SUGANDH SIR’S NOTES ON FAMILY LAW 2

A HINDU JOINT FAMILY

- It traces it’s descent to a common ancestor – existence of this ancestor is
immaterial.
- HUF can be continued even if discontinued at any time.
- Male lineal descendants up to any generation along with their wives/widows
constitute a joint family.
- There can be a joint family even with no male members, as long as there is a
possibility of addition of any male member (thereby adding new members).
- Even adopted male members are members of the Joint Family.
- Unmarried Daughters, widowed daughter in laws, [widowed daughter], are
members of the Joint Family.
- No Legal entity distinct and separate from members.
- A unit of members – Headed by Karta.
- Membership is by virtue of birth (except adoption) and marriage; and not by
virtue of any agreement – in which case, it becomes a composite family.
- Presumption of jointness – unless contrary is proved.
- Existence of Joint Property is not a determining factor.

HINDU COPARCENARY
- Term implies joint ownership (interest of property).
- Coparceners – members who constitute coparcenary.
- A and B – ½ each
- Term implies joint ownership (interest) of property.
- Coparceners – members who constitute coparcenary.
- Fluctuating share.
- A Coparcener can object to any alienation of Property without his consent.
- Community of interest and unity of possession.
- Illegitimate son cannot be a coparcener.
- A person with unsound mind can also be a coparcener.
- A Coparcenary is a Joint Family constituting a Common Male Ancestor with his
lineal descendants in the male line 4 degrees counting from an inclusive of such
ancestor.
- No Coparcenary can commence without a Common Male Ancestor.

INCIDENTS OF MITAKSHARA COPARCENARY

- The lineal Male Descendants of a person up to the 3rd generation acquire birth
by ownership.
- Descendants can at any time work out their right by asking for a partition.
- Each Coparcener has got ownership extending over the entire property jointly
until the partition took place.
- All coparceners have common ownership and right of possession.
- The Property of Coparcener can be alienated only by the consent of other
Coparceners.

COPARCENERY PROPERTY
 Property inherited from Paternal Ancestor.
- Property inherited from father, grandfather and great-grandfather.
- Property allotted at a Partition.
 Blended Property
- If Coparcener mixes his separate property with Coparcenary Property.
- It is not bound to do so and may keep his self-acquired property for himself.
- Female is not a Coparcener and cannot blend her Property with Joint Family
Property (but now she can after the 2005 Amendment).
 Property acquired by utilizing Coparcenary Property
- Policy taken by the Joint Family Member (Premium) out of the Coparcenary
Property.

WHAT IS THE DIFFERENCE BETWEEN COPARCENARY PROPERTY AND

SELF – ACQUIRED PROPERTY?

1. Devolution:
- 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 separate property of a coparcener, on the other hand, passes, on his death
intestate, to his heirs by succession, and not by survivorship to the remaining
coparceners.

2. Nature of interest:
- All the coparceners have community of interest and unity of possession in the
joint family or coparcenary property. On the other hand, the separate or self-
acquired property of a Hindu belongs to him exclusively – even though he may be
a member of a joint Hindu family.

-As long as the family is undivided, a coparcener cannot predicate that he or she
has, at any given time, a given share (say, one-third or one-fourth) in the
coparcenary property. His or her share crystallizes only when a partition takes
place, and till then, he or she has a fluctuating interest, liable to be enlarged by
deaths in the family, and capable of being diminished by births in the family. As
separate property belongs exclusively to its owner, the question of predicating
shares does not arise in the case of such property.

3. Acquisition of interest by birth:

- 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.

4. Alienation by will:
- Prior to 1956, no coparcener could dispose of by will, his undivided interest in
the coparcenary property, whereas separate property could be freely disposed of
by will. But now, S. 30 of the Hindu Succession Act, 1956, enables a Hindu to
dispose of such interest under a will.

5. Alienation by gift:
- Separate property can be gifted away by the owner, to any extent, and to any
person. Thus, if the owner is the father, he can make a gift of his separate
property even to a stranger, without the concurrence of his children. Likewise, he
can gift it to one child to the exclusion of the other children, and so on. No
coparcener can, however, alienate his undivided interest in the coparcenary
property by way of gift, without the consent of the other coparceners. The only
exception to this rule is that a father may make a gift of a small portion of
ancestral property, within certain limits and under certain circumstances, to be
discussed later. Even the Hindu Succession Act, 1956, has not made any
provision for alienation of coparcener’s undivided interest by gift, as it has for
alienation by will.

6. Alienation by sale or mortgage:

- No coparcener can alienate his undivided interest in a coparcenary by sale or
mortgage, without the consent of the other coparceners. This general rule admits
of certain exceptions. 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. Likewise, if such manager is the father, he enjoys an
additional power of such alienation for the payment of his antecedent debts which
were not incurred for illegal or immoral purposes. (This will be discussed in
greater detail later on.) The separate property of a coparcener can, on the other
hand, be freely alienated by him, by way of sale or mortgage, or otherwise.

7. Partition:
- 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.

‘MITAKSHARA’ SCHOOL AND IT’S FEATURES

- The school owes it’s name to Vijnaneshwara’s commentary or Yajnavalkya
Smriti – Mitakshara.
- The school of the widest application in the subcontinent, except Bengal and
Northeast (Dayabhaga)
- Succession – Principle of propinquity (nearness of blood relation) instead of
religious efficacy (dayabhaga).
- Secular in that sense.
- Principle applies with a limitation – preference to agnates over cognates.
- Joint Family – doctrine of son’s right by birth; survivorship (not inheritance)
father forms coparcenary along with surviving male lineal descendants.
- A > B (son) > X (agnate)
< C (daughter) > Y (cognate)
- Son’s kids are preferred over daughter’s kids for inheritance in Mitakshara
School.
 (A) > (B)(son) > X(agnate) = sole surviving coparcener.
> (C)(daughter) > Y (cognate).
- Community of ownership and unity of possession.
- No alienation of property
Sub schools – Benares, - ,Bombay, Madras.
- In Mitakshara System, Coparcenary comes into existence with birth of son.
- In Dayabhaga System, Coparcenary comes when father dies.

MITAKSHARA LAW OF JOINT FAMILY

- The Mitakshara propounds the doctrine of sons right by birth in the joint family
property.
- The Joint Family Property does not pass by inheritance but it goes to those who
among the groups known as coparceners survive others.
- Interest in Property will keep on fluctuating time and again.
- Under the Mitakshara School, neither the Father nor any Coparcener can
ordinarily alienate the joint family property.
3 GENERATION RULE OF COPARCENARY (MITAKSHARA)
 F[last holder]>(S)>SS>SSS>(ssss)>X>Y
COMPOSITION OF THE JOINT HINDU FAMILY
- The Hindu Joint Family consists of common male ancestors and all his lineal
male descendants up to any generation together with the wife or wives (or widow)
and unmarried daughter of the common ancestor and of the lineal male
descendants.
- Existence of Common Ancestor is necessary for brining a joint family into
existence.
- Death of Common Ancestor, family will not come to an end, upper links and
lower ones are added.
- Even an Illegitimate Son is a member of the JHF and the Widowed Daughter
may return and claim a share.
INCIDENTS OF JOINT HINDU FAMILY
A. Common Male Ancestor is necessary to bring the joint family in existence,
but not necessary for continuation.
B. It is a creature by Law, cannot be created by members of the family by
agreement. Exception is Marriage & Adoption.
C. It is having no legal entity separate from it’s members. It is represented by
the Karta, and it cannot Sue or be Sued in it’s own name.
D. It is not a Juristic Personality capable of holding property, over here in this
case, members collectively own property.
E. The Status of the Joint Family Member comes to an end by Conversion,
marriage to Non-Hindu, Adoption, Marriage of Daughter.
F. All Members do not have an equal right in the Joint Family Property.
G. A Hindu Joint Family may continue in perpetuity until it ends. On Partition,
different Joint Family comes into existence.

CONTINUATION OF JOINT FAMILY AT THE INSTANCE OF ONLY

DAUGHTER
- The presence of Male is not necessary for the Continuation of a Joint Hindu
Family.
- Before 1956, a Daughter did not have the capability to add a Male Member to
her Father’s Family Property.
- The Hindu Adoption and Maintenance Act, 1956 has granted an Unmarried
Female the ability to carry on her Father’s Joint Family by adding a Male Member
to the Family (example by adopting a boy).

PRESUMPTION OF JOINTNESS
- The general presumption is that every Hindu Family is presumed to be a Joint
Family unless contrary is proved.
- It is presumed to be joint in food, worship & estate.
- But that does not necessarily mean that they must have a common kitchen or
joint place of worship.

KARTA
Introduction
- The Head of the Hindu Joint Family is called the Karta and Manager of the Joint
Family occupies a unique position unlike any other member of the Family.
- The Senior most member of the family is generally called the Karta.
- But such a member may give up his position, and any junior male member can
be appointed as Karta with the consent of other members of the family.
- He is not an Agent or Trustee of the Family, but as the Head of the family, he is
the Custodian or Guardian of the Family and affairs of the Family and interest of
the Family.
- He is the person who takes care of the day to day expenses of the family, looks
after it, and protects the joint family properties.
Position of Karta
- Karta is Sui Generis (of it’s own kind) the relationship between him and
members is not like principal or agent or like any partners in a partnership firm.
- He is the head of the family and acts on behalf of other members.
- He stands fiduciary relationship with other members but he is not a trustee,
nobody can question what he spent unless the charges of misappropriation.
- When any Coparcener charges of improper alienations made by Karta, burden
of proof lies on him to prove such are malafide act of the Karta.
- He obtains no reward for his services and he discharges many burdensome
responsibilities, towards the family and it’s members.

POWERS OF KARTA
1. Power of Management
- He is the head of the family, his management powers are absolute.
- He may manage the family affairs and family property and business the way he
likes for the benefit of the estate.
- No one can question his management.
2. Right to Income
- He has control over the income and expenditure of the family.
- He is authorized to spend for maintenance, residence, education, marriage, and
other religious ceremonies of the coparceners and their family.
- So long as family remains joint, no member can ask for any specified share in
income.
- If karta spends more, the coparcener can ask for partition.
- Karta cannot misappropriate family funds or misapply them to purpose other
than family.
3. Right to Representation
- He represents the family in all matters, legal, social and religious.
- He can enter into transaction on behalf of the family, his acts are binding on the
entire joint family.
4. Power to Compromise
- He has the power to compromise all disputes relating to family property or their
management.
- He can compromise the pending suits, family debts, and other transactions.
- However is his act is not bonafide, it can be challenged in a partition.
5. Power to refer a dispute to arbitration
- Karta has the power to refer any dispute to arbitration.
- Arbitrator’s award is binding on all the members.
- He must does so with the bonafide intention i.e without fraud.
6. Power of acknowledgment and to contract debts
- Karta has the power to acknowledge on behalf of the family any debt due to the
family, also has the power to pay debt or to make back payment of debt.
- He has the power to contract debts for the family such debts incurred in the
ordinary course of business are binding on entire joint family.
- Even Karta when takes loans, or execute promissory note for family purpose, or
for family business, joint family is liable to pay such loan.
 Does not owe his position to any agreement/appointment.
 Aged, infirm etc.
 Junior male member can also act as a Karta – exceptional (consensus
of the coparceners).
7. Power to enter into a contract
- Such contract is enforceable against each and every member of the family.
- The reason is that if such power is not conferred upon him, it is quite impossible
to carry on the business at all.
8. Power of Alienation
- Nobody in the family has the power to alienate Joint Family Property.
- However, Karta has the power of alienation under 3 circumstances – legal
necessity, benefit of estate, indispensable duties.

DUTIES AND LIABILITY OF KARTA

1. Liability to maintain
- Karta is responsible to maintain all members of the joint family.
- If he improperly excludes any member from maintenance, he can be sued for
maintenance and also arrears of maintenance.
2. Liability to render accounts.
- As long as the family remains joint, Karta is not supposed to keep accounts.
- But when partition is about to take place at that time, he is liable to account for
family property.
- In the following cases, Karta can be called upon to give an account of past
dealing :- a) One member is excluded from the enjoyment of property, b)
Karta fraudulently converts the family income for his own purpose, c)
Where there is a special agreement between the coparcener.
3. Liability to realize debts due to the family
- Karta should realize all debts due to the family within a reasonable time, but he
is not empowered to give up any debt.
- He is empowered to settle accounts with debtors and to make reasonable
reduction.
4. Liability to spend reasonably.
- He should spend family funds reasonably and for the purpose of the family.
- He is not under obligation to economize, save as a paid agent or a trustee
would do.
5. Liability not to alienate Coparcenary Property
- Unless it is for the benefit of the family, estate, or for necessity, Karta cannot
alienate Joint Family Property without the consent of all Coparceners.
6. Liability not to start new business.
- Unless adult coparceners of the family expressly or impliedly consents, Karta
cannot start a new business.
7. Liability to Compensate.
- In any case of proved misrepresentation, or fraudulent and improper conversion
by the Karta of Family Property, he is liable to compensate other family property.
CLASSIFICATION OF PROPERTY
 Sapratibandh Daya (Obstructed heritage) – Property which is
transferred by way of gift or inherited by a person other than paternal
ancestors.
 Apratibandh Daya (Unobstructed heritage) – Which I inherited by a
Hindu Male from a direct male (Paternal) ancestor. Eg. F, FF, FFF/S, SS,
SSS.
 Ancestral Property – Inclusive of properties inherited from maternal grand
father – Venkayyamma V/s Venkatrayayyamma (1902) 25 Mad. 678
 Self-acquired Property (Separate) – explained by the scriptures.

GAINS FROM LEARNING (KATYANA)

- By providing superior learning.
- Obtained from a pupil, officiating as priest, display of knowledge or debate.
- Earnings through performance of arts/sport/skill.
- Performance of sacrifices.
- Recitation of vedas/scriptures etc.
- Acquired by science.
- Hindu Gains of Learning Act, 1930 – eliminate the distinction between
specialized training and ordinary training.

SALARY AND REMUNERATIONS

 Murughappa V/s The commr. Of Income Tax (1952) Mad 828 –
Individual Property unless that was acquired by utilizing any portion of the
joint family property to it’s detriment.
 Palaniappa V/s Commr. Income Tax (1968) SC 678 – Over-ruled the
Madras High Court in appeal; no part of family funds were utilized for the
Karta to earn remuneration – family funds were invested to obtain
dividends – salary belonged to him personally.
 Commr. Of Income Tax V/s Kaloo Babu 1959 SC 1288 – Calcutta HC –
separate property; SC overruled – Joint Family Assets were used for
acquiring a concern – managing directorship was a part and parcel of the
same scheme.
 Dhanwantry V/s Commr. Of Income Tax (1968) SC 683
 MARUMAKATTAYAM FAMILY SYSTEM
 Malabar, Travancore, Cochin
 Matrilineal Family
 Tharwad – Karnavaran
 Daughters were the members of the tharwad even after marriage
except when they choose to separate.

HINDU SUCCESSION ACT, 1956

Introduction
- Provides for a uniform law of succession for all Hindus – the distinction between
Mitakshara and Dayabhaga Schools and it’s sub schools have to be done with.
- Mitakshara’s dual mode of devolution of property – survivorship + preference
to agnates over cognates – has been done away with – Succession shall be
either Testamentary or Intestate.
- Deal with Intestate & Testamentary Succession.
- Scheme of Succession is purely secular vis no consideration to religious
efficacy in that regard.
- Amendment is based on the 17th Report of the Law Commission of India (5th
May, 2000) under the Chairmanship of Justice B.P. Jeewan Reddy.
- Amendment of 2005 have incorporated substantial changes in the old Hindu
Succession Act – daughters are now coparceners equally with sons.
- Amendment of 2005 has also done away with the discrimination contained
under earlier Section 23 & Section 24.

MEANING OF THE FOLLOWING TERMS

 Descendants – off spring in general, it includes son, daughter, son’s son,
daughter’s son, daughter’s daughter and so on.
 Ascendants – descendants in parallel – brother and sister, uncle and
aunts, and so on.
 Agnates – a relation which is traced wholly through a male eg. Sons son,
sss, brother’s son etc.
 Cognates – a relation which is traced wholly through female eg.
Daughter’s son, daughter’s daughter, mother’s brother, etc.
 Definitions under Section 3.