Family Law case :-

Topic 1:-

Topic 1: Joint Hindu Family and Hindu Coparcenary

Commissioner of Income Tax, Bombay v.

GomedalliLakshminarayan
AIR 1935 Bom. 412:-

Issue:-
Whether, in the circumstances of the case, the income received by right of
survivorship by the sole surviving male member of a Hindu undivided family can
be taxed in the hands of such male member as his own individual income, or it
should be taxed as the income of a Hindu undivided family, for the purposes of
assessment to super-tax,

Facts:-
The joint Hindu family then consisted of the son, his mother and his wife and the
question raised by the Commissioner appears to me to admit the existence of a
joint Hindu
family. Of such existence,

I think there can be no question. It is clear law that you may have a
joint Hindu family consisting of one male member and female members who are
entitled to maintenance, although that does not mean that every Hindu who
possesses a wife and a mother is necessarily a member of a joint Hindu family
as Lord- Williams, J., seems to think in the Calcutta case referred to below. The
question raised is whether the assessee is to be assessed as an
individual or as a member of the joint Hindu family, and the importance of the
question lies in
this, that for the purposes of super-tax he will be allowed a large exemption if he
is taxed as the
manager of a joint Hindu family than if he is taxed as an individual.
The
nature of a Hindu undivided family was perfectly well-known to the legislature
when the Income-
tax Act was drafted, and it was well-known that the expression “Hindu undivided
family”
includes females and is much wider than the expression “coparcenary” which
includes only the
males in whom the joint family property is vested.
I see no ground for arriving at that conclusion, since the meaning of the two
expressions
was well-known when the Act was drafted, and the legislature has thought fit to
use the wider
expression rather than narrow one. I have no doubt that this was deliberate. The
more liberal
allowance to a joint family in respect of super-tax was presumably given because
the whole income of the family would not go to one individual. If there were a
large number of male members, each member would get only a small portion of
the income, and it would be hard to
charge the family with super-tax merely because the joint income was over the
limit at which
super-tax commences for an individual. But the same principle would apply,
though perhaps to a
less extent, to the case of a Hindu joint family consisting of one male member
and several female
members entitled to maintenance, where maintenance might absorb a large
share of the family
income.

Difference between HUF and coparcenars:-

In my opinion therefore the expression must be construed in the sense in which it

is understood under the Hindu law. Under the Hindu law, an undivided Hindu
family is composed of
(a) males and (b) females.

The males are

(1) those that are lineally connected in the male line;

(2) collaterals;
(3) relations by adoption; and (4) poor dependants.

The female members are

(1) the wife or the “widowed wife” of a male member and
(2) maiden daughters.

The commentaries mention female slaves and illegitimate sons also as being
members of an undivided Hindu family.

I shall content myself by referring to two well-known text-books.

Mayne in his work at p. 344 observes as follows:

The whole body of such a family, consisting of males and females… some of the
members of which are coparceners, that is, persons who on partition would be
entitled to demand a share while others are only entitled to maintenance.
accurate description of what a Hindu undivided family means is given
by Sir Dinshah Mulla in his Principles of Hindu Law [Edn. 7, at p. 230], in these
words;

A joint Hindu family consists of all persons lineally descended from a common
ancestor, and include their wives and unmarried daughters.
An undivided Hindu family in this sense differs from which is called a Hindu
coparcenary, which is a much narrower body. A Hindu coparcenary includes only
those male members who take by birth an interest in the coparcenary property.
This is what is known as apratibandhadaya
or unobstructed heritage, which devolves by survivorship. These are the
three generations next to
the last holder in unbroken male descent. The Crown contends that the assessee
was the sole surviving coparcener and therefore free to deal with the property in
any way he liked, and that being so, there was no undivided Hindu family. Now
under the Hindu law undoubtedly the sole
surviving coparcener has wider powers to deal with property which he takes by
survivorship. But
these powers are subject to well recognised rights of the female members of the
family. Thus 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 has a right to
maintenance and
residence and to marriage expenses. Similarly the disqualified heirs, as the blind,
the deaf etc.,
have similar rights. If the rights of these persons are threatened, or if the holder
of the estate is
dealing with the property in a manner inconsistent with or so as to endanger the
rights of these
persons, he may be restrained by a proper action from acting in that manner.
Similarly, the widow
of a deceased coparcener may adopt a son to her deceased husband and he
would therefore
become a coparcener with the sole surviving coparcener. Then the expenses of
religious ceremonies, such as the shraddha relating to deceased coparceners
have also to come out of the property. I need not refer to the other restrictions on
the power of the sole surviving coparcener.

Therefore because there is no coparcenary, it does not follow that there is no

undivided Hindu
family. The joint status of the family does not come to an end merely because for
the time being
there is only one member of the family who is in possession of the family
property.

It is clear therefore that there is a sharp distinction between what is understood in

the Hindu law
by the expressions “undivided Hindu family” and “coparcenary”. Now these two
expressions
which are known to every Hindu lawyer were before the legislature when the
Income-tax Act
came to be enacted. It is a canon of construction that one cannot impute
ignorance to legislature of well known legal expressions. The legislature must be
presumed to be acquainted with not only
the actual state of the law but with the legal interpretation put upon technical
expressions by the Courts. If then the legislature chose to adopt a wider
expression like “undivided Hindu family” the Courts have no option left but to
construe the wider expression in the way in which it has been construed and
understood under the Hindu law

, I think we should have to differ from the basis of that decision, and I see no
reason for so doing. I think therefore the first question submitted to us must be
answered by
saying that the income of the assessee should be taxed as the income of a Hindu
undivided family
for the purposes of super-tax under S. 55. The second question “whether, under
the circumstances
of the case, the assessment as levied in this case in the order” must be
answered in the negative.

Moro Vishvanath v. Ganesh Vithal

(1873) 57 Bom. H.C. Reports 444:-

Facts & Issue:-

The plaintiffs and defendants are descendants of one Udhav, the acquirer of the
property now in dispute between them.

The former are beyond and the latter within, the fourth degree from Udhav.

The plaintiff’s claim for partition was admitted by some of the defendants and
opposed by the rest, principally on three grounds, viz., Ist improper valuation of
the claim, 2ndly, limitation; and 3rdly, an averment that the parties have been in a
state of separation for fifty years
Observation:-

“A distribution of shares
shall take place down to the fourth (descendant) from the
common ancestor”. The special Sapinda, relationship ends with
the fourth descendant (inclusive) according to all the principal
authorities, and as a great-great-grandson could not inherit,
except as a Gotrajarelation after the
widow and many other interposed claimants, it is said that the
analogy of the law of inheritance prevents a lineal descendant,
beyond the great grandson, from claiming partition at the hands of
those who are legally in possession, as descendants from the
original sole owner of the family property or any part of it.

The Hindu law does not

contemplate a partition as absolutely necessary at any stage of
the descent from a common ancestor, yet the result of the
construction pressed on us would be to force the great-grandson,
in every case, to divide from his co-parceners, unless he desired
his own offspring to be left destitute.

Where two great grandsons lived together as a united family, the

son of each would
according to the Mitakshara law, acquire, by birth, a co-ownership
with his father in the ancestral estate; yet, if the argument is
sound, this co-ownership would pass altogether from the son of A
or of B, as either happened to die before the other. If a
co-parcencer should die, leaving no nearer descendant than a
great great grandson, then the latter would no doubt be excluded
at once from inheritance and from partition by any nearer heirs of
the deceased, as for instance brothers and their sons; but where
there has not been such an interval as to cause a break in the
course of lineal succession, neither has there been an
extinguishment of the right to a partition of the property in which
the deceased was a co-sharer in actual possession and
enjoyment.

The next question, however, whether, assuming them to be

undivided, the plaintiffs are
entitled to sue at all for partition, according to Hindu law, is one of
considerable importance and
difficulty. Learned and ingenious arguments, based upon various
original texts, have been
addressed to us by the able pleaders on both sides. The plaintiffs
and defendants are admittedly
descendants of one common aneestor, Uddhav. The defendants
are all fourth in descent from him.
The plaintiffs, however, are some fifth and others sixth in descent
from him; and hence, it is
urged, the latter cannot claim from the former any partition of
property descended from that
common ancestor.
It is argued for the appellants that, since the fifth and remoter
descendants are by the law of
inheritance, postponed to the fourth and nearer descendants,
(between whom and them, moreover,
other relations may intervene) the former are not co-parceners
with the latter and cannot, therefore, demand a partition from
them. In support of this contention are cite

A
|
|_. _. _. _. _
B. C D D¹
|. |. |
E F G
|. |. |
H. i
|
J

if A die, leaving B, a son E a grandson, G a great-

grandson, and J, a great-great-grandson, the intermediate
persons having all predeceased him, J,
who stands fifth in descent from A cannot demand a partition of
A’s property, because J had not vested in him by birth any interest
in such property .

A
|
B
|
C
|
D
|_____
 | |
E F

removed, of property originally descended from him. Take, for

instance, the case put [above]: A,
the original owner of the property in dispute, dies, leaving a son B
and a grandson C, both
members of an undivided family. B dies, leaving C and D, son and
grandson, respectively; and C
dies, leaving a son D and two grandsons by him, E and F. No
partition of the family property has taken place, and D, E, and F,
are living in a state of union. Can E and F compel D to make over
to
them their share of the ancestral property? According to the law
prevailing on this side of India they can, sons being equally
interested with their father in ancestral property.

In the same way, suppose B and C die, leaving A and D members

of an undivided family after which A dies whereupon the whole of
his property devolves upon D who thereafter has two
sons E and F. They, or either of them, can likewise sue their father
D for partition of the said property, it being ancestral.

The rule, then, which I deduce from the authorities on this subject
is not that a partition cannot be demanded by one more then four
degrees removed from the acquirer of original ownerof the
property sought to be divided but that it cannot be demanded by
one more than four degrees removed frrom the last owner
however remote he may be from the original owner thereof.
*****

Muhammad Husain Khan v. Babu Kishva Nandan Sahai

AIR 1937 PC 233:-

One Ganesh Prasad, a resident of Banda in the Province of Agra,

was
the proprietor of a large and valuable estate, including the village
in dispute. He died on 10th May 1914 leaving him surviving a son,
Bindeshri Prasad, who was thereupon recorded in the Revenue
Records as the proprietor of the estate left by his father.
In execution of a decree for money obtained by a creditor against
Bindheshri Prasad the village of KalinjarTirhati was sold by
auction on 20th November 1924; and the sale was confirmed on
25th January 1925. Bindeshri Prasad then brought the suit, which
has led to the
present appeal, claiming possession of the property on the
ground that the sale was vitiated by
fraud. He died on 25th December 1926 and in March 1927 his
widow, GiriBala, applied for the
substitution of her name as the plaintiff in the suit. She was
admittedly the sole heiress of her deceased husband, and this
application was accordingly granted. She also asked for leave to
amend the plaint on the ground that under a will made by her
father-in-law, Ganesh Prasad, on
5th April 1914 her husband got the estate only for his life, and that
on the latter’s death his life interest came to an end, and the
devise in her favour became operative, making her absolute
owner of the estate including the village in question. She
accordingly prayed that, even if the sale be held to be binding
upon her husband, it should be declared to be inoperative as
against her rights of ownership.
C.N. Arunachala Mudaliarv. C.A. Muruganathan Mudaliar 1954
SCR 243: AIR 1953 SC 495:-
Smt. Dipov.Wassan Singh
(1983) 3 SCC 376: AIR 1983 SC 846:-

Dipo sis claimed property of baua,

Commissioner of Wealth Tax v. Chander Sen

(1986) 3 SCC 567: AIR 1986 SC 1753:-
the operation of law.8

In Gaurav Sikri v Kaushalya Sikri (AIR 2008 Del 40),

the court quoted apex court's pronouncement in CWT v
Chander Sen and said that the heirs to a Hindu male include a
son and
son of a predeceased son and not son of a living son who is
an heir otherwise it would mean giving a right by birth to the
son in the father's property and also the grandfather's property.

(In Makhcm Singh v Kulwant Singh (AIR 2007 SC 1808),

the father had purchased eleven marlas of land and constructeda
building thereon from the savings as an employee of theRailways.
On the father's death, his four sons inherited thisproperty. The
question v/as: Is it the separate property of eachson or is the joint
family property qua their sons? The courtheld that the property
inherited by the sons would be theirseparate property and could
not be said to be the joint familyproperty.9])

M/s. Nopany Investments (P) Ltd v.Santokh Singh (HUF) 2007

(13) JT 448:-

In pdf Family law cases!!

Mrs. Sujata Sharma v. Shri Manu Gupta 226 (2016) DLT 647:-

Female as karta,

Topic 2 : Alienation of Joint Hindu Family Property:-

HunoomanPrasad Panday v.MussumatBabooeeMunraj

Koonweree(1854-1857) 6 Moore’s Ind. App. 393 (PC)

Widow Mortgaged estate of minor for paying debts of his

predecessors (arrears to the govt)

The mortgage is binding on son.

Sunil Kumar v. Ram Parkash(1988) 2 SCC 77:-

Coparcenary property alienated by karta was challenged by

coparcener and suit for permanent injunction was filled, was the
suit maintainable, no.
Remedies against Alienations :-

25.Although the power of disposition of joint family property has

been conceded to the Manager of joint Hindu family for the
reasons aforesaid, the law raises no presumption as to the validity
of his transactions. His acts could be questioned in the court of
law. The other members of the family have a right to have the
transaction declared void, if not justified. When an alienation is
challenged as being unjustified or illegal it would be for the
alienee to prove that there was legal necessity in fact or that he
made proper and bona fide enquiry as to the existence of such
necessity. It would be for the alienee to prove that he did all that
was reasonable to satisfy
himself as to the existence of such necessity. If the alienation is
found to be unjustified, then it would be declared void. Such
alienations would be void except to the extent of Manager’s share
in Madras, Bombay and Central Provinces. The purchaser could
get only the Manager’s share. But in other provinces, the
purchaser would not get even that much. The entire alienation
would be void. [Mayne’s Hindu Law, 11th Edn., para 396]

No doubt the law confers a right on the coparcener to challenge

the alienation
made by karta, but that right is not inclusive of the right to obstruct
alienation. For the right to obstruct alienation could not be
considered as incidental to the right to challenge the alienation.