GENERAL PRINCIPLES OF INHERITANCE AND DISQUALIFICATIONS

RELATION TO SUCCESSION UNDER HINDU LAW AND MUSLIM LAW

AN

TERM PAPER

SUBMITTED TO

THE UNIVERSITY INSTITUTE OF LAW

PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA

IN THE PARTIAL FULFILLMENT OF REQUIREMENT FOR THE

DEGREE OF

BACHELOR OF LAWS

2021-2022

SUPERVISED BY: SUBMITTED BY:

PROF. AMAN A. CHEEMA NITIN GARG (77/21)

 Asst. Professor of Laws

UNIVERSITY INSTITUTE OF LAW, PANJAB UNIVERSITY,

REGIONAL CENTRE, LUDHIANA

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Teacher, DR. AMAN

A.CHEEMA who gave me the golden opportunity to do this wonderful project of “FAMILY
LAW- GENERAL PRINCIPLES OF INHERITENCE AND DISQUALIFICATIONS
RELATING TO SUCCESSION UNDER HINDU LAW AND MUSLIM LAW” .

Who also helped me in completing my project .I came to know about so many new things I am
came to know about so many new things I am came to know about so many new things I am
really thankful to them.

Secondly I would like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.

I acknowledge with thanks the kind of patronage, loving inspiration and timely guidance, which
I have received from my Teacher DR. AMAN A.CHEEMA whose guidance, encouragement,
suggestion and very construction criticism have contributed immensely to the evolution of my
ideas on the project.
Signature of the Teacher Signature of the student
1. INTRODUCTION:

The paper commences with the introduction to the Hindu Joint Family. A Hindu Joint Family is a normal
condition of the Hindu society. It means that the society in which we live is generally surrounded by the Hindu
families, so unless and until we know that someone is a Muslim or a Christian, we presume them to be a Hindu,
or one of our own type or category .A Hindu joint family is a family whose family arrangement is extended and
which has enormous legal significances in India, especially. Simply, if I would just like to say a Hindu Joint
Family would best be described as, the lineal descendants and their dependants where, the former trace their
origin to one com-mon ancestor and specifically to a common male ancestor. The under lying essence of the
Joint family is the fact that it traces the origin of the individual back to that one common male ancestor that had
the intention to start a joint family. It has to be done, taking into considerations the addition and the deaths of
the members of the family and thus people of the joint family or a particular joint family can continue till
eternity. On one hand when we are talking so much about the joint family, we do not even know, even the name
of our forefathers. It's origin can be traced back to the ancient patriarchal system where the patriarch or the head
of the family was the unquestioned male ruler, laying down the various norms for the members of the family,
norms for the interpersonal communication and for the communication that took place outside the four walls of
the house. They also used to regulate the behavior of each and every member of the family, be it younger male
members or the female members of the family. Everyone had to adhere to the norms that the head of the family,
i.e. the patriarch male member. The norms that the patriarch laid down, or had prescribed had to be mandatorily
followed by the members of the family, failing which the patriarch would subject them to several punishments,
that would eventually teach them to follow the patriarchal norms. The members of the family had an unparallel
control over their lives and they lived like the puppet who used to move as per the guidelines of the headmaster.
At the root level was the general family welfare or promotion of family as a unit for which personal interests of
the family members could be sacrificed. This means that though altogether they were a family or in other words
they were called as a family together, the promotion of the whole unit of the family was important and
individual interests served as minor preference in the long run of the concept of the Hindu Joint Family. Under,
the Hindu law, therefore the joint family system came first in the historical order and the individual recognition
of the person from the family came later and thus individual recognition was not considered to be as important
as the family as a whole unit. The ancient system generally treated the property acquired by the members of the
family as family property and thus there was no concept of whom the property would be named after the death
of the main patriarch and ultimately who will become the next patriarch. The members of the family in the
ancient times had equal right to the property and the property was therefore a joint property and not the
individual property. It was only with the gradual transformation of the society and the recognition of the
members of the family on the individual basis and the independent recognition that they realised that they had
individual rights too and thus the concept of separate property arose thereafter and therefore the rules of
inheritance were developed. This dual property system though considerably diluted, has survived the lashes and
the waves of the time, the judicial and the legislative onslaught and the Hindu society still recognises the joint
family and the joint family property as unique entitles having no similar concept alive any-where. It is really
important to note that though a family is a single unit but it does not have a juristic value, which means that a
Joint Hindu Family does not have a separate legal identity and is not a juristic person. Though, the only
collective statutory recognition that has been bestowed upon a Joint Hindu Family is for the purposes of
taxation. Though the definition remains highly flexible. Its definition is subjective, so to define it in some
particular words would not justify the essence of the subject matter itself. There are different schools according
to the Hindu mythology. They are Mitakshara and Dayabhaga schools of law-qua the Hindu Joint Family set up.
Though both the schools talk or discuss about the same subject matter, they are different in their approach. They
look at the same argument in the two different ways. For instance, in the Hindu undivided family governed by
the Mitakshara Law, no individual or a single entity member of that family can predicate what amount of share,
he or she has in the joint family property .when we want to distinguish between the two respective schools of
thought, we must take into consideration certain aspects r field of knowledge which require dire attention. They
are the essentials as to what the two schools of law require or are essentials of the same.

Coparcenary for instance means partnership in inheritance, or in other words It means joint heir ship, or it can
also be known as the joint right of succession to an inheritance. Though a coparcenary may exist, yet till
partition takes place there cannot be a definite share for any of the coparceners. It is mainly because the eldest
member of the family or the

Karta is still alive and the partition has not been done yet. The concept basically states that, the property would
be devolved upon the death of the coparcener to his next survivor, irrespective of who is heir are. The Karta is
the eldest member of the family and is the coparcenary is the representative of the family. There is a difference
in the way a joint family comes into existence and supports each other. both of the concepts are different in the
Mitakshara and the Dayabhaga systems. Under the Dayabhaga school, it is on the death of the karta, the
succession is per stirpes; that each son has an equal and absolute share, i.e. each of the sons, have an equal share
and also they have an absolute right, i.e. that the sons have the right to sell, mortgage or even rent their share of
the inherited property. By absolute, one may note that none of the descandants of the heir inheriting have any
right over the property. In addition to this, if one of his heirs dies then, even his wife or unmarried daughter
have a share over his property which is not possible under the Mitakshara law. Another point that counts the
real distinction between the two is that a coparcener takes a fixed share once the Karta dies. In other words it's a
certain share. Thus, for example a person dies leaving behind the four sons, then each of them will have an
equal share, i.e. one fourth of the total property, will be the share of each son. Under the Mitakshara school of
Hindu Law, it may be said that there is a literal presumption of love and affection in the family, i.e. there is a
community interest in the family property. By community interest, it is meant that all the coparceners of the
property have an interest in the joint family property. Under the Dayabhaga school though, no matter what the
circumstances get, everyone or each and every coparcener will be having equal share of property. It is a
presumed notion that every coparcener will have equal share of property but only on the death of Karta. In the
Dayabhaga school of law, however there is no scope for inheriting any property because the property is
devolved only at the time of the death of the Karta or the head of the family. It is due to this concept that there
exists no coparcenary between the grandfather and the grandson under the Dayabhaga school of thought.

2. COMPOSITION OF A JOINT FAMILY:

Whether everyone who lives under the same roof, comprised of the joint family or any people out-side the
territorial boundaries of the house can also constitute itself to be a member of the Joint Hindu Family ?

According to the classical concept of the Hindu Joint Family, the Hindu Joint Family, consists of all the male
members descended lineally from the common male ancestor together with their mothers, wives and unmarried
daughters. Unmarried daughters cease to be a part of the Hindu Joint Family of the father once married. It is
because in a patriarchal society like ours when the daughter gets married, she goes to another family or the
family of her husband and when she does so, she is counted in the Hindu Joint Family of the husband's father. If
in any circumstances, she become a widow or is deserted by her husband and returns to her father's house
permanently, then she will be counted as a member of the Father's Joint Family. It is because she permanently
shifts back to her own original house where she previously lived, though in the Indian society her original house
is the one where she gets married, but legally she belongs to her parents and therefore, the original house where
she belongs is that off the father's. However, if the woman returns with her children, her children will not be
considered as the part of the Hindu Joint Family of the woman's father, instead they continue to be the members
of their father's joint family, whom they have left. A child, if in the womb of the mother returns back with the
mother, then he or she will be not be considered as the member of the Hindu Joint Family for taxation purposes
but is treated as in existence for certain purposes under the Hindu Law.

The members of a joint family are bound together by the fundamental principle of the sapinda relationship or
family relationship, which in fact serves as the purpose of great importance for another chain of important
institutions. The cord that knits the members of the family together are the congenial bond between them. The
love that each one of them shares worth each other and the whole family together, is the cors that connects them
and keeps them together. However, if we notice a new trend in the society, it is the property that binds the joint
families together. In the wake of materialism, greed and unrealistic goals, an individual has given up on the
morality, sanctity and the chastity of the relationships that exist among the members of the Hindu Joint Family.
The emerging trends focus upon certain aspects that the concept did not even initially foresee to be. People of a
Hindu Joint Family, remain a part of the family, so as in greed of the property that their father or forefathers
have. Despite, they becoming the heir of their own father and getting the share of their own, some people also
focus onto getting the siblings share of property as well. So, in the gruesome desire for the accomplishment of
unrealistically high standards of life, one falls to such a level of breaking down the sanctity of the familial
relationships.

In the Mitakshara school of thought, the joint family property is founded upon the existence of an undivided
family as a corporate body. There are certain essentials of the same. The first essential is the family unit and the
second requisite is the possession of some property which can be called as the family property. Without both of
the requisites, it is impossible to apply any of the schools of thought because if there will be no existence of the
family unit, the property then will not be a family property and if there will be no family property then it could
not be divided or inherited by any of the children. Such body, with its heritage , is purely a creature of law and
cannot be created by the acts of parties save in so far that by adoption a stranger may be affiliated as the
member of that corporate family. In the absence of any evidence to the contrary a uterine brother is a member of
the Hindu Joint Family in Nepal.
3. INCIDENTS OR CHARACTERISTICS OF A HINDU JOINT FAMILY

There are many incidents as far as the Hindu Joint Family is concerned. The characteristics of the Hindu Joint
Family can be jotted down in a number of ways. They are as follows

(1) A common male ancestor is necessary to bring the Hindu Joint Family inexistence but is not necessary for
its continuation. After the death off the common male ancestor the rest of the family will still continue to be a
Hindu Joint Family. the existence of the Hindu Joint Family does not wither away with the death of the
common male ancestor. for instance, in a family there is a grandfather, and there are many members after him to
look after the concept of Hindu Joint family, then after the death of the Grandfather, it does not mean that the
family that is remaining will not be a Hindu Joint Family, it is because it was the grandfather who made the
family as the Hindu Joint Family.

(2) A Hindu Joint Family is purely a creature of law. Thus means that, it cannot be created by the act of the
members or an agreement between the parties 1. It is something which is created with the intention of doing so.
Therefore, a stranger cannot be made a member of the Hindu Joint Family even by the agreement among all the
members. The only exception to that is the marriage and adoption. A female can be introduced in the family as
the member of the family by virtue of her marriage with one of the sons of the grandfather or in other words the
lineal male descendant of the family and the child, male or a female can be added to the family by birth or by a
valid adoption into the family. The day since the child arrives in the family, he becomes the part of the Hindu
Joint Family

(3) A Hindu Joint Family has no legal entity or a distinct identity from its members 2. This means that the joint
family is a single unit and is not a legal unit or does not have a legal identity as a unit and is not recognised as
some company or a corporate. It is a unit and is represented by the manager of the joint family who is called the
Karta , in all the family matters. It cannot sue or 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.

(4) A Hindu Joint Family is not a juristic personality capable of holding property as an entity separate from its
members. It is because the members of the Hindu Joint family are bound together by the congenial bond
between them and not the greed and want of the materialistic desires, though in the reality itis the vice versa that
prevails. Therefore, when it is said in relation to the joint family that it possesses joint family property or a
coparcenary property, it literally means that not only the family as a unit but also its members collectively own
the property. This is main reason why today people prefer joint families, so that they can get their share of
property and not because they want to live together with the people or the members of that family.

(5) The status of the Hindu Joint Family member can be lost by conversion to another faith. this means that if
the member of the Hindu joint family, converts his or her religion to any other religion apart from Hinduism,
then he or she de-bars herself or himself from being the member of the Hindu Joint Family and therefore, in its
consequence loses the right of the joint owner-ship of the property. Also if any member of the family marries a
non-Hindu, then also he or she loses the right to be called as a member of the Hindu joint family. This happens
in the case on being adopted by the competent parents, and for a daughter, on getting married.

(6) All the members in the Hindu Joint Family do not have equal rights in the family property. Coparceners
have an interest in the coparcenary property while females and male members other than coparceners or
disqualified coparceners have a right of maintenance and a right of residence in the joint family house
1
Mahabala Babu Kukyan v Rathi K Poojarthi, AIR 2019 (NOC) 649 (Kar)
2
Ram Kumar Ram Niwas Nanpura v CIT, AIR 1953 All 150
(7) The continuation of the joint family is not dependant on the presence of the male member in the family.

(8) Plurality of members is the necessary for constitution of or continuation of the joint family but plurality of
male members is not necessary for its continuation. the joint family does not end even with the death of the
male members as long as it is possible in the nature of the things to add a male member in the family.

(9) A Hindu Joint Family may continue in perpetuity until it ends. Even where a partition is effected this joint
family my break out but does not end as in its place two or more joint families come into existence

When we talk about the incidents of the Hindu Joint family, there is an implied presumption of jointness , which
means that we automatically presume that there exists certain amount of joint or in other words coherent feeling
and the bond of togetherness in the members of the family. The general principle is that every Hindu family is
presumed to be a joint Hindu family, and continues to be joint unless contrary is proved. The Hindu joint family
is presumed to be joint in food, worship and estate. But that does not necessarily mean that they must have a
common kitchen, a joint place of worship or that they should worship at all. However, if they do have a
common kitchen, it is presumed to be a joint one, unless and until it is provided to the knowledge of the person
doing the survey or collecting the information. It is also possible that the members of the joint family are just
living together for the sake of it and they do not have any interest in the other members of the family, i.e. they
do not have any coherent feelings towards each other and are just there for their own vested interests and the
share of the inherited property that they are going to get at a later stage in life. Also , it is possible that any
member of the family has to move out of the house for career prospects or for the sake of the job and their
reasons but that solely does not remove him/her from the right of inheritance that they have in the joint family
property.

They will still be entitled to their own share of the property of the Hindu Joint Family Property .In the case of
the Commissioner of Income Tax v. Gomedalli Lakshminarayan,AIR 1935 Bom 412 , a Hindi Joint Family
consisted of the father, his wife, his son, and the son's wife. Upon the death of the father, the question before the
Income tax commissioner was whether the joint family can continue even when there was only male member
i.e. the son in this case and whether he is to be assessed as an individual or as the Karta of the joint family of
which he was a member. The importance of this question lay in the fact that for the purposes of super tax he
would be allowed a large exemption if he was taxed as the manager of a Hindu family than if he is taxed as an
individual.

4. PRESUMPTION OF JOINTNESS

Commissioner of Income Tax v. Gomedalli Lakshminaryan

A Hindu joint family consisted of the father, his wife, his son and the son’s wife. Upon the death of the father,
whether the joint family can continue even when there was only one male member i.e. the son in this case and
whether he is assessed as an individual or the Karta of the joint family of which he is the member.

The court held that he was to be assessed as the Karta of the Hindu undivided family. The fact that for the
purpose of tax he would be allowed exemption if he was taxed as the manager of a joint Hindu family than if he
is taxed as an individual.

The strength of presumption necessarily varies in each case3. The presumption is peculiarly strong in the case of
father and sons, sons of one father 4 and also in the case of brothers than in case of cousins. Where an estate was
originally ancestral belonging to a joint family, the presumption of law is that a family once joint retains that
status and this presumption can only be rebuted by evidence of partition or acts of separation.

So, till some positive action is taken to effect partition of a joint family property, it would remain joint family
property. It is also settled that there is no presumption that when one member separates from others, the latter
remain united and whether the latter remain united or not must be decided on the basis of the facts of each case.

5. Position when there is only One Male Member

A single male or female member cannot constitute a joint Hindu family individually even if the assets in their
hands are purely ancestral5. Presence of male member is an essential requisite to start a joint Hindu family, but
there is not necessity that there should be atleast two male members to form a Hindu undivided family. On the
death of the father, the family comprising the son, his wife and his mother would maintain the same status i.e. a
single man with female members of the joint family can constitute a joint Hindu family6.

One basic argument against the holding that a single male member can form a joint family is that his authority
over the property in his hands whether separate or ancestral is absolute.

He can dispose it of in any manner he likes i.e. he can treat property as an individual for the purpose of income
tax. To that Justice Rangnekar said in CIT v Lakshmi Narayan that the widow of a deceased coparcener has
a right to be maintained out of the family property and a right to a due provision for her residence. An
unmarried daughter had a right to maintenance and to marriage expenses. Similarly the disqualified heirs such
as unsound mind have similar rights. If the rights of these persons are threatened, the holder may be restrained
by a proper action from acting in that manner.

3
Mathuri Bewa v Prafulla Routray, AIR 2003 Ori 156
4
State v Babulal, AIR 1957 Raj 28 (DB)
5
Gowli Buddanna v CIT,AIR 1966 SC 1523
6
CIT v Gomedalli Laxminarayan, AIR 1935 Bom 412
The absence of an antecedent history of jointness between a Hindu man and his ancestors is no impediment to
his forming a joint Hindu family with his wife and unmarried daughter or with other females in the family.

6. Continuation of a Joint Family at the Instance of only Female Members

The term “continuation” suggests the existence of a joint family in the past and the maintenance of the same
status in the present. It is different from starting or forming a joint family for the first time and therefore the
conditions for maintaining the same status are different from initiation or starting of the family. On the death of
the sole member of a Hindu to be members of an undivided family, females who were earlier members of the
Hindu joint family are allowed to continue with that status.

The test laid down is the potentiality of the widows to bring a male member to the family into existence either
by nature or by law7.

In Attorney General of Ceylon v. AR Arunachalam Chettiar 8, a father and his son constituted a joint family
governed by the Mitakshara school of Hindu law. They were domiciled in India. The undivided son died in
1934 and the father became the sole surviving coparcener in the Hindu undivided family to which a number of
female members belonged. The father died in 1938. It was held that the deceased at his death was a member of
Hindu undivided family, the same undivided family of which his son, when alive was a member and of which
the continuity was preserved after the father’s death through adoption by the widows of the family.

All these cases involved a situation where the joint family was in existence and had one or more male members
in the family. The status of this family was determined when the male members died and only females were left.
In these cases, courts held that a joint family did not end if the females had the capability to add a male member
in the family.

7. Continuation of Joint Family at the Instance of Only Daughters

Under the law as it stood before 1956, a daughter did not have the capability to add a male member to her
father’s joint family. Therefore, when only a daughter was left in the family, the joint family of the family of the
father ended. The reason was that the daughter could give birth to a legitimate offspring only after her marriage
and the moment she got married, she ceased to be a member of her father’s family and her child would be a
member of her husband’s joint family and not her father’s family. After 1956 with the permissibility of adoption
of a child, male or female 9 to a single woman including an unmarried daughter, a daughter can have a legitimate
son without getting married and while remaining a member of the father’s joint family. The Hindu Adoptions
7
Ashok Kumar Ratanchand v CIT, (1990) 186 ITR 475
8
Attorney General of Ceylon v AR Arunachalam Chettiar, (1957) 34 ITR Supp 42
9
Hindu Adoption and Maintenance Act, 1956, section 14(4)
and Maintenance Act, 1956 has granted an unmarried female the ability to carry on her father’s joint family by
adding a male member to the family.

After the amendment of the Hindu Succession Act, 1956 in 2005, a daughter now is coparcener and can not
only continue a joint family, but also form one with her father and brothers.

8. Position when there are only Husband and Wife

The Supreme Court held in Srinivasan CIT10 that a Hindu undivided family comes into existence only on the
birth of a son. The case involved a situation where on the partition of the bigger joint family, the son obtained
his share. He filed his returns as an individual until he got married. His status was to be determined when the
wife was pregnant. It was held by the court that until the birth of the son, he did not form a joint family and
could be assessed only as an individual .The Madhya Pradesh High Court in CIT v Vishnukumar Bhaiya 11 , the
court held that when the property was received by the assessce on partition, he was a single member and did not
constitute a Hindu undivided family. His status was that of an individual.

The Rajasthan High Court has also held that a husband and wife alone cannot form a Hindu undivided family as
a wife cannot create a charge on the husband's property." In Seth Tulsidas Bolumal v CIT , the court repelled
that contention and held that the portion of the converted asset which fell to the share of the assessee after
partition was his individual property, notwithanding the fact that the Karta and his wife formed a Hindu
undivided family.

The Patna and Allahabad High Courts and the Gujarat High Court have also held that a husband and a wife can
form a joint family all by themselves, as every Hindu family is joint until contrary is proved. Where a
coparcener obtains property on partition and then subsequently marries, the status of the property that he holds
is either ancestral or joint family property. According to the Karnataka High Court, in such situation, the
property in the hands of such a person will be joint family property because if he get a wife, he will be under an
obligation to maintain her and if he later begets a son, the character of the property will again be termed as Joint
family property. If he later begets only daughters, the obligation of maintaining them will be fastened on the
property.

In other words, the character of the family may differ from the character of the property it may possess. The
family may be a joint family but the property that the head of the family possesses may be his separate property.
Therefore, what the court wild was not that a Hindu male with his wife cannot constitute a joint family but that

10
TS Srinivasan v CIT (1966) 60 ITR 36(SC)
11
CIT v Vishnukumar Bhaiya, (1983) 142 ITR 357
with respect to his separate property he must be assessed as an individual. There can therefore be a joint family
comprising a man and his wife

9. Formation of a Joint Hindu Family by Women Alone

On the death of the last male member in the family, the status of joint family does not end and the females so
long as they have the capability to add a male member to the family continue as the members of the joint
family.

On the question of the feasibility of a Hindu undivided family comprising only females, the apex court
answered in the negative 12and held that the concept of a Hindu undivided family formed by females only by
agreement was alien to Hindu personal law. In the case in hand, the widow and two daughters of a Hindu male
governed by Dayabhaga law, inherited his properties and the mother blended her share of the inheritance into
the joint family kitty of such an undivided family that they claimed to form.

If the money is spent for the maintenance of a joint family member, that can be shown as an expense of the joint
family. This is why under the Hindu law a mother and a daughter will not constitute a joint family and the
mother cannot be Karta of the joint Hindu family, yet for the purposes of income tax she can be assessed as the
head/imanager of the Hindu undivided family 13. Similarly, the courts have held that a joint family can exist
when there are only widows or a widow and an unmarried daughter ,so long as the property which was
originally of the Hindu joint family remains in the hands of the widows of the member of the family and is not
divided among them. As aforesaid, a Hindu joint family cannot be finally brought to an end if it is possible to
add a male member by a female by way of giving birth to a male child or through adoption."

10. HINDU UNDIVIDED FAMILY AND HINDU JOINT FAMILY

The Hindu Undivided Family is the term which has been used in all the revenue statutes. This appears to be
slightly different from the term The Hindu Joint Family or the Joint Hindu Family, under the Hindu law. So, we
can infer from this statement that there is only a slight and not a major difference in these terms. So, now we
need to look at that slight difference about which it has been talked about .Section 2(9) of the Indian Income
Tax Act, 1922 defines a 'person' to include interalia, a 'Hindu Undivided Family'. A Hindu undivided family is
taxable unit for the purposes of the purpose of income tax and super tax. The expression 'Hindu Undivided
Family' finds the reference in various provisions of the act but this expression is not defined in the act. The

12
CIT v Sandhya Rani Dutta, JT 2001(3) SC 163
13
Rukmini Bai Rathor v Commissioner of Wealth Tax, AIR 1964 ORI 274 (DB)
reason for the omission according to the Supreme Court is that the expression has a well known connotation
under the Hindu Law14 and being aware of it, the legislature did not want to define the expression separately in
the act. Therefore, the expression 'Hindu Undivided Family' must be construed in the sense in which it is
understood under the Hindu law. The Supreme Court has said that there is nothing in the scheme of the wealth
tax act also to suggest that it is different from the joint Hindu family and therefore a joint Hindu family and
undivided family are synonymous terms. How-ever in a recent decision the Rajasthan High Court made an
interesting observation:

"There is no such thing as the Hindu Undivided Family's property. In fact the subject index of the Mulla's Hindu
Law which deals with nearly every matter discussed in the book does not refer to any such thing as the Hindu
Undivided Family much less property belonging to such family .

"In the light of the Supreme Court's observation that both of the terms are synonymous, there are some basic
differences between the two. They are appended below :-

(i) One of the basic difference between the two terms is that every Hindu familyis presumed to be a joint
family until the contrary is provided. Whereas onthe other hand there is no such assumption in the
taxation laws for the Hindu family, where this stands as the main point of contention.

(ii) Under the Hindu law though there is a presumption that every Hindu family is a joint family, there is no
presumption that every Hindu joint family has a joint property too. Therefore, under the Mitakshara
school of thought there can be a Hindu Joint Family without the joint property. However, the concept of
the Hindu undivided family under the revenue laws is linked only with the property. Therefore, the
concept of the Hindu undivided Family is pointless when the Hindu Joint family does not have a joint
property

(iii) Under the Hindu Law, a son in the womb of the mother is treated equally as the son in the existence. He
can also restrict the rights of the sole survivor as the property gets two owners and which means the
right of the first son gets limited to only his share of the property. However, this is not taken into
cognisance until and unless the second child is born.

(iv) The Hindu Joint Family is used in the context of the Hindu Law whereas the Hindu Undivided family is
the term used in the context of the taxation laws or the revenue laws. The purpose of the difference lies
in the fact that the Hindu Joint family is taxed as a super tax under the revenue laws under the term
Hindu Undivided Family.

14
CIT v Arun Jhunjhunwalla, (1997) 223 ITR 45 (Gau); CIT v Gomedalli Lakshminarayan, AIR 1935 Bom 412; 8 ITC 239; 3 ITR 367, 369-370
(v) These differences in approach have created a distinction between the Hindu joint family under the
Hindu Law and a Hindu Undivided family for the taxation purposes. This is the reason why under
Hindu Law there cannot be a joint family consisting only of a mother and a daughter and the mother
will not be a Karta of this Hindu family; yet for the purpose of the income tax she can be assessed as the
head/manager of the Hindu Undivided family15

11. RIGHTS OF MEMBERS OF THE HINDU JOINT FAMILY

The members of the Hindu joint family are entitled to certain rights when it comes to their share or property or
their existence in the house or any such matter. The rights are appended below :-

1. All members of the Hindu joint family, do not have equal rights

2. The interest in the coparcenary property is with the coparceners, including the right to demand its
partition and the right to challenge its unauthorized alienation made by the Karta.

3. All other female members including the widows of the deceased coparceners, male members beyond
the four generations, disqualified coparceners and illegitimate sons of the lineal male descendants, have
a right of maintenance out of the joint family funds and a right of residence in the joint family home.

4. The right of residence cannot be enforced as it depends upon the individual preference and the
circumstances of the individual. Also, that the right of residence cannot be enforced upon an individual
even if the individual has been proved to be a nuisance to the family members. If at all there is a case
when an individual is proved to be a nuisance to the other family member then the Karta can hand him
his share and throw him out of the family.

5. Unmarried daughters in the family also have the right to be married out of the joint family funds16.

12. LEGISLATIVE MEASURES

One of the basic incidents of the concept of joint family is the existence of joint as well as the separate property
in the family. In a joint family property, the son has alright by birth while the daughter though a member of the
family till her marriage ,was not a coparcener and had no interest in the coparcenary property. At the time of
discussion on the Hindu Succession Bill in the parliament in 1954-55, several parliamentarians recommended
its abolition as it is treated women unfavourably , but a considerable majority favoured its retention in the name
of the symbolizing the essence of the Hindu religion. In order to give better rights to women in the joint family
property without abolishing it, the concept of partition was introduced in the Hindu succession Act but the result
was unequal treatment to women. In the light of the constitutional mandate of gender parity, these property
15
Sushila Devi Rampuria v Income Tax Officer, AIR 1959 Cal 697
16
With respect to the rights of Karta and coparceners
related provisions stood out as discriminatory and to remove that, two options were available with the
legislature. First, to abolish the joint family and separate property distinction by abolishing the very concept of
the joint family system and the other to make the daughter the same coprcener as that of the son with the right
by birth in the coparcenary property. The Kerala legislature opted for the former and passed the Kerala Joint
Hindu Family (Abolition) Act in 1975. the enactment was equally applicable to the matriarchal families and
also to patriarchal families governed by the Mitakshara law

13. Who can be a Karta?

Senior most Male Member

The senior most male member is entitled to become a Karta and it is his right. Karta is always from the
members of the family; no outsiders or stranger can become a Karta. If the senior most male member of the
family is alive then he will continue as Karta, if he dies then the second senior most member of the family will
take the charge of Karta. Karta takes his position by consent or agreement of all the coparceners.

Junior Male Member

If the coparceners agree, then a junior can also become a Karta of the family. By making the agreement with the
coparceners, a junior male member can be a Karta of the family.

Female Member as Karta

According to Dharmastra, if there is an absence of the male member in a family then in that situation female can
act as a Karta17. If in case male members are present but they are minors, at that time also, females can act as a
Karta.

Characteristics of Karta

The characteristics of a Karta are:

 Karta’s position is unique (sui generis). His position is independent and no one can be compared with
him among the family members.

 He had unlimited power but even if he acts on behalf of other members, he can’t be treated as a partner
or agent18.

 He controls all the affairs of the family and has wide powers.
17
Sahdeo Singh v Ramchabila Singh, AIR 1978 Pat 258
18
Kandasami Asari v Somaskanda, (1912) ILR 35 Mad 177
  He is responsible to no one. The only exception to this rule is, in case of fraud, misappropriation or
conversion, he is held responsible.

 He is not bound to invest, save or economics. He has the power to use the resources as he likes, unless
he is not responsible for the above mentioned charges.

 He is not bound to divide the income generated from the joint property equally among the family
members. He can discriminate one with another and is not bound to be impartial. The only thing is he
should pay everyone so that they can avail some basic necessities like food, clothing, education, shelter
etc.

Powers of a Karta

The powers of Karta are:

Powers of Management

Karta’s power of management is absolute 19. No one can question the duties of the Karta like, he can manage or
mismanage the property, family, business any way he likes. Karta cannot deny the maintenance and occupation
of property to any member. Karta is not liable for the positive failures.

Rights to Income or Remuneration and Expenditure

The income of the Joint Hindu family property in a whole must be given to the Karta. Then it is the
responsibility of the Karta to allot the funds to the members for fulfilment of their needs. Karta controls the
expenditure of the funds. The scope of his power is only to spend such funds on family purposes like
management, maintenance, marriage, education etc.

Rights to Represent Joint Family

The Karta represents the family in legal, religious and social matters. The acts and decisions of the Karta are
binding on the members. Karta can enter into any transaction on behalf of the family.

Right to Compromise

Karta has the power to compromise the disputes relating to management or family property. He can
compromise family debts, pending suits and other transactions. The compromises made by the Karta, can be
challenged in court by heirs only on the ground of malafide.

Power to refer a Dispute to Arbitration

19
Bhaskaran v Bhaskaran,(1908) ILR 31 Mad 318
Karta can refer the disputes relating to management, family property to the arbitration. If the award by the
arbitration is valid then it will be binding on the members of the joint family.

Power to Contract Debts

The Karta exercises an implied authority to contract debts and pledge the credits and property of the family.
Such acts are bound to be followed by the members of the family. Even, Karta when taking a loan for the family
purpose or for family businesses then joint family is liable to pay such a loan.

Power to enter into Contracts

The Karta can enter into contracts and where contracts are enforceable against the family. The contracts are
binding on the members of the joint family.

Power of Alienation

No one among the family members can alienate joint family property. But Karta has the power to alienate the
property under three circumstances.

1. Legal Necessity

2. Benefit of estate

3. Indispensable duties

Legal Necessity

This term has not expressly defined in any judgement or in any law. It includes all the things which are deemed
necessary for the members of the family.

Dev Kishan Vs. Ram Kishan AIR 2002

In this case, the plaintiff filed a suit against the defendant. Both plaintiff and defendant are members of the Joint
Hindu Family. Defendant 2 is the Karta, who is under the influence of Defendant 1, sold and mortgaged the
property for an illegal and immoral purpose which is for the marriage of minor daughters Vimla and Pushpa.
The defendant contended that he took the loan for the legal necessity.

The court held that the debt was used for the unlawful purpose. Since it contravened the Child Marriage
Restraint Act, 1929, therefore, it can be called as lawful alienation.

Liabilities of a Karta
  Liability to maintain- Karta is to maintain all the members of the Joint Family. If he does not maintain
any member then he can be sued for maintenance and also can be asked for compensation.

 Liability of render accounts- As far as the family remains joint, Karta is not supposed to keep
accounts20 of the family, but when partition takes place at that time he will be liable to account for
family property. If any of the heir is not satisfied with his accounts, then he can constitute a suit against
Karta to bring the truth and to know any misappropriation is done by Karta or not.

 Liability of recovery debts due to the Family- He has the liability to realize the debts due to the
family.

 Liability to spend reasonably- He has the liability to spend the joint family funds only for the family
purposes.

 Liability not to eliminate coparcenary property- It is the liability of the Karta not to alienate the
coparcenary property without any legal necessity or benefit to the state.

 Liability not to start new Business- It is the liability of the Karta not to start a new business without
the consent of other coparceners.

Responsibilities of Karta 

The duty of a Karta is to provide clothing, food, shelter etc, to the members of the joint family. There are
several responsibilities of Karta which include:

Maintenance

Every member of the family including Karta has the right to maintenance. The Responsibility of Karta is to
maintain all the members of the family. If he does not maintain any member properly, then he can be sued for
both maintenance and dues of maintenance. 

Marriage

The Karta is responsible for the unmarried members especially the daughters. The expenses for the marriage
will be taken out of the Joint Family property21.

Representation

20
Girija Nandini Devi v Brijendra Narain Choudhary, AIR 1967 SC 1124
21
Lalitha Kumari v Rajah of Vizianagram, AIR 1954 Mad 19
Karta acts as a representative on behalf of the family. This is because he must perform some responsibilities and
liabilities on account of the family. He must pay all the dues and the taxes. He can be sued on behalf of the
family during any agreement or dealings.

Joint Family Property?

Whenever the head male member of a family purchases a property with the use of money which he got by
selling something which is jointly owned by every coparcener then that purchased property becomes joint
family property.

It will be classified as to be owned by the joint family. The law which helps to blend separate property from the
jointly owned property is well settled.

All that needs to be assured is that the person in the family who is acquiring that property needs to specify that
he is giving up his property voluntarily and thus it would be blended into the joint family property.

There exist judicial pronouncements relating to the rule that wherever the jointly owned property would be
severed then if the coparcener who has once given up his self acquired property and he later realised that he is
given very less portion cannot make any claim on the self-acquired portion.

Doctrine of blending

This doctrine has been explained in one of the case laws “Mallesappa Bandeppa Desai and another vs. Desai
Mallappa and Others”

It was held in this case that the property when once blended with the joint family property can never be claimed
back when the joint family property is severed. And this is known as the doctrine of blending.

There exist well-known principles of Hindu family that all the Hindu families are together in sharing food,
worship idols and estate acquire in the absence of any proof that the property is divided and this presumption
continues to exist and will continue in the future as well. The burden to prove that there exist self-acquired
properties in the current ancestral property lies on the person who acquired that property and never claimed a
right over that property.

According to the judgement made by Bombay high court, a property which is acquired by joint labour of
member without using any of joint family funds will also be counted as joint family property if no reverse
intention is shown.
In one of the case laws “Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe”, the honourable Supreme
Court gave the judgement that the nature of a joint family property never changes even after it is severed. It will
remain a joint family property as long as the family remains joint. No member of a joint family can convert any
of the joint family property into his personal property.

SELF ACQUIRED PROPERTY OR SEPARATE PROPERTY

Any property which is not a part of joint family property is a self-acquired property. This word separate here
suggest that the property was once a joint family property but now has been severed and is now separate. Thus
this property would be considered as a separate property in relation to the brother of the person who holds that
property and still joint family property in terms of his sons. This also means that no other person has any self-
interest in the property.

The property acquired by any of the following mentioned manners can be classified as a separate property:

1. The property which person acquired by his own efforts and no other family member helps him. It is not a
result of joint family efforts and hence it is not a part of joint family property. When the property is in
possession of a property for more than 12 years.

2. Property acquired by a person other than his father, grandfather or great grandfather would be termed as his
own and not anyone’s.

3. Any property acquired by a Hindu after the partition of joint property is severed would be classified as his
own property.

4. Any property which is devolved to a sole coparcener will be a self-made property as there exists no other
coparcener.

5. Property which is obtained by a person as a gift from his father, or grandfather or great grandfather will also
be counted as separate property.

6. Property obtained by a Hindu as a grant of government will be termed as a property which has not been
borrowed from ancestors.

7. When a joint family is lost and is again gained by a person of the family without the help of any family funds
will be classified as a type of property which he has earned on his own.