanna v. Venkata, 1888 11 Mad. 246) So also, property purchased or acquired out of the
income or with the assistance of ancestral property, would be ancestral property. (LalBahadur
v. KanhiaLal, 1907 29 All. 244). The same can be said as regards property purchased out of
the sale proceeds of ancestral property or obtained in lieu of such property.

It may also be noted that children, grandchildren and great grandchildren acquire a vested
interest, not only in the income and accretions of ancestral property which accrued after their
birth, but also in that which accrued before their birth.10

The terms “joint family property” and “coparcenary property” mean the same thing. Further,
property which is jointly acquired by the members of the joint family with the aid of ancestral
property is also joint family property. However, property acquired without the aid of
ancestral property may or may not be joint family property, depending on the facts and
circumstances of the case. Joint family or coparcenary property is that property in which
every coparcener has a joint interest and over which he has joint possession. The incidents of
a coparcenary have been well- summarised by the Supreme Court in State Bank of India v.
Ghamandi Ram, discussed earlier.

Property in which a person acquires an interest by birth is called unobstructed heritage. It

is so called, because the accrual of the right to such property has no obstruction. Thus,
property inherited by a Hindu from his father, father’s father, or father’s father’s father,
is unobstructed heritage, as regards his own children, grandchildren and great-
grandchildren. Their right to such property arises from the mere fact of their birth in the

10
Copacenary property available at:https://wealthymatters.com/2011/08/30/self-acquired-and-ancestral-
property/ visited on 18thapril 7:30 pm
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family, and as soon as they are born, they become coparceners of such property, along
with their paternal ancestor. Ancestral property, therefore, is unobstructed heritage. 11

SEPARATE OR SELF ACQUIRED

PROPERTY
11
Joint family property available at: http://www.lawyersclubindia.com/forum/Plz-clear-the-problem-
53200.asp#.Vxjiovl97IU
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Under the Hindu Law - there are two kinds of property :-

1)SapratibandhaDaya (Obstructed Heritage – Separate Property)

2)ApratibandhaDaya (unobstructed heritage – Joint Property)12

 Property which is not joint is called separate or self-acquired property. The word ‘separate’
suggests that the family was formerly joint but has now become separate. When a member
separates from joint family, the property which he acquires will be treated as his separate
property vis-a-vis his relations with his brothers, but so far his sons are concerned it would be
regarded as joint family property. The term “self acquisition” signifies that the property has
devolved upon him in such a manner as nobody except himself has any interest in it.

Property acquired by a Hindu in any of the following ways is his self-acquired or separate
property even though he be a member of a joint Hindu family:—

(1) Property acquired by a Hindu by his own exertion would be his separate property as it is
not the result of any joint labour with the other members of the joint family, provided it is
obtained without detriment to joint family property. Where a person has acquired any
property by way of adverse possession after remaining in its possession adversely for a period
of twelve years it would be treated as his self-acquired property not a joint property.

Where a member of joint family carries on a business of medical practitioner in Ayurvedic

medicines and thereby earnes heavy sum of money and gives loan on mortgage, thus
accumulating further income, all the earnings and the property thus acquired by him would be
his separate property.

Recently in Maklian Singh v. Kulwant Singh, Supreme Court observed that if a male member
of the Joint Hindu Family purchased the property by his own incomes like salary income,
such property is his self acquired property. Such property inherit his heir by succession. It
could not be said to be the property of Joint Hindu Family.

(2) Property inherited by a Hindu from any person other than his father, grandfather or great
grandfather would be his separate property. Where a person earns money from the practice of
a hereditary profession like the hereditary priest, it will not be regarded as his joint family
property but on the other hand his separate property.
12
Ibid
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In MadanLalPhul Chand Jain v. State of Maharashtra, the Court held that a Hindu can own
separate property besides having a share in ancestral property. Where any member of joint
family inherited land left by his uncle that property came to him as a separate property and he
had an absolute and unfettered right to dispose of that property in the manner he liked. Thus
property inherited by a person from colleterals such as brother, uncle etc. cannot be said to be
ancestral property and his son cannot claim a share therein as if it were ancestral property. On
the death of a brother issueless, the property inherited by a person would be his separate
property.13

(3) Any property obtained by a Hindu as his share of partition of a joint Hindu family,
provided he has no male issue, shall be treated his separate property. Where a Hindu makes
some acquisitions after partition with the help of his share in joint family property, that
property shall be regarded as his separate property.

(4) Any property devolving on a sole surviving coparcener provided there is no widow in
existence who has power to adopt or has a child in her womb, will be regarded as his separate
property.

(5) Property obtained by a Hindu by a gift or will unless made by his father, father’s father or
father’s father’s father for the benefit of the family and not exclusively for himself, would be
his separate property.

(6) Property obtained by gift of ancestral property made by the father through affection, will
be his separate property.14

(7) Property obtained by a Hindu by grant from the Government shall be regarded as separate
property.

(8) Joint family property lost to the joint family and subsequently recovered by a member
thereof without the assistance of joint funds from a stranger holding adversely to the family
property shall be regarded as his separate property.

(9) Gains of Learning:

13
http://www.shareyouressays.com/117201/what-are-the-six-different-types-of-ancestral-property-under-the-
hindu-lawvisited on 18th april 12am
14
ibid
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Any income earned by a member of joint family substantially by means of his education or
specialisation, expertise or special intelligence would be regarded as his separate property.
Where a member of joint family acquires some knowledge or specialisation after getting the
education at the cost of joint family fund and later on earns a considerable sum, whether that
sum will be treated as his separate property or joint family property, became a controversial
issue.

The most important distinction between obstructed and unobstructed heritage is that
unobstructed heritage devolves by survivorship, whereas obstructed heritage devolves by
succession. However, there are four cases in which obstructed heritage also passes by
survivorship, viz.-

(a) Two or more children, grandchildren or great-grandchildren who are living as members of
a joint family, succeeding as heirs to the separate (or self-acquired) property of their paternal
ancestor, take the property as joint tenants with the right of survivorship.

(b) Two or more grandchildren by a daughter, who are living as members of a joint family,
succeeding as heirs to their maternal grand-father, take the property as joint tenants with the
right of survivorship.

(c) Two or more widows succeeding as heirs to their father also take the property as joint
tenants with the right of survivorship.

(d) Two or more daughters, succeeding as heirs to their father, take the property as joint
tenants with the rights of survivorship, except in the areas covered by the former State of
Bombay, where they take an absolute interest in the property.

It may, however, be noted that the distinction between obstructed and unobstructed heritage
is recognised only by the Mitakshara School. According to the Dayabhaga School, all
heritages are obstructed, and no person, takes an interest by birth in the property of another
person. The Dayabhaga School does not recognise the principle of survivorship. It recognises
only the right of succession, and this right naturally accrues, for the first time, upon the death
of the owner of the property.15

15
Copacenary property under hindu law available at: http://www.helplinelaw.com/family-law/ROHW/right-of-
hindu-women-in-undivided-property.htmlvisited on 18 thapril 11:40 pm
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Joint family property is to be distinguished from separate or self-acquired property. Even if a

Hindu is a member of a joint family, he may possess separate property. Such property
belongs exclusively to him, and no other member of the coparcenary, not even his son,
acquires any interest in such property by birth. The owner of such property may sell it, or gift
it, or bequeath it to anyone he likes. If he dies intestate, such property will pass by succession
to his heirs and not by survivorship to the surviving coparceners. Broadly speaking, therefore,
all property other than joint family or coparcenary property is separate property.16

JUDICIAL PRONOUNCEMENTS

The Supreme Court observed that where no part of the family funds had been spent to enable
the Karta to earn remuneration of managing director and the family funds had been invested
to obtain dividends and other advantages of being shareholders, the salary, commission and
sitting fees of Karta as managing director shall remain his personal property.

16
B.K.Sharma&Vijay Nagpal, codification of hindu laws: its effect on joint family structure, 32-33 Ban.L.J.(2003-
04) 88-102
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In Dhanwantary v. Commissioner of Income Tax, the Court held that the salary earned by
a coparcener as partner constituted joint family property. Where the coparceners invested
joint family assests in partnership and it was agreed that the profits earned in partnership
were to be taken as personal salary of each coparcener, the salary which the manager earned
on account of his personal skill and labour was held to be as a part of joint family property.

On the other hand in Commissioner of Income-tax v. D.C. Shah, the Supreme Court held that
the salary given to a coparcener as partner on account of his special skill and experience
constituted his self acquired property, even though the family has contributed a large parts of
its capital to the firm.

Where the security is given out of joint family property for the appointment of Karta of joint
family on the post of a manager in an industry, the court held that the salary and remuneration
earned by the Karta will still be regarded his separate property of Karta.

In BhagwantjiSulakhe v. DigambarGopalSulakhe, the Court observed: Where a

coparcener has been appointed as a managing director of a company the remuneration earned
by the coparcener will be regarded his separate property irrespective of the fact that a few
shares of the company were purchased out of joint family property to enable him to become
the managing director.

Where the premium of the insurance policy of a coparcener is deposited out of joint family
fund, the benefit earned by him would be his separate property not the joint family property.

In Chandra Kant Mani Lai Shah v. Income Tax Commissioner, the Supreme Court laid down
a new proposition by saying that a partnership firm can be constituted between the Karta and
undivided member of Hindu undivided family. It is not necessary that such undivided
member should contribute cash assets to become partner in the firm. When an individual in
place of cash asset contributes his skill and labour in consideration of a share in the profits of
the firm he can become a partner in the firm.

In such cases when a coparcener contributes his skill and labour while entering into
partnership with the Karta of Hindu undivided family, it cannot be said that he has not made
contribution of any separate asset to meet the requirement of a valid partnership. The profit
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thus earned by that coparcener would not constitute the property of the joint family but would
be the separate property of the individual coparcener concerned.

In K.S. SubbiahPillai v. Commissioner of Income Tax, the remuneration and commission

was received by the Karta of the family. The tribunal had held that the remuneration and
commission received by the Karta of the joint Hindu family where earned by him on account
of his personal qualifications and exertions and not on account of the investment of the
family funds in the company, therefore it could not be treated as the income of H.U.F. In this
case the Supreme Court also observed that the decision given by tribunal is correct.

nVenkayyamma vs. Venkataramanyamma (1905 25 Mad. 678), two brothers, who were
living as a joint family, inherited some property from their material grand-father. When one
of them died, leaving a widow, the question arose as to whether his share in the property
passed to his widow by succession or to his brother by survivorship. The Privy Council held
that the property which the brothers had inherited was joint property in their hands, and that
the undivided interest of the deceased passed, on his death, to his brother by survivorship, and
not to the widow.17

However, in a later decision (Mohammad Hussain Khan vs. BabuKishyaNandanSahai,

1937 64 I.A. 250), the Privy Council reversed its earlier ruling, and held that such property is
not ancestral property. The effect of this decision is that property inherited by a daughter’s
son from his maternal grand-father is not ancestral property in his hands, but is his separate
property.

CONCLUSION
In India, there is a presumption that every Hindu Family is joint. The joint and undivided
family is the normal condition of Hindu society. An undivided Hindu family is joint not in
estate but in food and worship. The British courts applied the presumption that members of a
Hindu family are living in a state of union unless contrary is established, although social

17
Classification of joint family property availale at:http://www.shareyouressays.com/117201/what-are-the-
six-different-types-of-ancestral-property-under-the-hindu-lawvisited on -18th april 11pm
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conditions prevailing at the early times when the presumption was applied by text writers had
undergone a tremendous change. However, the possession of joint property is not a requisite
for constitution of joint family. Hindus get a joint family status by birth and the joint family
property is only an adjunct of joint family

The joint family property which used to devolve to the coparceners by survivorship after the
death of a coparcener, now under section 30 can be given away by will. Secondly if the
coparcener dies without making a will and leaves behind any female heir, then his interest in
the joint family would not go by survivorship but by succession. Earlier any coparcenary
property which went to a female by succession, whether under Dayabagha or Mitakshra Law,
was but her limited estate which on her demise would revert back to the heirs of last male
holder. But now, any property coming to a female from any source is her absolute property,
not a limited estate, which on her death would go to her heirs by succession.

The right to property of the coparcener arises by birth; hence the son is a co-owner with the
father in ancestral property, whereas under the Dayabhaga the right to property arises after
the death of the last owner. Hence the son has no right to ancestral property during father’s
life.The father has the restricted power of alienation of ancestral property whereas the father
has the absolute power of alienation of ancestral property under the Dayabhaga School.
Under the Mitakshara the son can ask for partition of the joint family property even against
the father, whereas under the Dayabhaga the son cannot demand partition against the father.

The interest of a member of joint family under the Mitakshara would, on his death pass to
other members by survivorship whereas under the Dayabhaga, the interest of a member
would, on his death, pass by inheritance to his heirs namely widow, son and daughters. Under
the Mitakshara, members of joint family cannot dispose of their shares while undivided,
whereas under the Dayabhaga any member of joint family may sell or give away his share
even when undivided.

BIBLIOGRAPHY

Books
1. H.K Saharay, family law in India
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2. Dr.ParasDiwan family law

3. PoonamPradhanSaxena family law