FAMILY LAW II

1. JOINT HINDU FAMILY (JHF) AND HINDU

UNDIVIDED FAMILY (HUF)

Self- acquired property earned through skills and techniques learnt by the aid of joint hindu
family fund is protected for that individual and not all members of the joint hindu family can
claim self- acquired property

Hindu Undivided Family (HUF) is treated as a separate legal entity for the purposes of
taxation. The entire income of HUF is treated as one amount earned by one separate entity

CIT v. Smt Sandhya Rani Dutla: only the female members of the family
cannot constitute a joint hindu family through agreement after death of the male member(s).

For outsiders to be a part of JHF there has to be either marriage or adoption.

If a man marries a Christian woman according to Special Marriage Act, his child will be
treated as part of JHF but an illegitimate child of the same person will be treated as part of
JHF but will only inherit his dad’s property and not JHF’s property. The child will be entitled to
property inherited from both the parents

Narendranath v. Wealth Tax Commissioner: If at partition of joint family

property, A acquires his share, such property or share shall be held as property acquired by
not only A but also his wife, daughters, sons, etc., as joint family property. Such property in
the hands of A will have to be taxed for purposes of Wealth Tax Act as property of the joint
family. A single male member can constitute a JHF by marrying, but a female member cannot
start a JHF by marriage.

Joint Hindu Family System

No Legal Authority, not a separate legal entity

Sui Generis
Father is respected as an authority in JHFS. He has all decision making powers. In
absence of father, eldest son enjoys the same position
Jointly all co-parceners form JHF
Manusmriti gave authority to eldest male member
Later smritikaras opined that only one person cannot be given all rights regarding
 disposal of property
Smritikaras like Yagyavalkya and Brihaspati believed in joint ownership of JHF
property (male members only)
Neither JHF nor the co-parcenary within the JHF can be considered as separate
legal entity.

Yagyavalka Smriti and Bhrihaspati were of the position that if there are male
members in the family then all should have a say in the division of property.
Further this is supported by the Mitakshara school of thought.
Dayabhaga depends primarily on the father who has main control over the Joint
Hindu Family.
There is a difference between Dayabhaga and Mitakshara with regard to Daya/
Partition.
Dayabhaga school says that 'after the death' of the male holder/ Karta, only then
shall they acquire interest in the property.
Mitakshara school speaks about 'right by birth' which means that they will become
joint owners by birth and they can demand property by partition.
In Dayabhaga, if there is an ancestral property it is known as 'obstructed heritage'
as other coparceners have no interest in that.
In Mitakshara, if there id an ancestral property then it is known as 'unobstructed
heritage.'
Mitakshara: right from birth, and right to demand partition
Dayabhaja: Right after death of father, and right to be sole owner of property.

Till 2005, only males up to the 4th generation jointly form the coparcenary. The person who
leads this coparcenary is called the Karta.
ChhoteLal v. JhandeLal: when we say that joint family or coparcenary owns a certain
property we mean to say that the property belongs to a group with the incidents of joint
family proprietorship/ group of coparceners.

Mythological reasons are that only a son, grandson or father can be a coparcener and karma.
But now even a female can be coparcener.
JHF and HUF are synonyms to each other. This was said by the Supreme Court in
judgements, Surjeet Singh v C.I.T., Narendra Nath v C.I.T.

SurjitLal v. CIT: Surjitlal with his wife and daughter. He had a lodge and was receiving
rent out of it. Surjitlal tried to put this rent income under his JHF name. Made a claim
before income tax department that he shouldnʼt be taxed individually but as a part of JHF.
Income Tax officer did not accept the claims of the assessee. Surjitlal made an appeal in
front of the appellate assistant commissioner and he accepted the position taken by
income tax officer. Appeal was made in front of income tax appellate tribunal made a
reference before the Bombay high court over certain points of law: whether in the present
case this family would be considered a JHF because itʼs just one male member and two
female members. Then it went to SC where it was held not in favour of the assessee. His
income is separate income and he does not constitute a joint income family as there is no
son demanding his right over the income - itʼs only his income and he has individual right
over it.
in this case, if Surjeetlal had adopted a male child then he would have the legal right to create
JHF and therefore this would create a claimant who can ask for the JHF Fund to be divided.
Therefore, this illegitimate child will be a part of the JHF but can not be Karta or have a
share in ancestral property but he does have a share in his father property.

Presumption of Jointness: not necessary that they should live together but there should
not be any partition of family property
Vinod Jaina v. Abdul Hamid 1975 Orissa 159: Hindu Family should be treated to
be a joint hindu family. Court laid down burden of proof on the claimant.

CIT v. Gomedalli Satyanarayan 1935 BOM: Father-wife, the son-his wife. Father
died. Son was being treated as a Karta. Whether son’s income will be taxed. For
purpose of continuation of JHF, even if one male member is there, even that male
member can be treated as JHF. For purposes of co-parcenary, two male
members must be there. Then, a Hindu Co-parcenary will be continued.
If person is being taxed as an individual, his tax liability will be more. Certain exemptions
allowed to HUF.
All rights that a male coparcener has will be bestowed on the daughter of a
coparcener who comes till the 4th generation. So therefore, if a father dies leaving a
wife and daughter, a JHF will continue as the daughter is the sole coparcener. The
daughter can also become a Karta.

In the Indian Succession Act, according to section 25, if one murders a person for his
property then he would not be eligible.

In Dayabhaga, the interest in the property is fixed that is, the interest would fluctuate
with either birth or death.
In Mitakshara, the interest in property would fluctuate with every birth and every
death.

There might be an instance of a coparcenary within a coparcenary. Suppose if A has

two children B and C who have equal rights in ancestral property and B has two
children D and E. Then B's private property will become D and E's ancestral property.
So D and E would be coparceners to A's ancestral property and also be different
coparceners in B's private property.

In cases where partition becomes unfair, (agricultural land more fertile in one area, than
another), then there should be compensation.
After this, the Hindu Gains of Learning Act was passed (1930) in which it stated that if a
JHF Fund provides for specialised education, only income due to that education will not be
a part of JHF.

What are the rights and duties of members of JHF.

A coparcener can ask for his interest in the Ancestral property by means of
partition. But for that purpose, his interest should be defended and calculable.
under Section 30 of Hindu Succession Act
Right of pre emission that is if a coparcener wants to dispose his interest in the
ancestral property then the other members of JHF will get choice of buying it on
market value, first before any outsider.

Rights of a coparcener

Right by birth
Right of common ownership
Right of common enjoyment of coparcenary property
Right of survivorship
Right to accounts
Right to make acquisitions
Right to ask for Partition
Right to renounce his interest
Right to restrain improper acts
Right of alienation (can only alienate when there is a legal necessity.
Right to challenge an unauthorised alienation

When there is no other way to fulfil necessities then what occurs is the Karta can alienate
the property and sell it. After he sells there may be further complications that can arise if
the minor attains majority and challenges the alienation that will result in further
complication.

Hindu Succession Act came in 1956 when daughters were not considered
Karta. After right to property was passed in 1937, this gave women the partial
rights to property. This limited right was called as women estate that is the
interest of the coparcener husband would go to her after her husband died.
but she could not sell or ask for partition.
After 1956, Hindu Succession Act gave the women estate and the widow an
absolute right and not a limited right. But this was only with respect to parents
share and would be unequal. Further her Husbands interest which she would
acquire after his death also became absolute.
 After the 2005 amendment as daughter also gets to become Karta/ Coparcener it
is governed by Hindu Succession Act.
Right to Accounts is for any coparcener.
Right to make acquisitions by the coparcenary fund after taking permission by
every coparcener.
A female coparceners children will also become coparceners for upto two
generations.
There are class I heirs and class II heirs and class I is preferred. Class I heirs also
include female coparceners children after 2005

A Karta cannot be tried as a Trustee in some mismanagement. He cannot be challenged in

such a case however he may have suit filed against him for both fraud or appropriation.
Karta can nominate his role to another coparcener if he cannot perform is role. This will be
given to the eldest coparcener. He can also take this back. Even minor can become karta
under a Guardian.
Powers of Karta:-
With in joint family Karta has vast powers with limitations.
1) Power of management:- He is the head of the family, his management powers are
absolute. He may manage the family affairs and family property and business the way he likes
for the benefit of estate, no one can question his management.

2) Right to Income:- It is general rule that all members who works or do business out of joint
family property must hand over income to Karta. It is for Karta to allot funds to the members
and look after needs and requirements, so long as family remains joint, no member can ask
for any specified share in the income.

3) Right to representation:- He represent the family, represents the family in all matters,
legal, social and religious. He can enter into any transaction on behalf of the family, his acts
are binding on the entire joint family.

4) Power to compromise:- He has power to compromise all disputes relating to family

property or their management. He can compromise pending suits, family debts, and other
transactions. However if his act is not bonafide can be challenged in a partition.
5) Power to refer a dispute to arbitration:- Karta has power to refer any dispute to
arbitration and Arbitrator’s award is binding on all the members.

6) Power of acknowledgement and to contract debts:-Karta has power to acknowledge on

behalf of the family any debt due to the family, also has power to pay debt or to make pack
payment of debt.
He has power to contract debts for the family such debts incurred in the ordinary course of
business are binding on entire joint family.

Even Karta when takes loan or execute promissory note for family purpose or for family
business joint family is liable to pay such loan.
7) Power to enter into contract:- Karta has power to enter into contract and such contract is
enforceable against the family.

8) Power of alienation:- Nobody in the family has power to alienate joint family property.
However Karta has power of alienation under 3 circumstances.
a) Legal necessity
b) Benefit of estate.
c) Indispensable duties.

Coparcenary under Dayabhaga

There is no coparcenary under father and son

Sons have no rights during the lifetime of their father
Right by birth is not recognised
Sons can’t claim partition during life of father
Only after death of father do the sons get property and therefore form a coparcenary
which may be partitioned
After death of father, sons become coparceners as well
Sons acquire right in the coparcenary property by succession and not by survivorship
Due to this, the interest remains fixed under Dayabhaga School of thought
Coparcenary in Dayabhaga comes into existence after death of father, provided that
he leaves behind two or more male issues
The male issues form a coparcenary and become entitled to coparcenary and may
separate property of the father
Females were given right to coparcenary. But this was not absolute. Males got more
rights than females. In exceptional circumstances the female could become the Karta.
Females would get equal property in share of father or mother but were not
coparceners.
In the Mitakshara school of law, interest of coparcenary fluctuates with birth and death
and the Maharashtra and M.P. HC have held that if one wants to cash on his interest
then one can do so as interest is determinable as it would be presumed that his
interest would be presumed that his interest would be determined as it would at the
time of partition. Further, the Allahbad HC held that as the interest cannot be
determined other than in partition, it cannot be done away with.
Previously, as the interest was not determinable, the coparceners could not do away
his interest in the JHF property but after Succession Act 1956, S. 30 stated that a
Karta can do away with his/ her interest in the will and so can the coparceners.
In 1930, the Hindu Gain of Learning Act, where even if JHF find was used to pay for
special education, any income he earns due to those skills is to be considered a
separate property though he can gift it.
A JHF property can only be from paternal side, Further it has restrictions on the
alienation of the property.
After 2005 amendment, in some circumstances the JHF ancestor property can come
from a female ancestor.
The Karta can alienate property for three reasons (Mitakshara):

1. Apatkale - Time of distress, for instance an act of god

2. Kutumbarthe - urgency, like education, health, marriage

3. Dharmarthe - religious purposes - Karta to donate part of JHF to charity to attain
Moksha

These three terms have been modified and made specific as they had a very wide
scope. After modification there are only thee headings under which alienation can take
place:

1. Legal necessity - still very wide. Cannot be defined or put in a narrow definition. In the
case of Hanuman Prasad v. Mussmat Babooee, the privy council gave a definition in
which the Karta can alienate property in legal necessity
2. Benefit to the estate - reads to be defensive in nature like to maintain and manage
property of greater value. In a case there were two JHF property. The Karta could not
maintain the other property which was very far away, he sold that house and from that
income bought a house neat. The court held it was to benefit the estate
3. Indispensable duty - that is the Karta is a manager of the family and has an obligation
towards JHF members, for marriage, health, and such other duties

Mohori Bibee v. Dharmodas Ghose - the privity council held that minors cannot
enter into contracts. The aliened that was the buyer of the property would have to
beware of any coparceners interest. As a minor can challenge that as there was no
interest of the coparceners as well as it was not for legal necessity.

A loan for immoral purposes is known as antecedent loan/ debt and further it was not
paid then there was a moral obligation on the ancestor to pay back the loan. Moral
duty does not fall for loans for immoral purposes but can be recovered from the
Karta’s interest in the property. That JHF property may be attacked by the court under
CPC. Attacking the property is a method of execution
The alienee just has to prove that he made sufficient inquiry about the JHF and to
probe this, the burden of proof is on him

There are limitations on the power of Karta with regards to the coparcenary which only
consists of one child
Under the HSA, Section 30, the coparcener whose interest is undefined can give away
his interest by testamentary will. It shall be presumed to be partitioned when the will
 comes into effect.
The SC held that when if a coparcener was born before 2005, after the amendment,
they could be considered coparceners. This case was in Prakash v. Phulwati

The coparcener is said to have divided the interest the dat when the coparcener had
expressed his desire to the Karta for partition.
Raghavamma v. Chenchamma
The guardian when goes for separation of minors property needs to present an
application before the court and the state and prove that there is a danger to the
interest of the minor and only after such an inquiry can partition be granted
A disabled person in the coparcenary is also entitled to get his interest in the JHF
property. There might be a court appointed guardian for this reason.
There might be partial partition as well.

There are two views. The Bombay HC held that C and D will get 1/3 each. The Madras
HC held that it would be 1/9. B1 had already taken his share so after that B3 would
get share of 2/9 of A1’s property. According to the Bombay view, even B3 will get 1/3
of the remaining A’s property. This is what the Madras HC held in the case of
Raghuvamma c. Chenchamma

Persons entitled to claim partition

Sons and grandsons - to their respective natural law interest

After born sons are of two kinds:

1. Women is pregnant during partition, then according to Hindu Law, the partition should
be deferred. In case it is not deferred then the share which has gone to the father then
after the birth of the child, the entire share will go to that child after the death of the
father. Even in such a scenario according to Hindu Law would a mother get a share
2. Illegitimate children would not get any rights to the JHF property but their parent’s
property. For purposes of determining children, it was under S. 16 of HMA.

Widows having limited right which changed to absolute interest by the HSA 1956. This
was stated in S.14. Suppose a hindu had two wives and the mother is alive during
 partition then both of them take one share with them. Though in the Act of 1956 only
one family (wife)naturally gets even though there are two wives (both only get one
share)
There is no discrimination between an adopted son and natural son during partition
The alienee can also ask for partition after all the due diligence. So under certain
circumstances alienee can also call for partition

Allotment of shares

Partition between father and son(s). Everyone will take an equal share.
Between Father, Mother and son(s) then everyone gets it equally.

There are two types of partition

1. Partition per stripe - immediate family (branch)

2. Partition per capita - division of assets (grandson)

After partition the JHF members can still stay together under unitakshara and they are
known as tenant in common. That is without metes and bound
In Dayabhaga, they are known to have partition after JHF partition, that is boundaries
need to be divided

How can partition come into effect?

1. By arbitration
2. Registration
3. Court order
4. Asking for partition (even unregistered)
5. Will (enforced at time of execution)
6. Agreement
7. Conversion (from Hindu to Non Hindu)
8. Marriage (under Special Marriages Act)

Reunion after partition

If a member who is a minor becomes a major then the minor can challenge the
partition that happened when they were a minor. So reopening of partition will only
happen when it is physically possible. If that is not possible then the remedy would be
compensation
 Once a partition has taken place, according to Brihaspati Smriti, then reunion is not
possible but there are some other views as well which say reunion is possible
between: father and son, brothers, uncle and nephew, son and grandson. But this can
only be brought by the members of the coparcenary who were members of the JHF
during partition and not someone born later
During partition, if any member wants to purchase the interest of another coparcener,
the copacenars are obliged to sell it to him - Right of pre emption
This right is not limited to any degree or generation of JHF

Hindu Succession Act

Under Mitakshara School, before codification of HSA, Succession was done

according to principle of consanguinity (blood relation)
Under the law previous to HSA, the daughter could only inherit property while the wife
had limited powers and rights. Further, succession was with regards to nearness of
blood relations and type of property (JHF/private). This currently is in codified state as
List I and List II in the HSA
The HSA is applicable only to Hindu. - Section 2. Same as HMA. Further, a person not
knowing his religion will be presumed to be a Hindu
Section 2(2) - ST would be exempt from this Act unless the central government
notifies through official Gazette. This is done in furtherance of the isolationist policy of
the government towards Sts to protect their culture
Section 3 - is a definition section. In the first definition (a) the person having blood
relations on through adoption by males are related while (c) cognate is having blood
relations or related by adoption through females that is “not wholly by males"
Section 3 - shall be the universal definition unless otherwise required. That is if
something is done according to custom then that shall prevail
3(b) - essentially overrules the “madras aliyasantana Act” and therefor the
Aliyasantana law was overrules by the HSA
3(d) defines custom and usages which can overrule the law if they are not opposed to
public policy and are not unreasonable. Customs might be of local, tribal, community,
group or family
3(e) explains full blood: common ancestor and ancestors. Half blood - common
ancestors but different wives/mothers. Uterine blood - common ancestors but
different husbands/fathers
3(f) defines heir - who is a male or female who will inherit the estate if someone dies
intestate
3(g) states intestate - a person who dies without a will
3(j) defines related - in context of illegitimate children who will be deemed to be related
to their mother and to one another (if the mother has more than one child)
Section 4 - deals with the overriding effect of the act upon the customs that previously
existed
4(a) - unless there is any saving clause, then any text, rule or interpretation of Hindu
Law or custom and usage will have no effect after passing of this act
4(b) - any other law in force that applies to Hindu’s shall not apply to Hindus if it is
inconsistent with the provisions of this act
There are certain properties which have been kept out of this act’s provisions. There
are certain agreements - according to section 5.
Section 5(ii) and (iii) - any property of the ex ruler shall not be governed by the HSA as
per the agreement entered into with the GOI. This happened due to the principle of
primogeniture which states that the eldest son would inherit the whole property (like
palaces and mansions). This was to protect the properties. In 5(ii) where it states
single heir then that is the eldest heir
Further, if any person has married under the provision of being a non hindu then that
property would be governed by Indian Succession Act (section 5(i))
Also, the Valimma Thampunan Estate would not be governed by this act as a
proclamation was made by the Raja of Cochin
The 2005 amendment was made in Section 6, which allowed for females to be
coparcenaries.
In the Act wen amended before 2005, section 6 said that this act would not apply to
people governed by the Mitakshara law where a hindu male member died, his interest
would be devolved as to the rule of survivorship
Further, there was a proviso clause which stated that provided that there was a female
relative under Class I or a male through a female relative (son of a female relative) then
it would not devolve by survivorship but by interstate or testamentary succession
The explanation for section 6(old) stated that (i) for the purpose of interest of a
deceased hindu coparcener, that interest would be counted by assuming that the
partition was asked for just before the death irrespective of the partition being asked
for. This is notional or hypothetical partition. Explanation (ii) states that if a person died
interstate, no person who has got his interest partitioned shall be eligible for that
interest to be devolved to him. For this, there are 11 female members under schedule
II.
Section 8 - 13 - Rules of Hindu Succession