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HINDU JOINT FAMILY

WEEK 2 and 3
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TOPICS TO BE COVERED:
• CLASSICAL HINDU LAW: Coparceners and Coparcenary Property
• Features of Joint Hindu Family and coparcenary
• Nature of property
• Distinction between ancestral and self-acquired property.
• Rights of coparceners.
• Female as a Coparcener- Legislative Changes
• Abolition of the Joint Family in Kerala
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Cases
1. Commissioner of Income Tax v. G. Lakshmninarayan AIR 1935 Bom 412
2. State Bank of India v. Ghamandi Ram AIR1969SC1330
3. Moro Vishwanath v. Ganesh Vithal (1873) 10 Bom. 444
4. CWT v. Late R Sridharan & CWT v. Rosa Maria Steinbicher Sridharan
(1976) 4 SCC 489
5. Revanasiddappa and Anr. v. Mallikarjun and Ors. (2011)11SCC1
6. Muhammad Husain Khan v. Babu Kishva Nandan Sahai, AIR 1937 PC 233
7. C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495
8. Smt. Dipo v. Wassan Singh, AIR 1983 SC 846
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• The joint and undivided family is the normal condition of Hindu society
and it comes first in historical order.

• The law of inheritance is of later growth and in general, applies only to

property hold in absolute severalty by the last owner (separate property/
Self-acquired property), as distinguished from property held by a
Mitakshara joint family (Joint family property).
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• LAW OF INHERITANCE:
• The governing law for inheritance for is the Hindu Succession Act, 1956.
• The Hindu Succession Act primarily deals with the devolution of property of
a person dying intestate.
• Over-riding application has been given to the act and in effect, it repeals all
previous laws relating to intestate succession whether textual customary or
statutory.
• Some principles of Classical Hindu law still applies, which has not been
specifically repealed by the Hindu Succession Act,1956 and the Hindu
Succession Amendment Act, 2005.
• The classical law still governs the rules of partition and remains
unmodified except for Section 6 of the HSA, which deals with devolution of
joint family property.
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Hindu Joint Family: Salient Features

• It is a unit represented by its Karta/manager
• Not a corporation
• Not a separate legal entity distinct from its members
• It is a creation of law and cannot be created by the act of the members or by
an agreement between the parties. It is a unit in which status of a member can
be acquired only by birth, adoption or marriage.
• Not a juristic person capable of holding property separate from its
members
• Unity of ownership of the joint family property if any amongst the coparceners.
• Unity of possession of such property amongst its coparceners.
• Unity of juristic existence of the joint family in dealing with a third party.
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Composition of a Joint Family

• Common male ancestor
• All his lineal male descendants up to any generation
• Wives/widows of common ancestor and lineal male descendants
• Unmarried daughters of common ancestors and male descendants
• Under classical Hindu law, On marriage, daughter ceases to be a part of her
father’s joint family and joins her husband’s joint family as a wife/member.
• Now, after 2005 (as per S 6 HSA), as Daughters are coparceners, they remain members
of the family of their birth even post marriage.
• A daughter who becomes a widow or is deserted by her husband and returns to
her father’s house permanently. Under classical Hindu Law, her children
continue to be members in their father’s joint family.
• Now, as per S 6 HSA, children of daughter (who is coparcener) will be considered both
part of their mother’s and father’s family.
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Common male ancestor

• Necessary to bring joint family into existence
• Not necessary for continuance of the joint family
• Joint family can continue indefinitely despite the death of the common
ancestor
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Case: CIT v Lakshminaryan, AIR 1935 Bom. 412

• Rangnekar, J.: Composition of Hindu Joint Family
• Under the Hindu law, an undivided Hindu family is composed of (a) males, and
(b) females.
• The males are (1) those that are lineally connected in the male line, (2)
collaterals, (3) relations by adoption, and (4) poor dependents.
• The female members are (1) the wife or the "widowed wife" of a male
member, and (2) maiden daughters.
• Female-slaves and illegitimate sons also as being members of an undivided
Hindu. family. (NOTE: considered under Classical Hindu law only.)
• A child in a womb is also deemed to be a member of HJF
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Addition of members
• One becomes part of a joint family by:
• Birth
• Adoption
• Marriage to a male member
• New members cannot be admitted by agreement
• If 2-3 families start living together, sharing resources, work, responsibilities
and benefits, they form a composite family, but not a joint family
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Ouster of members/ Termination of membership of HJF

• Unmarried daughter on marriage (may regain her status) (Pre-2005)
• Post 2005: S 6, HSA: Now as Daughters are coparceners, they remain members of
the family of their birth even post marriage.

• A male or female child on being given on adoption.

• The adopted child becomes the member of the joint family of his or her adoptive father and
looses the membership of the joint family of his or her birth.
• Male member on marriage to a non-Hindu under SMA, 1954
• Automatic severance from joint family
• Cannot become a member even by agreement
• Conversion
• Automatic severance from joint family as no longer Hindus.
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CONVERSION: Caste Disabilities Removal Act, 1850

• Under classical Hindu law, the general rule is that from a Hindu only Hindu can
inherit. So, if a Hindu converted, he forfeited his rights of inheritance/property
rights and was expelled from his Hindu joint family.
• STATUTORY REFORM: In order to protect the rights of convert, the Caste
Disabilities Removal Act was promulgated in the whole of India in 1850.
• Effect of Caste Disabilities Removal Act, 1850:
• The Hindu Joint family could have only Hindus as its members and after
conversion there would be an automatic severance/partition of the convert
from the joint family and he would be entitled to take his share as it
stood on the day of conversion.
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Rules of Presumptions: Presumption of Jointness

• Presumption that every Hindu family is a joint Hindu family
• Presumed that members of a Hindu family are living in a state of
jointness, unless contrary is proved
• The presumption is stronger among nearer relations, the remoter we go
the weaker the presumption
• Normally, joint in food, worship, estate. But even if not joint in any or
all of them, does not imply it has ceased to be a joint family. Mere
severance in food and worship does not operate as a separation.
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Presumption of jointness contd.

• JOINT PROPERTY, NOT A PRE-REQUISITE:
• Existence of joint property is not a condition precedent for existence of joint family
• No presumption that joint family possesses joint property. Property operates only as an
additional feature and it is necessary neither for its constitution nor for its
continuance. The law neither requires nor presumes the ownership of such property
on the part of any joint family
• MERELY BECAUSE THE FAMILY IS JOINT THERE IS NO CONCLUSIVE
PRESUMPTION OF JOINT PROPERTY:
• No presumption that property held or business conducted by a member of joint Hindu family
is joint family business. The initial burden of proof always lies upon the party asserting
that any item of property is joint property of the family.
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Continuation of joint family

• Under CHL, Presence of a male member is essential to constitute/start a
Hindu joint family
• POST 2005, As Daughters are coparceners- Both male as well as female members
can start the HUF.
• Continuation of a joint family is not dependent upon the presence of a
male member
• There is no specificity in the number of members (only requirement of 2
individuals) required for the existence of a Hindu joint family nor is there a
requirement of the existence of certain number of male member or female
members.
• It ends by the death of all members capable to form such family
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Continuation of joint family contd….

• A single Hindu male or female cannot make a Hindu joint family, even if
assets are ancestral.
• There need not be two male members to constitute a Hindu undivided
family.
• The joint family does not cease to exist because of the temporary
reduction of the coparcenary unit to a single individual.
• Even on the death of sole surviving coparcener, the Hindu joint family does
not come to an end so long as it is possible in nature or law to add a male
member to it (under CHL, post 2005 daughters may be added as well).
• The nature of the family and the character of the property remains the same.
• A single/sole surviving coparcener can use the joint family property as separate property
only after he has fulfilled the obligations of maintaining the female members of the
joint family.
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ILLUSTRATIONS OF HJF:
• A Hindu Joint Family may consist of a single male member and
widows of deceased male members.
• A male Hindu, his wife and son/unmarried daughter
• A male Hindu and widow of his deceased brother
• A male Hindu, his mother and son and the son’s wife
• A male Hindu and his wife
• A male Hindu and his mother
• All widows
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Rights of members
• All members do not have equal rights
• Coparceners—interest in the coparcenary property
• Females and non-coparcener male members, disqualified coparceners: right
of maintenance and right of residence in the joint family house
• Unmarried daughters: right to be married out of the joint family funds
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Hypos:
• Can two widows comprise a Hindu Joint Family?
• Yes, if there is the potentiality of the widows to bring a male member into existence- either
by nature or by law (adoption)
• Post 2005, even adoption/birth of a Daughter would suffice.
• Can two daughters comprise a Hindu Joint Family?
• Yes
• S 8 HAMA, 1956: Enables a female Hindu to adopt a son or daughter
• S 6 HSA, 1956 (2005 amendment): Daughter of a coparcener would become a coparcener
in her own right.
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HYPO
• Can a son of a Hindu father and mother married under the
Special marriage act be considered as a member of his
father’s joint family?
• Whether the son is governed by Hindu law?
• See: CWT v. Late R Sridharan & CWT v. Rosa Maria Steinbicher Sridharan
(1976) 4 SCC 489
• Rule: Legitimate children of a Hindu father by a Christian mother who are
brought up as Hindus would be governed by Hindu Law. Thus, son of a
Hindu father and mother married under the Special marriage act will be a
member of his father’s joint family
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Hindu Undivided Family

• For tax assessment purposes.
• Section 2 (9) of the Income Tax Act, 1922 defines a ‘person’ to include a “Hindu
Undivided Family’. HUF is not defined in the Income Tax Act; has the same
connotation as Hindu Joint Family.
• Concept of HUF without owning a property is meaningless; the concept of HUF
arises for tax assessment purposes only.
• A person will be allowed a larger exemption if he is taxed as a manager of a
joint Hindu family than, if he is taxed as an individual.
• Separate tax slab for HUF
• If money is spent for maintenance of a joint family member, it can be shown as an expense.
Family day to day expenses can be deducted from the income of the HUF upto 1 lakh.
• Medical Insurance- upto Rs. 50,000 deduction
• A mother can be assessed as the head/manager for tax assessment of HUF even
though she may not be the Karta of a joint family (HJF)
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• The most widely used option to save income tax is section 80C of the Income
Tax Act. As per this section, if an individual or Hindu Undivided Families
(HUFs) invests in or spends on specified avenues then up to Rs 1.5 lakh, as
per the current laws, of this investment/expenditure can be claimed as a
deduction from gross total income before calculating tax payable on it in a
financial year.
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HJF v HUF
Hindu Joint Family Hindu Undivided Family
1 Every Hindu family is presumed to There is no such presumption of
be joint Hindu Family until Hindu Undivided Family
contrary is proved
2 There is no presumption that it The concept of Hindu undivided
owns Joint Family property family is linked only with the
property
3 A child in the womb is treated, in For the purpose of revenue laws,
many respect, equivalent to a such a child is not considered till it
member in existence is born alive
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Hypo:
• There was a joint Hindu family consisting of a father and his wife and a son
and his wife. The father died in 1929 before the year of assessment, so the
joint Hindu family then consisted of the son, his mother and his wife. The
son is the sole surviving coparcener and the ancestral property was passed on
to him. He is the assesse (tax payer) in this case who is liable to pay taxes on
the income received from the ancestral property.
• Q: Whether every Hindu who possesses a wife and a mother is necessarily a member
of a joint Hindu family?
• Q: Whether the assesse son is to be assessed as an individual or as a member of the
Hindu undivided family (a larger exemption if he is taxed as the manager of a joint
Hindu family than if he is taxed as an individual)?
• See: CIT v Lakshminaryan, AIR 1935 Bom. 412
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DISCUSSION:

• The joint family has outlived its utility and it is nothing more than an
anachronism in modem India. Is it correct?

• What is left of Joint family when nuclear families have become the norm?

• Why did not Parliament make short work of joint family (Mitakshara) when it
was about the task of reform in the Hindu "Code"?
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The Hindu Joint Family- S. Chandrasekhar: THE FUTURE OF THE JOINT FAMILY

• The Hindu joint family in India has played a very distinct and useful role in the evolution of
Indian economic development.
• But today the quasi prosperous conditions of a pre-Muslim era which brought it into existence
and the distress conditions of a post-Muslim and pre-British era that fostered its growth and
preserved it have definitely passed away.
• The impact of the British conquest on India has resulted in a transitional social economy, and
this indigenous institution fails to fit in.
• In a word, the joint family has outlived its utility and it is nothing more than an
anachronism in modern India.
• The almost sudden superimposition of a Western pattern of life and a European
civilization on Indian society has shaken it rudely, but unfortunately it has not been
completely destroyed.
• Revolutions in altering family traditions and ideals are not wrought overnight and reform has
been slow.
• The pernicious influence of the joint family still persists in parts of India with a tenacity that is
alarming.
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Law and the Predicament of the Hindu Joint Family – JDM Derrett
• In short, while the Mitakshara joint family exists, and in the respects in which it
exists, it is as vigorous as it was originally intended to be, and is still capable
of performing its traditional service. Much has been bitten from the cake,
but what is left has the old flavour.
• Observers find very little difference here between town-dwellers and others,
government servants and agriculturists: the methods of earning differ and the
demands made upon one by the mode of life differ; but the natural family,
with the relationship between father and son as its pivot, continues—and
all else, being peripheral, may stay or go, is immaterial.
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Patriarchy, religion and capitalism: HUF and the unit of

organization of Capital (Chirashree Das Gupta)
• Hazari Report (1967): Official identification of the ‘business group’ as the basic
institutional unit of organization of Indian monopoly capital.
• Activities controlled by a single decision making authority- Functioning as a co-
ordinated organization.
• Monopoly capital in India: consisted of the predominance of a few representative
units of organization of capital in most areas of industry and trade.
• Key houses of business found ways to maintain control over decision
making through the institutional structure of the family run business home.
• Unique interstices of gender, property and religion in the facilitation of
family-run business house as the locus of organization of monopoly
capital in India
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• The ways in which the family control over the organizational structure of
business groups and the ownership of wealth generated through these
structures were maintained:
• Legal provisions of ‘corporate governance’ structures that facilitated
the optimum mix of various forms of registered companies like
partnerships, private limited companies, unregistered and registered
public limited companies under the umbrella group through interlocking
share-holdings.
• Indian Partnerships Act, 1932 and the Companies Act, 1956.
• Risk spreading + avenue to escape the minimal restrictions on expansion
under Monopolies and Restrictive Trade Practices after 1973.
• Labour Deployment and control with employers often making sure that each
company only had less than 7 employees and pre-empting any possibility of
trade union formation under the stipulations of the Trade Union Act of 1926.
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• 1947 to 1956:
• Codification of Hindu Personal laws as the starting point in nation
building
• Big Capitalists played a major role in dilution of Ambedkar’s
Hindu Code Bill as well as formulation of 4 separate acts on
marriage, guardianship, succession and adoption.
• All of these together had a very significant implications for the
subsequent institutionalization of the HUF as the institutional basis
of organization of the business group.
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IMPACT AND PROCESS OF CODIFICATION:

• First:
• A Hindu was defined as anyone who was not a Muslim, Christian, Parsi or
Jew and thus by default included followers of other institutionalized
religions like Buddhism, Jainism and Sikhism as Hindu, not to mention
theistic practices outside the domain of organized religion like those of Adivasis
• Thus, the onus was on the individual to prove if necessary that she/he is not
a Hindu
• To quote Dr Ambedkar: Constituent Assembly Debates (1947)
• “The result is that if a tribal individual chooses to say that he is not a Hindu it
would be perfectly open to him under this Code to give evidence in support of
his contention that he is not a Hindu and if that conclusion is accepted by the
Court he certainly would not be obligated by anything contained in this Bill….
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• SECOND:
• It institutionalised monogamy and made polygamy illegal for
Hindus
• It instituted recognition of both Dayabhaga and Mitakshara
property holdings
• It instituted marriage only between two Hindus into the ambit of
Code.
• Adoption and succession was to be defined in jurisprudence
by ‘custom laws’ institutionalizing male lineage of descent
as the ‘natural’ inheritors of property and the expropriation
of any right to property of children born outside of marriage.
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• THIRD:
• It created the legal space for any Hindu male to break away from the ‘joint
family’ and start a new HUF as long as he was married.
• Thus, even as families went nuclear, the ‘HUF’ could be perpetuated as a
legal entity as each nuclear family marked the beginning of new ‘HUF’
• Thus, the patriarchal basis of the property rights structure was
institutionalised in the organization of wealth and property in India.
• Women were denied equal share in all property.
• Specifically they were denied any property right on land on the feeble
plea to prevent ‘fragmentation of land’.
• Thus, with the aid of two definitions, that of a Hindu and that of the HUF-
religion, caste and patriarchy were installed as institutional basis for
determining property rights.
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HUF as a Tax entity

• Use of HUF as a legal tax entity separate and distinct from individuals and corporates
(which were firms defined under the Companies and the Partnership Act)
• While all other body corporate recognised in corporate and individual income tax laws
are defined on the basis of company law, the HUF as a legal entity in Indian tax law is
defined on the basis of Hindu personal law.
• After defining the HUF through codification of personal laws in 1955-56, the state then took
the next step to perpetuate the HUF as an entity recognised by Section 2 of the Income
Tax Act 1961 by preserving its status in continuation from the colonial income tax laws of
1876 and 1922.
• A Hindu male can be a ‘karta’ for more than one HUF accounts.
• Despite scores of judicial decisions, the circumstances in which a HUF comes into existence
have been the subject of debate and controversy.
• Under the Income Tax Act, 1961, a HUF is assessed for income tax as a distinct unit of
assessment.
• In case law, a HUF consists of all persons lineally descended from a common ancestor
and includes their wives and unmarried daughters
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HUF as a Tax entity

o HUF as a legal tax entity distinct and separate from individuals and corporates:
 HUF as a legal entity in Indian tax law is defined on the basis of Hindu personal law.
 A Hindu male can be a karta for more than one HUF accounts.
 Under the Income Tax Act, 1961, a HUF is assessed for income tax as a distinct unit of assessment.
 A member of a HUF is not taxable at for any sum that he receives as a HUF member out of the
income of the family, even though the family may not have paid the tax on its income.
 The privilege cannot be ascertained by how much tax a HUF pays, but how much of its wealth is
not taxed at all by virtue of being declared as ‘family income’.
 An individual can organise their wealth across multiple HUFs and thus reduce their liability.
 The general principle of tax law that income from an individual members’ property thrown into the
family coiffeur is taxable, as the income of the joint family, does not hold for a HUF.
 Assumption - nobody can make a profit out of one’s self. The entity of the HUF is an exception to this
principle.
 An HUF cannot enter into a partnership with other persons, as it is not a legal person, but the karta of a
HUF can.
 HUF, both old and new capitalist business house, is used as a way to consolidate tax holdings.
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HUF as a Tax entity

• The Hindu Undivided Family (HUF) serves as a distinct
tax entity, enabling consolidation and tax-saving for
Hindu males.

• The HUF's significance persists, offering family control

in corporate entities and aiding wealth organisation.

• It remains a unique tax-saving tool for Hindu NRIs,

contributing to the integration of modern and traditional
wealth management in family-owned business groups.
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The nuclear family is on the decline in India– John Samuel Raja D

• Scarce housing and more women working in urban areas may together be
spurring the return of the joint family, but in new and myriad forms.
• Between 2001 and 2011, the percentage of nuclear families as a
percentage of all families actually declined slightly, from 70.34% to
70.11%. The number of nuclear families increased in absolute terms, from 135
million in 2001 to 172 million in 2011, but at a slower pace than the overall
population.
• Of the 35 states and union territories for which comparable data was available
for both time periods, 20 showed declines in the share of nuclear families of up
to 7.6 percentage points. This included four states that lead the way in
economic activity: Gujarat (6.05 percentage points), Maharashtra (4.11
percentage points), Karnataka (3.33 percentage points) and Haryana (2.58
percentage points).
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Contd….
• In urban areas, with scarcity of housing, there is a tendency of families to stay
together. Also, increasingly, we see a new kind of nuclear family, where both
the wife and the husband are working. So, they don’t mind having one of
their parents living with them to balance taking care of children and work.
• India is seeing a rising number of cases of divorce and separation, single
parents, and people marrying late or opting to stay single.
• In this context, the only data point the Census gives for both periods is the
number of one-member households – a proxy for people living alone.
Between 2001 and 2011, this number has grown from 6.8 million to 9.04
million. That’s an increase of 33%, which is greater than the rate of population
growth (28.2%) or the increase in the number of nuclear families during this
period (27.4%).
• Indian society might be beginning the third arc in the fragmentation of the
family unit: from joint families to nuclear families to disparate set-ups.
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The Kerala Joint Hindu Family (Abolition) Act, 1975

• Concept of joint Family doesn’t exist
• Scope: Applied to undivided families governed by Mitakshara law as well as
matriarchal families- Tarvad or Thavazhi, Kurumba or Kavaru or an Illom
• Changes introduced:
• Abolished joint family system amongst Hindus in Kerala
• Abolished right by birth of coparceners and replaced joint tenancy (right of
survivorship) by tenancy in common
• On the date of coming into force of this Act, it was presumed that a partition had taken
place in every family and each person who was earlier entitled to get a share was
deemed to hold his share as his distinct, separate and absolute property
• If under the custom a female was entitled to ask for partition or was to be
granted a share in the property in lieu of her maintenance or marriage
expenses, then only she was entitled to a share In the property.
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Kerala Contd…..
• Act safeguarded rights of those family members who were not coparceners
and were not entitled to get a share.
• Right of residence
• Right of maintenance
• Right to marriage expenses
• Payment of marriage expenses out of Joint Family Fund
• Abolished the pious obligation of the son to repay debts of father, paternal
grandfather or paternal great grandfather (prospective not retrospective)
• Head of family even where all members are living together for the sake
of convenience has to be assessed as an individual and not as head of
joint family.
• Right of inheritance has replaced the doctrine of survivorship in which
daughters have equal share with the sons
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COPARCENARY
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Coparcenary
• Narrower body of persons within the joint family
• Started as a spiritual concept i.e. who can offer spiritual salvation by
performance of funeral rites i.e. son, grandson and great grandson
• It includes only those persons who acquire by birth an interest in the joint or
coparcenary property i.e. Related by blood/consanguinity or adoption (not
marriage, not agreement)
• Illegitimate sons are not coparceners
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Composition of Coparcenary: Fourth generation rule

• Composition: A common male ancestor with his lineal

descendants in the male line within four degrees
counting from, and inclusive of, such ancestor i.e.
• Father
• Son
• Son’s son (grandson)
• Son’s son’s son (great grandson)
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Doctrine of Representation
• Represent his branch for succession as well as partition.
• The doctrine of representation is utilized for two purposes: (i) for
determining the heirs, and (ii) for determining the quantum of share of an
heir or a group of heirs.
• Doctrine of representation is a limitation to doctrine of survivorship. It does not
apply to daughters. (Pre-2005)
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Illustration: Constitution of Coparcenary:

IA

II B C D E

III F G H I J

IV K L

V M

• Example of a coparcenary- A male Hindu ‘A’ has four sons B, C, D and E. B has two
sons F and G, C has two sons H and I, D has one son J and E has no son. I has two
sons K and L, K has one son M.
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Last holder of property

• Last holder of property: Senior-most living lineal male ancestor
• Rule: So long as one is not removed by more than four degrees from the
last holder of the property, howsoever removed he may be from the
original holder/common ancestor, one will be a coparcener. If one is
removed by more than four degrees, not a coparcener. (Fourth generation
rule)
• So, the coparcenary is not limited to four degrees from the common
ancestor (original holder of coparcenary property). A member of a joint
family may be removed more than four degrees from the common ancestor
and then also be a coparcener.
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Illustration 1:
• A

• B C D E
•
• E F H

• G I
•
J
If A die, leaving B, a son E a grandson, G a great-grandson, and
J, a great-great-grandson, the intermediate persons having all
predeceased him, J, who stands fifth in descent from A
cannot demand a partition of A’s property, because J had
not vested in him by birth any interest in such property
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RULE: Last holder of property

• When a member of a joint family is removed more

than four degrees from the last holder of property,
he cannot demand for partition and therefore is
not a coparcener. On the death, however, of
the last holder, he would become a member of
the coparcenary, if he was fifth in descent
from him and would be entitled to a share on
partition.
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Illustration 2
A

• B

• C

• D

E F
 56

Illustration 2:

• A, the original owner of the property in dispute, dies, leaving

a son B and a grandson C, both members of an undivided
family. B dies, leaving C and D, son and grandson, respectively;
and C dies, leaving a son D and two grandsons by him, E and
F. No partition of the family property has taken place, and D, E,
and F, are living in a state of union. Can E and F compel D to
make over to them their share of the ancestral property?
• According to the law prevailing on this side of India they can, sons
being equally interested with their father in ancestral property.
• In the same way, suppose B and C die, leaving A and D
members of an undivided family after which A dies whereupon
the whole of his property devolves upon D who thereafter has
two sons E and F. They, or either of them, can likewise sue their
father D for partition of the said property, it being ancestral.
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RULE: Last holder of property

• Whenever there is a break of more than three degrees between the holder
of property and the person who claims to enter the coparcenary after his
death i.e. his father, grandfather and great-grandfather had all
predeceased the last holder- the line ceases to exist in that direction and
survivorship is confined to collaterals (doctrine of survivorship) or
descendants (doctrine of representation) who are within the four degrees.
 58

Illustration 3:
A

• B

• C D1

• D

E F

G
 59

Illustration 3:
• Now, suppose B and C die, leaving A, D, and DI, members of an undivided family,
after which A dies, whereupon the whole of his property devolves upon D and
D1 jointly, and that D thereafter has two sons E and F, leaving whom D dies. A suit
against D1 for partition of the joint ancestral property of the family would be
perfectly open to E and F; or even to G and F, if E died before the suit. It would be a
suit against D1 by a deceased brother’s sons or son and grandson .

• But E and F are both fifth and G sixth in descent from the original owner of the
property, whereas D and D1 are only fourth. Suppose, however, that A dies after D,
leaving a great-grandson D1 and the two sons of D, E, and F. In this case E and F
could not sue D1 for partition of property descending from A, because it is inherited
by D1 alone, since, E and F, being sons of a great-grandson, are excluded by D1,
A’s surviving great-grandson, the right of representation extending no further.
 60

Continuance of coparcenary
• Single person cannot form a coparcenary
• Presence of a senior most male member is necessary to start a
coparcenary
• Father-son relationship necessary to begin the coparcenary but not for
its continuance
• Therefore, coparcenary can exist between grandfather-grandson; uncle-
nephew; brothers, etc.
• At least two male members required to continue the coparcenary
• Coparcenary may continue indefinitely provided there are at least two male
members (coparceners) maintaining the joint family status.
 61

Undivided Coparcenary Interest: Unity of ownership and

Possession
• Essence of coparcenary is the unity of ownership
• No individual of a family can assess his specific share as the
coparcenary interest fluctuates by the death/birth of a male member
within the four degrees.
• Therefore the most appropriate term to describe the interest of a coparcener in
the coparcenary property is ‘undivided coparcenary interest’.
• Coparcenary property is held in collective ownership by all the coparceners
in a quasi-corporate capacity.
 62

Devolution of the deceased coparcener’s interest

• On the death of a coparcener, his interest in the coparcenary property
does not pass by succession to his heirs. It passes by survivorship to the
other coparceners.
• SURVIVORSHIP: Where the deceased coparcener leaves a male lineal
descendant- they represent his right to share on partition.
• What passes to the male issue is not a share but the right to have a share
on partition.
• For example: A and B are two brothers and A has a son C and B has a son D. On A’s death,
his undivided interest will pass to the surviving coparceners (B, C and D.) C cannot, while
the family is joint, claim for a sum of money alleging that it is father’s share. But if the family
comes to a partition, C will take one-half of the property, that being his father’s share and B
and D will take the other half.
 63

Sole surviving coparcener

• When all coparceners die except one
• Sole surviving coparcener cannot form a coparcenary on his own
• Sole surviving coparcener may treat coparcenary property as his separate
property and enjoy absolute powers over its disposal
• Subject to right to maintenance of female members
• On his death, property does not devolve by survivorship, but goes to his
legal heirs
• If another coparcener comes into existence, coparcenary is revived
 64

Insanity
• Under the Classical Hindu Law an insane lineal descendant has his rights in
partition are suspended till he recovers.
• No right to claim partition
• No right to a share on partition
• Can be a coparcener. Insanity does not take away the interest that is acquired by birth.
When cured of insanity, both rights revive. He may reopen partition.
• Son of insane person is also entitled for a share.
• Disqualification has been removed by HSA (for inheritance)
 65

Incidents/Characteristics of Coparcenership
• Creation of Law:
• Unit within joint Hindu family
• Four generation Rule:
• The lineal male descendants of a person up to the third generation
• Acquisition of interest by birth:
• Acquire on birth ownership in the ancestral properties is common.
• Community of interest.
• Each member has got ownership extending over the entire property, conjointly with the rest. Such
descendants can at any time, work out their rights by asking for partition.
• Unity of Possession:
• As a result of such co- ownership the possession and enjoyment of the properties is common
• No alienation of the property is possible unless it be for necessity, without the concurrence of the
coparceners, and
• Unpredictable and fluctuating Interest:
• Doctrine of Survivorship
• The interest of a deceased member lapses on his death to the survivors.
 66

Rights of a Coparcener:
• Right by Birth in the Coparcenary property/joint family
property/ancestral property
• Right of Common Ownership i.e. joint possession
• Right of common enjoyment of joint family property/coparcenary
property
• Community of interest and unity of possession; communal ownership
• Possession of one is possession of all
• No right to exclusive possession
• Until partition, the interest is unpredictable and fluctuating
• Interest may be enlarged by deaths and diminished by births
• It signifies joint liabilities to pay off the debts due to the family.
• A temporary absence of a coparcener does not mean an ouster from possession.
 67

Rights of a Coparcener:
• Right of survivorship
• The shares of coparceners are not specific and subject to change with the births and deaths
of coparceners in the family
• Doctrine of Fluctuating Interest:
• Coparceners have a right by birth in the property and the moment a son is born he acquires an
interest in the property. After death of a coparcener, his interest passes to others by survivorship
• Personal debts cannot be enforced against the coparcener’s interest after his death
• Right to demand partition
• Right to accounts
• Right to be maintained
• Members who do not get a share on partition (e.g. idiot or lunatic coparcener and unmarried
daughters) are entitled to maintenance even after partition
• Includes right of marriages expenses out of joint family funds
• Includes illegitimate children
 68

Rights of a Coparcener:
• Right to challenge an unauthorized alienation
• Bound by alienation made by Karta for legal necessity or benefit of estate and by legitimate
acts of management of the Karta
• Right to challenge alienations made without his consent or made without legal necessity
(unauthorized alienations)
• Right to make acquisitions/separate income
• Right to renounce his interest
• Renunciation must be of the entire interest in the coparcenary property and in the interest of
the whole coparcenary body.
• Right to restrain improper acts of Karta
 69

Ouster from coparcenary

• Conversion
• Marriage to a non-Hindu under Special Marriage Act, 1954
 70

HJF v Coparcenary
Hindu Joint Family Coparcenary
1 The Joint family is a bigger There can never exist a
institution and includes a coparcenary without a Hindu
coparcenary within it. Thus, there Joint Family
can be a joint family without
coparcenary

2 There is no presumption in law It is presently understood to

that a Joint Family has any determine the rights and
property at all obligations of the members of the
joint family over the property.
(Karta as the ‘last holder of the
property’)

3 No limitation on the number of Limited to four generations of

members in the Joint Family male members only
 71

HJF v Coparcenary
S.No. Hindu Joint Family Coparcenary

4 Members can be added by Members can be added only by

birth, adoption or even by birth or valid adoption
marriage of lineal ascendants
5 All members do not have All members have interest in
equal rights over the joint coparcenary property by birth and
family property (Right of have a right to demand partition of
maintenance, residence , their interest in this property
partition, etc.)
6 Disqualified coparceners Disqualified coparceners not
(like illegitimate sons) are members even though they may
members of joint family be within the four generations from
the last holder of property &
cannot ask for partition
 72

HJF v Coparcenary
S.No. Hindu Joint Family Coparcenary

7 A HJF may consist of only two For coparcenary, at least 2

male or a male member and coparceners (son/daughter) are
2 or more female members. required.
For ex, a Hindu male can form
a joint family with his wife but
cannot form a coparcenary all
by himself
 73

Women as coparceners
• Pre-2005:
• Women (wife/widow/daughter/mother/daughter-in-law) cannot be
coparceners
• Post-2005:
• Hindu Succession (Amendment) Act, 2005
• Daughter has been introduced as a coparcener
• Females who become part of family on marriage
(wife/widow/mother/daughter-in-law) are not coparceners
 74

CONCEPT OF PROPERTY
 75

TWO SYSTEMS OF INHERITANCE: Schools of Hindu Law

• Under Classical Hindu Law, There were two systems of inheritance

amongst the Hindus in India namely, MITAKSHARA and DAYABHAGA
system.
• Dayabhaga: Bengal and Assam, Parts of Bihar and Orissa
• Mitakshara: Rest of India
• HSA, 1956 has abrogated the difference between 2 schools and has
provided a uniform law relating to the succession of Hindus both in
areas governed by Mitakshara as well as Dayabhaga.
 76

• Mitakshara:
• With respect to the joint family under Mitakshara, the son, grandson or
great grandson have a right by birth in the joint family property having
an equal interest with the father.
• Coparcener has a right to ask for partition out of Joint Family
property during the lifetime of father.
• Separate property devolved by Succession.
• Dayabhaga:
• The son or grandson has no such right till the father is alive and he is
master of the property, he can dispose it of at his pleasure. After his
death, property, whether ancestral or separate, devolves by
inheritance or succession.
• It does not recognize the right of a son to ask for partition during the
lifetime of the father.
 77

Modes of Devolution of Property

• Mitakshara:
• Two modes of devolution – Survivorship and Succession.
• The rules of survivorship applies to joint family property and the rules of succession
applies to property held in absolute ownership by the last owner.
• HUF PROPERTY: Doctrine of survivorship: The doctrine of survivorship means that
share in the joint family property on the death of a coparcener devolves on the
surviving coparceners and not the legal heirs.
• ABOLISHED BY S. 6, HSA: DOCTRINE OF NOTIONAL PARTITION WAS
INTRODCUCED.
• SEPARATE PROPERTY: Doctrine of Succession: The doctrine of succession
means that the share on the death of a person will devolve on the surviving heirs.
• MODIFIED AS PER HSA, 1956 which is governing law of Land now.

• DAYABHAGA:
• Only Succession was applicable.
• MODIFIED AS PER HSA, 1956 which is governing law of Land now.
 78

Concept of Property:

• Mitakshara School divides property into two classes namely Joint family property (unobstructed
heritage/ apratibandha daya) and Separate Property (obstructed heritage/sapratibandha daya).
• Joint Family Property
• is the property in which a person acquires a right by birth because the accrual of the right to it
is not affected/obstructed by the existence of the owner.
• Devolves by survivorship
• CLASSICAL HINDU LAW; All properties inherited by a Hindu male from a direct male
ancestor, not exceeding three degrees higher to him, is joint family property as regards his
own male issue (son, son’s son, son’s son’s son)
• RULE CHANGED BY S. 8 OF HSA (separate Property passes by succession/inheritance and
remains as separate property)
• Separate Property
• is the property, the right to which does not accrue by birth but on the death of the last
owner.
• Devolves by succession. Holder has absolute rights of alienation; may dispose it off inter vivos
or through will. A mere spes successionsis (mere chance to succeed to the property)
• Property inherited from other relations, such as paternal uncle, brother, nephew, etc.
• Dayabhaga: does not recognize survivorship/unobstructed heritage, interest accrues only on the
 79

Illustration: SEPARATE PROPERTY

A (B)

S1

• A inherits property from his brother B. A has a son S1. The property WILL
REMAIN in A’s hands. S1 does not take any interest in it during A’s life. After
A’s death, S1 will take the property as A’s heir. The existence of A is an
obstruction to the accrual of any rights in the property to S1.
• S1 only has bare chance of succession (Spes Successionis)
 80

Types of Property under Hindu Law

• Separate/Self-Acquired Property
• Joint Family Property
 81

Separate Property
• Property acquired by any Hindu in individual capacity or through individual
efforts without any detriment to the Hindu joint family property
• No funds taken out of the Joint Family funds.
• Exclusively owned
• Absolute powers of disposal
 82

Examples of Separate property

• Property acquired through learning or special skills
• Property received by way of prize or scholarship
• Property gifted (Transfer by gifts) or bequeathed by any person
through Will:-
• unless the donor or testator expressly makes it a coparcenary property (intention
of the ancestor/testator matters)
• Government grants
• Salary and remuneration received through a job not being in the family joint
business.
• Income of separate property and purchases made with such income
• Property inherited from other relations
 83

Joint Family Property

• Property held jointly by the members of the joint family
• All members have some right over it; rights may not be equal
• Owned collectively by coparceners; every coparcener has a joint interest
and a joint possession. Coparceners acquire an interest by birth
• Limited powers of disposal
• Non-coparceners: right of maintenance, right of residence, right of marriage
expenses
• Funeral expenses of joint family members, other essential religious ceremonies
• Living in a different city or a different house per se does not mean separation
from the joint family. The key element is that partition must have taken place.
• Devolves by survivorship, not succession.
• Sole surviving coparcener: property goes by inheritance to his legal representatives
 84

Property inherited from paternal ancestor:

• Classical Hindu Law: Coparcenary Property
• If A, a male Hindu inherits property from his father, grandfather (father’s father) or great
grandfather (father’s father’s father ), it is ancestral property with respect to his male
issues (Sons, grandsons and great-grandsons). They acquire an interest at their birth. It is
immaterial if at the time of inheritance- A had no sons and the sons were born after the
inheritance. All that is required for the property to be classified as coparcenary property is
for a child to be conceived before the death of A . If A dies without a son/son’s son/son’s
son’s son- then the property will devolve according to rules of succession.

• Property inherited from the father under the Hindu Succession Act, 1956
 85

Illustration:
F

B
• A inherits certain property from his father. A has a son B.
The property so inherited is ancestral in A’s hands, and it
must be held by him in coparcenary with B. B can enforce
partition of it against A, in which event he will be entitled to
one-half. If B continues joint with his father, the whole
property will pass on to him on his father’s death.
• RULE OF THREE GENERATIONS
 86

Property inherited from other relations: Separate Property

• Property that a Hindu male inherits from any relation other than his three
immediate ancestors in the male line, and has no son, son’s son,
son’s son’s son, the property would constitute as his separate/absolute
property.
• EX:
• Property a person inherits from his mother, maternal uncle, maternal
grandfather, maternal grandmother or maternal grandfather from a
collateral.
• Property inherited from a female.
 87

ILLUSTRATION:
(F) Brother

A Brother

• A inherits certain properties from his father. A has no son, grandson or great
grandson but he has a brother or paternal uncle. The brother or uncle does not
take any interest in the property by birth. As regards the brother or uncle, the
property inherited by A is his separate property. He may dispose it by will or
gift it or mortgage it.
 88

Property as Partition Share:

• Share allotted on partition of ancestral property:
• Partition share becomes ancestral property wherein sons (3
generations) acquire interest in such property by birth.
• Qua his other relatives, treated as separate property
• Partition property falling in share of a single coparcener:
• would be treated as his separate property vis--vis his relatives
and he would be competent to alienate/deal with it in any manner he
would like.
• But upon his marriage subsequently when a son is born,
property in his hand would be treated as coparcenary property in
which son(s) as coparceners would get shares
 89

Sources of Joint Family Property

• Ancestral property
• Separate property of coparceners thrown into the common coparcenary
stock: Doctrine of blending (pre-existence of coparcenary property
essential)
• Conversion or blending of separate property of a coparcener into joint family property.
• Voluntary and intentional act of throwing in the property into the common joint family stock.
• Clear intention of coparcener to waive his separate rights;
• no presumption that common use of separate property changes its character to
coparcenary property
• Stamped/registered written instrument not required
• Unilateral act; consent of other coparceners not required
• Irrevocable
 90

Joint Family Property

 91

Joint Family Property:

• When total investment comes from Joint family funds:
• When property bought with the investments out of joint family
funds/gains, then the property is of the nature of joint family
property.
• Temporary Use of Joint Family Property or Taking it by
way of loan:
• When a coparcener takes a loan out of the joint family funds and
starts his own business and pays it back- would constitute its
separate property.
• Any use wholly or partly of the joint family funds or
property: nature of joint family property
• Property acquired partly with Joint Family funds and Partly
with separate funds
• Improvement of Separate property with Joint family funds
• Improvement of Joint Family property with Separate Property
 92

Joint Family Property:

• Doctrine of Accretions: Savings and profits made or earned out of the
sale of or using coparcenary property, would also form part of the
coparcenary property.
• Accumulations of income of ancestral property
• Property purchased out of income or with assistance of ancestral property
• Proceeds of sale of ancestral property and property out of such proceeds are ancestral
property.
 93

Devolution of property from father to

son
• Coparcenary Property Survivorship

Inheritance
• Separate Property
Gift

Will

• Nature of property in the hands of the son with respect to

his male issues?
 94

Devolution of property from father to son

• Coparcenary Property Survivorship Coparcenary

Property
Gift Separate Property,
unless contrary
Will intention expressed by
• Separate Property
father

Ancestral property
Inheritance under classical Hindu
law
But Separate property
under HAS, 1956
 95

Gains of Learning?
• Where a member of joint family acquires some knowledge or specialization
after getting the education at the cost of joint family fund and later on earns a
considerable sum, whether that sum will be treated as his separate property or
joint family property?
• Section 3 and 2 (c) of Hindu Gains of learning Act, 1930, which made earning from learning
ordinary or special the separate and personal property of the acquirer.
 96

Salary and Remuneration?

• If joint family properties are invested in an enterprise, industry or undertaking
and by reason of such investment, the Karta or any other coparcener, whether
on behalf of the family or otherwise, is employed by the concern, industry or
undertaking, will any salary, remuneration, fee or commission that he may
receive in that capacity, be the separate property of the coparcener or Karta or
will it be part of the joint family funds?
• The test is, whether a nexus or connection can be established between the emoluments
given to one coparcener, and detriment to the joint family property.
 97

Insurance?
• If the Karta insures himself, or a member of the family is insured, and premia
are paid out of the joint family funds, then, what would be the character of the
policy and who would be entitled to the benefits of the policy?
• The rule that should be applied should be one of intention, keeping in mind the basic
purpose behind the insurance policy