Te SE Paar ae aio me B Lita 4343-41, 1G i, Law as on 15th February, 2009 ‘Case-law as on Ist September, 2007 sf 1878 ~ Bdition 1986 1991 1996 2003 2008 —-Ludhiana NUN I e ll Scanned with CamScannerCHAPTER 12 The joint family ion of subject.—In discussing the joint f forms the subject of this chapter, we shall have to could Fel oe Mi Bales roe pe em Jon; Fourthly, the mode in which the joint pro | son al, Property is managed and enjoyed; and tion of union.—The joint and undivided family i society. An undivided Hindu family is ordinarily jolt re ante ip.! The presumption therefore is that the members of a Hindu family aro ‘astate of union, unless the contrary is established? This general procpl ae tion in cases where one of the coparceners was admittedly separate ftom the of the family.’ Merely because members lived and worked at different places nt family house in common it cannot be said that they did not form 2 ly.t "The strength of the presumption necessarily varies in every case union is stronger in the case of brothers® than in the case of cousins, 30 from the founder of the family, the presumption becomes weaker may be presumed to be joint but conclusion of jointness with matively proved.’ The presumption in the case of father and son is When one of the sons separates from the family the other son if Divi ‘ishoro (1876) 3 IA 154, 191: 1 Mad 69: 81; Neelkisto Deb v 523, 540; Dulachand v Certificate Officer (1964) 68 CWN he time of assessment that family was disrupted—it shall be tion 25A(2) of Income-tax Act, 1922). R 1971 Delhi 151; Bhagwan Dayal v Mst Reoti Devi AIR a v Chenchamma AIR 1964 SC 136: (1964) 2 SCR 1965) Cut 727: ILR (1950) Punj 233: AIR 1950 E Pun} 959) Cut 602; Ashim Mandal v Panchanan Mandal 409: 1958 (2) MLJ 183. 1957 Raj LW 248. Bom HC 444, 468; this passage is cited with 929) 56 IA 13, 19: 53 Bom 213, 220; Pritkoer v 85; Inder Kuer v Prithipal Singh (1946) 72 1A ‘See also Kanhaya Lal v Devi Dayal AIR (1941) Lah 39; Muna Mahio v Raghunath AIR (1959) 9 Raj 276; Rukmabar v Lala @) SCR 253: 1960 SCI 433; Indranarayana ¥ an Dayal v Mst Reoti Devi AIR 1962 SC 287; 1962; Raghavamma (A) v Chenchamma (A) ‘Khan AIR 1975 Ori 159: (1974) 1 Cut WR "AIL LJ 68: AIR 1954 All 717; Devi Singh v dv Mehta Kunvarji Devram AIR 1951 "AIR. 1955 Mys 107; Balmukundji v Gokaram 593; 1959 MPLJ 1018: ILR 1959 MP $39; 1970 All LI 983 (DB). Scanned with CamScanner702 Hindu Law & Usage Chap. 12 they are minor will be presumed to have remained jointly with their father.' However, it has been held that merely because a person allowed his brother to stay with him and after the brother's death brought up his orphaned children it could not support the inference of a subsisting joint family between them.” The man who has severed his union with his aaahers if he has children, becomes the head of a new joint family, ¢ omposed of himself and his children, and their issue. And so, property. which was the self-acquisition of the Fast owner, as soon as it descends to his heits becomes thelr joint property, with all the jon. hot a pre-requisite —There is no presumption that 2 family 4 Possession of property is not under the esses joint property: Jyisite for the constitution of a joint family* though where joint in food and worship, it is difficult to conceive of their Ihatever, such as ordinary household articles which they would Jaw does not require that properties of a joint family should be that they should be of appreciable value.° Once the existence of necessarily the property held by the family assumed the syery member of the family would be entitled by a y unless any one of the coparcenary pleads, by Ge that some of the properties or all the properties are his self- ded in coparcenary property.” family is joint there is no presumption of joint property A ft may possess separate property. Such property belongs member of the coparcenary, nor his male issue, acquires ideath (intestate), it passes by succession to his heirs and not coparcener’. The existence of joint family does not rals® erties jointly. However, presumption of jointness ip © Onger than that of other collaterals. But once joint family ‘so as to draw inference that such property could have nds, the burden shifts to the party alleging self- that such property was acquired without aid of joint mot carry a presumption that property purchased Ti BLR 397: 20 WR 189 this passage is cited (1939) Bom 512, 520. IMLJ 298 PC; Babu Nisar Ahmad Khan ¥ 439; AIR 1940 PC 204; Magan Lal v Dayal (1942) 16 Luck 708: AIR 1941 ILR (1959) Cut 602; Chanamreddy 99; Deepa v Massan Singh AIR 1984 holder inherited by his sister is her 1989 (1) HLR 750 (Mad); Gavara 160; Bangaru Sheety (BB) v Patan appa AIR 1993 Karn 148. R 815 (Kanl); Krishnaprasad v CIT R 67 (Ker). 2006 NOC 1522 (MP). ‘also Mahendra Mahanta v Tarint Scanned with CamScannerr | The Joint Family para 280 703 the family is joint proper any member of tl ly is joint property of the famil: i by any tthe party asserting that any item of property is joi ‘antty ronal always fa operty.! fies UPO" ‘ 279, Its members. —It is evident that there can be no limit to the numbs number of of whom a Hindu joint family consists, or to scr wan nse my ci re ee oe Sa other, Unlike a corporation, the joint family has no legal entity distinc oa om Sis members.? The Hindu coparcenary is a much narrower body.) A forage fofgh, a member ofthe joint family, is not a coparcener.* The term, opened Pevarceners, though sanctioned by long usage, are not hapily applied inthe Mitskshars jaw and their use has been rightly criticised by Lord Dunedin in Baijnath Prasad's atid For, coparcenary in the Mitakshara law is not identical with coparcenary as understood i ish Law: when a member of a joint family dies, "his right accresces to the other Esnbers by survivorship, but if a coparcener dies, his or her right does not accresce to fhe other coparceners, but goes to his or her own heirs’, When we speak ofa Hindu joint Eamily as constituting a coparcenary, we refer not to the entire number of reiorae trace descent from a common ancestor, and amongst whom no partition has ever taken We include only those persons who, by virtue of relationship, have th right to hold the joint property, to restrain the acts of each other in respect of it, to their debts, and at their pleasure to enforce its partition * Outside ths body. of persons possessing only inferior rights such as that of maintenance, tend to diminish as the result of reforms in Hindu law by legislation, faw as obtaining in Nepal, it was held that a uterine brother can be a member ily in the absence of evidence to the contrary.” Nothing prohibits a Hindu ied a Christian woman under the Special Marriage Act from taking the ledging him as a member of the joint family for purpose of tax laws.’ A ‘cannot be considered as a member for the purpose of assessment of the ily under the Income-tax Act which contemplates more than one tence during the year of account.’ Where in a Hindu undivided nly two members (father and minor son) the father dies reducing the to only one, the Hindu undivided family ceases to exist.” ywyers always treat partition and inheritance as parts of the same formed from ancient times, one of the eighteen titles of law. As vvi AIR 2006 J&K 29. See also Radhamma v Muddukrishna (H.N.) of Income Tax AIR 1953 All 150. “Commr. of Income Tax (Cal) (1977) 109 ITR 97 (Cal); Krishna if Income Tax, Bangalore (1974) 97 ITR 493. 1 (1987) 167 ITR 230 (All); Rameshwar Mistry v Bebulal Mistry AIR Prasad (1921) 48 1A 195, 211: 43 All 228, 243. approval in Mt. Draupadi v Vikram ILR (1938) Nag 88. See ‘Commr. of Wealth Tax AIR 1970 SC 14; State of Maharashtra ‘SC 716, 719 (Para 279 is cited with approval). hi AIR 1966 SC 292: 1966 (2) SCJ 290. ‘AIR 1970 Mad 249: 73 ITR 260. Tax Commr. 1970 (2) MLJ 334: ‘Income Tax AIR 1962 Mad 146: ILR 1962 Mad 244: (1962) 1 1992) 193 ITR 41 (Kar). na and Madhava are known by the names Dayabhaga and mean simply partitions of heritage. See Mit I, 1, 2-3 where ‘Daya’ is becomes the property of another, solely by reason of his relation Scanned with CamScannerare equ mmily, consisting of males smbers of which are coparc id a share, while marniag w mai The whole body of such a fat corporation, some of the met partition, would be entitled to deman .—Each person = when he dies, hi ms of each spring from the mere f the place of any particular individu Survivors, by diminishing the nu ish their interests b the fact that A is the son of B in idefinite share of the property, for Bh the succeed to anything, for B has left @right to claim a partition, if he likes. But u fy continues to devolve upon the members of and, not by succession. ding to the principles of Hindu law, there is nt members of a united family and survivorsh Marriage Act of 18 tall the members and upon the death of any one of them What in which they had during the deceased's lifetime a iwords of Lord Westbury in the well known case of (0933) 56 Mad 1, 4, 5; Commr. of | 621, 624. See Kalyanji Vithaldas v Ince TLR (1937) 1 Cal 653; Raghunadha v Bro: Income Tax vy Sarwan Kumar ILR (1945) Al ly consisting of females only); Mi. Dr th Prasad v Deowanti Kaur 1LR (1976) 55 (DB). i AIR 1975 All 458 (460): (1975) ! Act), See also Munni Lal Mahto ¥ (DB), But this right of survivorship is funder the Special Marriage Act of 529, 611; Subramanya Panatan ¥ i the reference to coparceners as Rao ILR (1942) Mad 886 PC (the minal sale deed executed by one th ILR (1942) 1 Cal 85, 87-88: ; Kalooram v Commr. of > > Scanned with CamScanner281 Para The Joint Family 105 jovier v Rama Subbayyan': : fad law, no indivi According to the true notion of an undivided family in predicate ofthe joint and unireaet°F that family, whilst it remains undivided, can tefinite share". He has his ae Property, that he, that particular member, has a certain to the coparcenary; it passes Lang ‘Scanned with CamScannerHindu Law & Usage Chap. 12 708 Once the existence of joint family is not in dispute, necessarily the property held by the family assumed the character of a coparcenary property and every member of the family would be entitled by birth to a share in the coparcenary property unless any one o¢ * nt ornate pleadings, and proves that some of the properties or jj ‘coparceners pleads by separate pleadings. and p p a or Fee his self-acquired properties and could not be blended in the coparcenary other properties property.’ Coparcener having right in joint family pr Share in property. However, challenge to execution 0! sustainable.” 283. Coparcenary not limited *s —In the former case, the claim to rate aras bia the fourth degree from the acquirer of the Property in disput th Gefendant being within that degree. It was argued that the analogy of the law of inheritance ia lineal descendants, beyond the great-grandsons, from claiming partition from h possession as descendants from the original sole owner of the family of it? West, J., said: "The Hindu law does not contemplate a 1 stage of the descent from a common ancestor; ye mn us would be to force the great-grandson in every ‘coparceners, unless he desired his own offspring to be lef fegrandsons lived together as a united family, the son of each = Mitakshara law, acquire by birth a co-ownership with his father in fet if the argument is sound this co-ownership would pass altogether either happened to die before the other. If a coparcener should e descendants than a great-great-grandson, then the latter would no once from inheritance and from partition by any nearer heirs of the iprothers and their sons; but where there has not been such an in the course of lineal succession, neither has there been an ight to a partition of the property in which the deceased was a co- ession and enjoyment.‘ Each descendant in succession becomes co- the latter's share, and there is never such a gap in the series as to n fully representing the preceding on in the succession". The same in detail by Mr Justice Nanabhai Haridas. He said:* "Take, fr ease. A, the original owner of the property in dispute, cies, mn C, both members of an undivided family. B dies, leaving mn respectively; and C dies, leaving a son D and two grandsons lof the family property has taken place, and D, £ and F are foperty is competent to dispose of hi f sale deed by other coparcener is rigt to three degrees from common partition was resisted, on the ground that the iction pressed 01 eady been vested in the son of the great-grandson and do stor A". This is only a dictum for, admittedly there was in that case, It overlooks (1) that the right by birth is not endless but is in itself limited by the rule of from enforcing a partition against his great-great- the text follows the views of West and Nanabhai Mayukha IV, 1, 3, the expression "wealth "is not confined to three degrees; Mr i in inadvertently" (p. 33). @ v Ramachandrarao AIR 1951 Bom Scanned with CamScannerPart he Joint Fam Para 284 The Joint Family 109 living in a state of union, Can 4 and F compel D to make over to them their share of the ancestral property? According 0 the law prevailing on this side of India, they can, son boeing equally interested with their father in ancestzal property tn the same way, suppon A A id C die, leaving A and B members of an undivided family, and then A dies, on the whole of this property, devolves upon D, who thereafter has two sons, Or either of them, can likewise use their father D for partition of the said erty, it being ancestral, Now suppose B and C dies, leaving A, D and D3, members livided family, after which A dies, whereupon the whole of his property devolves d D3 jointly, and that D thereafter has two sons, £ and F, leaving whom D it against D* for partition of the joint ancestral property of the family would be an to Band F, or even to Gand F, if E died before the suit. It would be a suit a deceased brother's son or son and grandson.? But £ and F are both fifth, from the original owner of the property, whereas D and D3 are wever, that A dies after D leaving a great-grandson. D3 and the n this case, £ and F could not sue D3 for partition of property it is inherited by D! alone, since £ and F being sons of a uded by D!. A's surviving great-grandson, the right of further.? The rule, then, which I deduce from the authorities ‘cannot be demanded by one more than four degrees ‘owner of the property sought to be divided but than four degrees removed from the last owner, ‘owner thereof.” partible Zamindari,—This principle was also ls application put to a more violent test. The jon to an impartible Zamindari, The original owner ‘The Zamindari had descended throughout in ho died without issue, leaving a widow, the nittedly the nearest male of kin to N. The {an undivided coparcener would take 7 I, v, 3, 5, 8, 11; V. May., IV, vi, 13. Ml, 479; 1 Nort. LC, 292, Stra, Man 323; Scanned with CamScannerHindu Law & Usage Chap. 1 \ M i N-defendant, widow 1 G-Plaintift cenership can only exist between K wrth degree and consequently that pl h he Zamindari, though impartible, was still coparcenary fied family acquired the same right ti by rty, subject only to the limitation of th indred who are near sapinda aintiff was not Co- heirs of "It appears 10 us equally divided collateral relations ‘ceners, they said: held to include und Irale line of one who was a coparcener with undivided coparcenary interest which vested in such coparcener, jheirs, and when on his death, the interest vested in his sons, or nda in the male line, the near sapindas of such descendants or ke manner co-heirs with them or him, and so on. the c0-heiship viahithe new sapindas down to the last descendant, Obviously fatus of non-division continues, the members of the far who ito acoparcenary interest, are co-heirs with their kindred who d interests of the entire estate". The court therefore, held that ‘coparcener, would succeed before the widow.’ though he, as nid were sixth in descent from the common ancestor \d unobstructed property.—On the principle that the soo slone have vested rights by birth in the property of the fathe, serand not other relations, Vijnanesvara and the writers whe Daya) into two classes known as Apratibandha and been translated, not very happily, as unobstructed and terms are thus explained? in the Mitakshara: “The dfather becomes the property of his sons or his or his grandsons and that is an inheritance 00! ives on parents or uncles, brothers or the rest no male issue; and thus the actual existence ofa Bediments to the succession; and on their cessor in right of his being uncle or brother. fuction? The unobstructed, or rather ihe who were copar e co-heirs must be an ancestor of the 106, See also in Bengal, Girwurdharee * divided among persons, four, five, and six sswaran v Modhuram and Ramakrishna (Setlur, 1, 277). See per Curiam. Nund 191; Debi Parshad v Thakur Dial > Scanned with CamScannerPara 285 The Join Family unobstructible, estate is that in which the future heir has already an interest by the mene fact of his existence. If he lives long enough, he must necessarily succeed Wo the inheritance, unless his rights are defeated by alienation 01 dev ffs jpass on to his son, unless he is himself in the last rank of nese sagindes. tw which ‘his son, is out of the line of unobstructed heirs. On the «ther hand. the persom whey ‘in apparent succession to an obstructed, o rather an hwinuctithe eviaie, may # find himself cut out by the interposition of a prion heir, as tor instance 4 Nor the like. His rights will accrue for the first time at death of the actual tbe judged of according to the existing state of the Lannihy at that Gone. who may then be in existence will completely exclude hiv, and if be ithe succession opens, even though he would have succeetes, had he mnot take at all, unless they happen ther to be the next hes to words, he cannot transmit to others rights which had mot arisen ie the by any contract bar the rights of those who. after his death, ane the ps when the succession opens.” On the same principles, property which is (Sapratibandha) and which once vested in the heir in existence at the ce opens, is not affected by the subsequent birth of 2 person who would ‘with him, or in preference to him. if in existence when the succession ie, 20d it he Bis, be of coparceners—It is obvious that, on the twin principles of a sight the female members of the family who have no vested right by birt ‘as heirs to obstructed heritage (Sepratibandha Day2) camen be ‘male members though, slong with the males, or im exceptional ‘are members of the undivided family 2s 2 conporaie body* A gener can not be weated 25 coparcene: end cannot be 2 kara of by her would not be binding on the other members except 12. These terms are not wsed by the wraers of the Bengal or j Jolly, TLL, 176. Explaining the wx of Gaueama OK ce, purchase, partition, sewnare O° fixc.ng" Vinanevware sage is here desominsied inhersznce (rikita). partition ect to obstruction” (Mix. 1 1. WV, 1, 2 (Gharpare's trans. 45) 9 1A 1: 24 A 95. 1B (sister's son) Gustingenitng Krisena » Some tied property (1908) 31 Cal 476, Nitaran Chandra Shalt » ¥ St. Mangan (1928) 9 15) 5. Raj 964; Krishes Prasad (C)» Bhagwan Dayal » Ms: Reoei Dev BCH S48: WLR (1962) 1 All 352. Romest Kamer » 14 Cet 1121 (case under secuce ie) of the ‘Scanned with CamScanner712 Hindu Law & Usag Chap. 2 male cannot act as manager or karta of to the extent of her share. Though a fem: sas a undivided Hindu family as she is not a coparceret she can be taken as a manager for the g the family ax Act representiny purpose of Income-t a single male member and his wife or where there + rere can also be a joint family where there ae + For, on the death of a sole surviving ted so long it is possible in nature her deceased husband's ancestraj There can be a joint family with are widows of deceased coparceners widows only or a widow and an ‘unmarried daughter. cener, a Hindu joint family is not finaly fem A wido' wes ee to ituted a Hindu undivided family prior to the Hindy had the effect of altering the status of a widow to an individual In Mangala v Jayabai’ a person holding property as joint sgjed intestate after Hindu Succession Act leaving his wife and property in the hands of the widow and her daughters was ie hands enabling the widow as manager fo deal with the be at an end while there is still a potential mother, if tha in the way of law brings in a new male member.” Where « held that as she had no further interest in the property of the ‘maintenance, no coparcenary interest could be said to have ection 7 of the Estate Duty Act.* The existence ofa She existence of a joint family.” A coparcener who has ion and has no wife or children, cannot constitute a join ed to tax as an individual.!° Where such a person has a wife joint family. On his death however there is no joint family as ‘member to constitute a joint family."' d MP 208 relying on CIT v Seth Govinda Ram Sugar Mills AR sr AIR 1959 Cal 697. Bengal (1937) 67 1A 28: ILR (1937) 1 Cal 68: missioner, Madras (1933) 56 Mad 1; Bhagwativ 1941) All 43; Sitabai v Ramchandra AIR 1970 SC 343 itural Income Tax, Madras, 111 ITR 780: 90LW 109; Mangala v Jayabai AIR 1994 Karn 276; ‘Nadu (1993) 203 ITR 394 (Mad) (only one male IR 1964 Orissa 274 (DB): ILR 1964 Cut 330: ‘which was originally of the joint Hindu family ‘of the family and is not divided among (©) v Commr. of income-tax, Bangalore im 116 approving Bajirao v Ramkrishne LR (1938) Nag 88; Commissioner of Indome Uf Income-tax, Madras v Veerap 467; Subbayya v Ademma (1967) ‘An WR 43 (FB). (1970) 75 ITR 526 (Mys). ®), Thippaiah (GE) v ITO (Ag) (1991) 187 ‘applied. See also Krishna Prasad 14) 99 ITR 1193 (SC). Scanned with CamScannerPara 286 The Joint Family an Ina recent decision of the Andhra Pradesh High Court in Ashok Kumar Ratanchand y CIT it was held that where a coparcener who obtains property on partition and marries subsequently, the status of the unit of assessment after marriage is necessarily that of a Hindu undivided family and the income from such property is assessable in that status and rot that of the individual, After discussing the entire case law on the subject the court ‘observed at page 488 ". . . the property which a coparcener obtains on partition does not ‘become for all times his individual and separate property. If he has a wife or a daughter jing on him the property will be charged by the obligation to maintain them. If he ‘marries later, his property—ancestral or self acquired—will be burdened by an obligation ‘to maintain his wife. If he begets a son, that son becomes entitled to a share in the erty which thereby revives the character of joint family property. If he begets only the obligation to maintain them will be fastened on the property. It is not as if married Hindu male obtaining a share of ancestral property in partition retains the perty as his absolute property even after marriage encumbered by any obligation to intain his wife or other dependants, In that absolute sense it may not be his absolute ‘after he marries. It sheds the character of separate property and revives its cter as joint property of the smaller unit consisting of himself and his wife. In that ‘sense the income therefrom may be the income of the Hindu undivided family g of himself and his wife.” The judges distinguished cases taking a contrary view und that in none of the decisions had the courts considered the extent or effect of hough the judges in the passage cited above refer to self-acquired property the pression is used only when referring to a person's obligation to maintain his wife, The ment dealt only with the case of property obtained by a coparcener in partition which b ate property and not his self-acquired property. As far as a person's self ty is concerned he has to be assessed only as an individual notwithstanding his wife and daughters constitute a joint family. Even where the person property into the hotchpot of the family consisting of himself, his wife and ghter, it was held by the Supreme Court the income would continue to be income er be noted that in Srinivasan (TS) v CIT? where a son was born he accounting year, the Supreme Court held that till the child was born ued or arose to, or was received by the appellant was his income, as ition under the Act—The position however became quence of rights conferred upon widows of coparceners in a e Hindu Women's Rights to Property Act, 1937. The ‘who leaves a widow does not go by survivorship to his on his death; but it goes to her as his heir for the While she cannot be in the strict sense a coparcener position will be analogous to that of member of an R 526 (Mysore) affirmed on appeal (1974) 97 ITR 493 (SC); (1980) 121 ITR 347 (All); dissenting from C/T v ‘Scanned with CamScanner| 4 Hindu Law & Usage Cha Z undivided family under the Dayabhaga law with this possible difference that, as she uly to have the 'same interest’ as her husband himself had, the share to which she wit entitled at a partition may be liable to the same fluctuation caused by changes in yt family as if she occupied the place of her husband of as the share of any member of ® undivided Mitakshara family (625).' As observed by Rajamannar, C.J., the status of Hindu widow under the Act "is not that of a coparcener, but that of a member of the joit family with certain special statutory rights’ And the karta can exercise his kartaship guy the widow also.* right by birth in father's property — It follows from the ted heritage (Apratibandha Daya) and of the son’s right vesteq y ton takes not only the paternal grandfather's property but also ig ig father not strictly by inheritance but by virtue of his right y teonception' and only as unobstructed heritage (Apratibangh, 9 divisions of inheritance, obstructed and unobstructed. The { by inheritance to unobstructed property; and the texts relating ot refer to sons but only regulate succession to the property of ¢ Mitakshara and the other authorities following it are quite ry definition of unobstrcted heritage makes no distinction and the property of the grandfather so far as the sons tage is concerned. That the right vested by birth in the by the father is unequivocally stated in the Mitakshara settled point that property in the paternal or the grand. ae distinction between the son's equal right by birth in the nequal right by birth in the father's property is fuly {¥, 5; 9 and 10. He states: "Consequently, the difference birth in his father's and his grandfather's proper in regard to the paternal estate and since the father hasa quired by himself, the son must acquiesce in the fathers ; but since both have indiscriminately a right in te power of interdiction”. The Smritichandrika is quie ‘case of father's property, the ownership of father father's property, the ownership (Svamyam) and both equal in the father and son. Whereas in the Mad 408, 418, 419 FB and Sashapathiar ¥ principle, though the cases themselves ‘Out by an alienation for value cannot be Of the Full Bench decision in Ayyagor' 25 Mad 690 FB and in Chinnu Pillai ¥ Ch 18. 16: AIR 1950 Mad 785: 1950 (2) MU Tax, Madras ILR (1951) Mad 56 IB); Ram Saran v Bhagwat Shukul AIR 7; Parvathamma v Subbadramma AIR 442; Shivappa v Yellawa AIR 194 Scanned with CamScannerPara 288 The Joint Family ns case of father’s property, while he is alive and free from defect, he (ather) alone possesses an independent power (svatantryam) and not the son’! The Parasara Madhaviya, the Sarasvati Vilasa, the Vyavahara Mayukha and the Viramitrodaya also take the same view 2 288. Equal right in grandfather's property —The result therefore is that while the son has a right by birth both in his father’s and in his prandfathers’ property, a distinction under a special text makes the right of the son and the father equal in the property of the grandfather.’ That text is: "the ownership of the father and the son is the same in land, a corrody or wealth received from the grandfather".* But in the case of father's property, the ownership of the son is unequal, for the father has an independent ‘power over it or a predominant interest.‘ The son's right by birth does not therefore extend ‘enforcing a partition or interdicting an alienation of his father’s property. The right remains a real birthright, though dormant and enables the son to succeed to the by survivorship or as Apratibandha Daya.’ accordingly held in Nana Tawker v Ramnachandra' (1) that an undivided son father’s separate property by survivorship; and (2) that an undivided son takes the acquired property of the father to the exclusion of the divided son. Dissenting from first proposition, a Full Bench of the Madras High Court has decided that an undivided | takes the self-acquired property of his father by inheritance and not by survivorship. aswami Sastri, J., expressing the opinion that ancestral property is co-extensive jects of Apratibandha Daya or unobstructed heritage."° This view is opposed to statements in the Mitakshara and in the other works bearing on the point which ly refer to the son's right in the father’s property as unobstructed heritage. The ion was evidently, due to the view based on the observation in Sartaj Kuari's to impartible estates that there can be no right by birth where there is no Partition. But the right by birth in the father's property is expressly stated by all rit authorities; and the observation in Sartaj Kuari's case has itself no force after rika, VIII, 21, p. 100 (Krishnaswami Iyer’s translation) The entire paragraph aie and followed in Shyam Behari Singh v Rameshwar Prasad (1941) 20 13-914. 4 (pp. 5 and 6); Sarasvati Vilasa, paras 459, 460; Vyav. Mayukha, IV, 2, Setlur, I, 285); PN Sen, HJ., 131; K L Sarkar, Mimamsa, 450. Bs VIIL, 21-24, followed in (1941) 20 Pat 904. ing agian: v Yellappa (1898) 22 Bom 101; Bahadur Singh v Wrinivasachariar (1921) 44 Mad 499 FB. In Venkateswara Pattar v MILI 410; AIR 1935 Mad 775, 778. Varadachariar, J. referring to ion obtaining amongst the three groups of heris under the the first (i.e., the succession of sons) it is by survivorship 's self-acquired property according to the scheme of the shariar (1921) 44 Mad 499, 507 FB. The dictum in Muddun 3) 6 WR 71, that the right of the son in the self-acquired property Hfect right incapable of being enforced at law was made in Power to sell immovable property acquired by him and does uecession, 37) 15 1A 51: 10 All 272 ‘Scanned with CamScanner716 Hindu Law & Usage Chap. 12 quite consistent with the dominant interest pow’ ed bythe nor of an impartibie eta he domination or wo interdict an alienation on the part of the and with the absence junior members. As other rights which (of the senior me ble properly ones in Sibaprasad ¥ Prayag Kumar by birth in impartible property ng amber to take by survivorship still remain required by a father, the son's right by such as the right to enforce g the power of control and the Sir Dinshaw Mulla 0} though th ‘a coparcener acquiré longer exist, the birth righ So, too, in the case of ordinary parti u birth exists even though the other rights ofa goearceoe ivition or to interdict an alienation, cannot Ow TE of contol Pemminant interest of the father, co-exist.” The right by bist in su h property i not uccessionis but it-can be renounced oF rrendered so that, as has been held, ‘right of inheritance to it. sition taken up in the by the father is unassail: Mitakshara that the son has a right fable, The mode of enjoyment of the is determined by the doctrine of Pitru Prasad The 's only a logical result of the son's randfather's property i Be ere for, if the son has no right by birth in his fathers ihe grandfather's death can hrave no right by birth in the Shan does he acquire by birth a right in the grandfathers do the father? If neither sons nor grandsons born before the ght by birth in the acquirer's property. they cannes acquire Ince the grandfather's property has descended. Again, as iConatrued to mean that the cause of ownership is found Dalim the birth of a son. For, in that case, such ownership ndson not born up to the time of his (the grandfathers) representation is bound up with it p the difference between the son's right by birth and the father in the grandfathers’ property under a special text* a 'av Venkatramanayamma’ pointed out that where acquired property of the father, their inheritance is survivorship. In Md Husain Khan v Babu Kishva,' the quires by birth an interest jointly with, and equal 1 paternal grandfather and not in that of the maternal der Mal (1934) 61 IA 286, 303, 304: 56 All 468 plains in Venkateswara Pattar v Mankayammal is no right to partition, there can be a right (0 TLR (1941) Nag 598: AIR 1941 Nag 297, 17 following Nana Tawker v Ramachandra in Vairavan Chettiar v Srinivasachariar ‘Mall ILR (1942) All 759, 770 FB and 1) 20 Pat 904, 914 where the above if Gift Tax 65 ITR 19 (Mys). Setlur I, 342 15 Mad 678, 687; Madivalappa (1892) 16 Bom 29 56, FB per | (1942) 20 Pat 904: AIR 1942 Pat ao (1978) 2 An LT 284 (DB). Scanned with CamScannerPara 292 The Joint Family NT hich came to his father. What their Lordships decided was thatthe father had eae. of alienation in such property as against his son. Thy tpsonsider the question whether the unequal right by birth which ¢ property enables him to take that property if undisposed of, by survivorship, as in the Famoof an imparible estate. So, too. the dictum of Sit George Rankin in’ Kalyanji Vithaldas v Income Tax Commissioner, Bengal! that the income of a man from hig celt acquired property cannot be regarded as the joint income of father and son does not affect the question of succession and means only thatthe father’s self-acquired property is sot ‘coparcenary property in which the son has equal right. 290. No coparcenary by agreement. ‘with all its incidents are purely a creature of ties, as the fundamental principle of the marriage or adoption? eit Lordships had not son has in his father's —A joint family, and its coparcenary Hindu law and cannot be created by act of joint family is the tie of sapindaship arising . Composite family —Apart fr ed by the ancient texts, there exist a (particularly in Andhra Pradesh family is formed by two or more ‘om the joint Hindu family which is mong some communities in certain parts of ) families known as composite families. A families living and working together pooling SSources and throwing their gains of labour into the joint stock. It has for its object Convenience and efficient management of family properties by corporate effort, ‘This ution is unknown to the original texts of Hindu law but is essentially a creature of 'and must owe its origin to an agreement express or implied, The custom accounts scarigin and growth of composite families both in the case where there is aq f i ips in the management of the properties (vide living together of the representatives of a stated earlier. In Allareddi Subbamma v Nullapareddi ar it was held thatthe custom must be traced to an agreement bernecy the bserved that a long duration, say the passing of a iow generations may in itself raise a presumption of merger some times Question is as to what is meant by nar Y Property is that which is known as | sense, is applied to property which Pea manner that his male issue acquire certain rights in it singh Y Pirthe Singh ILR (1950) Nag 160 (Any HOt affect devolution); Commr, of Income Tax v 49 TTR S81 (Divided son and widowed mother) of India y Ghamandiram AIR 1969 SC 1330. 22 MLI 260; Veerappa v Venkayya Pitichamma 1960 ALT 383 : AIR 1959 AP 86: 1958 (2) An WR 59, it was off few generations of common living may ¥, joint family property, and ancestral property, 79, ‘Scanned with CamScannerHindu Law & Usage Chap. 1 718 under Mitakshara law is attempting to dis sainst him.' For instance, if a father un. ne answer to thi Pee ot as against him re whether it is ancestral property rae ane been inherent a ta property, we inquire whehie in the father’s hands if it has been inherited by him q perty is ancestral prof estral if it has been inherited by the father « proj unobstructed property. that it is re of thi czas oer Thee he propery forte eran: od ssue, acquit i immilar interest in that interest. Hence his own issue acquired by birth tere kit subject to the interest they had a ‘ athe father had no such interest inthe property, befor Sie wise ‘event occurred, he received the property free of sue, and a fortiori, by any other person Hence, all proper ancestor, not exceeding three degrees higher Ry, and is at once held by himself in coparcenary with hs ov m8 of the Hindu Succession Act it has been held the son as class I heir from his father will be the self acquires i When he has no male issue, the sister will inherit the But where he has inherited from a collateral relation, asf F cousin or uncle, it is not ancestral property in his hands © consequently, his male issues have no equal rights as in him in dealing with it, nor compel him to give thema e, property which a man inherits from his mother,* istinction is that, in the former case, the fat B his widow and his son does not become joint property, with p and mutual restraint on alienation. Jogeswar Narain y 23 Cal 670 overruling Vydinada v Nagammal (1888) |! ised to two undivided brothers or two daughters, Bahu R A 95: 8 Luck 121; Gopi v Musammat Jaldahra (1911) 33 All husband and wife, the interest of which was payable to bot 902) 25 Mad 385. See post para 811 Prasad (1941) 20 Pat 904; Kundanbai v Sainarayss war Lal AIR 1954 Ajmer 69; Narayana Prabhu \ (10); Bhagwandas v Roshanlal 1981 HLR 1% 1) 63 ITR 505; Deepa v Mohansingh 1983 HL R 465 (All) (The treatment by him as individvel ‘and character of the property). Modani v CIT (1982) 138 ITR 8 558; CWT v Chandra Sen (1986) 161 TR 97 ITR 646 (SC); CIT v Lun Karan Gove! to survivorship. The enlarged sh" th of an undivided brother is ancest! V Bunseedhur (1869) 1 NWP 17 }; Gurumurthi v Gurummal (1909) ); Rajkishore v Madan Gopal (193 ) ‘AP 93; Vijaya College Trust’ Mad 159: AIR 1946 adur Nallantambi v Muk (1873) 10 BLR 183: 18 a dharee (1873) 20 WR 1" College Trust v Kumta Co-0P- Scanned with CamScannerPara 292 The Joint Family ag maternal grandfather,' or maternal uncle,? or other collateral relation in the maternal line, is not ancestral property. The grandsons who inherit property from the maternal father cannot be said to constitute a joint family.’ It is settled by a decision of the Judicial Committee that the term, ancestral property, must be confined 1. property descending to the father from his male ancestor in the male line and that it is only in that Droperty that the son, acquires by birth an interest jointly with and equal to that of his father.* If the last male holder of the property has no male descendant he can alienate the Property as it is his absolute property.° Property inherited by a person from any female is his separate property and his male issue cannot take any interest by birth and cannot elainy partition. Under the Hindu Women's Rights to Property Act, 1937, where a man's separate Property devolves upon his widow and his male issue, the widow's interest in the property ‘on her death will devolve upon the male issue that survive her as her husband's heirs. In that event, the property would be nonetheless ancestral property in the hands of the som or Grandson: for, it is inherited only as the father's property and not as the property of the mother. So, too, where the undivided interest of a deceased Mitakshara coparcener devolves on his widow, such interest when it goes back to the son or grandson is taken bby them as their father's property and not as the mother’s property and will consequently be ancestral property.” When the karta of the Joint Family Property sold joint Hindu Family Property and itis thereafter that he purchased the property in dispute, he having Ro other nucleus from which he could purchase the property, the court held that the Property Purchased retained its character of a Joint Hindu Family Property.* W & B, 710 (4th ed., 665-6) ‘approved per cur., Nund Coomar Lall y Ruzzioodden 10 BLR 192; Jamna Prasad v Ram ) 29 All 667, dissentis (1904) 27 Mad 382. vrasamma v Rama Brahmam ILR (1950) also Atar Singh v Thakar Singh (1908) Cal 1039 as to what is ancestral estate. See Mit, 1 1, 3.5, 21, 24 9, U5 pet Miter, J, Ganga Prasad v Ajudhir Pershad (1892) 8 Cal Ham, Josoda Koer v Sheo Pershad (1890) 17 Cal p. 38; Nanbhai v n 122, 133; Santu v Abbe Singh AIR 1931 Lah 708, Abdul Kadar fag 465; Mohan Lal v Ram Dayal (1942) 16 Luck 708 (Property grand-mother); Ramachandriah v Srikantiah (1945) 49 Mys HCR a AIR 1952 Hyd 45; Ranganadha v Balaram 1982 HLR 613 ncome Tax v Rangnaswamy AIR 1970 Mad 441: 76 ITR 315. 1a (1904) 27 Mad 300, Manibhai v Shankerlal (1930) 54 Bom 1921) 36 Bom 424. ‘Ammal TLR (1965) | Ker 143. wva (1937) 64 IA 250: ILR (1937) All 655; Pratap Narain v 63 ITR 505; ILR 1967 Guj 312 (Chela getting property from i Arjan Singh v Pingle Devi AIR 1993 HP 34; Om Parkash HP 92 (Property. inherited from brother is not ancestral IR 1993 HP 34. anandam AIR 1994 Mad 123. itbai (1888) 12 Bom 122; Beni Prasad v Puranchand ad v Radhaprasad (1885) 7 All 402; Sashi Bhushan v Hari lv Sankar Lal LR (1938) 2 Cal 250. 1997 (1) HLR 199 (P&H). Scanned with CamScanner720 Hindu Law & Usage Chap, 2 293,—That which is ancestral, and therefore coparcenary property, as regards a ma own male issue, is not so as regards his collaterals. For, they have no interest in" birt.! On the other hand, property isnot the less ancestral because it was the separate” self-acquired property of the ancestor from whom it came.” When it has once mag, descent, its origin is immaterial as regards those persons to whom it has descended, 1, very material, however, as regards those who have not taken it by descent.? 294. Aceretions to ancestral property.—All savings made out of ancestry) €5 or profits made from the income or sale of ancestral propery, tral or coparcenary property, whether such savings or after the birth of a son.* On the same principi, e ancestral property, ifthe village itself was such. Whe, i to an ancestral house, even when he uses his separa, mnstruction is made with the aid of the family proper both its foundation and its site, the additional floc. pot.® Money advanced by Karta on loan and recovere, in the absence of proof by karta that they are his seit proving that a certain acquisition is an accretion to the Sels up the plea of accretion. This may be done by ‘acquisition in question and the ancestral income. But the Mf acquirer of surplus income cannot, of itself, make the d with the character of the ancestral estate." The mere is not enough to hold that the acquisitions were made hucleus. Not only the nucleus, but also sufficient surplus ) 4 NWP 31; Gopal Singh v Bheekunlal SD of 1859, 294 1314, 1873) 20 WR 189: 11 BLR 397 per Curiam, Chattur Bhooj v 450. 194, 198 (FB). 34 1A 65: 29 All 244; Umirthnath v Goureenath (1870) (1872) 8 Mad HC 25; Jagmohundas v Mangaldas WNasib Kooer (1884) 10 Cal 1017; Ramana v Basangouda v Gadigeppa Gouda AIR 1940 Bom lirao v Ramkrishna ILR (1941) N: able property which has made a descent, and is then heidents of ancestral immovable property, Sham Family property acquired by a coparcener by his self-acquisition. Sureshchandra v Bai 206. Income received after disruption for iY Official Receiver AIR 1938 Lah 3 31 (interest realised by member in achandra Iyer v Tulasi Ammal (1977) Mad 17; Venkatramayya v Krishno 63 Andh Pra 305 (DB); Kondiram 8 AIR 1940 Mad 626; Nilkanth 1 Bom 10. IS: ILR 1963 Mad 434; Shamlal ¥ 2 Mys LJ 210; Pushpavalli (B) Scanned with CamScannerPara 295 The Joint Family ma income enabling the acquisition has to be proved as a matter of fact! In Periannan (S) y CIT} in a partition between a father and his two sons, the father had ta Pay (0 one of his sons a sum over wo lakhs. The son purchased property worth more thag's lakhs and took a sum of Rs. 50,000 only by withdrawing from the amount owed by the father and paid it as advance, The balance was paid from out of his self acquired fugds Ay the time of the rchase the assessee was not married. But subsequently when he married, he constituted a du Joint Family with his wife. It was held that the property in hie hands should be ted as joint family property notwithstanding the fact that only a very small portion of purchase price came from the joint family funds. The court followed a decision of the b igh Court in Mangal Singh v Harkesh? in which it was held that if a Person the aid of any portion of the joint family property to acquire property, however it may be, the property acquired cannot be claimed as self acquisition. It is ‘submitted that this i Proper course for the court is to treat the bp mmily. In the above case the assessee treated granted proprietary rights in certain land in his father in Pakistan upon partition of the grant of the proprietary rights, it was held the grantee held the land as ancestral property.4 Where the joint family property was roperty with his own independent source of -* Property which has been conferred her maintenance retains its character as ancestral when it reverts to the family on her death.* Similarly, where a member of a joint family has Assigned his undivided interest to a creditor to satisfy claims which do not exhaust the _ entire value of the interest, any residue continues to be ancestral property.” But savings made by a coparcener from out of the income of properties allotted for his maintenance is _ his own separate property.* __ 295. Divided property.—Where ancestral everal joint owners, there can Property has been divided between be no doubt that if any of them have male issue living at him will continue to be ancestral ir rights had already attached upon of the dividing members. The father and his fe would apply even where the partition had u Ammal v Rajendran 2002 (1) HLR 387 (Mad). 191 ITR 278 (Mad). ¥ Sainam Singh AIR 1967 Punj 353, 354: ILR (1967) | Punj 383. am Parmanand AIR 1978 Punj 158. 86) nilasekiara Pandiya Naicker ILR (1946) Mad 599; Beni Pershad v Puran ) 23 Cal 262. ami v Rajagopala (1895) 18 Mad 73, 83 G v Kolanda Goundan ILR (1940) Mad 322. Andh Pra 31 Latchandhora v Chinnavadu HIE a Lal (1907) 34 1A 65: 29 All 244; Lakshmibai v Gan Morabo MHC (OCH, 129; Rajaram v Perum Singh (1873) 11 Beng LR'397. Batjnarh (1933) 8 Luck 28: AIR 1932 Oudh 158; Bejai y Bhupindar (1893) 22 1 139. 17 maton expressed in Allah diva v Sona Devi AIR 1942. a) 331, that Br atire crn 02, & Sia Hindu is ancestral, even for the poo Ihe nature of the estate possessed by his childle ree the husband died | ossesses by custom an absolute estate in her hush Prasad AIR 1957 All 287 (288, 299) (DB), Sivara B). ty: Basant Lal makrishna v Kaveriammal ie ‘Scanned with CamScannerHindu Law & Usage Chap. 19 «! or before a son is adopted,? for the share which ers is taken by him as representing hig ‘on, by one of the ner im a8 representing hi is taken at a partliof ‘i eandhra Pradesh High © oom that where a father divided the branch. It was eo Veen him and his sons, the share obtained by him was his sl family property Been Could bequeath to his wife Where acquisitions ate mai cee tn separation, there is NO presumption that they are pitt or an family subsequent (0 sre ed members.’ It was however held in the undermentioned cases property as regards dives ed a share of family propery partition, which was that where aman ne y cleared from the mortgage by ich he had subsequent nd which Med property was ancestral property in his hands asthe unencoged and alloted in a partition 10 4 Coparcenes o/s ettmatral character of property is not lost’) The main sn ving coparcener in possession and a coparcener geting a sperty in partition is in the former case it retains the character of rye coparcenary unit is reduced t0 one only forthe tine sie oop be a potentiality of another coparcener in te Si rotentalty mateialises either by law or by nature be to exist; the partitioned property in his hands will, till then, Ina on of a bigger joint family some property was along Pith his wife and children constituted a smaller Hindu ord that'when there is a partial partition of the smaller family the ta the assessee, should be treated as his individual property.” ‘J Andhra Pradesh High Court in Prem Chand v CIT and of Gopal rayan v CIT" were dissented from on the ground High Court dissented from the decision of the Orissa High Court Gid not refer to the later decision of the Orissa High Court Babul? which was held to be distinguishable and that the said erito the earlier decision of the same High Court in C/T v 722 been made before the bi hh of male issu coparcen 6 Luck 302: AIR 1941 Oudh 230, 240. 163: 5 Lah 92. ILR 32 Bom 512. R (1962) 42 Pat 331. 0; Krishnaswami y Rajagopala (1895) 18 Mad and the mortgaged property is purchased . Balwantsingh v Rani Kishori (1898) 25 1A her extreme position that ancestral propet'Y Scanned with CamScannerpara 296 The Joint Family in Narendranath’s' case the Supreme Court held syned by a Hindu Joint Family, on patton came to bers in the family, th , who had female mem y, the property still retai my property It was held that the character ofthe oper) a foe its eharacter of joint furiange notwithstanding the temporary reduction in te mbes chen ome i ‘There was partial partition as regards the busines = undivided families of Ramantlal and Rasiklal with effect tio ccobe te 1970, and October 31st, 1970, the minor sons of Ramanlal and Rasi i penefits of the partnership. It was held that the share income Tn Sand tion the partnership was nevertheless the income of his smaller Hindu joint family ‘ad However, the share income of his wife or son as partners of the firm cannot included inthe assessment ofthe asessee as a Hindu undivided family? 7 “This decision is contrary to the law laid down by the Supreme Court in Gow! ‘ i ‘Buddanna v CIT (1966) 60 TR 293; Narendranath (N.V.) v CWT Lal Chhabda v CIT (1975) 101 ITR 776. On 296. Self-acquired property of father gifted or bequeathed to son.— whether the self-acquired property of the father hich ag bee subject of ‘bequest by him to his son is ancestral property in the latter's hands has given rise siderable difference of opinion. In Muddun Gopal v Ram Baksh, it was held that ‘a father by various deeds of gift had distributed his property among his sons, the ‘obtained by each was ancestral property as regards his male issue. After a full of the authorities, the court said: "We think that, according to the fanded property acquired by a grandfather and distributed by him amongst his mot by such gift become the self-acquired property of the sons so as to enable 3 of it by gift or sale without the consent, and to the prejudice of, the ‘The property cannot be said to have been acquired without detriment to the because it was not only given out of that estate, but in substitution for the share of that estate to which the father, (under the passage first cited) appears to | The decision cannot therefore be regarded as an authority for the position that where there is a gift or bequest by a father of his self-acquired less ancestral property under all circumstances In Hazarimul Babu ookerjee, J., thought that if the matter were res integra, he would give in the Mitakshara (-vi-13-16) and he distinguished the case before the bequest was, as in Muddun Gopal’s case, in recognition of the legal mms to maintenance. In Tara Chand v Reeb Ram,’ the Madras High father to make a gift inter vivos and a fortiori by will, of 's0 as to deprive the sons of their shares in it; it was not ther had absolute powers of disposition over his self-acquired dnt that the ancestral character of the property isnot changed by the 7% that where the original y be allotted to a single CWT (1969) 74 ITR 190 (SC). ‘Shah (1992) 195 ITR 9 (Guj). “indas Shah (1992) 195 ITR 9 (Gu). . A Mohabeer Kooer v Joobha (1871) 16 WR 221, a contrary opinion ssed by Jackson, J. See also Adharchandra V Nobinchandra (Mad) v Peria Karuppan Chettiar (1969) 71 ITR (60) Kishori (1898) 15 1A 54: 20 All 267. Scanned with CamScannerHindu Law & Usage ; hhap, a 724 rccept it under the father's will, In Nagalingan Pillal ¥ Ramachg ving o the bequest of self-acquired property by a pra ‘etermine whether the property which he bequest’ tltacquired but unless he expresses hy au ed, it is ancestral. The Patna High ¢ oun The Bombay High Court, on the other hyn is no express intention of the father that it should be — acquired.’ The Allahabad! and the Lahore’ rh Courts and the Oudh Chief Court’ follow the Bombay view and hold that in the absenes of a clearly expressed intention that it should be taken as ancestral, it should be deemed y be self-acquired. In Lal Ram y Dy. Commissioner, Partabgarh,’ after referring to thig difference of opinion, the Judicial Committee left the question open with an intimation wever that a decision on the question might turn upon the construction of the texts in ot hara, The view of the Bombay, ‘Allahabad and Lahore High Courts was by the Supreme Court in Arunachala Mudaliar v Muruganathy toa h Court, refe nto a father to d ncestral OF acquit son's choosing the Madras Hig! sons, held that it is ope to his sons shall be Id be deemed to be self ‘a Full Bench decision or give that it shou adopted this view in holds the view that if ther ancestral, it must be deemed to be sel isimhan AIR 1937 Mad 634 429; Kasi Visv A M Naldu v Seethalakshmi (1916) 39 Mad 1029: 18 MLT 542 (where a git i aregttimate son for his maintenance, the property is 10) ancestral property in Mi achandra (1919) 10 MLW 498; Rajah of Ramnad y Sundarapanda Fe these cases refered 10 in Janakiram Chetti v Nagamony (1926) ‘andra Aiyar v Ranganayaki (1941) 1 MLJ 557; Velayudhan y a ae IER (1945) Mad 549; Venkanna v Venkatanarayana ILR jeeyali Achari v Doraisami (1947) 2 MLJ 49; Venkatappayya y 466. rani (1944) 23 Pat 212 FB. Delivering the judgment of the Full Ho certain observations of the Privy Council in Ulagalun 11939) 66 IA. 134: ILR (1939) Mad 443 and observes with hat "in their Lordships opinion what becomes the self-acquied Min relation to other members of his family may, as between him regarded as their joint family property, or, in other words, wrect, as their Lordships, in the earlier passage, ‘not quite cor ly reserved their opinion on the question. 28; Nanabhai v Achratbai (1888) 12 Bom Ja in Ahmedbhoy v Sir Dinshaw M Petit yesra v Varatha Nara: srvation of Beaman, 595, 599. “Al 354; Jai Prakash v Bhegwandas and Co AIR 1937 All 1918 Lah 394: 43 IC 117; Ramsingh v Ram Nath AIR shbir (1932) 13 Lah 165; Kishan Chand v Punjab and 534; Kanhaiya Lal v Deepchand AIR 1947 Lah 108 indson); Amarnath v Munshi Ram AIR 1952 Pepsu 160; 51 Nag 270 (273) (DB). (1930) 4 Luck 300; AIR 1930 Oudh 39. See also Syed 1950 Mys 33 (FB); Megh Raj v Relu AIR 1951 Peps AIR 1952 Pepsu 160; Sidramappa v Babajiappa AIR 1962 J MLI 57; Adimuta Padayachi v Pavadi Padayach’ Hiv Income-tax Commissioner (Mad) AIR 1967 Mad Bhagwan Dayal v Reoti Devi AIR 1962 SC 281: 150 Mys 33; 55 Mys HCR 67; Muddun Gopal ¥ ‘aporni AIR 1944 Pat 298 (FB); Nagalingam Pil ‘Das v Mangal Das 10 Bom 528; > a ——aiil Scanned with CamScanneron The Joint Family 5 the father willed property to a daughter for her “cho : sented as importing an abslite right and ot iid pel eee ie, Mitakshara on the point.—The Mitakshara is * tn 1y iv, which deals with effects not liable to partt ® uhat is obtained through the father’ favour will be subse com partition’. In Muddun Gopal's case it was said that stn ae without detriment to the father’s estate as if that were the sole oem nud 98 is an excepti sole criterion of self- , ption and cannot be read as requiring tha ent to the father’s estate; for it would be a contiaficien smb say that there could be any gift by a father out of his estate without detriment ta ene text of Yajnavalkya which is cited in 1, vi, 13, says: "The wealth whan parents belongs to him alone."? The explanation in the Mitakshara is that a father to a son, whether before or after separation appertains solely to ‘Court in Muddun Gopal's case considers this as declaring that such a gift is not m Jeamongstthe donce’s brothers though itis patible between the donee and his sons Sargent, CJ, pointed out, 1, iv, 28 is equally applicable in all cases of partition g that between a man and his own sons, and not merely between collaterals; for js admittedly applicable to all cases.“ And the language of 1, vi, 15-16 makes jive that the gift of the father belongs only to the donee and to none else.* nciple too the same result would follow. The grandfather is at liberty to Fs absolutely before his death, and any such disposition would be 4s against both his son and grandson. When he makes a gift or bequest to inarily intends that he should take it as a bounty. Otherwise, when a 1a gift of his self-acquired property to his son inter vivos, it should be on in existence at the time of the gift, if the property is to be regarded as ‘ partition of the property at once before the grandfather's death which ‘ad absurdwn. In the absence of any intention expressed by him that on behalf of his family, it must be presumed that he | belong solely to the donee or legatee: for, to hold that he intends to ans that he intends to give it not only to his son but to his son por where the words were Teasonably plain on the ion. Vijnanesvara says in Bai 29 All 354; Amarnath v Guran AIR 1918 Lah 394; Arunachala 'Mudaliar AIR 1953 SC 495; Jagannadharao v Viswanadham ILR v Kelutty AIR 1959 Ker 212; CIT v Balarama Krishna (1986) falappayya 15; Sourindra Narayan Bhanja Deo v Special Officer-cum- nm Land Ceiling AIR 1991 Orissa 19; Parvathamma K.R. (659 (Kar); Ajit G. Saraffv CIT (1993) 201 ITR 388 (Kar); m 528, 579. cannot be read as being confined to cases of gifts /to his son because the whole of section IV deals “detriment to father’s estate, but 1, vi, 13 also fuddun Gopal's case rightly understood it so, (1876) 1 Bom 561 thought that 1, vi, 13-16 age in the Viramitrodaya proceeds upon immovable property by a father should be Tefers (0 gifts out of paternal property. hing about propriety or caprice. Scanned with CamScanner7 Hindu Law & Usage 726 q hap. 1 Neither the above texts nor any principe of Hindu law however prevent a giving his son property in such a way that it may be taken by him as ancestr as regards his male issue." father fr al property Where a gift was made by the paternal aunt of the paternal grandfather’ py. saying that the donee will hold it as if he obtained bis grandfather's property, ue Tobligations, it was held that itis ancestral property in his hands.* ject ig ‘Thus, where the testator bequeathed certain properties to his adopted son with a to perpetuate his line and intended the property t0 remln i his family and where i.” ever mentioned that the legatee would enjoy the power of disposal of the properties where on the contrary provision for his grandchildren were made, it was held that & F jfestly intended that the property be inherited by the grands, the dingly, the property bequeathed was held to be joint eH > acquired —Secondly, property may be joint propeny | Where the members of a joint family acquire property jy fat funds or by their joint labour or in their joint busines b them as a joint family,’ such property is the coparcenary ho have acquired it, whether it is an increment to ancestral risen without any nucleus of descended property. And i mf the conveyance to them would make them tenants in {the conveyance is in favour of one of the members fous prosecution results in a decree in favour of ing under the decree does not constitute a jon is not joint family property merely because joint family.* For the formation of a coparcenary which has come down to the father from his ‘necessary, provided the persons constituting fon or any other relationship requisite for: 215, 227, 228. Eswara (PN) v Iyer (P N V) (1978) 3 SOC kshara, i, 4, 15; F. MacN 351, 362 C5; Rampershad v Sheochurn (1866) 10 MIA, 65, 29 All 244; Umrithnath v Goureenath lu (1902) 25 Mad 149; Radhabai v mkrishna ILR (1941) Nag 707; Sunder R (1977) 4 Bom 880. ‘Umma v Kutti Mammi Hajee (1893) Mad 149; Vengamma v Chelamay)e Pokker (1916) 39 Mad 317 FB: a Bai v Mangal Chand (1941) 45 1941 Oudh 230; Lachmi Narain 155, 160, 2); Mulam Chand = 53: 1958 Jab LR 137: 1958 MPU 154; Gulabrao Anandarge VGopala Pathar AIR 1995 Scanned with CamScannerThe Joint Family ™ i. by their join sence of a clear 1 Jr is now settled that when the membe ary: 5 Of a jo) Yt joint business, acquire property, thar propery, . ia on in . a a jue would necessarily acquire a right ried on and property is acquired etd akg the ra Property? Where se resumption is thatthe Property so acquired is jor annem the joint gd without te ad of the ancestral nucleus. This pesupry ey o78 f was aceidence indicative ofthe acques intention tom epee ese byleadiipemselves? PFOPEY acquired by join labour without he eae of joint family bet vrmoint property of the acquirers and the issue of rover ta Ifa single individual acquired a fortune Oy his own exan t inert ance from ancestral property, his mae issue would certainly ake ae wy several brothers did the same, the property would, in the absence of any indiccron ‘of an intention (0 the contrary, be owned by them as joint family Property, and in that Meir male issue would necessarily acquire a right in it by birth. fo, onder nae ‘system there can be no joint family property in respect of which the mac fhe joint owners do not take a share by birth.‘ If there is satisfactory evidence of ‘Narandas v Motibai (1908) 10 Bom LR 175; Rangbhai v Sitabai (1918) 20 3; Parbhu Lal v Bhagwan AIR 1927 Bom 412, 414, 219 20 Goma Maistri v Narasimhulu (1902) 25 Mad 149, 156; Govind Rao v Rajabai (1930) 10: 35 CWN 438: AIR 1931 PC 48; Karuppai v Sankaranarayan (1904) 27 FB; Vasudeva Rao v Sakharam Rao (1928) 54 MLJ 239: AIR 1928 Mad aiya Chetty v Damodaram (1912) 12 MLT 240; Ratna v Vijiaranga AIR 1926 (LW 716; Venkayamma v Gangayya AIR 1934 Mad 16: 65 MLI 703: liammai AIR 1936 Mad 19; Krishnamurihi v Seetamma AIR 1937 Mad 29: Chand (1941) 45 CWN 470; Haridas Narayandas v Devkuvarbai , following Laldas Narandas v Motibai (1908) 10 Bom LR 175 and bai (1908) 32 Bom 479 and dissenting from Chatturbhooj v Dharamsi 38; Rengu v Lakshman AIR 1930 Bom 438; Sanwal Das v Kure Mal (1923) as v Briji Mohan Lal AIR 1941 Lah 447; Hayat Ali v Nem Chand AIR FB; Chandrabhaga v Anandrao ILR (1939) Nag 293; Shamrao v H1) Nag 598; Sital Prasad v Ramprasad ILR (1944) Nag 17; Gulab 1941) 16 Luck 302; Lachmi Narain v Musoddi Lal (1942) 17 Luck jamma (1941) 45 Mys HCR 460; Gulabrao Anandrao v Ramgi LR m LR 1651; Chittemma v Chinnammi 1960 Andh LT 32; alingam AIR 1957 Andh Pra 744: (1957) 1 An WR 31; Krishnam Mad 350: AIR 1965 Mad 340: ILR (1959) Cut 526; Karthyayini LT 243: AIR 1957 Ker 27 (for the application of the rule of ‘Lakshmi Bai vy Naranji Kalyanji Marumakkathayam 1952 Kur Ramankutty 1975 Ker LT 434. See Contra Ghasiram v Heeralal zmabai v Dattatrya AIR 1956 Nag 231: ILR 1956 Nag 451 ‘Ammal (1970) 2 Mad LI 85. v Chetti Chandrasekhar Rao AIR 1991 Ori 332 Al 135, 142 (where above passage is cited); Anupsingh v TLR 1958 Punj 335. the decisions of the Privy Council in the Juggumper's case 25 fein v Babu Kishva 64 1A 250. In the latter case, the Judicial arlier case as one where the two brothers took the estate of the time and by the same title and there was apparently no d that in the same manner as they held their other joint that their sons also will be coparceners. But in the il did not rest their decision upon the conduct of the mily property but they considered it necessary (0 decide d by the grandsons. Their father was alive when > > Scanned with CamScannerproperty is ancestral property condition that it shall be returned tw the family, retains ts character of in the name of female member of Hinds f Scanned with CamScannerThe Joint Family por 301 ” 9 * | grco-widows and daughters who obtain prope ne case © “ ° property by inh ie ied sons inheriting the epaate oper of hei rrtaned tad bot ae casemon. Ifthe sons are undivided they hold the property as joint f ‘y weal common as c-hets of tenants i-common The question Whether tees OPEB er3 ofa joint era property comprised in a gift or bequest t oon Sta joint family depends on the A REAETA OF th don Re ae co afar he il or the testator as 1, Property thrown into common stock.—Thirdly, property v AEE Sesheeei ter geo | fina the owner into the joint stock, with he intention of abandoning als itd awoun Tani Ths dotine bas been repeatedly recognised y the Privy Council st case was one, where the owner had actually obtained a statutory Perhaps. the stronge: title to the property under the Oudh Talukdars Act | of 1869. He was held by his conduct Chettiar v Ramayee Ammal AIR 1962 Mad 437 Fagh Sambajiv Santha Bai AIR 1957 Bom 274; Mankuvar v Ms. Boal AIR 1957 MB fe Ranganatha v Kumara Swamy AIR 1959 Mad 253; Hari Kishan Das y Rajeswor "EIR 1952 Punjab 165; Venkataramana Reddy v Venkatarami Reddy 1992 (3) ALT ‘wnar Poddar v Dhirendra Nath Poddar 2003 (1) HLR 197 (Cal) al v Anantha AIR 1966 Kerala 66 (DB). ain v Ramchander Dutt (1897) 23 A 37: 23 Cal 670; (1933) 60 1A 95: 8 Luck Divali'v Patel Bachandas (1902) 26 Bom 445; Kishori Dubain v Mundra "Mutha, Meenakshi v Chandrasekhara (1904) 27 Mad 498, 503. See hukunthu (1905) 28 Mad 363: Jankiram v Nagamony (1926) 49 Mad angayya (1933) 65 MLI 703; Sura Reddi v Venkatasubba Reddi AIR "ANWR 102: 1960 ALT 113; Shridhar v Hari Mohan AIR 1964 Ori 1 Veeramati vag Kumari (1932) 59 1A 331: 59 Cal 1399, Sir DF Mulla relying on Peel in Gooroochurn Doss v Goluckmony 1 Foulton, 165, es (748) cites Mit, I iv, 31, as the text on which the whole (es with the blending of income is founded. The text runs as ‘brethren, if the common stock be improved or augmented by jculture, commerce or similar means, an equal distribution fa double share is not alloted to the acquirer.” The Sanskrit tion, read with the text of Yajn I, 120, makes it reasonably clear ‘coparcener who uses the family stock through trade, for the purpose of ‘augmenting it, is not entitled to an extra ‘As Mr. Mandlik points out, Vijnanesvara refers (0 this as cited in 29, See also Sulapani's comment es not appear to have anything to do with blending the quisition with the income of the joint family property and so Ially a slf-acqusition into coparcenary property. Col! dhra Pradesh AIR 1970 ‘$C 1722; Mahalakshmiamma v LJ 446; Madanlal v Controller of Venkata Rama 1955 Mad 623: (1955) 28 ITR > hey Raju (BN) ILR (1972) Cut 1045 (DB): Hasan Salve W Ramdassy CIT (1978) 115 TTR 815: Krishna Prasad HR 493; Vrajlalie Kamlal v Commy of Income-tax 80 Meetaiiashchand ILR (1977) 1 Delhi 97; Selvaraj v 6: IMLS 105: 1976 HLR 330, CIT v Muthurama (Mind), Sher Singh v Gandoor Singh 1997 2) HLR 81 (SC); aNath Poddar 2003 (1) HLR 197 (Cal) Scanned with CamScannerNindu La Hurperdhad » Sheo Dyol (1816) 31A 299, Shankar 16 Cal 297 an to cases in which such a Tabukdar was held to ha ‘on trust for the other members of the family, see Mi Thakrayy Thakoor Wardeo Bux v Jowahir Singh ( 9 Raghunath Koer (M2: (WD) U6 NA: 229. 16 Cas 479, Lal be leur, Rampershad v Sheochurn (Uh) 16 Mad Sur PC 10%, Sham Narain 1 Court din Bhagwan Dayal ¥ Mist. Rect! De 1 SCI 344: ILR (1962) | A 401; Madhavaray Manohar ¥ ith (997) 21 Bom 34%, rev ich, though not self-acqu They would not be co ¥ Chinnasaml (160A) 7 had 1A 65 29 AM W44, Suraj Narain v Ratan Lab Lal ¥ Nazma (191%) 45 Cal 733 PC 22 CWN 6p 1964 SC 1276, Harnam Singh + Motan Lab h. 1) 121A 9, 14 Cal 341.7 with full keowledge of Bibi AIR. 935 All 903; Gow '¥ Shanti Swarup AUR 1935 All 778. ITT: AIR. 1946 Bom 439, £46 (1), Ma @ AIR 1927 Mad 4, Ahobilackari ¥ VAvayambal AIR 1933 Mad iagopala Seshayya Naidu Alk WA, Jagannatha Kao» Ramones (1937) 2 SALI 906, Jorising » Jonge (1942) 16 Luck 704: AIR 1941 Oude 136, Pareshchandra » Amaresh A Cal 308; Ranada Kishore hoy* 33, Rajkishore v Madan Gopal 204, Gopal v Kisheasa 18 Mys HCR 177; Syed Wajid stock, coparcene (DB), 1963 (1) AU is joint famdy propery). > 7 Scanned with CamScannerpara 301 The Joint Family at sh intention can be inferred by the words and if th There can be no presumption in favour of blending datablished by the person asserting it? Where the adopt father's self-acquired business it does not make the busine fact that the other members were allowed to cultivate th fais the inference in favour ofthe kart’ rlinuish 4 The mere fact that a coparcener, in order to raise money for Py included in the mortgage deed executed therefor, his own rope laine ‘ofthe joint family, cannot be taken to indicate his intention of eating his own propery «joint family property.* Declaration showing self-acquired property in the incomectax as joint family property by the manager will impress it with the joint family Subsequent repudiation of the statement in the return or his filling Income-tax “yetumns in his individual capacity does not change the character of the property merged in ‘he joint family.® However it was held in Vijaya Bhaskar (J V) v Kesava Rao (J)’ that an rence of blending cannot be drawn from the fact that a person declared his status in the Returns and Wealth-tax Returns as Hindu undivided family as it is not always real status of the individual and must be decided taking into consideration ts and circumstances of the case. The necessary precondition for the doctrine of blending is the existence of coparcenary property." A a member to impress his self-acquired property with the character Sufficient and no formal document is required? Any member of his share of income in the firm, with the character of HUF ite no words from his conduct The fact of blending must be fed son assists his father in the ss a family business,’ The mere \e property in question does not ment of his separate title to the uni 1981 HLR 686: (1981) 2 MLJ 51; Raj Kishore Misra v Parama Sivam v Rama Swami Gounder (1970) 1 MLJ 592; i AIR 1955 TC 199 (DB); Jerh Ram v Hazarimal AIR 1952 Raj ving other members of the family to live in the same house; 1960) 10 Raj 1919; Govindi v Chaganalal ILR (1952) Raj nadham AIR 1950 Mys 33: 1950 Mys HCR 67; 167: 25 Cut LT 189 (Allowing adopted son to write ); Chandrasekhar v Pitambari Dibya AIR 1953 Ori 315; ii Pillai AIR 1950 TC 52 (DB); Pratapkishore v innooli v Theyyu 1969 Ker LT 963: 1969 Ker LR 860: dkutti AIR 1991 Ker 148 the following Lachina R1963SC 1601. (Guj) 126 ITR 779. P i a ee Reddy v Chandramma AIR 1952 Hyd me-tax (Gui) 54 ITR 664; Narasingha Murthy yendra yr (1983) 140 ITR 300; Mohan Rao v “agi 2anlt 1 es oter af E Dv Estat of Late £318 (AP):Commissioner of Income-tax v Sa Fravese contra Govind Narain Mathur v Mohini Devi 1960 Ra} AP 134 (Declaration of status in f the individual). CIT v yhan Rao V PAIR 1994 AP 134. v Krishnan 33 Mad 432; Narayanan Ee heons VER Tribunal 1976 ALT 526. ); Bhooky Dhoopa v L . - si Scanned with CamScannerHindu Law & Usage Chey, oh 732 in law and a id with th of this decisi and such act is valid I's share in a firm can be impres' 10 that effect. The correctness jess the joint family agree partner by a member unilaterally declaring his share partnership is a loosing concern the joint family will be saddled w felf-acquired property is thrown into the common stock, it need not nece by a registered instrument ‘and no formalities are required 5 It do 'e Transfer of Property Act.‘ It does not amount to a g snt.3/A merger amounts to diminution of right rer.6 Where a member of HUF impres hithe character of joint family property or ily or blends it with the joint family pr the provisions of section 9 re ctof blending unlike the voluntary acceptance id defintion in section 2(15) as explained by (1976) 105 ITR 92 (SC) falls outside on contained in the explanations to section 2/ not include the unilateral act of a per: mmon stock of joint family, secondi: enforceable against the blender but onl in others and thirdly the act of blen« fhe blender with 2 correlative conferral a ‘2 of section 2(15) of the Act.” However it was ‘a coparcener relinquished his ff his share with a corresponding property individual a delcaration ¢ based on agreement. Unli fing CIT v Kishan Lal (1980) 1 WR 365; Hanumantharao v Comms wv Kannayalal (1970) 75 TR 72 19 (Hyd). 76 ITR 675 (SC) ILR (1969) AP 788: 70 ITR ¥ CGT (1970) 76 ITR 675 ‘599 (SC) approving CED ¥ ¥ CED (1972) 84 ITR 790: d). ILR 1970 AP 782: 75 TR (AP); Tirwmaliyappe ¥ Scanned with CamScannerPara fr ' k The blenting Can be onty in FAVOUE Of th The mere fet hat the join declaring Nis selt-acquined HROPEHY as joint fa ly bees r shou exist at Teast two male members of he fang ht Ave ()*& person Nad declared in they wove ally and it was contended ger the declaration inntion on his part to treat his sepente Properties as the Of himself and his son, relying on G i Eowaraiah vy ion Of the Supreme Court w Gia ci ‘8 the authority fir the Sp ukt be impressed with the cha sey of cre Held relying NEES With he ea eessaty precondition of the Weis submitted that the abo distinction between, Moclaring separate pro ‘separate property with joint tamily Propert ry tence of joint family property, In Mallesappa of female who could not be seal ‘said to be he “ mm Ne entire badly of go Parweners 0 py Wty hl no property upreme Court was ‘0 a coparcener and hence her Ot being a coparcener, cannot ‘lend her separate property with joint Hindu who is a member of an undivided family impresses of joint family property, she creates new herself because not being a coparcener, she {in the joint family property or for a partition 2 woman enters her matrimonial home, she completely by the same being treated as joint property of the spouses," Ww regarding blending of separate property with led ba property which is self-acquired of a member of a 1968) 2 Mad 138; (1968) 2 MLI 411: 81 Mad LW AIR ITE AP 233. See contra (1960) Raj LW S82, Ihi 97; Commr of Income-tax v Pushpa Bese er Sea 58 18 58 Cap Mudaliar 1983 (2) MLJ 419; Suévamania Iver 623: (1985) 2 MLI 405; Sadasiva Viral (D) v Mallesappa v Desai Mallappa AIR 1961 asc) seu 1926 Commr Tax Rep (Bom) 390; ‘Bhateja 91 ITR 193 (Mys); Kaniappa (D) v Selvraj (K) Scanned with CamScannerHindu Law & Usage Chap. 1 joint Hindu family may assume the character “ join family Property if it is voluntai by the owner into a common stock with the intention of abandoning the separa, thrown by the SW establish such abandonment a clear intention t0 waive separate righ ‘nthe case of Periakaruppam Chetty v Arunachalam Chetty? w a ipfconsiderable value on a site worth a few rupees and aftervang lived in the same house, it was held that the superstructure dino | Separate property does not cease to be such and become bby any physical act but the acquirer's own volition and intention ig Tishts, A house constructed by a son with his own funds ong Ho the mother was held to be property of the son who constructed ‘ofa Mitakshara joint family mixes the income of the joint fami ‘Separate property or pays both the incomes into the same accoun = sufficient evidence of an intention to alter the character of the ‘maintains separate accounts of both the incomes. In Nutbehar a case, where the rule as to blending is the same as in ial Committee, approving the judgment of Reilly. J. in jobserved that even in the case of a karta mixing his own mere fact of a common till or common bank account so long as accounts are kept. In Narayanaswami y (Court went a step further and held that as the onus is he separate property has become joint family propery perties, the fact that no accounts were kept will jing; for the reasonable presumption to make ‘at his absolute disposal is, that he intended to ‘The rule as to a trustee mixing his own funds furnish a true analogy.” The mere fact thatthe ‘coparcener in the books of account or that he ‘earnings from these properties would not “of Income-tax (1943) 22 Pat 55, 69. See dh 335;Vishoba v Hariba (1869) 6 Boo ‘on an ancestral house by a membe family properties; Venkata Sastry * Moolchand (J) AIR 1973 MP 75.7 eversing 38 CWN 861 followed [59, 165: (1946) 2 MLJ 408, 411 °C indiscriminately the incomes © 2 intention to treat the sepast ly is interested; Raghbir Sins* ” ‘Cal 439; ILR (1977) 4 Bom a h Bha 184 (member); Gs"2" 1a v Gangayya A "AIR 1935 All 303: A90/0°, (133 Scanned with CamScannerPara 303 The Joint Family eprive the properties of their character of self-acquired properties.! The burden of aiuto that separate incomes have been blended is upon him who seeks io cen eine income as joint? Where a member of a Hindu undivided family, who war ho tne Dizector of a Company, directed the company that the income of remuneranon ss ot ble to him be eredited to the account of the Hindu undivided family te Cong ee eompany. it was held that such direction, or entry in pursuance weep aoe an intention not to treat it as his separate property.’ It is difficult coe ow en the income derived from a separate property such as a house or a landed cote o° investment with the income of ancestral property, the corpus of the sat ich is easily distinguishable, becomes incorporated into the joint fara iy The intention to benefit the family by spending the income of the separa ty for family purposes cannot be converted into an intention to vansfer the popeng Sis joint family. for that is what it amounts to, as was pointed out by the Privy cil in Hurpershad's case.* To say that there is a duty to keep an acesune of ven ‘of his separate property is to say that a man cannot spend his separate income for is peril. Where however no accounts are kept, of the joint may in a proper case be made that what is claimed 2» self. really made at the expense of the joint family. 1¢ from impartible estate —It is settled that an impartible estate of a joint family consisting of the holder and the junior ‘Of survivorship though there is neither a right to partition nor 2 ation nor a right to maintenance except in the case of the sons of Feceived by the holder of an impartible estate is his own and any purchases made from that income will be equally he chooses to incorporate such self-acquisitions with the amily would not be complete without pointing out what idual members as their separate property. All property AIR 1976 SC 1715. -tax (Guj) (1964) 54 ITR 664. 31A 259, 277. See also Ramaswami v Raju Padayachi ire v Gyanendranath AIR 1951 Ori 313, “The real 1966) 2 Mys LI 732 (income from separate and join on). See however, Venkaia Subramania v Eashwar 1966) Mad 468: AIR 1966 Mad 266 (personal earnings are mixed and property purchased) Krishna Kumar “All 570: ILR (1965) 1 All 483 (Presumption thas is not readily available unless it 1s shown 'v Jagannadha Rao AIR 1962 And Pra 94 (DB): ILR TA 195: 43 All 228; Shibaprasad v Prayag Kumari @f Gorakpur v Ram Sunder Mal (1934) 61 1A (1928) 55 IA 114: 51 Mad 189; Ramo Ra. Mad 778; Commr of Income-tax v Krishna Kish ¥¥ Suppan Chetty ILR (1937) Mad 906, Muss 59 IA 331, 353: 59 Cal 1399, 1422: Jagadambs v A 19; Commr of Estate Duty v Sivaram (SRY) AIR 1970 AP Ly HP 1244; Mahendra Singh v Ishwar Singh AIR 1952 Bom 243 (DB) ILR (1952) Bom 675. Scanned with CamScanner736 Hindu Law & Usage Chap. 12 coparcenary is separate propetty and Hindu law recognises separate property of individual members of a coparcenary as swell as of separated members. (1) Property which comes to a man as obstructed heritage ( apratibandha daya) is his separate property. It is not self-acquired property within the meaning of Hindu law, though in their Theidents, there may be no difference between the (wo species. In Muttayan Chetty y Sangili. ‘concurred with the Madras High Court in holding that inherited se eaequred property. (2) Property may be self-acquired; such arede by any one while even in a State or Union. (3) Property tion wil be his separate property as regards those from whom laral property as regards his own male issue. (4) So too, Jast surviving male member of a coparcenary will be his becoming at any moment coparcenary property when he btion is made to him or to a predeceased coparcener in the Heof maintenance of the other female members of the inlaw, a posthumous son of a coparcener is as much a his death. The first and third heads of separate property tas 292, 295), The sole surviving coparcener can dispose itwere his separate property as long as he remains the sole Any alienation made before a son is born to or by the new coparcener.” roperties of a Ruler—The non-State private oF Princely States were his absolute ownership with hatsoever. The character of absolute ownership of s of the Ruler would not come to an end on | De-recognition of such Ruler cannot have mership of the non-State private properties trine of self-acquisition is briefly stated red by the coparcener himself, without it from a friend, or a gift at nuptials, does not vers hereditary property which has beea what has been gained by science’.‘ Upon state of the father means the estate of any s that the words “without detriment to the rember of the sentence. "Consequently what obligation conferred at the charge of the which is not held in fad 370 (375, 376, 377). The term sel hich a man takes as obstructed heritage, av Chika Pandappa 1988 (2) HLR 8 (FB): ILR 1953 TC 1021; Ramaiat Veerappa Thuwar AIR 1975 Mad DB). jingh Pratapsingh AIR 1996 Ou) | D) AIR 1996 Del 14: 1996 (1) HLR , ix, 206; Narada, xiil, 6 1% 1958 Punj 116. S iv 2, 1-12; V May iv 7, 114 Scanned with CamScannerne The Joint Family rimonys What is received at a marriage concluded in the form of Asura or the like:! {what is recovered of the hereditary estate by the expenditure of the father's ood wee i by science acquired at the expense of ancestral wealth; all that must be shared with ‘of the brethren and the father". The author of the Mitakshara ents walkya by defining self-acquisition as “that which had been Himself without any detriment to the goods of his father or mother") This ‘not been accepted and it is now settled that property inherited by a man ‘or mother's father is not ancestral and is only his separate property.“ The sition is that it should be “without detriment to the father's estate iy, all acquisitions made by a coparcener or coparceners with the aid of the joint Joint family property.’ However, if the family funds are restored in time {as t0 be available to the rightful heirs, that is to say, immediately upon their quisition in question would not assume ancestral character. Thus, whe ealised on the security of ancestral property for the purpose of running it of the profits whereof certain acquisitions were made by a coparcener. bul ‘a son was born the mortgages were discharged so as to render the ancestral held that the business and acquisitions, cannot be treated as coparcenary property, there bein ‘coparcenary interest nor an intention to impress it with coparcenary ‘Would not be entitled to claim any share in the business or ti on partition.* Property acquired otherwise than through the use of 197 s the text \equired by the as Ayurvedic Pandit and the dry land and cycle shop owned ‘not shown as yielding any income, the property acquired by ! be self acquired property.§ Property acquired by a member atter individual names is their separate property. Even salary paid hh the joint family of which he is the karta is a partner, would The income of the wife and the minor child in a firm in which ‘Sheo Gobind v Sham Narain (1875) 7 MWP 75. 'y 5; Muttayan Chetty v Sangili (1883) 9 1A 128: 6 May (1904) 27 Mad 300 FB; Maniblici v Shanker Lal (1930) 5 ‘Babu Kishva (1937) 64 1A 250: LR (1937) Ail 655: to hold the maternal grandfather x estaie as part 0} ily; Shanmugha Udayar (M) v Sivanancam AIR | 334; Mangal Singh v Harkesh AIK 1988 All 42 (DB Wf AIR 1955 Mad 705; Venkutaramanayya v Thane Manicka Mudaliar v Thangavel AIR 1964 Mad 3 1964 Mad 35, 37. . See also Kalu Babu v Commr ¢ Kirdat AIR 1995 SC 297. ITR 836 (SC) reversing (1986) 158 ITR 14 and followin, BITR 33 (SC). Scanned with CamScannerva Hindu Law & Usage Chap. 1 hap. 12 oa Karta of « HUP as a partner in the firm for WMaividual income? When Interest ls paid w total income of HUF? When the of the karta assessee.' Interest paid I business expenditure i spouse or a minor as partne ‘one of his sons contrt 1¢ other sons assess incurred by him, is hi to be treated a to the firm which was converted from ¢ vices to the firm it was helg rit is puted the capit contributed their ser ‘ed as income of HUF the Karta and joint family business and th {hat the entire share income cannot be corparcenet was appointed as managing director o rations of investments made by the join me Court held hi In Bhangawant v Digamber.’ company. The appointment was not in conside! family but in view of the services rendered by him, The Supre reeners could without disturbing in status ofthe ‘acquire separate property, or run independent business for Point family even without partition or partial partition Prstitute themselves into a firm. They can draw a part of ‘and invest the same in their separate busine: fon money lending business as a karta of HUF and k ‘his gold smithery business, the income from the lan jn the hands of HUF though the income ,, even copa iby a member who is looking after managi x property. In case joint family funds were utilised for commission received by a member would be joint family epresented by its karta was a partner in a firm and under eeived commission for the sale of mineral ore extracted and the absence of any material to show that the payment hould be taken as payment to the partner karta of efi the village and acquired property in a differen funds it was held to be separate propery ifs in service is separate property.'' Where the sit er from his income as an employee and it was (All); CIT v Onkarmal Nanakram (1993) w); CIT y Dharma Chand (1993) 204 ITR 787 j; Puspa Devi v CIT (1993) 203 ITR 42 CIT Thiagaraja Mudaliar (V S) (194) ‘See also Dhirendra Mohan Gup's ¥ 610: 63 LW 376: 1950 MWN 254 £1952 (2) MLJ 17: 1952 Mad 828: 21 Nag 64: 1964 Nag LI 654 23: (1953) | MLJ 508: 66 MLW Scanned with CamScannerPara 305 The Joint Family ue could not be said to be joint Hindu family property. Where an acquisition was made subsequent to the severance of joint status, the property would be the self-acquisition of the person who acquires.” The property inherited as obstructed heritage, that is, property inherited by a Hindu from a person other than his father, father's father or father’s father's father is called ‘self with the incidence that even that person be joint, such a property would to him. No other member of the coparcenary, not even his male issue. ‘any interest in it by birth.* Gains of science.—The gains of science or valour, which seems to have irliest forms of self-acquisition, were held to be joint property, if the learning at the expense of the joint family, or if the warrior had used his father’s fa says: "Wealth, gained through science which was acquired from a stranger eiving a foreign maintenance, is termed acquisition through learning” and mpartible.* Narada says: "He who maintains the family of a brother, while that fas engaged in study shall get a share from the latter's VIDYADHANAM though ly promised".’ While the Mitakshara lays down that gains of learning or h are acquired at the expense of ancestral wealth are partible, it explains also neant by gains of learning. "He need not give up to the co-heirs what has been from a pupil or by officiating as priest” or for answering a point in dispute or.for the display of knowledge or by or for reciting the Vedas with transcendent ability, the sages have F science and not subject to distribution. h AIR 2007 SC 1808. AIR 1975 Ori 214 (215) (DB): ILR (1975) Cut 328. in Bishan Singh v Ved Prakash 2002 (1) HLR 486 (HP). iv, 8 and in Smritichandrika VII, 2 (p. 77). The Vivada i while maintaining himself with -s wealth without the help of the I not give any share out of it to an unlearned coparcener; (b) been obtained with the help of the joint property, then a the unlearned coparcener; also (c) if the joint property has time of acquisition of learning, then no skare need be hough at the time of the acquiring of the property itself, the Baitnetos it belongs to the leamed man ely. Vivaia Rot accept the exposition in the Madana Ratna of ‘asruta’ as who has got no promise thus; "I shall give a share. Would seem to be in implied contract Devi AIR 1977 SC 1694; Goswami Maharaj v Commr of sfncome received as gurubhets (offerings to office holder erly of the holder of the office though succession to that bram ¥ Tularam AIR 1980 Pat 237 (where the services are family sight the income derived is joint family property), Scanned with CamScanner