MODULE V: LAW RELATING TO PROPERTY

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INTRODUCTION

Joint families are a common feature which is observed in Hindu society. Thus the
concept of coparcener is also very common here. A coparcener in relation to his father
is a person who has a right to offer the funeral cake to his father. So introducing such
terms through Mitakshara coparcenary had sole spiritual nature but later on, by adding
legal angle to it all this spiritual and religious nature was dissolved and it remained a
close concept of property. So at the present times, coparcenary is a term just associated
to the ancestral property.

As per the Hindu Succession Act, coparcener includes common male ancestors and his
linear descendants.  After the amendment of year 2005 daughter have also been added
to it. 

The partition is a process of joint Hindu family through which the big family which
were joined earlier divides. Through the division of land, new separate families are born
and nuclear family takes the place of joint families. For the process of partition, there is
a requirement of at least two coparceners.

Because it is through them the jointness of families come to an end. According to

Hindu Succession Act, each and every coparcener is entitled to the joint property of
ancestors. They are own the property jointly. 

Thus this term partition can be defined as “of the crystallization of the fluctuating
interest of a coparcenary property into a specific share in the joint family estate.” 
SCHOOLS OF HINDU LAW

There exist two schools of law that is responsible for governing the Hindu joint families
under Indian laws. These two schools are:

(1) Dayabhaga School of Law – This term has been derived from a similar kind of
text Jimutavahana. Under this school of law, the partition is carried out by choosing a
specific property of coparcener or we can say there is a partition by metes and bound. 

(2) Mitakshara School of Law – This term has been derived from a commentary
which was written by Vijnaneswara, on the Yajnavalkya Smriti. Under this, the
property division is not specific. It can be said that in this school of law, property is just
divided which is jointly owned by all. So the current system of property division is
followed under this rule of law only. 

Under this mitakshara school of law the property division is classified into two
types-

 Joint Family Property

 Separate Property
JOINT FAMILY PROPERTY

 What is Joint Family Property?

Whenever the head male member of a family purchases a property with the use of
money which he got by selling something which is jointly owned by every coparcener
then that purchased property becomes joint family property.

It will be classified as to be owned by the joint family. The law which helps to blend
separate property from the jointly owned property is well settled.
All that needs to be assured is that the person in the family who is acquiring that
property needs to specify that he is giving up his property voluntarily and thus it would
be blended into the joint family property.

There exist judicial pronouncements relating to the rule that wherever the jointly owned
property would be severed then if the coparcener who has once given up his self
acquired property and he later realised that he is given very less portion cannot make
any claim on the self-acquired portion. 

 Doctrine of blending

This doctrine has been explained in one of the case laws “Mallesappa Bandeppa Desai
and another vs. Desai Mallappa and Others” 

It was held in this case that the property when once blended with the joint family
property can never be claimed back when the joint family property is severed. And this
is known as the doctrine of blending. 

There exist well-known principles of Hindu family that all the Hindu families are
together in sharing food, worship idols and estate acquire in the absence of any proof
that the property is divided and this presumption continues to exist and will continue in
the future as well. The burden to prove that there exist self-acquired properties in the
current ancestral property lies on the person who acquired that property and never
claimed a right over that property. 

According to the judgement made by Bombay high court, a property which is acquired
by joint labour of member without using any of joint family funds will also be counted
as joint family property if no reverse intention is shown. 
  In one of the case laws “Bhagwant P. Sulakhe v. Digambar Gopal
Sulakhe”, the honourable Supreme Court gave the judgement that the
nature of a joint family property never changes even after it is severed. It
will remain a joint family property as long as the family remains joint. No
member of a joint family can convert any of the joint family property into
his personal property. 
SELF ACQUIRED PROPERTY OR SEPARATE PROPERTY

 Any property which is not a part of joint family property is a self acquired
property. This word separate here suggest that the property was once a
joint family property but now has been severed and is now separate. Thus
this property would be considered as a sparate property in relation to the
brother of the person who holds that property and still joint family property
in terms of his sons. This also means that no other person has any self
interest in the property. 
 The property acquired by any of the following mentioned manners can be
classified as a separate property:

1. The property which person acquired by his own efforts and no other family
member helps him. It is not a result of joint family efforts and hence it is not a
part of joint family property. When the property is in possession of a property for
more than 12 years. 

2. Property acquired by a person other than his father, grandfather or great

grandfather would be termed as his own and not anyone’s.

3. Any property acquired by a Hindu after the partition of joint property is severed
would be classified as his own property. 

4. Any property which is devolved to a sole coparcener will be a self-made property

as there exists no other coparcener.
 5. Property which is obtained by a person as a gift from his father, or grandfather or
great grandfather will also be counted as separate property.

6. Property obtained by a Hindu as a grant of government will be termed as a

property which has not been borrowed from ancestors.

7. When a joint family is lost and is again gained by a person of the family without
the help of any family funds will be classified as a type of property which he has
earned on his own.

PROPERTY EARNED BY EDUCATION

Any earnings through the use of a member of a joint family by schooling or

specialization, knowledge or certain intelligence could seem as his separate belongings.
Now if the person earns using the money collectively earned by joint family members
then the earning that person makes form that education would be joint or separate is a
controversial issue.

In order to solve the controversy the Hindu Gains of Learning Act, 1930 was added
which clarified that no gains earned by a family member by his education would be
classified as a joint family property just because of the reason that the education
imparted to him was a collective task. It would still be considered as a self acquired
property.