Joint family and Coparcenary

Mitakshara school and joint family

 Introduction
• It is a presumption that ‘every Hindu family is joint
family’, they cannot escape from the joint family.
• Hindu family is joint family when it is joint in
food, worship and estate.
• Composition of joint family:
 consists of ‘common ancestor’ and all lineal male
descendants up to any generation
 Together with wife or wives, or widows and
unmarried daughters of the common ancestor
 Contd.
 existence of the common ancestor is necessary
for bringing a joint family in to existence,
 For its continuance also common ancestor’ plays a
good role
 The death of the common ancestor does not mean
that the joint family will come to an end.
 Common ancestor is also called as ‘last holder,
kartha, head of the family and eldest male
member of the family’
 Contd.
Corporate personality and composite family:
 HJF is not a corporation, it is not a juristic personality.
 it has no legal entity distinct and separate from that of
the members who constitute it.
 It is a unit and in all affairs it is represented by its
Kartha or head.
 No outsider, except by adoption can be welcomed in
the family
 The status in the family can be acquired only by taking
birth in the family or by adoptions or by marriage.
 Contd.
 When two or more families agree to live and work together,
pool their resources, throw their gains and labour into the joint
stock and shoulder the common risk, there comes into
existence the composite family.
 For the purpose of assessment of tax: the revenue statutes use
the expression, ‘Hindu Undivided Family’ – this term is used
purely to determine in which category the income should be
assessed.
 When property is purchased in the joint names: it is for the
person who alleges it to be a separate property, to prove it.
 Daughters are also made coparceners by virtue of sec 6(1) of
THE HINDU SUCCESSION (AMENDMENT) ACT, 2005
 Contd.
 Coparcenary: coparcenary is a narrow body of
persons within a joint family, and consists of the
father, son, son’s son, son’s son’s son.
 It consists of father and three male lineal
descendants;
 In its continuance, the existence of the father-son
relationship is not necessary, the coparcenary
may consist of grand-father and grand-children,
brothers, uncles and nephew and so on.
 Contd.
• Sole surviving coparcener:
• Incidents of coparcener ship:
 Coparcener has right only by birth or adoption
 Until partition takes place, it is an unpredictable and
fluctuating interest which may be enlarged by deaths and
diminished by births in the family
 Every coparcener has the right to be in joint possession and
enjoyment of joint family property – community of interest
and unity of possession.
 Every coparcener has a right to be maintained including a
right to marriage expenses being defrayed out of family funs.
 Contd.
 Every coparcener is bound by the alienations made
by the Kartha for legal necessities or benefit of the
estate and
 Every coparcener has a right to object and challenge
alienations made without his consent, made without
legal necessities
 Every coparcener has the right to seek partition and
survivorship.
 Coparcenary cannot be created by an agreement, it
is the creature of law.
 Contd.
 Illegitimate son as a coparcener: is always regarded as
a member of his putative father’s joint family and as
such has a right to be maintained out of the joint
family funds during his entire life.
- He has not been considered as a coparcener.
 Coparcenary between the sane and insane person: an
insane coparcener is entitled for maintenance not a
share in the coparcenary property
- On his cure of insanity his rights revive. In any case his
son is not excluded from taking a share in the partition.
 Contd.
 Coparcenary between a father and sons born of
civil marriage: If a Hindu performs a marriage
under the Special Marriage Act, 1954, with a
non-Hindu, his interest in the Joint family
property is severed.
- It does not mean that there cannot be a
coparcenary between such a Hindu and a son
born to him out of that marriage, provided his
son is a Hindu.
 Contd.
 Coparcenary within coparcenary: it is possible that separate
coparcenary may exist within a coparcenary.
 No female can be a coparcener: no female except daughter can be
its member, though they are members of the Joint family
-It means no female except the daughter has right by birth in the
joint family property.
-Hindu Women’s Right to Property Act, 1937 – widow, by
succession, on the undivided share of the husband take absolutely
not the coparceners in the family,
-the result was the right of other coparceners were suspended until
the widow gives a share to them. (repealed, new provisions for
women is inserted in HAS)
Sec 3(3) gives her a right to seek partition also
 Classification of Property
1. Apratibandha Daya and Sapratibandha Daya
2. Joint family property or Coparcenary property and
Separate or Self acquired Property.
 Apratibandha daya means unobstructed heritage –
all property inherited directly by the male ancestor
by the reason of falling within 3 generations, and
 Sapratibandha daya means obstructed heritage –
going beyond the 3 generation and the previous
ancestors are the obstruction to inherit the property.
 Contd.
 Joint family property or coparcenary property –
the important factor of every HJF.
- classified into following heads;
 property inherited from father, father’s father or
father’s father’s father, (u/s 8 HAS)
 Property inherited from maternal grand-father and
 Inherited from any other relation (never a joint
property)
 Case laws on property inherited from
maternal grand-father
• Venkayyamma v. Venkatarayyamma (1902)25 Mad – 2
brothers inherited from maternal grand father, one of
them died without a male issue, his wife claimed on the
rule of succession and the brother on the rule of
survivorship (mitakshara Law), Madras provincial court
gave the ruling in favour of the brother to inherit the
property as the last sole surviving heir.
• In Md. Husain v. Kisheva 1937 PC- went against the
earlier judgment and held that when a Hindu inherits
property from his maternal grand mother or father, his son
does not acquire any interest by birth in the family.
 Contd.
 Property thrown into common stock and blended
property: when a coparcener mixes his separate
property with the joint family property, and deals
with his separate property in a manner that he leaves
no doubts that he wants to treat it as part of the joint
family property, such property becomes a joint family
property.
-This is known as ‘throwing in to the common stock’
-If he mixes his property with the joint family
property it is known as blending.
 Contd.
- In Mallesappa v. mallappa, 1961 SC 1268 –
Gajendragadkar.J , said that ‘the conduct on which
the plea of blending is based must clearly and
unequivocally show the intention of the owner of
the separate property to convert his property into an
item of joint family property,
- A mere intention to benefit the members of the
family by allowing them the use of the income from
the separate property may not necessarily be enough
to justify an inference of blending’.
 Contd.
In Narayanan v. Radhakrishna 1976, SC 1715 – Shah
J – said, ‘ the separate property or self-acquired
property of a coparcener may be impressed with the
character of joint family property, if it is voluntarily
thrown by the owner into the common stock with the
intention of abandoning his separate claim therein,
-but to establish such abandonment, a clear intention
by waiver of separate rights must be established.
 Recovered joint family property
 When one coparcener, without any assistance
from the joint family funds or from his fellow
coparceners recovers with the acquiescence of
his coparceners, ancestral property which has
been lost to the joint family without any
possibility of recovery, the property so
recovered will be:
 The separate property of the recovered.
 Accretions
• Accretions are all incomes, accumulations, or
acquisitions of property made with the joint family
nucleus. It includes:
a) Accumulations of income of the joint family property;
b) Property purchased or acquired with the intention of
the joint family, and
c) Proceeds of the sale of joint family property or
property purchased out of such sale-proceeds;
- These have been, all along, accepted as part and parcel
of joint family property.
Separate or Self- Acquired Property
• Yajnavalkya sums up the doctrine of self-
acquisition as:
 whatever is acquired by the coparcener himself,
Without detriment to the father’s estate,
 As a present from a friend, or
 A gift at nuptial,
 Does not appertain to the co-heirs,
 Earning remuneration, fee or commission, an
element of skill or labour may also be involved.
 Rights of coparceners
• To sum up: every coparcener has,
 Right of joint ownership;
 Right of joint possession;
 Enjoyment and use of joint family property;
 Right of survivorship;
 Right of alienation of undivided interest under certain
circumstances;
 Right to seek maintenance;
 Right to challenge improper alienation made by Karta or any
coparcener;
 Right to partition;
 Karta
Introduction:
o He is called as the manager of the JHF.
o He possess a pivotal position.
o No office or institution in any other system of the world
which can be compared with it.
o His position is sui generis – Sui generis is a Latin
phrase, meaning "of its own kind/genus" and hence
"unique in its characteristics".
o person with limited powers but within the ambit of his
sphere, he possesses such vast powers as are possessed by
none else.
 Who can be Karta
o Senior male member:
o Junior male member: with the consent of all other
coparceners and they can withdraw their consent any
time.
o Female members: the SC in Commr. Of Income Tax v.
Seth Govind Ram 1966 SC 2 , after reviewing the Hindu
texts, held – only the coparcener can be Karta, as female
is not a coparcener she can not be Karta.
o After coming into force of Amendment Act of 2005, a
woman is now a coparcener, the bar of her becoming a
Karta should also be no longer there.
 Karta’s Liabilities
1. Responsible to maintain all members of the family &
coparceners;
2. Exclusion to maintain or does not properly maintain - can be
sued;
3. Responsible for performing the marriage of all unmarried
members in the family; especially towards the daughters;
4. He has to prepare and maintain the accounts;
5. He represents the family vis-à-vis the government and all
outsiders
6. He has to pay taxes and other dues to the authorities
7. He can be sued on behalf of the family members by the
government and also by outsiders
 Karta’s powers
1. Powers of management;
2. Right to income;
3. Right to representation; ‘legal, social & religious’
4. Power of compromise; - before the court and also with
the member of the society
5. Power to refer a dispute to arbitration;
6. Power of acknowledgment;
7. Power to contract debt;
8. Power to enter into contract
9. Power to alienate;
 Power of alienation
• According to Vignaneshwara there are 3 exceptional cases in
which alienation of joint family property could be made:
1. Apatkale – in the time of distress
2. Kutumbarthe – for the sake of family (maintenance)
3. Dharmarthe – for the performance of indispensable duties
The other words used are –
4. Legal necessity – which includes apatkale as well as
kutumbarthe,
5. Benefit of estate – includes part of kutumbarthe,
6. Acts of indispensable duty – includes the whole of
dharmarthe
 Dayabhaga Joint family
• Under Dayabhaga there is no joint family between son and
father;
• There is no concept coparcenary as in mitakshara;
• Son has no right by birth, so father can give away his
immovable properties without the consent of any other male
member in the family;
• All properties – coparcenary or self acquired devolve by
succession;
• If a son dies leaving behind a widow or daughter, then she
will succeed and become a coparcener – thus dayabhaga
school of law recognizes woman to be coparcener;
 Contd.
• There can not be coparcenary of father and son, grand
father and grand son, though it can be of uncles and
nephews;
• Dayabhaga coparcener takes a defined share; there is no
fluctuations by births and deaths in the family;
• Doctrine of survivorship is not applicable;
• All heritage is saprthibandadaya (obstructed) and no
concept of aprathibandadaya;
• Every coparcener takes a defined share and he is entitled to
alienate the same.
• Karta – different in enjoyment of powers and liabilities