A project report on

SEPARATE
PROPERTY

Submitted to: Submitted by:

DR. Jaimala Shaan Aora

BcomLLB,Section:C

2nd year, 4th sem

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179/15
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ACKNOWLEDGEMENT

I am highly indebted to my teacher Dr. Jaimala for her guidance and

constant supervision as well as for providing necessary information regarding
the project. The knowledge i have so gathered will be helpful to me all
my life .

I would like to express my gratitude towards my parents and

friends for their kind co-operation and encouragement which helped me in
completion of this project.

SHAAN ARORA
B.COM.LLB.
ROLL.NO.179/15
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INDEX
PARTICULARS PAGE
NUMBER
Classification of property 4
 Joint family property 5
 Separate property 6
 Gains of learning 7
 Salary and remuneration 7
 Income from the joint family 8
property allotted for his
maintainance
 Benefit of insurance 9
 Government grants 10

 Income for separate property 10

 Separate earnings 10

 Property held by sole surviving 10

coparcenery
 Property received by way of gifts 10
 Property received by way of 10
scholarship
 inheritence 10
Conclusion 11
Bibliography 12
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SEPARATE PROPERTY OR SELF ACQUIRED PROPERTY

CLASSIFICATION OF PROPERTY

The Mitakshara school classifies property mainly under two heads: first
apratibandha daya or unobstructed heritage and secondly sapratibandha
daya or obstructed heritage. All properties inherited by a hindu male
directly from a male ancestor not exceeding three degrees higher to him
is called apratibandha daya . in this property his son , and son’s son
acquire an interest by birth1. Therefore it is called unobstructed heritage.
Thus properties inherited by a hindu male from his father’s father’s
father are called unobstructed heritage. On the other hand when a person
inherits property from any other relation such as father’s father’s or
parental uncle or brother or nephew etc then it is known as sapratibandha
daya , and his son’s son as or for that matter any person does not
acquire any interest in it. The unobstructed heritage devolves by
survivorship and obstructed heritage by inheritance. Coparceners can
restrain the holder of sapritibandha daya rfrom alienating it while in case
of sapritibandha daya its holder so long as he is alive has absolute rights
of alienating it he may gift it under inter vivos or by will; he may sell
it or mortgage it2.

Joint family property and separate property:Under hindu law propery

is classified into:

1. Joint family property or coparcenary property; and

2. Separate property or self3 acquired property

1
Radha vs Ram, AIR 1885 Pat 285
2
Md. HUssain vs. Baboo, ILR 1937
3
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JOINT FAMILY PROPERTY

The joint family property is the most important aspect of the hindu
joint family. The hindu joint family property is like a big
reserviour into which property flows from various sources and from
all members of the family draw out to fulfil their needs. The joint
family property may come from various sources.
 Ancestral Property
 Property obtained on partition
 Gift of joint family property by Karta
 Property jointly acquired coparcenry
 The income of Hereditary profession
 Property exchanged from joint family property
 Property thrown into common stock
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Coparceners may hold property separately:

All the property which is not held in coparcenary is separate property and
the Hindu law recognises separate property of individual members of
coparcenry as well as of separated members. A coparcener can under
Hindu law make separate acquisition of property. The key words in the
doctrine of self acquisition are what has been acquired without any
detriment to the joint family property. The separate property may be
obtained from several sources.

 Gains of Learning: The gains of learning means those gains which

are made on the account of some education or training that a
coparcener has received .the main question is if the training or
education has been received at the expenses of the joint family
property, does it mean that anything acquired by the acquirer on
the account of training or education is to detriment of the joint
family property? The Hindu gains of learning act , 1930 lays down
that whether the training is ordinary or specialized any gains made
on the ground of training or education will constitute separate
property of the acquirer. The act defines learning as education
whether elementary, technical, scientific, or general and training as
every kind of training which is usually intended to enable a person
to pursue any trade, industry, profession or avocation in life.
GAINS OF LEARNING are defined as acquisitions of property
made substantially by means of leaning or training whether such
acquisition is made before or after the commencement of the act
and whether such acquisitions whether education or training was
wholly or partly imparted to him out of joint family or with the
aid of the funds of any member of the joint family.it is also
immaterial that while he was receiving training or education, he or
his family was maintained or supported . Partly or wholly out of
joint family funds or by the funds of any member of the joint
family4.

4
Venkatasubarmania bs. Eswara Iyer, AIR 1966
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However if the joint family funds are invested in the avocation

or profession which the coparcener takes up after receiving
education or training, the acquisitions may not his separate
property. For instance if a coparcener is trained as an engineer
and the joint family is in view of his training, opens up an
industry in which joint family funds are invested the profits of
this industry will not be considered as the separate property of
the engineer coparcener, though if he was allowed a to withdraw
a salary or allowed to take a part of profit for his skill, that will
constitute his separate property.

 Salary and Remunerations: 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 the behalf
of the family or otherwise is employed by the concern , industry
or undertaking will take any salary, remuneration fee or commission
that he receives be the separate property of the coparcener or Karta
or will it be part of joint family funds? It may be added that in
earning such remuneration or commission or element of skill or
labour may also be involved. In Murughuppa vs. The commr. Of
income tax5, one of the coparcener was the managing agents of
certain mill. The court held that the commission earned by him
would prima facie be his individual property unless it is shown
that the right was acquired by utilizing any portion of the joint
family the supreme court property to its detriment 6. In
PALANIAPPA VS. COMMR. OF INCOME TAX SAID THAT
IF NO PART OF THE JOINT FAMILY FUNDS HAD BEEN
SPENT TO ENABLE KARTA OR ANY OF THE COPARCENER
TO EARN A REMUNERATION OR SALARY OF THE
MANAGING DIRECTOR BUT TEH FAMILY FUNDS HAS
BENN INVESTED IN OBTAINING DIVIDENDS OR THE OTHER
BENEFITS OF THE SHAREHOLDERRS THAN THAT
REMUNERATION AS A MANAGING DIRECTER WILL BE HIS
SEPARATE PROPERTY.
In sum :

5
AIR 1952 Mad 828
6
Commr of Income Tx vs. Kalu Baboo, AIR 1959 SC 1288
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 If remuneration, salary profit or commission is earned by the

Karta or any other Coparcener on account of substantial
investments of the joint family funds in undertaking, business
or enterprise or industry it will constitute joint family
property even if personal skill and labour is the Karta or teh
coparcener is an important factor in learning.
 If no joint family funds or properties are invested or only
nominal investment is made or the joint family is apart from
the earnings of the Karta or other coparceners receiving
profits, dividends, interest or some other returns on
investment without any detriment to the joint family funds or
properties the earnings will constitute the separate property of
the earner.
 The fact that the karta stands in fiduciary relationship with
other members of the family is immaterial7.`

 Income of the joint family property allotted to member for his

maintenance: Income of the joint family property allotted to member for
his maintenance.- when the karta gives a coparcener the right to use some
joint family property for his maintenance, and there is some surplus
income remaining after the maintenance , or any property is purchased
out of the surplus, will it be joint family property or separate property off
the coparcener8? The Madras and Andhra Pradesh High Court take the
view that such surplus or property purchased out of surplus will be
separate property of the coparcener. Some doubts were cast on this
proposition in Subbramania v. Eshwar9. The question before the court
was when the family property is given to a coparcener for the
maintenance of his property without liability to account for any balance,
and the member acquires a property out of the savings, does it mean that
the property will be deemed to be self acquisition, in the sense that even
his son will have no interest in it? However the Madras High Court
advocated its earlier view in Nagayasami v. Kochadai. How are ever,
where a member of the family decides for the purposes of the
convenience to take charge of the properties of the family in his
individual charge and administer them, should not automatically follow
that the individual members who have been with the responsibility of
possessing them is not to account for their income10.

7
Prem Nath vs.Commr of Income tax, AIR 1967
8
Ramayya vs.Kolanda, AIR 1939 Mad 911
9
AIR 1966 Mad 266
10
Kumaraswami vs. Subba, AIR 1977 Mad 595
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 Benefit of insurance property:  If the Karta insures himself or a

member of the family is insured and premia are paid out of the joint
family property then, who could be entitled to the benefits of the policy?
The Madras "took the view that benefits belong to the insured personally
and hey separate property11. The Supreme Court, Prabhavati v.      , Made
the following observations; inverted, there is no proposition made by
which the insurance policies must be regarded as the separate property of
the coparceners on whose lives the insurance is affected by the
coparcenary. "The Supreme Court further observed that if the insurance
what taken with any detriment to the joint family funds, then anything
thereby would belong to the joint family. In Sidrammappa v.      , The
Mysore High Court said that if the father has taken and insurance policy
in the name of the sun and paid the premium thereof out of the affection,
the benefits of the policy will belong to the sun and his separate property.
The Madras High Court considered the aforesaid decision of the Supreme
Court in Karappa v. Palaniammal, said that those observations would be
confined to the facts of the case. Srinivasan J. Observed: "but a
coparcener has if acted insurance upon his own life, no he might have
paid the premium out of the funds which he might have received from the
family, it does not follow that the joint family insured the life of the
member or paid the premium in relation thereto. It is undeniable that a
member of a coparcenary me, with the money which he might receive
from the Coparcenary effect and insuring upon his own life for the benefit
of the members of the family. His intention to do so and to keep the
property as his own separate property would be manifested if he makes a
nomination in favour of his wife or children, as the case maybe ". 
 Government grants: if the property movable or immovable is
granted to a coparcener by the government it will constitute the
separate property of the grantee12 unless it has been specially given
to him as joint family property13.
 Separate earnings or earnings by self exertion: Separate earnings
or earnings by self exertion, without the aid of the joint family
property of the coparcener.
 Income from separate property: Income from the separate
property or property acquired with such income will be a separate
11
Balamba vs. Krishnayya, AIR 1914 Mad 595
12
Katama vs. Raja of shivaganga, AIR 1863
13
Mahanat vs. Sita ram AIR 1899
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property of the coparcener14. A coparcener can also carry separate

business.
 Property held by sole surviving coparcener: the property held by
a sole surviving coparcener may constitute his separate property and
on his death it will devolve by succession on his heirs15.
 Property received by the way of gifts: Gifts acquired by the
coparcener from karta or any of other family member will be
considered the separate property of that coparcener. The gift can be
given by parental uncle, maternal uncle or any other family member
or from friend. This is considered as alienation of other person’s
property.
 Property acquired by the way of scholarship: property acquired
by the way of scholarship will be the separate property of the
coparcener. Any scholarship acquired by the personal skills of the
coparcener will be his property and not joint family property.
 Inheritance: Coparcener’s individual share will be the joint family
property until and unless it has not been distributed or there is no
partition yet. Whenever the joint family property is distributed
among the coparceners that property in hands of each coparcener
will become the separate property of each individual coparcener.

CONCLUSION
In all the cases mentioned above the property will be considered the
separate property of the coparcener . this is because this property he has
14
Krishnali vs. Moro AIR 1981
15
Ibid
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owned though his personal skills or by various other ways except by the
way of share in joint family property. All this will be the separate
property until and unless that coparcener does not throw his property into
common stock.

BIBLIOGRAPHY
 Family Law by Dr Paras Diwan
 http://family.findlaw.com/
 https://amicuscreative.com/corporate/Attorney_Website_Design/
Websites_for_Family_Law_Firms_pa13937.htm