Index

Table of Cases

Introduction

Composition of Hindu Joint Family

Ouster Of a member from the Joint family

Coparcenary

Incidents of Hindu Joint Family

Incidents of coparcenership

Rights of members of joint Hindu family

Ancestral Property

Bibliography

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 Table of Cases

 Chotelal v. Jhandelal, 1972 All. 424

 Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225; Vellaiyappa Chetty v.
Natarajan, AIR 1931 PC 294.
 Isree Prasad v. Nasib Kooer, (1884) 10 Cal 1017
 Kanta v. Rajah (1863) 9 M.I.A 539; Venugopala v. UOI, 1969 SC 1094
 Katama Natchiar v. The Rajah of Shivagunga, 1863 MIA 539.
 Krishnaswami v. Rajagopala, (1895) 18 Mad 73, 83.
 Kumar Rasheswari Naudan v. R.B. Bhagwati Saran, 1960 S.C.J 648.
 Lal Bahadur v. Kanhaiyalal, (1907) 34 IA 65:29 All 244 (PC).
 Rajagopala v. Venkataraman,1947 P.C 122; Chandra v. Kanak, 1975 Del. 175
 Ram Kumar v. Commissioner of Income Tax, 1953 All. 150
 Soam v. Kunzang, 1982 Sikkim 26.
 Srinivasan v. Commissioner of Income Tax, AIR 1962 Mad 146.
 State Bank of India v. Chamandi Ram, 1969 S.C, 1330.
 Surjit Lal v. Commissioner of Income Tax, (1978) 101 ITR 776.
 Tundra v. Tiwari, 1972 M.P.L.J 400

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Introduction

The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to
the ancient patriarchal system where the patriarch or the head of the family was the
unquestioned ruler, laying down norms for the members of his family to follow, obeyed by
everyone in his family, and having an unparallel control over their lives and properties. At the
root was the general family welfare or promotion of family as a unit for which personal
interests of the family members could be sacrificed. The ancient system generally treated the
property acquired by the members of the family as family property or the joint property of the
family with family members having one or the other right over it. With gradual
transformation of the society and recognition of the members of the family as independent in
their own right, concept of separate property and rules for its inheritance were developed.
This dual property system, though considerably diluted, has survived the lashes of time, the
judicial and legislative onslaught and the Hindu society still recognises the joint family
property as unique entities having no similar concept alive anywhere else in the world.

Composition of Hindu Joint Family:

A Hindu Joint Family consists of all male members descended lineally from a common male
ancestor together with their mothers, wives or widows and unmarried daughters. An
unmarried daughter on marriage ceases to be a part of her father’s joint family and joins her
husband’s joint family as his wife. If a daughter becomes a widow or is deserted by her
husband and returns to her father’s house permanently, she again becomes member of her
father’s joint family. Her children however don’t become members of her father’s joint
family and continues being member of their father’s joint family. Even an illegitimate son of
a male descendant would be a member of his father’s joint family. A child in womb till it is
born is not a member of the joint family for taxation purposes but is treated as in existence for
certain purposes under Hindu law.

To bring into existence a joint family for the first time the presence of the senior most male
member is an essential condition. However, once the joint family comes into existence it
continues despite the death of this male member.

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The members of a joint family are bound together by the fundamental principle of sapinda-
ship or family relationship, which is the essential feature of this institution. The cord that
knits the members of the family is not property but the relationship with one another. A
Hindu joint family is not a corporation A Hindu joint family has no legal entity distinct and
separate from that of the members who constitute it. It is not a juristic person either. Hindu
joint family is a unit and in all affairs it is represented by its Karta. Within its fold no
outsider, except by adoption, can be admitted by agreement or otherwise. It confers a status
on its members which can be acquired only by birth in the family or by marriage to a male
member.

Ouster of a member from the Joint family:

An unmarried daughter ceases to be a part of her father’s joint family on her marriage and
may regain her status if she becomes a widow or if on being deserted by the husband comes
back to her father’s house permanently. A child male or female born in the family can cease
to be member of this family if he or she is given in adoption to another family by a person
competent to do so under the law. The marriage of a lineal male member under the Special
Marriage Act,1954 to a non-Hindu will result in his automatic severance from the joint
family and he cannot become a member of this family even by agreement. Presently
marriages between a Hindu and a Christian can be validly solemnised under the Special
Marriage Act, 1954 and under the Indian Christian Marriage Act, 1872. If they marry under
the former Act, a Hindu man will cease to be a member of a joint family, there is no reason
why the same consequences should not apply if they marry under the latter Act. Thus, the
concept of a Hindu joint family would mean a Hindu father, having a Hindu wife and Hindu
children. It is a Hindu joint family and cannot comprise non-Hindu members let alone a
family having only a Hindu father, a non-Hindu wife and children whose religion cannot be
determined at birth but is dependent upon the contingency of them being brought up as
Hindus.

Coparcenary:

He Hindu joint family must be distinguished from Hindu coparcenary. The latter is a much
narrower body than the joint family. The coparcenary includes only those persons who by

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birth acquire an interest in the joint or coparcenary property. They are the sons, son’s sons
and son’s son’s sons of the holder of the joint family property for the present.

The essence of a coparcenary under the Mitakshara Law is unity of ownership and unity of
possession. The ownership of the coparcenary property vests in the whole body of
coparceners. As long as the family is joint, no individual member can predicate of the joint
undivided property, that is, he has certain and definite share therein. The rights of each
coparcener consists in a common possession and common enjoyment of the whole
coparcenary.

To understand the conception of coparcenary it is necessary to note the distinction between

ancestral and separate property. The property inherited by a Hindu from his father’s father
and father’s father’s father is ancestral property. Property inherited by other relations is his
separate property. The essential feature of ancestral property is that if the person inheriting it
has sons, grandsons or great grandsons, they become joint owners with him. They become
entitled to it by reason of their birth. Father, son, son’s son and son’s son’s son together
constitute coparcenary, because they have common ownership in the ancestral property. No
coparcenary can commence without a common male ancestor, though after his death it may
consist of collaterals, such as brothers, uncles and nephews, cousins, etc. A member of a joint
family may be removed more than four degrees from the common ancestors and yet he may
be a coparcener. If he can demand partition he is a member of coparcenary. Only those
members of joint family can demand partition who are within four degrees from the last
holder of the property.

Incidents of Hindu Joint Family:

(a) A common male ancestor is necessary to bring the Hindu joint family in existence but
is not necessary for its continuation. After the death of such common male ancestor
the rest of the family continues to be a joint Hindu family. It is said that upper links
are removed and lower links are added.
(b) A Hindu joint family is purely a creature of law. This means, it cannot be created by
the act of the members or an agreement between the parties. Therefore, a stranger
cannot be made a member of a Hindu joint family even by agreement. The only
exception is marriage and adoption.

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 (c) A Hindu joint family has no legal entity distinct or separate from its members. It is a
unit and is represented by the manager of the joint family who is called Karta. It
cannot be sued in its own name. It is neither a juristic person nor a corporation and
therefore cannot convey the property in its joint character.
(d) The status of a joint family member can be lost by conversion to another faith, by
marriage to a non-Hindu, on being given in adoption by the competent parents, and
for a daughter, on getting married.
(e) All members in a joint family do not have equal rights in the family property.
Coparceners have an interest in the coparcenary property while females and males
other than coparceners or disqualified coparceners have a right of maintenance and a
right of residence in the joint family house.
(f) The continuation of a joint family is not dependent upon the presence of a male
member in the family.
(g) Plurality of members is necessary for constitution of or continuation of joint family
but plurality of male members is not necessary for its continuation. The joint family
does not end even with the death of a male member as long as it is possible in the
nature of things to add a male member in the family.
(h) A Hindu joint family may continue in perpetuity until it ends. Even where a partition
is effected this joint family may break but does not end as in its place two or more
joint families come into existence.

Incidents of coparcenership: A coparcener has an interest by birth in the joint family

property, though until partition takes place, this 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 both these are
community of interest and unity of possession. Every coparcener has a right to be maintained
including a right of marriage expenses being defrayed out of joint family funds, every
coparcener is bound by the alienation made by the Karta for legal necessity or benefit of the
estate and by the legitimate acts of management of the Karta; every coparcener has a right to
object and challenge alienations made without his consent or made without legal necessity;

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and every coparcener has a right of partition and survivorship. he can establish his right of
survivorship by suit.

In N. Jaya Lakshmi v. R. Gopala, where two brothers jointly acquired property and later on
one of the brothers was not heard to be alive for seven years, the other brother would take the
property by survivorship.

(a) Four Generation Rule: The lineal male descendants of a person, up to fourth
generation, acquire on birth, an interest in the coparcenary property held by him.
(b) Creation of Law: Like a joint family, coparcenary is also a creation of law and cannot
be formed by an agreement between the parties.
(c) No stranger can be introduced in the coparcenary. Only a male child, born in the
family or validly adopted, can become a coparcener. In Mitakshra coparcenary, no
female except a daughter can be its member, though they are members of the joint
family. It means that no female except the daughter has any interest by birth in the
joint family property. She has no right of survivorship or partition, though if a
partition takes place, certain females are entitled to a share.
(d) Acquisition of interest by birth: A coparcener in a joint family is born with an interest
in the coparcenery property which means that the moment he is born in the family he
gets a right by birth in the ownership of the coparcenery property. Thus, if the family
comprises the father and his two sons, all three of them have an interest in the
coparcenery property.
(e) Unity of Possession and Community of Interest: one of the basic features of
coparcenery is unity of possession and community of interest. All the coparceners
jointly own the coparcenery property and till a partition takes place and their shares
are specifically demarcated no one can claim ownership over any specific item of the
coparcenery property. This means that all coparceners have a right of common
enjoyment or common use of the property.
(f) Unpredictable and fluctuating interest: The most remarkable feature feature of interest
by birth is that the interest which a coparcener acquires by birth is not a specified or
fixed interest. At no time before partition can it be predicted that he is entitled to so
much share in the joint family property. Nor can he say that such items of property
belong to him, even if the properties are in his possession or use. The interest
fluctuates with the births and deaths in the family.

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(g) Right of Maintenance: Every coparcener and every other member of the joint family
has a right of maintenance out of the joint family property. The right of maintenance
subsists through the life of the member so long as family remains joint. Female
members and other male members who do not get a share on partition, either because
they have no right, such as an unmarried daughter or because they are disqualified
from getting a share, such as an idiot or lunatic coparcener, are entitled to
maintenance even after partition. Unmarried daughters have a right to be married out
of the joint family funds. Other members marriage expenses are also to be defrayed
out of joint family funds.
(h) Coparcener’s right to restrain and challenge alienation: When the father, the Karta, the
coparcener and the sole surviving coparcener overstep their power, the alienation can
be challenged. It can be challenged the moment the person entitled to challenge comes
to know of it and till it is not barred by limitation. Whenever an alienation is
challenged, the burden of proof is on the alienee to show that it was for a valid
purpose. Even when sons challenge an alienation made by the father for discharging
his personal debts, it is for the alienee to show that the debt was taken by the father,
though if sons assert that the debt was tainted, the burden of proof that the debt was
tainted is on the sons. Sometimes a stranger can also challenge an alienation, such as
purchaser of a coparcener’s interest may challenge an improper alienation.
(i) Coparcener’s right of partition: After the Amendment Act of 2005 a daughter since
would be a coparcener shall have a right to ask for partition. As a general rule, both
under the Mitakshara and the Dayabhaga schools, every coparcener has a right to
partition and every coparcener is entitled to a share on partition. Apart from the
coparceners, no one else has a right to partition. No female except the daughter has a
right to partition, but, if partition takes place, there are certain females who are
entitled to a share. These females are father’s wife, mother and grandmother etc.
under the Hindu Right to Property Act, 1937, a Mitakshara coparcener’s widow took
the same interest which her husband had at the time of his death. She was given the
right to partition.

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 (j) Illegitimate son as a coparcener: Hindu law has never considered an illegitimate child
as a filius nullius. An illegitimate son, particularly dasiputra has 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. However, he is not considered as an
coparcener. Among the sudras, his position is slightly better. During the life time of
his father, he is not a coparcener with his father, and therefore has no right to ask for
partition. But if partition takes place , the father is free to allot a share to him, even a
share equal to a legitimate son. He is entitled to take only half a share of what he
would have taken had he been a legitimate son.
(k) Coparcenary between a sane and insane person: There can be a coparcenary between
a sane and an insane person. A coparcener gets his right in the coparcenary property
by birth and there is nothing in Hindu law which shows that such a right is irrevocably
extinguished on a supervening insanity. If partition takes place he has no share in
property, but this does not make him cease to be a coparcener. When he is cured of
insanity, both his rights revive. In any case his son is not excluded from taking a share
in the partition.
(l) Coparcenary within coparcenary: It is possible that separate coparcenaries may exist
within a coparcenary.

Rights of members of joint Hindu family:

In a Hindu joint family, all its members do not have equal rights. The interest in the
coparcenary property is with the coparceners, including a right to demand its partition, and a
right to challenge its unauthorised alienation made by Karta. All other female members
including the widows of deceased coparceners, and illegitimate sons of lineal male
descendants, have a right of maintenance out of the joint family funds and a right of residence
in the joint family home.

Ancestral Property:

All property inherited by a male Hindu from his father, father’s father, and father’s father’s
father, is ancestral property as regards his son, grandson and great grandson. Property
inherited from any other relation is not ancestral property but it is the separate property of the
person inheriting it. The essential feature of the ancestral property according to Mitakshara

9
law is that the sons, grandsons and great grandsons of the person who inherits it acquire an
interest in it by birth. Their rights attach to it by their birth. But according to Dayabhaga the
male issue of the inheritor do not acquire any interest by birth in such property as they do
according to Mitakshara law.

A Hindu father or the managing member has power to make a gift within reasonable limits of
ancestral immovable property for ‘pious purposes’.

The properties of the following description are ancestral properties:

(a) Accretions.- Accumulations of income of ancestral property, property purchased or

acquired out of income of or with the assistance of ancestral property, the sale
proceeds of ancestral property, and property purchased out of such proceeds or
obtained in lieu of such property are all ancestral property and constitute joint family
property.
(b) Residue.- Where a member of a joint family has assigned his undivided interest to a
creditor to satisfy claims to satisfy claims which do not exhaust the entire value of
interest, any residue continues to be ancestral property.
(c) Savings.- Judicial Committee pointed out all savings made out of ancestral property
and all purchases or profits made from the income or sale of ancestral property would
form part of ancestral or coparcenery property, whether such savings or acquisitions
were made before or after the birth of a son.
(d) Inherited Property.- Property inherited by two brothers from their father is ancestral
property. If one of them alone has a son, that son by his birth acquires not only an
interest in the share of his father but a right of survivorship even in respect of the rest
of the property.

Unobstructed Heritage: ( Apratibandha Daya)

Ancestral property is unobstructed heritage. The essential feature of unobstructed heritage,

according to Mitakshara Law is that the sons, grandsons and great grandsons acquire an
interest in the property inherited by birth. Their rights attach to it by their birth. The property
is called unobstructed because the accrual of the right to it is not obstructed by existence of
the owner. Thus, if A inherits its property from his father or grandfather or great grandfather
it is ancestral property or unobstructed heritage in the hands of A is an obstruction to his son

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acquiring an interest but as regards other relations he holds it as his absolute property. If A
has no male issue, other relations have no interest in the property during the life time of A.

Obstructed Heritage: ( Sapratibandha Daya)

Property inherited by a Hindu from a person other than his father, grand father, and great gran
father is obstructed heritage. It is called obstructed because the accrual of the rights to it is
obstructed by the existence of the owner. The owner holds it as his separate and absolute
property. The relations of the owner do not take a vested interest in it by birth. They are
entitled to it only on the death of the owner. Thus, the property which devolves on parents,
brothers, uncles, nephews, etc., on the death of the last owner is obstructed heritage. For
example A inherits certain property from his brother. A has a son B. the property is
obstructed in the life-time of A. B does not take any interest in it during the life-time of A.
After A’s death B will take it as A’s heir by succession. The existence of A is an obstruction
to the accrual of any right in the property to B.

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 Bibliography

 Dr.Poonam Pradhan Saxena, Family Law Lectures, 3rd Edition(2013), Lexis Nexis
 M.P Tandon, Family Law in India , 4th edition (1990), Allahabad Law Agency
 Dr.Paras Diwan, Modern Hindu Law(2014), Allahabad Law Agency

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