sy 11 Joint Family ; Coparcenary and Coparcenary Property A-MITAKSHARA in and Growth.—The institution of the joint Hindy family is peculiar and unique institution of the Hindus. It has its origin in ancient and writings of Smritikars. The joint family system hhas in fact sprung from the ancien, patriarchal family which can be said to be the earliest unit of human society. The head oj such unit is always in practice despotic, and he is the object of respect, if not always of affection which is probably seated deeper than any positive institution.' The induction of coparceners by birth into the family, considerably whittled down the absolute power of the father. The joint Hindu family, which is a creature of law, enfolds within it the linea male descendants of a common ancestor and includes their mothers, wives or widows and unmarried daughters. Joint family status is ordinarily the result of birth or affiliation by adoption or marriage and need not necessarily be linked with the possession of join. family property. Joint Family—Its nature and constitution.—Joint-family system is 2 cherished institution of the Hindus and a peculiar characteristic of their society : The joint and undivided family is the normal condition of Hindu society. Since time immemorial the Hindus are accustomed to live in joint-family units. A joint Hindu family, at best, may be defined by stating the jointness of members of whom it is made up. Thus, “it consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters.'* A daughter ceases to be the member of her father's family on marriage, and becomes a member of her husband's family.? Negatively, the existence of ¢ Joint estate is not an essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. Under the normal circumstances ® Hindu family is joint, not only in estate, but also in food and worship. Under the Mitakshara law, possession of property is not a necessary requisite fo the constitution of a joint family though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property, whatever, such a ordinary house-hold articles which they would enjoy in common, Speaking about the characteristic features of joint Hi jl Coutt ;, Joint Hindu family the Supreme “* in Sujit Lal Chhabda v, Commissioner of Income-tax. observed tint the joint Hi Joint Family—Origi J, Maine's Barly Institutions, p. 116. Ja. Commissioner of Income-Tas v. Laxoina 2 Roghunandan ¥ Bajo Kishore, 3316 $30. 1 AR 1988 Bom. 412. 3. AIR 1976 SC 109. (314) Pee) TIS Sn icin, eee ee alehi du xts ent of of ae y JOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 315 family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. The fundamental principle of joint Hindu family is the Sapindaship. That it does not take more than one male to form a joint Hindu family with females, is well established.”” Members of the joint family—The members of a joint family consist of the following : Males (1) Those that are lineally connected in the male line.* (2) Collaterals,$ (3) Relatives by adoption,$ and (4) Poor dependants. (5) Son born out of marriage between a Hindu man and Christian woman under Special Marriage Act. Females (1) The wife or the widowed wife of a male member, and (2) his maiden daughters. Presumption as to the jointness of the family.—The Orissa High Court in Binod Jena v. Abdul Hamid Khan,* has held that the leading principle of Hindu Law is that in the absence of proof of division, the presumption is that every Hindu family is joint in food and worship and estate. The presumption is stronger in the case of brothers than in the case of cousins and the farther one goes from the founder of the family then the presumption becomes weaker and weaker. The following are the leading presumptions which govern the burden of proof in suit which involve questions as to ‘whether a family is joint or separate or whether particular property belongs to the joint family or should be treated as separate property of an individual coparcener : (1) Every Hindu family is presumed to be joint in food, worship and estate : the burden of proof, therefore, lies upon the person who alleges separation. The members may dwell and mess apart, and yet remain joint in estate. Hence ceaser in commensality (i.e., ceasing to dwell and mess together), is no conclusive proof of separation though it may be an element which may be taken into consideration along with the other facts. The strength of the presumption of union necessarily varies in each case, being stronger in the case of brothers than in the case of cousins, and farther one goes from the founder of the family, it becomes weaker and weaker. (2) A family once proved or admitted to be joint, is, in the absence of separation, presumed to have continued joint. There is strong presumption in favour of Hindu brothers constituting a joint family. It is for the persons alleging severance of the joint status to prove it? 10 Bom. LR 184, Chowdhary Ganesh Dutt v. Jewack, 311A 107, Sce Mulla's Hindu Law, Rose Marie v, GT Commr,, Madras, AIR 1970 Mad. 249. ‘AIR1975 Orissa 159, Bharat Singh v. Bhagirathi, AIR 1966 SC 405,e (mother ofentry Inoft 17—Se male or Provisi ha if ~--34 ighte OE: ell $— junpU 1A’ ans iti ken place the a partition has taken PI bu (a) Where itis proved oF admined sperty Ws still joint, is Upon the yon ot proving that a portion othe . cm join who, f 68 joi x * anion 3 mel that a family isolate Oo cine , or a he ‘8 i ty i i ‘ m sumption is that viel mine fio presumption that it possesses fon grand fact shat a family iy xstence of & Joh family does not lead oper papery held by ay meMDES ot ts fe x aa Burden of proof—Whereitis rovea tht the family lived ointy in One howe, | bars and that there was a nucleus of joint propery of substantial ae oat 5 the panty made Siting up a case of separate estate, But jaw will differ according to diferen mans circumstances of the case. So, 10 abstract proposition of law governing every case, as sk however, differentiated its facts, can be laid down. i "i 1 resp ‘The presumption in regard to existence of joint Hindu family gets weaker ang tig The prenumtion tp descendant and such weak: presumplion eaibBE rebutted by Hine ‘eession of the properties in which even thy aaa adduction of slight evidence of separate po: that the family was a joint family," = burden would shift to the plaintiff to prove When in fact at the date of acquisition of a particular property the joint family hag The sufficient nucleus for acquiring it, the property in the name’ of any member of the joint fami family shouldbe presumed to be acquired from out of joint family funds so as to Torm putt of the jointfamily property unless the contrary is shown.'? In Sant Ry | Parmanand," the Punjab High Court has held that the person who asserts and ae sain property to, be Hindu joint famil Sey : Ppery o ind ot fay proper) as fo rove the same, Tn order tobe a . he should either prove that the property was inheri beds Perper ita uate Should be a ae oe ee ; ternative, satisfactory evid ri Goactaston thatthe property ad MEMReT OUR Ae aie Orc has to be led to a quired with the aid of joint-fami aati property in question. In order to c ni sufficient to acqui atime “ome to a conclusion from the joi iP e Bet 1y member of the joi 3 He m th ie joint-family nucl fe tat karo any SCHL leus, the mem fas ac Gea eID Raters AG eae ea pas peel erm cory acquired is also relevant and fami of joint famil : hen of the joint family who allie Tee affairs of a joint family ro generally be the Tan led the manager or ‘karta’ imily are managed by hi ily and is considered sort the joint Hindu family. Hee is the ‘The father, if living au Theresa presage ihe management are the representative of the on Join fama 8 PT*SUMPLION tha senior mast member say Property.!4 Sone he coy Enjoyment of joint fami ould be regarded as karta ofthe e i i Ceriain rights Y Property,—p, Paton, on yee (1) the right EH mea, of a Mitakshara SS f we Poaesege gee te? cal Ft a accouatae ea ee ae ie ¥ Naroyonwant er ‘njoyment, ete, 88 incidental to the right: | in Si Ha 9 Vila YH, Re ¥ KV. Ramkrish —_ I etal sf AR Ken 4181957 Sc 2up ira Na arvana, sant 148, 9 1 2 aiciome panto” Comm Ait TO DSCALE Rp, 6. 13) AIR 1978 Patt 15 SC 14, 17. Hain Ekbaly. Sn, ra 18, ' Rhaira Devi, AIR 7 1971 Pat agp 20. i toleee. ey JOINT FAMILY ; COPARCENARY AND COPARCENARY PROPERTY 317 \du Coparcenary.—A Hindu coparcenary is a much narrower body than a joint Hindu family. Tt includes only those who acquire by birth an interest in the joint or, as, it is called, “coparcenary property", these being the sons, grandsons and great- zgrandsons of the holder of the joint property for the time being. Before the Hindu Succession (Amendment) Act, 2005, Mitakshara Coparcenary consisted of only male members and females were not members of it. Hindu Succession (Amendment) Act, 2005 has substituted Section 6 of the Hindu Succession Act and has made the daughter of a Mitakshara coparcener, a coparcener in her own right in the same manner as the son, Now, she has the same rights in the Mitakshara coparcenary property as she Would have had if she had been a son and is subject to the same liabilities in respect of the said coparcenary property as that of a son,!6 Before the Hindu Succession (Amendment) Act, 2005 the conception of a joint Hindu family constituting a coparcenary was common male ancestor with his lineal descendant in the male line within three degrees from such ancestor. Every coparcenary started with a common ancestor which after his death could consist of collaterals only. The number of persons forming, for the time being the members of an, undivided Hindu family, fluctuate both by births as well as by deaths in the family. The essence of a coparcenary under the Mitakshara, is community of interest and unity of possession between all the members of the coparcenary.!” Each coparcener is entitled to joint possession and, enjoyment of the common property. The essence of a coparcenary being unity of ownership, no individual member of the family, while it remains undivided, can predicate of the joint and undivided property that he (the particular member) has a certain definite share." Such a corporate body with its heritage is purely a creature of law ; it cannot be created by act of parties save in so far that by adoption, a stranger may be affiliated as a member of that corporate body. Persons who are not members of Hindu family by virtue of birth or adoption, cannot, by mere agreement, become or be made members of a joint family. ‘Thus, if a person inherits property from his father, grandfather or great grandfather, his sons, grandsons and great grandsons and daughters of a Mitakshara coparcener acquire an interest in it by birth and then they become with him joint owners of the coparcenary property with a right to demand partition of the same and all of them are coparceners and constitute a coparcenary. In Ram Avadh y. Kedar Nath,'9 the Allahabad High Court said that the Mitakshara coparcenary is the creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards ancestral Properties of the latter, The Supreme Court made an important pronouncement in State Bank of India y, Ghamandi Ram,? wherein the Apex Court observed that 16, Section 6 (1) ofthe Hindu Succession Act as substituted by the Hindu Succession (Amendment) Act, 17. M/s, Kalooram v. Commissioner, Income-tax, AIR 1966 SC ; Incomestar, 4, 18. Approver v. Rama Sudha Ayiyar, 1 MIA 70, 19. AIR 1976 All 283, 20. AIR 1969 $C 1330,302 @) husband), (mother's of entry 1 12 of the Suc 17—Secti male or fe provision ‘mentioned relat Allie tii a Succes (C), in Sectic aenatcs and The preferen The an ot Qt Gs by all the coparcents in a gy, si. 318 ome, ed by operation of law not by cane oe hier) is taken in adoption, pina. a The Ml re 10 ae ote rite ot ofthe pris, BM auger) 90 JOUM own. special features gt oe fa eetpove- mentioned case has Court in “ i ia pee Sn rations from a COMMON ANCEStor, why nstitutes & coparcel at These + trscoparcenary have right 10 demand partition o ies srr pation each ofthe coparceners has control over he @) So long there is no par Se sais ssion are common, on account of co. 4) Their ownership and right of joint posse Onoamn ty unless the necessi fer of the coparcenary propel necessity ® Rec cute paved aad all other members of the coparcenary give their is effect. © Galles ae fat ‘any of the coparceners, his share devolves on other coparceners by the rule of survivorship not by succession. Now, the propositions (1) and (2) stated above stand modified by the Hindy Succession (Amendment) Act, 2005. A female may also be a coparcener in the Mitakshara coparcenary and the rule of survivorship has been abolished by this Act. No coparcenary can commence without a common male ancestor, but it should be noted that though every coparcenary must have a common ancestor to start with, it is not Supposed that every coparcenay is limited to four degrees from the holder of the property forthe time being and from the common ancestor. Mlustration = int the he t Min defi cops enti Lord betw Hing Mita Prop. This birthJOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 319 above illustration, dyring the lifetime of A, the male holder in the family, B, ‘ ihetwo one of A.Dl and Dé the two daughters of A and B, FM, N, the sandoons and G, H. O, P, the great-grandsons will constitute the coparcenary along with A. In this case $ and T are not coparceners because they are removed from A beyond the three degrees. But as soon as A dies, $ and T-are also included within the coparcenary. Coparcenary within a coparcenary.—There can be coparcenary within a larger coca tad it can be ilusated from the foregoing ilustation, Supposing c in that illustration makes separate acquisition and dies and the same is inherited by his sons Mf and N; now if O is subsequently born to N, he gets a right by birth in it and 1 property can be held by C's descendants with all the indents of coparcenary property separate from and independent of the coparcenary property belonging to the large ‘coparcenary consisting also of the collateral relations of C. Features of Coparcenary.—the distinctive features of a Mitakshara ‘coparcenary are as follows :— 1. Unity of ownership.—The essential feature of a Mitakshara coparcenary property is unity of ownership and community of interest. The ownership of coparcenary property is in the whole body of the coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he has adefinite share. 2. Indeterminability of shares.—The interest of a member of a coparcenary in the coparcenary property is a fluctuating interest capable of being enlarged by deaths in the family and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. Ina Hindu undivided family governed by the Mitakshara Law, no individual can predicate, while it remains undivided, that he has a definite share in the property of the family. 3. Community of interest—This feature of coparcenary signifies that no coparcener is entitled to any special interest in the coparcenary property, nor is he or she entitled to exclusive possession of any part of the property. As observed by their Lordships of the Privy Council, “there is community of interest and unity of possession between all members of the family.”2! 4. Daughter of a coparcener may also be a coparcener.—Before the Hindu Succession (Amendment) Act, 2005, no female could be a coparcener under the ‘Mitakshara law. Even a wife, though she is entitled to maintenance out of her husband's Property and has to that extent an interest in his property is not her husband's coparcener. This Amending Act has made a daughter of a Mitakshara Coparcener, a coparcener by birth as if she were a son, 5. Right by birth.—The coparcenary property is a property in which the issue of the coparceners acquire an interest by birth. It was held in Anandrag y. Vasantrao,®! the sons become entitled to it by reason of their birth, After the commencement of the Hindu Succession (Amendment) Act, 2005 the same rule applies in case of a female child. 6. Abrogation of the rule of survivorship.—Beforer the Hindu Succession (Amendment) Act, 2005, one of the most distinguishing feature of oe nae LAE TOR jh Katama Nasehiar v, Re “y a rv. Raja Shivagunga, (1863) 9 MIA $39. (1907) 9 Bom:LR 595 (PC)husband) (mother's ofentry 1 12 of the Suc 7—Secti ale or fe ovision entioned relat Alive (iti ww ces, tio Net fa coparcener his interest in the it passed by survivorship ¢, was that on the death of coparcener left male issue jon to his heirs. I coparcenary property did not pass a es esas to the the other coparceners, subject A ae Section 6 (3) o oat rule of survivorship. ba ee To an end.—A Hindu coparcenary comes to ay end in two ways, namely + 1, by partition, and i en 2. by the death of the last surviving cop: 2 in Distinction between “joint Hindu family” Pr apa les ‘The joint Hindu family differs from that of the coparcenary in 1g respects -— Je number of persons and Firstly, while a joint family is unlimited both as to th t remoteness of their descent from the common ancestor, a coparcenary is thrown pen to only certain specified members of the joint family. ’ ‘Secondly, a coparcenary is limited to males and females of the family who are within the rule of four degrees inclusive of the ancestor or the head of the family, forthe time being, while there is no such limitation in the case of a joint family, Thirdly, a coparcenary comes to an end with the death of the last coparcener or the sole-surviving coparcener as he is called, whilst a joint family may continue even aftr his death. Fourthly, hough every coparcenery is joint family or part of one, the converse is notalays ts, every joint family isnot necessarily a coparcenary. scot snd lastly, a Hind join amily consists ofall persons ineally descended {tom a common ancestor, and includes their wives, and unmarried daughters. A iindu coparcenary is a much narrower body than the joint Hindu family, It includes only those persons who acc : y e ary property, these being thy quire by birth an interest in the joint or filer ortiotrn pe he fine le sons, grandsons and great-grandsons of the tae ime being, and also daughters of 2 itakshara coparcenary not a Corporati : a coparcener. though sometimes spoken of as a corporaticn, anon age ee esnara coparcenary, corporation. A a "poration, differs in several coparcenary isa ereature of law va Several respects from ne donnin law and can be dissolved at will by any i ion ra ert tthe sweet will of any ofits member, Beckles ets and is not lable nember. Besides, coy ini me its mefnber exc within the fami parcenary signifies 2 even strangers and inser) Mloption. But a corporation ig anon co ereneet cannot liable to fluctuations for ca then Sttifical body comprising Mitakshara coparcenary tw tweJOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 324 (a) unity of juristic existence, and (b) unity of ownership. Unity of juristic existence implies that all the coparceners are supposed, for juristic purposes, as single individual, the ‘corporate existence not being disturbed by death ef individual members. The family is a sort of a corporation having continued existence. Its constitution might change by birth, adoption, marriage or death, but as regards stranger, it is deemed to be a single individual, a separate legal entity. As regards the second point it should be noted that there is always complete community of interest and unity of possession as between the coparceners. Joint tenancy.—The two incidents mentioned above have been introduced into the joint Hindu family from the English Law of Real Property. The joint tenancy of English Law is a kind of co-ownership, which resembled the Hindu coparcenary in the existence of the right of survivorship and right to put an end to the joint status by partition. Now, the rule of survivorship recognised under the Mitakshara Law with respect to the devolution of interest in the coparcenary property on the death of a coparcener has been abolished by Section 6 (3) of the Hindu Succession Act, 1956, as substituted by the Hindu Succession (Amendment) Act, 2005. Point of similarity.—The following are the points of similarity between the two: (1) In both the cases thete is right of survivorship. (2) In both the cases each member is entitled to possession over the whole of the joint property. (3) In both the cases the act of member results in benefiting the other. Points of difference.—The following are the points of difference between the two: (1) A coparcenary is purely a creation of law and cannot be created by act of parties whereas an English joint tenancy rests for its validity on the act of parties. (2) Two complete strangers may be joint tenants according to English Law; but under no circumstances can strangers constitute a joint Hindu family. (3) The power of a coparcener to alienate his share is restricted while that of an English joint tenant is absolute, although he cannot transfer it by will. (4) The interest of a coparcener is fluctuating while that of a joint tenant under English Law is fixed. (5) The wife and children of a Hindu joint tenant have a right to be maintained Out of joint fund but this is not allowed in the case of English joint tenant. On the death of the last surviving coparcener the property passes to his own heirs while in the case of the last surviving English joint tenants the property oes in equal shares to the heirs of all the joint tenants. (6) aHINDU LAW 322 in English Law.—w, ry. Now we will discuss here? -in-common Coparcenary and tenancy : reenal ready seen the nature and incidents of a copal alre nature of a tenancy-in-common, he Tenancy-in-common.— is another kind of joint ténancy known s Seach cide partons RIE property sot lad oho ieate by Ten co pich cave fis coparcensry, of (i) in ae of and, otervise they y jin inertia in they are join tenants), constitute a tenaney-in-com aT yurchase (in whic! ee who take property as co-owners is ace by bb ang Garctdeasi 106 a) of pstessoni-common. On thé death of eich ean soca Least property passes by succession t be divided j a (Caisson of Property.—Property under Hindu Law may be divided jn two classes, namely ;— J (A) joine-faily property or “coparcenary property”, and (B) separate property or “self-acquired property”. A. JOINT FAMILY-PROPERTY OR eee area (PROPERTY INCLUDED IN UNOBSTRUCTED HER ° tis the property in which all the coparceners have community of interest and unity of possession. Such property consists of — (1) ancestral property; ; (2) property jointly acquired by the members of the joint family; (3) separate property of a member “thrown into the common stock” intention of abandoning all separate claims on it; (4) property acquired by all or any of the coparceners with the aid of joint-family funds. (1) Ancestral property—Ancestral property is one of the species of joint family property.—Ancestal property is a specie of Joint family or coparcenary Property. By the phrase ‘ancestral i father, father’s father or father’s father’s father. This is the only property in which his issues, viz., son, grandson and great grandson and also daughter of a Mitakshara oparcener acquire an interest with him by birth, 24 with the {is the property inherited by a male or female Hindu fi i rather’ from his father, father's father, or father's father’s father, It is very important to note that the onl ly prope rty that can be called ancestral is t ; ane oh the property inherited by a Hindu from any one of his three immediate paternal ancestors mentioned imteres in it by birth are the sons, bove and the only persons who acquire an Mitakshara coparcener,28 Son’s son, and the son's Son’s son and daughter of @ 4 land oF mova ‘ownership (Y, 25. Hindu Succes same | decisic Indian 1 “ances: ancestc Of the j ancestr v the join there w coparce nucleus R father o questior or not d will or the inter the prop the gran of the fa would ge Its rights alo Ang asset. Wh his heirs. business firm whic No. family pa Nev bind the s With their The family pre would alsoeo om ares ity nary his pare thal JOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 323 same limits, i.e., within four degrees) is also to be regarded as ancestral. Prior to ike decision of the Privy Council?® there was a difference of opinion upon this question in the Indian Courts. The Privy Council decision?” came to set at rest the conflict. It held that be “ancestral property” is confined to property inherited from the three immediate paternal ancestors and the property inherited from a maternal grandfather is the absolute property of the inheritor in which his son does not acquire any interest by birth, and that it is not ancestral. When a person claiming that a particular property was’ancestral or it belonged to the joint family, the burden of proving the same lies on him. He must show initially that there was sufficient nucleus. A presumption that a property in the hands of an individual coparcener was joint family property can be drawn only if it is shown that there was a nucleus of the joint family property, from which it might fairly be said to have grown.”8 Regarding the nature of property obtained by a Hindu under a gift or will made by father or grandfather or great grandfather, it was held by the Supreme Court?? that the question whether the property in the hands of the father in such a case becomes ancestral or not depends upon the intention of the grandfather, as expressed in the deed of gift or will or to be gathered from the terms of the document and surrounding circumstances, If the intention of the grandfather was that the father should take the property exclusively, the property in the hands of the father would be his separate property. If the intention of the grandfativer was that the father should take the property for the benefit of the branch of the family it would be an ancestral property in the hands of the father, for his sons would get equal rights with him in the property. If such was the intention of the grandfather, the daughters would also get equal rights alongwith the sons in such gifted property in the hands of the father. Ancestral business—Its incidents.—In Hindu Law, a business is a-distinct heritable asset. Where a Hindu dies leaving a business, it descends like other heritable property to his heirs. If he dies leaving male issue, such as, sons, grandsons or great-grandsons, the business goes to the hands of the male issue and becomes joint-family business and the firm which consists of the male issue becomes a ‘joint-family firm’. Now, daughters of a Mitakshara coparcener would also become members of such family partnership. New business.—The manager of a joint-family cannot start a new business so as to bind the share of the other adult coparceners, unless the business is started or carried on with their express or implied consent.2° _, Lhe income of the hereditary profession made as that of a first constitutes Joint- family property," similarly any property acquired in exchange of Joint-family property would also be held to be joint-family property.22 2 Mohammed: ‘Husain Khan v. Babu Keshay Nandan Sahai, 64 1A 250. a Aa: Mant v.P.S. Mohan Kumar, AIR 2002 Mad. 402, 3. Nagichale Narayana, AI 1953 SC as 3 Latah, Clthotubhai, AIR 1962 Guj. 68 ; Mahabir Prasad v. Amla Prasad, AIR 1924 AN. 32 Gitslintv. Ishroo, 1977 SC 1964. ama aR Gurbactan Singiv, Puran Singh, 1961 SC1963,(iy HINDU LAW 324 ty is absolu h ‘ancestral property tely Joy lost and received.—In case ye EXETtIONS Tecovers Er raber ofthe family, by hie own eSSanw ae Meee wots ‘i tom Sail i daspeig Tbs recovery, if not made wig, ims on the fs ‘ a sec of nl 7 the privit : x of the intentions of other co-owners. bers of the joint famil ‘ ired by the members ¢ an @ Property joint a 7Y nbers of joint ae fey by their join, Iabout wheter in a busines, profession oF vocation, with ea Ear oER ae ety, it becomes joint-family ot ee tet cli aiatore Sven witout ae Court that property acquire aac ice of any indicati joint-family funds, is presumed to be joint-family property in absen y ion of ‘an intention to the contrary. ey In Sidha Sahoo Jhuma Dei, the Orissa High Court has held that the position in law appears now to be well settled that when the members of a joint-family, by their joint labour or in ther joint business, acquired property that property in the absence of a clear indication of a contrary intention would be owned by them as a joint family property. Tn another case the court has held that acquisition in the names of all individual members do not constitute joint-family property and the burden is upon the person who claims acquisition as joint-family property to prove availability of sufficient nucleus Failure to prove s0 would lead to the presumption of equality of interest under Section 45, Transfer of Property Act.37 In Kondiram v. Krishna’, it was held by the Supreme Court that properties having joint family nucleus till date of severance in status must be deemed to be joint family ee 2 ee Acquired by brothers after severance in status cannot be clubbed in es. A ) PREY thrown into the common stock.—A member of a joint Bot irihe aa scutin circumstances, acquire property to hold it exclusively as his own, But if the coparcener has voluntarily thrown hi ; ee ily thrown his self-acquired he joint funds with the intention of abandonii ull rs quired property into the joit ing all separate claims to it, it would be joint property, Debray Pradhan v, Gp a i ts 43; Ghanshyum, AIR 1975 $0, Lat ng ¥ Seo Charan 10 Mia, f 10 “ fi ii ankaiya Lal, 24 AM a ER inshi Inder y, : Kumar Sham, 1LR 40 Cat 470 (PC), Orissa 162, chars joint and s As sc Prope copar the Ty a mer Joint; in the would their n Joint f ( acquir accum 43, 44 4s. 46. 47, 48, 49, 50, See MeJOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 325 A Hindu, even if be joint, may possess separate property. Such Property naa exclusively to him. No other member of the coparcenary, acquires any interest in it by birth, and on his death intestate, it passes by succession to his heirs.* Blending is not done by the primary act of blending but it is possible only by deliberate and intentional acts of the owners of the property. Such an act can be done by express words or by express conduct of the parties.¥# Justice Hegde has observed that the act of blending is unilateral. When a member of joint-family mixes his property to a joint- family property, he does not do the act of gift nor is it gift. There is neither any donor nor donee, nor does it attract the provisions of the Transfer of Property Act.45 In Lakireddi China v. Lakireddi Lakshman, the Supreme Court observed that the 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 a joint-family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim thereto; 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 (0 support persons whom the holder was not bound to support, or from the failure to maintain accounts, abandonment cannot be inferred, because an act of generosity or kindness will not ordinarily be regarded as an admission of legal obligation. The separate property of Hindu coparcener ceases to be so and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his int family or ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act is an unilateral act, As soon as he declares his intention the property assumes the character of joint family Property. The doctrine is peculiar to Mitakshara School of Hindu Law. When « coparcener throws his separate property into the common stocks, he makes no gift under the Transfer of Property Act and, therefore, it does not amount to transfer even #? Where a member of copareenary voluntarily gives up his right in any property and mixes it with oint property, it would be deemed to be joint property. Where he gives away his property in the common stock it would become a part and parcel of the joint Hindu property and would not be treated separately 4# All the members of joint Hindu family can not create joint property by throwing their money in common stock. The property belonging to the coparceners only can ereate Joint family property by blending them into common stock. (4) Property acquired with the aid of joint-family funds.—Property equired with the aid and assistance of joint-family property is also joint? Thus, ‘ccumulations of income, i¢., rent etc. of joint-family property, property purchased out of 43. Harihar Sethi v. Ladukishore ‘Sethi, AIR 2002 Ori, 110, 44. Narain v. Kshama Raju, AIR 1968 SC 976, 45. AIR 1970 $C 1722. 46. AIR 1963 SC 1601. 4% Goll Eswariah v. Gif Tax Commissioner, AIR 1970 SC 1722. 48. Hemchund v. Danchand, AIR 1981 NOC 75, 9 Krishna v. Commr. LT, AIR 1977 SC 2230, °0. Bajirao . Ram Khanris, LR 1941 Nag 707yiNDU LAW and property purch, of such propert roceeds of sale of mortgage S1 Where property is acquirey wach ince eae als jlntfamily TOPS sg carried on by them ye? cout of suc! fab chara family out O nacht members of a joint Se ain is the joint property of the members though would be presumption the th nucleus of ancestral funds.%2 yy fe been ancestral or started wit the joint family had suffig, ban re fat facut of particular propery meraber OC the joan fa toes fo acquiring it the property i ine ve family funds and so to form part of 4. shold be resumed fo be acaued fom oa an Kondiram v. Krishna joint Family property unless the sor amily, all the properties and acquis, Supreme Court held that in Jolt ie ation or, Severance in. Status, must fy having joint-family nucleus till the date of p: deemed to be joint family properties. a EE aE Litem ‘ roperty.—Property which is not join =parate or asta Hr a oe if he be joint, may possess Terex Po is the sole owner of such property and has exclusive possession and ownership over it. No other member of the coparcenary acquires any interest in it by birth, : 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 and not by joint labour with other members of the joint family, provided it is obtained without detriment to joini- family property. There is no presumption that the property owned by the members of the joint family could a fortiori be deemed to be of the same character and to prove such Status it has to be established by the propounder that a nucleus of joint Hindu family was available and the said property had been purchased from the said nucleus.** Where a person has acquired any property by way of adverse possession, after remaining in its respesvion adversely for period of twelve years, it will be treated as his self-acquired Fea eae prone ‘Where any person derives income from the practice of Oy erercasion like Purohit or priest, that income will not be deemed as joint family property and it wi i i y per By pee his separate property.56 Separate earnings constitute (2) Property inherited by indu fro fathe a Hi ; ara tal many person other than his father, _ (3) Property obtained by a Hi 0 Hindu as hi ii Provided he has no iseus i ass share of partion of a joint Hindu family. wal AIR 1956 5c Sea. lS SC 257, MI MaMUry AIR gay pe yy AMO Lal v, Surat Lad AIR youn Cal 583 55. Tena tth idan Soy, ai ; ¥ St. nro 4 AIR 8 Bom 98) Pleanban ane i AIR 1977 $C tots chard Bhaywans y, , AIR 986 SC 79, a _ In Bi acquisition the income @)P in existence (5) F father's fat himself, ©P through aff MP (J member th the family. 0" a joint Hin (10) | ay! convenienc (13) family fun individual No proposi property of Te further i family fun The the Hindu have been Tearning hi had used I was acqui “acquisitic maintains share from Acq he was ori Retin hie i, {S60JOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 327 In Bidari Basamma v. Kanehikeri Bidari Sadyogathappa,® the Court held, where acquisitions are made by the propositus after severance pf family status by partition and the income is from family properties, they would be treated as self-acquisition. (4) 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.” (5) Property obtained by a Hindu by a gift or will, unless made by his father, father's father, father’s father's father for the benefit of the family and not exclusively for himself, (6) Property obtained by gift of ancestral movable property made by the father through affection. (7) Property obtained by a Hindu by grant from the Government. (8) Joint-family property lost to the juint family and subsequently recovered by a member thereof without the assistance of joint funds from a stranger holding adversely to the family. (9) “Gains of Science” or “Gains of Learning”, i-e., income earned by a member of a joint Hindu family substantially by means of his education or training. (10) Income of separate property as given above. (11) Marriage gift—All marriage gifts received by a member. (12)Income of joint-family property allowed to a joint family member for his maintenance, but no income from property the management of which for purposes of convenience, has been taken charge of by heirs. (13) Benefits of insurance policy the premium whereof has been paid out of joint family funds, if the intention with which the premium money given was to benefit the individual member. The Supreme Court in Prabhavati v. Sevangdhar,™ said that there is ‘no proposition of Jaw by which the insurance policies must be regarded as the separate property of the coparceners on whose lives the insurance is effected by the coparcenary. It further laid down that if the insurance policy were taken with any detriment to the joint family funds, then any thing obtained thereby would belong to the joint family. The Hindu Gains of Learning Act, 1930.—Prior to the commencement of the Hindu Gains of Learning Act, 1930, the gains of science or valour, which seem to have been.the eatliest forms of self acquisition, were held to be joint property, if the learning had been imparted at the expense of the joint family property or if the warrior had used his father’s sword. Katyayana says: “Wealth gained through science which was acquired from a stranger while receiving a forcign maintenance, is termed “acquisition through learning” and is therefore, “impartible”. Narada says : “He who maintains the family of a brother, while that brother was engaged in study shall get a share from the latter's Vidyadhanam though not previously promised.” Acquisitions made by a member of a family were accordingly held to be partible if he was originally equiped for the calling or career in which the gains were made bya 3 AIR 9B Noe 27 aa, (1918) 45 1A 41, a 1960 SC 403.winDU LAW - tn Matharan v. Rewachand Js of the pairimony’ ot Gucation received at the expe cial training at the expens Sf th special gine wich were te re Ty apiity of a member educateg we | the joint family but of the pel a the | salar expense of the family were not pat rivy Council eld that there was no valid disg | case i acter ease, however the PHI T's use which qualifies the mem Profi direct use of the joint fami y i ed, “From maint ne Patni ty his vn flo: Tel Lo ty chan ed to ett that stn eurng the period ofedueaion, the basis of PAT © UT TN Me cy family (icon isl atthe family expense, and then edveasion eee, Was narrow, | to specialised education, which is now the basis." As the decisions left the Hindy Cor din: toi ea very unsatisfactory state, the Indian Legislature passed the yi exper Sect. aoa ring Act, 1930 in order to remove doubts and to amend the law. The 4. | hee tion | provides that no gains of learning shall be held not to be the exclusive, and separ. detrin a Property of the soquier merely by reasons of his learning having been imparted to hin, o {ny member of his family, or withthe aid of the joint funds of the family, or with the iy Hy of the funds of any member. by bir ___Seetion 3 of the above Act thus lays down : “Notwithstanding any custom, rue death interpretation ofthe Hindu Law, no gains of learning shall be held not to be exclusive yf separate property of the member of the joint family who acquires them merely by reas” : of (@) his learning having been in whole or in part, imparted to him by an y Teac ts or deceased of his family, of withthe aid of joint funds of his family o-eat oot the funds of any member thereat, of (b) himself or his family hecing ates st a scquiing such learning been maintained or supported, wholly or in part qe ¢ funds o his family orb the funds of any member thereof" (Section ay” he a subsea “Learnin " Mt ection 3). ¢ mer 4 ig means education whether el A . : fencral and tning of ever kind which hal Trees al specific, special or or the] 1 "ad nds, profeson ra Yoeation ini” [Section Doom ete and cor ' ains of learning means all acquisitions of. : ‘ of learning, wh Acquisitions of pro, « Wrong.’ Mer of such learning.” (Sec. 2 (by), ¢ Act and whether ordinary | Joint-fai famiy the et Salary and remuneration ean fea tole yey that the commissi ned by the co, : be shov rdinatily be his separat ssion carned by an indivia eee ot eit utilising any portion of then oer, UMless it be tia ahoneeel coparcener would | eet Conitiies e joint f mn that the si ; acquisit family fonda ff licome Tact iB aye to its Seite Saaea properti = Spent ( 'me Court a: -°* In Palanippa \. part rector rt lo cy ssum 'y, cl of being ane’ amily funds ce the kara to eamn the nt weeTe NO pat of | direct id invested to obtain gigs netation of managing Th (or sh ; ai ie shall rem; "J, Commission gar” dividends and other advanug® Rao, Proy Sittin, rn ro vane perty, 8 fees of karta as managing aaa hi Ch ns ae aan Chand, (19 SSA tom a tied by 12)48 14 4 be 64, Prey prope Oa gi Ie copaener | 6. Al 8 Manetaya'y 7p 28 Hp ong does nt Ba Without de rua 968 Sc 67g Mm: LT, Al fost Nor ha 10 the conghiiM®Mt to the father’s estate. ® 68. Raj 2 Mad 623, M98 been gained fe NOE Shall he who reeove™ 2. Tn Y Science,” (Yajnavalky® a Gay AIR329 JOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY In Dhanantaryv. Commistionerof Income Tax the Supreme Court ssi that the sslary earned by a coparcener as pariners constituted joint family property. Inthe present case coparceners invested joint family assets in parinership and it was agreed that the profi capod in pertorshlp ers tobe taken as petsonal slay of each coperoener. The manager earned his salary on account of his personal skill and labour. But the Cour thatthe so called salary was part of joint family property. On the other hand, in Commissioner of Income Tax v. D. C. Shah,®” the Supreme Court held that salary given to a coparcener as partner on account of his rich skill and experience constitutes his self-acquired property, even though the family has ne a large part of the capital to the firm, because connection between the salary and the detriment was not sufficient. Incidents of separate property.—The separate or self-acquired property of a Hindu even if he be joint, belongs exclusively to him. His issues acquire no interest in it by birth. He may dispose it of in any way he likes. It is not liable to partition, and on his death intestate, it passes by succession to his heirs. Acquisition of separate property by members—Presumption and burden of proof.—tn case of members of a joint Hindu family, there is no bar to the acquisition of separate properties by individual members. But in such a case if it is found that the joint family had a sufficient nucleus which left sufficient surplus income from which subsequent acquisitions could be made, there would be a presumption that the subsequently acquired properties are also joint-family properties. The onus would shift on the member claiming any such acquisition as his separate property to prove that it is so. Where there was a clear finding of fact that the purchase was not made from the income of the Tanded property which was joint family property, it was held that a mere surmise and conjecture that the members might have acquired the property by their labours is wrong.‘ The presumption is afterall a rebuttable one and it is for the Court to decide on 4 consideration of all the materials on the record, whether the property in question is a Joint family property or a separate property. The mere existence of some nucleus is not the sole criterion to impress subsequent acquisition with a family character and what is te be shown is that family had, as a result of nucleus, sufficient income from which the subsequent acquisitions could be made. The Orissa High Court held” that where acquisitions have been made prior to the disruption of joint estates of the family and the Properties stand! in the names of individual members ofthe joint family onus lies upon the Party, claiming property to be joint, to establish that they are so. The Bombay High Court in Nilkanth Kishnarao Apte v. Dr. Ram Chandra Krishna Rao,”! held that where a coparcener constructed an additional floor to an ancestral house out of his separate fund, it would not be excluded from hotchpot and the home with the additions which would remain a joint family Property. 66. AIR 1968 $C 613, 67. AIR 1969 $C 1927, fijendranath Majhi v. Trustee Charan Das, AIR 1979 Cal 10s ©. Tribens Misra v. Re AIR 1970 Pa 13 Ler ‘ampyjan, AIR 1970 Pat 13; S. K. Rao v. Narayan, AIR 1954 $C 379, Fangadhurdas v. Gadadhardas, AU i gk aac oa 2a -SSeS a 330 HINDU LAW vy. Ram Prasad,” held that when it js Court in Madan Lal wm the income of the joint shar ‘The Rajasthan High to was purchased fro" found that the property in disput ; found tt raged by the defendant then the tile OF the property cansiot vest inthe on plaintiff merely because the plaintiff has shown himself as proprietor of the firm before ‘ sie ran tan Authorities. Te itl ofthe property of Joint Hindu Family continues ttt thin accordance with law. Mere permission of raising construction in the name o¢ the plaintiff or having even mortgage deed in the name of plaintiff, etc. are not sufficien, byt proof to hold that the plaintiff was the sole owner of the property in dispute. L obst ‘The Supreme Court in Madan Lal Phul Chand Jain v. State of Maharashtra hetg ea that a Fsdarzon own separate propery besides haying a share in ancestral Propet, asi Where a member ofthe on family inherited the land left by his uncle, that ; "hehe ane to him asa separate property and he had an unfettered and absolute right to di of ha propery ina mane he liked. It is equally well settled that bis Abed ai ied fom a mata randater, the only property which ean be charlene are @ cea pops the Popety inherited by a person from his father, father’s father and chars 4 that means property inherited by a person from i becomes his separate propert) it any other relation: ance: yy and his i ' 8 nme meerc renee | To = said to be only a separate property of such person. uncle ete., can be Mitakshara classificati rs : : See eee Obstructed heritage” in the ‘ , tage” —The Mitakshara divi i ge” and A's namely, “Apratibandha Daya’ or, “unobstructed hi aides proposty inte twa clasies *¢ ’ ‘obstructed heritage.” ritage” and ‘Sapratibandha Daya’ ot Prope Under the Mitaksh i ( sneer kshara law asi existed before the Hi ; : 6 ‘grandsons peer gtr Property, in WHA ae ee scones) 4 “enbbediucteu “bhaiase” ms acquired by birth was called ‘A, _Assues, i.e., sons, pariney ne {umbsructed entage” Now, after commencement of ar tla Hindu Ws by tind i the Micashara cbpeahicy Ae oe ee iindu Succession said bt sad poston ia which no right ie deatiicn Cy ee ee er ee oe r is acquired by bi F self-acquired ; on 8 is called “Sapratibandha Day birth, but acquired only on the di property of a them t cop Unobstructed herit or “obstructed heritage.” aa oF toe las into a 12 an interest by birth is lage.—As said aboyi respect pees is called unobstructed herit (¢, property in whi ! nend sal of the right to it is d heritage, It is cal ich a person acquires i inherited by a Hindu from hoe pnd bythe called unobstructed, be me lent through any of his otha ees iets father’ existence ofthe owner, Tine orneny ore cins the any of his ober lations, is uno e's father, or father’s fortes Thus, property a limit Nena birth in the fer grandson and great-grands; tructed heritage as rej father’s father but not and sey sion the family and they become cop Theit right a ee bis own male ise ; Prope Y g is a on their bith, Ancecugt th their ee membe , Tal property is note enat ancestor in such the adi A inherits pro Mustrati obstructed herita : becomes a cop ncPety from his fat ion Be. into pat md Er With his father, ye (oot 8 after oars ‘ % ary 7 a erwars borg him. The sot | Ns 992 Se 284, ited to an undivided half = a 4JOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 331 share in the property. The property in the hands of A is unobstructed heritage, for the existence of the father is no obstruction or impediment or bar to the son acquiring an interest in the property. Similar would position of a daughter of A. Obstructed heritage.—As said above, property, the right to which accrues not by birth but on the death of the last owner without leaving any male issue, is called obstructed heritage. It is called obstructed because the accrual of right to it is obstructed by the existence of the owner. Thus, property which devolves on parents, brothers, nephews, uncles, efc., upon death of the last owner, is obstructed heritage. These relations do not take a vested interest in the property by birth, Their right to it arises for the first time on the death of the owner. Until then they have a ba-> chance of succession to the property, contingent upon their surviving the owner. In Om Prakash v. Sarvjit Singh,” the Himanchal Pradesh High Court held that property inherited by a Hindu from a person other than his father, grand father or, great grandfather, is an obstructed heritage and character of such property would not remain ancestral. The Court abserved further that ancestral property of brother dying issueless inherited by other brother is separate property of the other brother and gift of that property by him is valid. Mlustration In the above illustration, if A has no issue, but a separated brother only, the property in the hands of A is obstructed heritage for the brother can acquire no interest in it until A’s death. The existence of A is an obstruction to the brother acquiring any interest in the property during 4’s lifetime. PARTNERSHIP AND MEMBERS OF JOINT HINDU FAMILY Members of joint Hindu family, not partners.—tThe relationship of partners arises from contract and not from status, and in particular, the members of a Hindu undivided family carrying on a family business, as such, are not partners in the said business. (Section 5, Partnership Act). Though a member of a joint Hindu family cannot constitute a firm, it is open to them to partition the joint-family property or divide the business of family and then enter into a partnership in respect of the’ family business so divided among themselves or in respect of a new business.75 Partnership is a contractual relationship which can be entered into only by someone entitled to enter into a contract. But a Hindu undivided family is not like a corporation or a limited concern, and it cannot, therefore, be said that it has a legal entity quite distinct and separate from that of the members constituting it.76 Partnership with strangers.—It is now fully recognised that karta or an adult member of a joint Hindu family may enter into partnership with a stranger. The karta or the adult member of the family, acting within his rights under the Hindu law can enter into partnership in such a manner as to make the entire joint family liable for the debts of the partnership and also be entitled to benefits thereof. Where the manager or any member of a joint Hindu family enters into a partnership with a stranger, the \ther TE AIR (1995) HP 92. 1952 1TR 264, 76. AIR 1953 Ail'150,[ g 2 5 i. 5 eee ee — « « De = sh rs nat "4 on ‘d 332 a wiNDU LAW partners in the business 60 to oy, cto become members of the family do not ipso facto WSCUNe Tract of partnership hay them with all the rights an concern with the obligations of the in the partnership. It only regulates the right 1d obligations of @ pa ners to others in respect of their shares of prog, pe ts and liabilities of the partners,”” . hip and joint Hindu family firm — Distinction between partners Hindu family ‘The folowing ‘are the points of distinction between a partnership and a joint Hindu family firm 1. Dissolution by death of a partner, while @ death of its members. death—An ordinary partnership is generally dissolved on the int Hindu family firm is not dissolved on the Dissolution by separation—A joint Hindu family firm may at any time be dissolved by intimation of definite and unequivocal intention on the part of ‘member to separate himself from the family and enjoys his share in severalty ‘An ordinary partnership, on the other hand, cannot be dissolved before the expiry of the term except under certain circumstances. 3. Shares in the business.—In an ordinary partnership each partner has a definite share by virtue of a contract between the partners, but in the case of a joint Hindu family firm there is a community of interest among the members. 4. Acquisition of interest by male issue.—In an ordinary partnership, the issues of partnes jo not acquire any interest in the partnership by birth, while in the Hindu family the issues, ie., son, grandson, great-grandsons of the common male ancestor as well as a daughter of a coparcenet acq interest in the joint family property by birth. coe 5. Extent of liability. liable not only to time by of poss holder i imports substitu Section een 2005, i coparce (a) (b) (to But is to mai become th @ Giri tteJOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 333 time by partition. The co-heirs and their heirs also are called coparceners so long as unity of possession continues. Mulla defines coparceners as “the three generations next to the holder in unbroken male descent.” Hindu Succession (Amendment) Act, 2005 has introduced changes of far-reaching importance in the concept of the Mitakshara coparcenary. This Amending Act has substituted Section 6 of the Hindu Succession Act. The substituted sub-section (1) of Section 6 now runs as below:— ~ “On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall— (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property. as she would have had if she had been a son; (c) be subject to the same liabil that of a son; ies in respect of the said coparcenary property as and any reference to a Hindu Mitakshara Coparcener shall be deemed to include a reference to a daughter of a coparcener. Rights of coparceners.—The following are the rights of coparceners in the coparcenary :-— (A) Rights of common possession and common enjoyment—There is community of interest and unity of possession between all the coparceners. There is community of interest and unity of possession betwecn all the members of the family. No one is entitled to any special interest in the coparcenary property nor is any one entitled to exclusive possession of any part of it.”* (2) Community of interest and right to savings.—No coparcenet has got a defined share in coparcenary property, or in the income of the property. In a Hindu undivided family governed by the Mitakshara law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family.®! The entire income must be brought to the common purse and used by the members of the undivided family. But the karta may allot to a member a particular property out of income whereof he is to maintain himself, savings out of such income and property purchased therewith become the member's separate property. | (3) Right to joint possession.—Each coparcener is entitled to joint possession and enjoyment of the family property. Thus, where a member of a joint Hindu family was prevented by the other members from using a door or a staircase ee eee 9. Pineiples, ‘of Hindu Law by Mulla 13th Ed., p. 240. Silents ARSE ing St ra ed ra TLR'1937 Mad 990 : AIR 1937 Mad 571.398 HINDU LAW ; it was held that he was entitleg to the room in his occupation, it was ne Sea restraining the other members from disturbing him from the ys °” the door or the staircase.*? " pe it ity of possession between all the member, ‘There is community of interest and unity of poss t a the joint family, and every coparcener is entitled to joint possession and enjoyment ie oparcenary property and to be maintained with his wife and children oUt ofthe comes fund in the family dwelling-house. i i yhether major or minor j (4) Right to enforce partition—Every coparcener. w/ major te entitled to call for the partition of his share, even as against his father ang brothers or the father and grand-father.** He or she has a right to become divided at his own will or option whether the other coparceners agree to ity, not. Right to restrain unauthorised act—A coparcener may restrain any unauthorised act (¢.g., erection of building or wall or giving joint property ; perty in security) of other coparceners in respect of the coparcenary property if, such act interferes with the joint enjoyment thereof. ey (9) Right to ask for account—A. coparcener' may demand. an account of the raaeement of joint propery so that he may know the actual state of family funds, Thus, where a member of joint family was prevented by the other members from entering a shop owned by the joint family, inspecting the the eas PoOk and taking part in the management of the shop, it was hela that the latter could be restrained by an injunction from excluding the former from o = = trai cer enti (AmendrJOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 335 (8) Right to set aside allienations.—Every coparcener has a right to set aside alienations made by the father, manager or any other coparcener beyond his authority. Such unauthorised alienation can also be set aside at the instance of any after-born coparcener. Unauthorised alienations include an alienation without legal necessity or transactions incurring illegal expenses without any benefit to the estate, In Ram Chandra v. Balla Singh, * the Allahabad High Court held, where one of the coparceners sold away certain part of the immovable property without any legal necessity other coparceners are entitled to cancellation of sale-deed and recovery of possession, Besides, a coparcener born subsequent to an unauthorised alienation by another coparcener, like the father, has a right to avoid the alienation if made at a time when other members of the coparcenary not parties to the deed were alive. But this does not mean that he has a fresh start for purposes of limitation from the time of his birth. (9) Right to maintenance.—A coparcener’s wife and children are entitled to be maintained out of the coparcenary funds; and a member of a joint Hindu family is under a corresponding legal obligation to maintain all the male ‘members of the family; their wives and unmarried daughters.*? (10) Right to renounce interest in coparcenary property—A coparcener, according to the Madras High Court, can renounce his interest in the coparcenary property in favour of all or any of the coparceners. But the Allahabad and Bombay High Courts held that a renunciation must be in favour of all other coparceners. According to the Madras High Court, when a coparcener renounces his interest in favour of all other coparceners, his such interest devolves on all of them. But if after renotincing his interest any son is born to him, such son would lose his right to claiming partition in the family. In K. R. Subba Krishna v. Ningiah?! the Karnataka High Court has held that the father who was one of the coparcener along with his son at the time he executed the release deed in the year 1953 could not have released his interest in favour of his wife because admittedly she had no interest in any of the properties as a coparcener and any such release in favour of any coparcener is not recognised by the Hindu Law, (11) Right of survivorships—According to Mitakshara law, as it existed before the Hindu Succession Act, 1956 on the death of a coparcener his undivided interest devolved by survivorship upon the surviving coparceners and not by succession upon his heirs, The rule of survivorship has been abolished by Section 6 (3), Hindu Succession Act as substituted by Section 3 of the Hindu Succession (Amendment) Act, 2005. Sub-section 3 of Section 6 now reads as under — “Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 his interest in the property of a joint Hindu family, governed by SESE Pb whis tad orepieens . AIR 1986 All 193. 9. ILR 1940 Mad 830. a ‘Sarthamal v, Sival & others, AIR 1981 Mad 59. AIR 1989 Kam, 31 >302 @ husband), (mother's entry 1 ?2of the 5 Suc 7—Sectio ale or fem rvision © ntioned it relation Alivase o i) INDU LAW 336 tate succession, as the or intest « shall devolve by testa ne coparcenary Property shall je hip. ct and not by survivors ise! eemed to have been divided as if partition had aan a6 (a) the daughter is allotied the same share as is al enc ieee (b) the share of the pre-decense = ¢ a peat nes UGH GS Baan alive at the tims ls 4 fae aaa opel son or of such ioe sa pais the share of the pre-deceased child of a re pes Settee ae daughter, as such child would fats meme such pre-deceased child of the pre. ition, shall be allotied to the ed sonora predeceased daughter as the case may Be, ‘on.-For the purposes of this sub-section, the interest of a Hindy Explanation 1 pe deemed to be the share in the property that. would haye Mitakshara coparcener shall bé oper tha wp hag been allotted to him if a partition of the property had taken place imm ly before his death, irrespective of whether he was entitled to claim partition or not. ae under the Mitakshara Law, the right of a coparcener to share in the joint. family, eth arises on his birth, and that right carries with it the right to be maintained out of those properties suitably to the status of the family so long as the family is joint and to have a partition and separate possession of his share, should he make a demand for it. The Hindu Law makes no distinction between major coparcener and a minor coparcener so far as their rights to joint properties are concerned. What is right of survivorship 2(Old Law). —On the death of a member of joint and undivided family, his interests in the joint-family property passed by the right of survivorship to the surviving members. So long as the family remains joint and undivided, an individual member cannot claim a particular share as exclusively his own. There was no such thing as succession to property so called in an undivided family.” On the death of a coparcener without leaving male issue, his undivided coparcenary interes did not pass by descent to his heirs but lapsed in the joint-famil 3b causing an increase in the share of the survivis ce NAB TAO EL of the surviving coparceners, This increase in their share the Mitakshara Law, may be, under this A (o) pe jitect of Section 6 of the Hindu Succession Act, 1956 as amended ‘he degosion (Amendment) Act, 2005—Urdes ane Hind! Succession Act, the devolutio ude n Of the interest of Soparcener by survivorship has bec? all i _ ane ly pinlls ladies and infants, eae egy ae enaeed inequality ig tre ee Sointly by all the dt managed by all the me a ity in their rank: but Ordinarily the a ley SP iemise ee Pedashut ‘haya. Alkamma, AR 1958 sc It male members, he » Probably by reason of! are, by the consent of all managed by a sine!? 1042, Ss ae ——— Tas liab SR RE RAS STE eRe. Mi reehare sion ded ind pee! pe JOINT FAMILY : COPARCEARY AND COPARCENARY PROPERTY 937 male member who is the head of the family by reasons of his seniority and superior rank. He is called the manager or ‘karta' of the family. The very idea of there being two kartas of joint Hindu family does not appear prima facie, consistent with the concept of a karta of the joint Hindu family. He is certainly the manager of the family property with powers which an ordinary manager does not possess. The Karia, therefore, cannot be just equated with the manager of the property.° Who may act as Karta ?—The father, if living, would generally be the manager of ‘karta’ of the joint Hindu family. Thus, it has been held that “the father is in all cases naturally and in the case of infant sons, necessarily, the manager of the joint family estate.®! And where father is not alive and the family consists of brothers, the elder brother, in the absence of any evidence to the contrary, should be presumed to be the manager of the family. A minor cannot be the manager of a joint Hindu family 9° If the Karta was away in a remote place and his return within a reasonable time was unlikely, a junior member can act as a Karta of the family.2% Whether a female can be Karta?—Under Hindu Law coparcenership is a necessary qualification for the membership of a joint Hindu family. Before the Hindu Succession (Amendment) Act, 2005 a’ female was not a coparcener, therefore, she could not be Karta. A’widow was not a coparcener, she had no legal qualification to become the manager of a joint Hindu family. But after the Hindu Succession (Amendment) Act, 2005 daughter of a coparcener is, a coparcener. Therefore, it is submitted that she may become a Karta of Mitakshara coparcenary, provided she is seniormost coparcener. Position and function of Karta.—The position of a manager or Karta in a joint Hindu family is not analogous to any known, system of law. Neither the term “partner” nor “principal” nor “agent” will strictly apply. In dealing with the same question the Privy Council observed that, “The relation of such person is not that of a principal, or agent or of partner; it is more like that of a trustee and cestui que trust. But he is not a trustee in the sense that he is liable to account for his past dealings with the family property, nor is he under same obligations to economise to and save as would be the case with a paid agent or trustee. Under the Dayabhaga Law his position approximates more closely to that of a trustee than under the Mirakshara Law, as under Dayabhaga law he is liable to account for his past dealings with the property. Cowell in Tagore Law Lectures observes that, “He is a sort of representative owner, his independent rights being limited on all sides by the co-relative rights of others and burdened with a liability co-extensive with the ownership to provide for the maintenance of the family. As a general rule senior member exercises the right of management in joint Hindu family. But the senior member may give up his right and a junior member of the family an act as karta with the consent of all other members of joint family 97 (A) Powers of Manager (Karta),—A coparcener who is a manager or ‘kart’ has no larger Proprictary interest in the family property nor any larger rights to enjoy the Same, than any other coparcener. He is also not entitled to any remuneration, a eS ee $3. Union of tndiav. Shree Ram, AIR 1965 SC 153 MLR (1949) Mad 752, ogg, Mohidcentbrahin Nachiv, Mohd. Ubrahim Sahab, 1LR 49 Mad 608. 9g, Nopany Inves:ments (P.) Lid. v, Santokh Singh, AIR 2008 SC 673 96. Se alio a a 280 a ‘Narendra Kunar Modi v. Commissioner of lncome-tax, AIR 1976 SC 1953,2) cae ie ———. ager (Karta) of 8 joint ty, wt ae vera powors of ie man ny ‘The following are the Fe y ~ tanity © sxpenditure. receipts, ; \, Rees ore kak bem ofthe fam a 2 Power vo manage 9 amily Purpose. 6) . 3. ower to contract debt involving , 4, Power tocontract. inctoding . Ee res é : ©) 2 6 Power of compromise. . 7 47. Power to give discharge: means = $. Power to acknowledge debts. reduction © in suits, etc. ‘9. Power to represent in suits, 2 . | 5 10. Power of alicnation of join-family property for legal, necessity oF forthe dete do ; sad The karta has control over the income, . income and expenditure — ; ° clara yale custodian othe surplus, if any. He is not bound to economise or @) er the income for the purpose of the famil make a pa save like a trustee or agent, so long as he spends or : fresh peom ‘hat is, for maintenance, education, marriage, sraddha and other religious ceremonies of the coparceners and of the members of their respective families. Os (2) Power to manage joint-family business.—The karta has the power to manage the family =p es . His position is not that of a trustee or of an agent, though it may be that some of his in respect <éuties and functions appear to be similar in character to those of trustees strictly so called. bind all o (3) Power to contract debt for family purposes.—The karta has implied authority to litigation i goniac debts for family purposes and family business s0 as to ind the coparceners 0 wa extent only of their interest in the joint-family property and the adult coparceners seperst personally also if they be parties to the contract expressly or impliedly or if they eee ‘subsequently ratify the contract and of minors if they ratify on attaining majority. makiva ‘Thus, the manager ofa joint family has implied authority to,contract debt— agreemen (9) for the joint-family purposes, or come to a () fora joint-tamily busines, rage ‘The principle upon which th it formalised by Brhspin te flowing wondc,°1 ME MANAEET is Based had best =a sonme, eve®_ # single individual immovable property, durin may conclude a donation, i Dreeery.s , during a Mortgage or sale o ane Lenin Season of distress, for the sake of the family, and specially ‘a mado— ase of & Joan ad Seea ee the i vanced to the i 99. Vart inte of foun and tends the ae if the lender makes due inquiry it? a exist ‘members although the rama Jide, the debt is binding on the re bail Y credited necessity did not in f%' . oS * 3 Wat ‘Aether AR 9 ayy © Ch EAS is Seen GO ie RB edeas JOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 339 (4) Power to contract.—The karta has the power of making contracts, giving receipts, and compromising or discharging contracts ordinarily incidental to the business of the family. (5) Power to refer to arbitration —The karta may refer to arbitration any matter involving the interest of joint Hindu family and the other members of the family, Lah minors, are bound by the reference, and consequently, by the award made upon | tad (©) Power of compromise. —The karta has, however, no power to give up a debt due to the joint-family and to give up a valuable item without any return or consideration, though he has a right to settle accounts with the debtors and to make a reasonable reduction either towards interest or towards principal in the interest of the family.! (7) Power to give discharge.—The karta has power to give a valid discharge for debt due to the joint family. Hence if one of the members is a minor, he cannot claim the benefit of Section 7 of the Limitation Act? (8) Power to acknowledge debts.—The karta has power to acknowledge a debt or make a part payment of it so as to extend the period of limitation. But he cannot execute a fresh promissory note or a bond so as to revive a time barred debt. (9) Power to represent in suits and other proceedings —The karta may represent the family in the event of a suit by or against a joint Hindu family, and the other members are not nec=ssary parties to the same. Thus the manager of a joint Hindu family may sue, or be sued in respect of a transaction entered into by him as the manager of the family or in respect of a joint-family property and a decree passed against him in such a suit would bind all other members of the family if, as regards minor members, he acted in the litigation in their interest and if as regards major members, he acted with their consent.> Ina trading family, when any member starts his separate business, it is supposed to be separate property and on his death the assets of the business devolve by succession on his heirs. When the business is inherited by his sons, they constitute a joint-traders family and it is said to be joint business. Such joint-family business is not created by birth but by agreement4 On the death of karta or any other coparcener the joint business does not come to an end. Similarly if any of the coparceners separate from jointness, the joint- family business does not come to an end.5 Even the minor coparceners are its members by birth. The membership is not on account of consent of the coparceners. Karta alone is responsible for running the business.° (10) Power of alienation.—The karta can alienate for value the joint-family Property so as to bind the interests of the other coparceners (adults or minors) provided it ts made— siotiacaen! 9 ins Peele BAe Varkunian Pillai v. Avirendrappa Pillal, AIR 1927 Mad 127 ‘Nanak Chand v, Banarsi Das, 12.Lah 65, Rati Ram v, Naidar, 41 All 435 Lungangowda v. Basangowda, 541A 122 : 51 Bom 450 (PC); see also Ramanathan v. Veerappa, AIR 1956 Mad 801. SBI. v. Ghamandi, AIR 1963 SC 133. Malti v. Phul Chand, AUR 1982 All 86. Chuani Lal v, Phula, AIR. 1966 Raj 208, er 8My wINDU LAW 340 1 of all the coparceners in existence at the time of alienation, ent (a)_with the const they being all adults; (b) for legal necessity: oF te. i (6) fore be a managers fr legal necessity ot fr the benef ‘Thus, where an alienation by the man: ‘essential. He can alienate for such yi ae sae the estate, the consent of S ae ther coparceners.” Where the joint-family e ae ‘and the legal necessity is not proved, propery as ben inated By tee! 1 he father Karta Its ot the alin + (1) the transaction was infact justified by aaa satate ; or (2) he had made reasonable ang ao Ss ee ee and satisfied himself that the inqui to, the cs F * 7 oe ee for the benefit of the estate.? The topic. will be. discussed in deta forther under the Head “Alienation of Coparcenary Property: i InG. Siva Kumari v. Indian Overseas Bank, Guntur'® Andhra Pradesh High Cour has decided that the karta of a joint-family can burden the estate by mortgaging the property for the benefit of the estate. However, in doing so, he must act as a prudent comer with the knowledge available to him at the time of transaction. A transaction by the manager which is neither risky nor speculative but calculated to confer a positive advantage on the family, can be said to benefit the estate, But what transaction would be for the benefit of the family must necessarily depend upon the facts of each case. The manager has no absolute power of disposal over joint Hindu property. The Hindu Law permits him to do so only within strict limits, The decisions under Hindu Law sanction gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But a gift to a stranger, however, much the donor was beholden to him, cannot be sustained on the ground that it was made out of charity. The scope of the power cannot be extended on the basis of wide interpretation given to the words pious purposes in the Hindu Law in a different context. Accordingly, it has been ‘held that a gift to a stranger or relative of a joint-family pt i by the manager of the family is void,"! ak eRe Sey to establish one of the following ae ae v. Ram Prakash'? has held that where the tl: ah ae Bes : sees a i mily is going to alienate certait it Hindu PPT: Sheela aitease ase ar Rae cing ie oan : Soparcener thinks the sale to be illegal, he co” Duties and Liabiliti mentioned as the duties and li cou 1. Duty to render accounts, 'ger—(Karta).—The following may be ‘\ manager of joint Hindu family prope _ § Jwala Singh y, AIR 1975 PR ie, 1 Minkegowda & others v. Kh ‘sowda, AIR 1986 Kart 90, iL 4 78 APs, rama bi 2 AIN'oRt Sc gna” * Méleppa Bhartar, a 1964 Sc si,a ermemartn ee JOINT FAMILY : COPARCENARY AND COPARCENARY PROPERTY 341 Duty to realise debt due to the family. Duty to spend reasonably. Duty not to start a new business without the consent of the coparceners. yee Duty not to alienate coparcenary property without ‘legal necessity’ or for the ‘benefit of the estate’, 1. Duty t0 render accounts.—The karta is duty bound to render accounts to the other coparceners regarding his dealing with the coparcenary property and the income thereof. But a ‘karta’ is not liable to account for his past dealings with the family property unless there és clear proof of misappropriation or fraudulent use of the family funds or estate by him. He is liable to account at the time of partition only, and then only for the family property as it exists at the time.!3 But this does not mean that the parties are bound to accept the statement of the karta as to what the property consisted of and an inquiry should be directed by the Court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition. In what manner this principle can be applied depends, however, on the facts and circumstances of each case.'* 2. Duty to realise debt due to the family.—It is the duty of the karta to make all possible efforts to realise the debts due to the family. It should be noted that the ‘karta’ has no power to give up a debt due to the joint-family or give up a valuable claim without any return or consideration, though he has a right to settle accounts with the debtors and to make a reasonable reduction either towards interest or towards principal in the interest of the family.!5 3. Duty to spend reasonably. —It is also a duty of the ‘karta’ to spend the joint- family funds reasonably and for the purpose of the family. He is, however, not under the obligation to economise or save as a paid agent or trustee would do. But he must spend reasonably, if not economically. If he spends more than the other members approve, their remedy is to demand a partition. 4. Duty not to start new business without the consent of other coparceners.—A ‘karta’ whether he be father or other senior coparcener, has no authority to start a new business so as to impose upon minor members the risk of a new business, nor can he impose such a risk upon the adult members except with their consent, express or implied. 5. Duty not to alienate coparcenary property.—It is incumbent upon the ‘Karta’ not ‘o alienate joint-family property except with the consent of all the coparceners or for ‘legal necessity’ or for the “benefit of the estate’. Whether the transaction is ‘sought to be Justified on the ground of legal necessity or benefit to the estate, the real question to be considered is whether it is fair and proper transaction, such as, a prudent owner enters into, with the knowledge available to him at the time.'6 Alienation of joint-family property. —Certainly occasion may arise where the joint-family property may have to be alienated. Alienation, it should be noted here, includes ‘sale’, ‘gift’, ‘mortgage’, ‘lease’ or ‘exchange’.!7 13, AIR 1930 Pat 1 15, Nazavanaswami v. Ramakrishna, AIR 1965 SC 289, i. (aikuntan Pillai v.Avirendrappa Pillai, AUR 1927 Mad 127 | 19 yg Narain v. Gurcharan Prasad, AIR 1925 Oudh 733be aliena ps Vunaneswara, Joint-tamily propery teed te timer Se According © following purposes © in time of distress; necessity for ) Apatkale, 1. ily; and 7 Kurumbarthe, i for purposes of family radha, upnayan, marr o for religious purposes, like ster (iit) Dharamarthe, ie ote. the above is— Jen formulation of ‘The modern form Judes all of ap (a) Legal necessity (Which incl \Vijnaneswara): ie (&) Benefit of estate (which includes the remaining part of Kutumbarthe), and (¢) For indispensable duty (which includes the whole of Dharamarthe), Now; the question arses who are persons who can alienate joint-family property 2 Who can alienate coparcenary property ?—The following are the persons ‘who can alienate a coparcenary property -— ; § When other members are minors.—(1) The manager or ‘kara’ if there is— (@) legal necessity; or, ifit is (b) for the benefit ofthe estate. When other members are adult.—(2) The manager or ‘karta all the coparceners in existence at time of alienation for any purpose. (3) The manager or ‘Karta’ if-he is “father’,'® has all:the powers which other ‘managers have. But in addition he can alienate joint-family property (by act ‘inter vivos’, but not by will) for the following purposes : (4) to discharge antecedent debts, not incurred by him for illegal or immoral () asa gift (to wife, daughter, affection”; or (©) asa gift of ancestral immovable a ‘ole surviving coparcener may ai (1) Alienatioy ; benefit ofthe estate nanaBet OF ‘Karta’ the manager or ‘karta’ of a joi mentioned above, 40 bind not only his own sont family can alienat jatkale and of Kutumbarthe of jith the consent of son) of ancestral movable property within limits Property within limits for “pious purposes”. jenate the coparcenary property as if it were his for ‘legal necessity’ or for the » when the other members are minors, '¢ the joint immovable property'® so 3s Hpi ad the other minor Coparceners, which is ; tng the whole family or for the support ofthe raed can ae ia tet is a “limited” and by M uncil in th Their Lordshi ips in this case hae ieee Gurrharan Prasad, a 7 anna Sigh, Chandrasetha an js Quah 733, Father $2 Nag 66 (PB), See also Buhal Das v. ‘Chandraion ‘spose of coparcenary . AT POMESI6 Wide Powers to greaeegeaea8 QReFRREREeE ge oR in ke co