University of Kashmir

School of Law

Mithakshara Joint Hindu Family.

Subject: Family Law II

Submitted to: Dr. Beauty Banday

Submitted by:

Name: Sakib Altaf

Enrollment no.19043122038
Course: LLB (2nd Semester).
Shift : Morning
Introduction

A joint family is an important aspect of Hindu Law. It is an institution where members of the
family own property in their name or Coparcener’s name. It started through a common male
ancestor and continued till perpetual by birth and death of a member in the family. The head of
the family who manages all the affairs of the Joint Hindu family is known as Karta. He has a
right to alienate property without asking from other coparceners if done in good faith. The
coparceners in the family had an interest in the property by birth, vest unity of possession and
community of interest, shares is specified and at any time asks for partition.

Mitakshara School is considered as one of the most important school. It owes its name from
‘Vijaneshwar Commentary’ on the ‘YajanvalkyaSmriti’ by name of Mitakshara. This school is
applicable throughout the territory of India except for Assam and Bengal. This school has wide
jurisdiction as where Dayabhaga School is silent, then it will prevail.

The main unit is coparcenary which basically consists of a man and the male descendants of the
next three generations in the direct line of descent. Here, all the male in each of the next three
generations irrespective of their numbers are the coparceners. The coparcenary unit is nothing
but an outgoing unit and it changes time to time with the changes in the family. And on the death
of the common ancestor fifth-generation steps into it. Non-coparcener member of a joint family
includes coparcener’s wives or widows, daughters until their marriage and even descendants of
any degree below the fourth generation at any given pint of time. They do have rights of
subsistence in the joint family but they are not co-owners with the coparceners.

One more basic mitakshara doctrine is that once a joint family comes into existence then it
remains generation after generation. It is not important to have the presence of a common
ancestor or more. It may happen that a single coparcener may be the sole surviving coparcener
and he may continue the joint family with its non-coparcener members also.
Concept of Joint Hindu Family:

The meaning of a joint family under the Oxford Dictionary is a continued family consists of two
or three generations and their spouses and children living together under a single household. To
constitute a Joint Hindu family, all the members should be Hindu and consists of a common
ancestor and male descendants with their mothers, wives, or widows and their unmarried
daughters. It is a continuous process as if upper members removed through death then lower
members are added through marriage or by birth.

In Mitakshara law, the son has a right over the property since birth whether it is a legitimate son
or illegitimate son. In earlier times, daughters do not become a member of her father’s joint
family after getting married but this situation has changed.

Widowed daughter or deserted by her husband can again become a member of her father’s
family but her children will always be a member of their father’s joint family. The member can
be added to the family through adoption and will be competent to equal rights and obligations
given to a natural-born child.

The Mitakshara School:

In the Mitakshara School, the allocation of parental property is based on the rule of possession
by birth. Moreover, a man can leave his property at his will. The joint family property goes to
the group known as coparceners. They are the people who belong to the next three generations.
Hence, the joint family property by partition can be, at any time, converted into a separate
property. Therefore, in Mitakshara School, sons have an exclusive right by birth in the joint
family property.
The Mitakshara concept of coparcenary is based on the notion of the son’s birthright in the joint
family property. Though every coparcenary must have a common ancestor to start with, it is not
to be supposed that every extant coparcenary is limited to four degrees from the common
ancestor.
When a member of a joint family is removed more than four degrees from the last holder, he
cannot demand a partition, and therefore he is not a coparcenary. 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, unless his father, grandfather and great-grandfather
had all predeceased the last holder.

Whenever a break of more than three degrees occurs between any holder of the property and the
person who claims to enter the coparcenary after his death the line ceases in that direction and
the survivorship is confined to those collaterals and descendants who are within the limit of four
degrees.

Coparcenary and their property:

The people who have a right by birth in the joint family property are called Coparceners. In the
ancestral property of a male, his son, grandson and great-grandson have a right by birth.
Text of Yajnavalkya says: “In land, corrode or wealth received from the grandfather, the
ownership of the father and son is equal”. This means that the son can enforce a partition in
ancestral property, that is, property descending to the father from his male ancestors. Such
property becomes coparcenary property in the hands of the sons.
That is, their sons, grandsons and great-grandsons can claim a share in it by birth. The share
obtained by enforcing a partition would also be coparcenary property. The self-acquired property
of the coparceners may be kept apart by them or maybe blended by them or maybe blended by
them with the coparcenary property.

Case Law:

In GowliBuddanna v. Commissioner of Income Tax Mysore, a family consisted of father, his

wife, his two unmarried daughters & his adopted son. After the death of the father, the question
arose thatwhether the sole male surviving coparcener of the Hindu joint family, his widowed
mother & sisters constituted a Hindu undivided family within the meaning of the Income-tax
Act.

In this case, it was held by the court that the property of a joint family does not cease to belong to
the family merely because the family is represented by a single coparcener who possesses rights
which an owner of the property may possess. The property which yielded the income originally
belonged to a Hindu undivided family.
The essence of a coparcenary under Mitakshara law is the unity of ownership. The ownership of
the coparcenary property is in the whole body of coparceners. According to the true notion of an
undivided family governed by Mitakshara law, no individual member of that family, whilst it
remains undivided, can predicate, of the joint and undivided property, that he, that particular
member, has a definite share.
His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable
to be diminished by births in the family. It is only on a partition that he becomes entitled to a
definite share. The most appropriate term to describe the interest of a coparcener in coparcenary
property is “undivided coparcenary interest”.

If a Mitakshara coparcener dies immediately on his death his interest devolves on the surviving
coparceners. The Supreme Court has summarized the position and observed that the coparcenary
property is held in collective ownership by all the coparceners in a quasi-corporate capacity.
The incidents of coparcenary are:
1. The lineal male descendants of a person up to the third generation, acquire on birth ownership
in the ancestral properties of such person
2. Such descendants can at any time work out their rights by asking for partition.
3. Till partition each member has got ownership extending over the entire property, conjointly
enjoyment of the properties is common
4. As a result of such co-ownership, the possession and enjoyment of the properties is common
5. No alienation of the property is possible unless it is for necessity, without the concurrence of
the coparceners
6. The interest of a deceased member passes on his death to the surviving coparceners.
Every coparcener and every other member of the joint family has a right to maintenance out of
the joint family property. The right of maintenance subsists through the life of the member so
long as family remains joint.
No female can be a coparcener under Mitakshara law, even the wife, though she is entitled to
maintenance.
Conclusion:

The Hindu Joint Family is presumed to be a joint through worship, food, and shelter. In Joint
Hindu Family it is presumed that they do not possess any property at all but in Hindu Undivided
Family is only connected with property matters.

The 2005 Amendment helped the daughters by making coparceners but the result is not fruitful
as now they face inequality. Social justice demands equality for women in the economic and
social sphere. The concept of the Notional Partition abolished the Doctrine of Survivorship and
helps the descendants to inherit property. For women property rights, society needs to be
educated with an awareness of law through educational institution and seminars.